Foreman v. Anchorage Equal Rights Com'n

• Decision Date: 08 September 1989
• Docket Number: S-2716,Nos. S-2677,s. S-2677
• Citation: 779 P.2d 1199
• Parties: Oliver F. FOREMAN and Helen G. Foreman, Appellants/Cross-Appellees, v. ANCHORAGE EQUAL RIGHTS COMMISSION and Sally Hohman, Appellees/Cross-Appellants.
• Court: Alaska Supreme Court

Page 1199

779 P.2d 1199

Oliver F. FOREMAN and Helen G. Foreman, Appellants/Cross-Appellees, v. ANCHORAGE EQUAL RIGHTS COMMISSION and Sally Hohman Appellees/Cross-Appellants.

Nos. S-2677, S-2716.

Supreme Court of Alaska.

Sept. 8, 1989.

Randall E. Farleigh, Farleigh & Waldock, Anchorage, for appellants/cross-appellees.

John E. Havelock and Paula M. Haley, Anchorage Equal Rights Comm'n, Anchorage, for appellees/cross-appellants.

Nancy R. Gordon, Asst. Atty. Gen., Anchorage, Grace Berg Schaible, Atty. Gen., Juneau, for amicus curiae, State Com'n for Human Rights.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

BURKE, Justice.

This is an appeal by a landlord from a decision of the superior court affirming a determination by the Anchorage Equal Rights Commission (AERC) that the landlord's policy against renting to unmarried couples unlawfully discriminated on the basis of marital status. The landlord argues that the AERC erred in its interpretation of the pertinent state and local laws, and that the AERC's delay in rendering a decision divested the AERC of jurisdiction. The AERC cross-appeals from that part of the court's decision holding that the rental policy did not violate state law.

I

Oliver and Helen Foreman own several rental properties in the Anchorage area. Their tenants include single parents with children, married couples and married couples with children. The Foremans' rental policy limits occupancy of a single unit to what the Foremans characterize as a "single legal entity" or a family unit related by blood or marriage.

In 1984, Sally Hohman, a single woman with an infant child, attempted to rent a single-bedroom unit for herself, her child and the child's father, Steven Kiefer. The Foremans refused to rent the apartment to Hohman and Kiefer when they learned that they were not married. ¹

Hohman filed a discrimination complaint with the AERC. After a public hearing, the AERC adopted the hearing examiner's proposed decision and held that the Foremans had violated anti-discrimination provisions found in both the Anchorage Municipal Code, AMC 05.20.020, ² and state law, AS 18.80.240(2). ³ The Foremans appealed to the superior court. The superior court reversed that part of the AERC's decision holding that the Foremans had violated AS 18.80.240(2). The court, however, upheld the AERC on all other issues. This appeal and cross-appeal followed.

II

The Foremans argue that the state and municipal prohibitions against discrimination based on marital status do not protect the interests of unmarried couples such as Hohman and Kiefer. The AERC and the State Commission for Human Rights contend that discrimination against unmarried couples constitutes discrimination based on marital status.

When interpreting an ordinance or a statutory provision, words are given their ordinary and common meaning. Wilson v. Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska 1983). Our goal is to give effect to the legislature's intent ⁴ with due regard for the meaning that the language in the provision conveys to others. State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982). Because this is a case of first impression in this state, "[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

Both AS 18.80.240 and AMC 05.20.020 plainly prohibit discrimination based on marital status. The Foremans reason, however, that these provisions only prohibit discrimination against an individual, based on that person's marital status, rather than prohibiting discrimination against two people. See Prince George's County v. Greenbelt Homes, 49 Md.App. 314, 431 A.2d 745, 747-48 (1981) (unmarried couple has no collective marital status).

It is true that the statute and ordinance refer to discrimination against "a person." AS 18.80.240; AMC 05.20.020. However, both the state statute and the municipal code define "person" to include "one or more individuals." ⁵ AS 18.80.300(11); AMC 05.20.010(M). Thus, we believe that these provisions were intended to prevent discrimination against more than one person.

The Foremans next argue that the anti-discrimination provisions were not intended to protect unmarried couples because cohabitation was a criminal offense at the time the state and municipal acts were first amended to prohibit marital status discrimination. See McFadden v. Elma Country Club, 26 Wash.App. 195, 613 P.2d 146, 148 (1980) (former statute outlawing unmarried cohabitation vitiates argument that legislature intended to prohibit housing discrimination against unmarried couples).

The state prohibition against housing discrimination based on marital status was first enacted in 1975; the municipal ordinance was passed in 1976. Ch. 104, § 10, SLA 1975; Assembly Ordinance 203-76 (Nov. 9, 1976); compare AMC 05.20.020 with former City of Anch.Mun.Code 08.36.090 (1975). Until 1978, it was a crime under state law for an unmarried couple to live together as husband and wife. AS 11.40.040. ⁶ According to the Foremans, the antidiscrimination statutes should not be construed to protect conduct which was criminal when the provisions were amended.

In 1975, before the pertinent amendments to AS 18.80.240 and AMC 05.20.020, the legislature declared that "the criminal code of the State of Alaska represents a considerable and vital body of law which has not undergone substantive revision and is consequently vastly out of step with constitutional and social developments of recent decades." S.Con.Res. No. 5, (1975). In 1978, the legislature undertook a comprehensive revision of the criminal code and repealed in its entirety chapter 40 of title 11, which had governed "crimes against morality and decency." See ch. 166, § 21, SLA 1978. Certain provisions in former chapter 40 were replaced by scattered sections prohibiting contributing to the delinquency of a minor, AS 11.51.130; unlawful marrying, AS 11.51.140; disorderly conduct, AS 11.61.110; misconduct involving a corpse, AS 11.61.130; cruelty to animals, AS 11.61.140; and prostitution, AS 11.66.100-11.66.150. Notably, former AS 11.40.040 was not re-enacted.

Given the intent so plainly reflected in the language of AS 18.80.240 and AMC 05.20.020, we think it would be manifestly unreasonable to limit the effect of these modern, remedial provisions by reference to an outdated criminal statute which was repealed eleven years ago. Thus, we reject the Foremans' contention that AS 18.80.240 and AMC 05.20.020 was not intended to protect unmarried couples such as Hohman and Kiefer. ⁷

Finally, the Foremans argue that this interpretation of AS 18.80.240(2) is inconsistent with the proviso permitting rental to singles or married couples only. We disagree.

The only pertinent exception to the anti-discrimination statute permits an owner to rent housing for "singles" or "married couples" only. AS 18.80.240(2). The Foremans, however, rented to all classes of persons: single persons, married persons and people with children. They did not purport to rent only to single people, or only to married people; therefore, the superior court erred in concluding that this exception authorized the discriminatory policy at issue here.

We conclude that state and municipal prohibitions against discrimination based on marital status protect the rights of unmarried couples. The Foremans would have rented the apartment to Hohman, Kiefer and the infant had Hohman and Kiefer been married; the Foremans refused to rent the apartment only after they learned that Hohman and Kiefer were not married. This constitutes unlawful discrimination based on marital status. ⁸

III

The Foremans argue that the AERC lacked jurisdiction to render its final order because (1) the AERC failed to propound findings of fact within 180 days of the filing of the complaint, AMC 05.30.020, ⁹ and (2) the AERC failed to issue its final order within 60 days after the Foremans objected to the proposed order, Anch.Mun.Code of Regs. 05.10.015(B). ¹⁰

Hohman filed the complaint on July 12, 1984. The AERC was required to issue investigative findings of fact by January 1985. In January 1985, the AERC chairman extended the time for issuing the preliminary findings, in part because the AERC had lost contact with Hohman, and in part because the Foremans refused to comply with AERC discovery requests. ¹¹ We perceive no abuse of discretion in the decision to extend the deadline for preliminary findings until June 1985.

The AERC complied with the extension order when it issued preliminary findings in March 1985. Following a hearing in December 1986, a hearing officer issued proposed findings in February 1987. The Foremans objected to the proposed findings on March 9, 1987; thus, the AERC's final report would have been timely sixty days later, on May 8, 1987. The order, however, was not issued until May 18, 1987, ten days after the deadline.

We do not endorse the long and drawn-out procedure followed by the AERC in this case. The AERC should act promptly to investigate and decide discrimination complaints. However, despite the unseemly delay in bringing this case to a conclusion, the record fails to establish that the Foremans were prejudiced in any way. In fact, the delay permitted the Foremans to continue a discriminatory practice for almost three years after the AERC first learned of it. Under these circumstances, the superior court did not err in concluding that the AERC had jurisdiction to issue its order. ¹²

The decision of the AERC is AFFIRMED.

1 The Foremans would have rented the apartment to Hohman and the child; however, Hohman did not wish to rent the unit on those terms.

2 AMC 05.20.020 provides in part:

[I]t is unlawful for the owner, lessor, manager, agent or other person having the right to sell, lease, rent or advertise real property:

(A) To refuse to sell, lease or rent the real property to a person because of...