Collins v. AAA Homebuilders, Inc.

• Decision Date: 27 March 1985
• Docket Number: No. CC940,CC940
• Citation: 175 W.Va. 427,333 S.E.2d 792
• Parties: John COLLINS and Donna Collins v. AAA HOMEBUILDERS, INC., AAA SDP8 Branchlands Apartments, Ltd. and Violet Midkiff, Mgr.
• Court: West Virginia Supreme Court

Page 792

333 S.E.2d 792

175 W.Va. 427

John COLLINS and Donna Collins v. AAA HOMEBUILDERS, INC., AAA SDP8 Branchlands Apartments Ltd. and Violet Midkiff, Mgr.

No. CC940.

Supreme Court of Appeals of West Virginia.

March 27, 1985.

Dissenting Opinion Aug. 7, 1985.

Syllabus by the Court

1. In screening applicants for apartments, a private landlord may consider all factors, including criminal convictions, which may affect the health, safety or welfare of other tenants.

2. Where the legislature has made a comprehensive statement of classifications offensive to public policy, this Court will not add to the statute by creating a cause of action in favor of an additional class.

3. A plaintiff with a criminal record who alleges that he has been refused tenancy on that basis in violation of the public policy of the State of West Virginia does not state a cause of action.

Daniel F. Hedges, Charleston, for plaintiffs.

William D. Levine, Marshall & St. Clair, Huntington, for defendants.

BROTHERTON, Justice:

This case is before us on two certified questions from the Circuit Court of Lincoln County:

(1) Whether the refusal of a realtor/landlord to contract with a tenant or the tenant's family on the basis of a prior criminal conviction of a tenant or family member of a tenant is in violation of the public policy of the State of West Virginia and therefore illegal; and whether a cause of action is stated therefor?;

and

(2) If a cause of action is so stated, what is the measure of damages?

In October, 1983, the plaintiffs, John and Donna Collins, applied for an apartment in a housing project in Branchlands, Lincoln County, which is operated by the defendants. John Collins had a prior criminal conviction, and was on probation at that time. In November, the defendants rejected the application by letter stating, "We do not knowingly admit any persons with criminal records to our apartments, and therefore are rejecting your application."

The plaintiffs filed suit in the Circuit Court of Lincoln County, seeking injunctive relief, as well as actual and punitive damages. The defendants moved to dismiss the complaint for failure to state a cause of action. The trial court denied the motion and certified to this Court the questions quoted above, in accordance with W.Va.Code § 58-5-2 (Supp.1984).

The plaintiffs, in a voluminous review of contemporary thought on the subject of rehabilitating the ex-offender, urge this Court to find as a matter of law that a landlord cannot categorically exclude a prospective tenant because of a prior criminal conviction. Their position is based on the public policies of providing housing to the citizens of this State and of rehabilitating ex-convicts. The defendants counter that the legislature is better suited than the courts to create new legal rights based on public policy, and that the rule asserted by plaintiffs would infringe the constitutional rights of landlords to deal with their property.

We hold in favor of the defendants, based on our conclusions that a private landlord may consider all factors, including criminal convictions, which may affect the health, safety, or welfare of other tenants, and that the legislature has made a comprehensive statement of public policy in this area. Because the petitioner has not stated a cause of action, we do not address the issue of damages. ¹

I.

We begin with the proposition that a private landlord, like any property owner, has a basically unrestricted right to deal with his property as he chooses. He may improve it, ignore it, sell it, destroy it, or, in general, rent it to whomever he pleases. His rights are protected by the due process clauses of the federal ² and state ³ constitutions. In choosing his tenants, a landlord has a legitimate interest in protecting his property, and an interest in protecting the health, safety, and welfare of his other tenants. ⁴ He may consider any criteria, but especially criteria relevant to these ends.

His discretion is subject, of course, to constitutional and statutory limits. The plaintiffs do not urge such limits, however. Instead, they assert that this Court should create a new legal right in favor of convicted criminals, contending that there are certain criteria, including prior convictions, that are so offensive to public policy that a landlord may not use them as a basis for rejecting a prospective tenant.

The legislative branch of government has the primary responsibility for translating public policy into law. See, e.g., Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781, 785-86 (1981). This is appropriate because the members of the legislature are elected representatives of "the public," and thus have the unique ability to collectively discern public opinion and formulate statements thereof. The legislature in fact has considered the criteria employed by landlords in selecting their tenants, and found certain criteria impermissible: "race, religion, color, national origin, ancestry, sex, blindness and handicap." ⁵ Refusal to rent for any of these reasons gives rise to a statutory cause of action in favor of the rejected applicant. This list does not, however, include criminal convictions, and the rule of construction expressed by the Latin, inclusio unius est exclusio alterius (the certain designation of one precludes the implication of another) leads us to the conclusion that the legislature did not intend to include any additional categories. Where, as here, the legislature has made what appears to be a comprehensive statement regarding classifications offensive to public policy, this Court will not add to that list in the absence of constitutional mandate. ⁶ Accordingly, we answer the first certified question in the negative, i.e., the refusal of a landlord to contract with an applicant because of a prior criminal conviction is not illegal as against the public policy of this State.

Although we sympathize with a truly rehabilitated ex-offender who is refused housing on account of his record, the creation of a new cause of action in favor of ex-convicts is neither a proper exercise of the judicial function nor an appropriate mechanism for achieving the goals of rehabilitation and provision of housing. The language of the United States Supreme Court in Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36, 50-51 (1972), seems particularly apt:

We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality,.... Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions. Nor should we forget that the Constitution expressly protects against confiscation of private property or the income therefrom.

The ruling of the circuit court upon the question certified is reversed, and this action is remanded to that court for disposition in accordance with this opinion.

Certified question answered; case remanded for disposition.

MILLER, Chief Justice, dissenting:

Unfortunately, the majority has misconstrued the nature of the certified question by casting the case as one involving a private landlord. The certified question speaks of the "realtor/landlord," but included in the certified question is the stipulated fact that "the plaintiff and his family applied for tenancy in the federally subsidized housing project at Branchland, Lincoln County, operated by the defendants." (Emphasis added). Thus, the housing project in question is federally subsidized and the plaintiff's brief states that the federal subsidy was authorized by the Department of Housing and Urban Development under Section 8 of the United States Housing Act of 1937, as amended, 42 U.S.C. § 1437f (1982). This "Section 8 New Construction Program" is administered locally by a Public Housing Authority. The defendant does not dispute these facts.

Under the Section 8 program, landlords receive low-interest federal loans and other benefits in return for their agreement to reserve some units for low-income tenants. The local Public Housing Authority pays the landlord the difference between rents paid by the tenant and the maximum approved contract rents for the units. See generally 42 U.S.C.A. § 1437f (1978 & [175 W.Va. 430] Supp.1985); 24 C.F.R. § 880.101-.612 (1984).

Unlike the typical government contract whereby a private entity agrees to provide goods or services to the government, apartment owners under the Section 8 program become joint venturers with the Department of Housing and Urban Development in the government's effort to aid low-income families in "obtaining a decent place to live and of promoting economically mixed housing." 42 U.S.C. § 1437f(a) (1982). See Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 487-88 (9th Cir.1974); Ressler v. Landrieu, 502 F.Supp. 324, 326 (D.Alaska 1980).

The private owner is subject to extensive government regulation including regulation of its marketing and tenant selection policies. 24 C.F.R. §§ 880.601 and 880.603 (1984). These tenant selection policies are explicitly subject to HUD-approved Affirmative Fair Housing Marketing Plans and all Fair Housing and Equal Opportunity requirements. 24 C.F.R. § 880.601(a)(2) (1984). Under the regulations, applicants who are denied tenancy must be given written notice of the reasons and afforded an opportunity to meet with the owner or managing agent. 24 C.F.R. § 880.603(b)(3) (1984).

We recognized, by way of dicta, in Orteza v. Monongalia County Gen. Hosp., 173 W.Va. 461, 318 S.E.2d 40 (1984), that in determining whether there is State action involved in private undertakings, in order to bring the private party's actions under the provisions of the Fourteenth Amendment, several factors are...