County of Dane v. Norman

Citation168 Wis.2d 675,484 N.W.2d 367
Decision Date09 April 1992
Docket NumberNo. 91-0486,91-0486
PartiesCOUNTY OF DANE, a municipal corporation, Plaintiff-Appellant, v. Dwight NORMAN and Patricia Norman, Defendants-Respondents. d
CourtCourt of Appeals of Wisconsin

For the plaintiff-appellant the cause was submitted on the brief of Cal W. Kornstedt, Dane County Corp. Counsel, and Margaret L. O'Donnell, Asst. Corp. Counsel, Madison.

For the defendants-respondents the cause was submitted on the brief of Michael J. Lawton and David E. Rohrer of Lathrop & Clark of Madison.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

Dane County appeals from a judgment dismissing its complaint alleging a violation of its fair housing ordinance by Dwight and Patricia Norman who own several rental properties in Dane County. Both parties moved for summary judgment. The issue is whether the Normans have discriminated against potential tenants on the basis of marital status, contrary to Dane County Ordinance sec. 31.10. We conclude that they have, and therefore reverse and remand for further proceedings.

Dane County Ordinance sec. 31.10(1) provides in relevant part: "It shall be unlawful for any person to discriminate ... [b]y refusing to sell, lease, finance or contract to construct housing or by refusing to discuss the terms thereof...." Section 31.03(2) provides in relevant part: "Discriminate and discrimination mean to segregate, separate, exclude or treat any person or class of persons unequally because of ... marital status of the person maintaining the household...." Section 31.03(5) provides: "Marital status means being married, divorced, widowed, separated, single or a cohabitant." 1

The issue having arisen on motion for summary judgment, we treat the uncontested facts presented in support of the motions as undisputed. The claimed ordinance violations involve two groups of potential tenants. In May 1989, Joyce Anderton contacted Dwight Norman and asked if he had any three-bedroom duplexes available. He said some would be available in July and asked how large Anderton's family was. She said she was not married and would be living with two single women. Norman replied that he would rent to her individually, but not to groups of single people. Otherwise, he explained, she would divide the rental payments with her roommates, and if one or two moved out, the payments would not be made in full. He rejected an offer that one of the three be solely responsible for the rent.

In August 1989, Dwight Norman showed one of his apartments to Deb Dana and her two children. Dana told Norman that she and the children would be living with another woman. He told Dana he would not rent to two unrelated people and he would not have shown her an apartment had he known she intended to live with another single adult. He did not ask Dana what her income was.

The application of an ordinance to undisputed facts raises a question of law. We decide such questions without deference to the trial court's opinion. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

The trial court held on these undisputed facts that the Normans' had not discriminated against Anderton or Dana on the basis of marital status. The court reasoned that since Dwight Norman refused to lease to Anderton and Dana because they intended to reside with other unrelated individuals, he was motivated by their intended conduct of residing with another unrelated individual rather than by their marital status. The court relied on Federated Rural Elec. Ins. Co. v. Kessler, 131 Wis.2d 189, 388 N.W.2d 553 (1986).

The issue in Federated Electric was whether an employer's rule prohibiting the romantic association of any employee of one sex with a married employee of the opposite sex discriminated on the basis of marital status, contrary to a Madison ordinance. The ordinance provided in relevant part:

(7) Employment Practices. It shall be an unfair discrimination practice and unlawful and hereby prohibited:

(a) For any person or employer ... to discharge any individual ... because of such individual's ... marital status.

Madison General Ordinances sec. 3.23 (1986).

The Federated Electric court analyzed the employer's rule as follows:

In this case, Federated's rule proscribed certain conduct among employees which all employees were required to honor. The sanction of the rule is not triggered by the offending employee's marital status. The rule does not require the offending person to be married for its application because a person can be a party to an extramarital association regardless of their own marital status. In this case, for instance, Kessler [the employee discharged for violating the rule] would have been prohibited from associating with Farin, a married person [and co-employee], whether he had been married, separated, divorced, widowed or single. His marital status was irrelevant to his discharge because Farin was married. Thus, Federated's rule prohibited a course of conduct rather than a status. The rule simply does not condition employment on having a specific marital status.

Id. at 208, 388 N.W.2d at 560.

Unlike the employer's rule in...

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1 cases
  • County of Dane v. Norman
    • United States
    • Wisconsin Supreme Court
    • April 13, 1993
    ...should have been denied and that Dane county's motion for summary judgment should have been granted. County of Dane v. Norman, 168 Wis.2d 675, 484 N.W.2d 367 (Ct.App.1992). The standard of review for summary judgment motions is set forth in Bell v. County of Milwaukee, 134 Wis.2d 25, 30, 39......

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