McCready v. Hoffius, Docket Nos. 185152

• Decision Date: 07 March 1997
• Docket Number: Docket Nos. 185152,185314
• Citation: 222 Mich.App. 210,564 N.W.2d 493
• Parties: Kristal McCREADY and Keith Kerr, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees. Rose BAIZ and Peter Perusse, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 493

564 N.W.2d 493

222 Mich.App. 210

Kristal McCREADY and Keith Kerr, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees.

Rose BAIZ and Peter Perusse, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees.

Docket Nos. 185152, 185314.

Court of Appeals of Michigan.

Submitted Oct. 15, 1996, at Lansing.

Decided March 7, 1997, at 9:20 a.m.

Released for Publication May 22, 1997.

Fleming & Fleming, P.C. by James B. Fleming and Anne D. Fleming, Jackson, (Jerrold Schrotenboer, of counsel), for plaintiffs-appellants.

LaFlamme & Mauldin, P.C. by Richard N. LaFlamme, Jackson, for defendants-appellees.

Rudolph A. Serra, Ferndale, and Thomas F. Coleman, Los Angeles, CA, Amici Curiae for Spectrum Institute, Triangle Foundation of Michigan, and American Association of Personal Privacy.

Goldbaum, Gattorn & Stancato, P.C. by Henry Stancato, Detroit, Amici Curiae for Fair Housing Center of Metropolitan Detroit, Jackson County Fair Housing Center, Fair Housing Center of Greater Grand Rapids, Tri County Fair Housing Center, Muskegon Area Fair Housing Center, Fair Housing Center of Washtenaw County, American Civil Liberties Union of Michigan, and Michigan Protection and Advocacy Service.

Before CORRIGAN, P.J., and TAYLOR and D.A. JOHNSTON ^*, JJ.

CORRIGAN, Presiding Judge.

In these consolidated appeals, plaintiffs appeal by right the orders granting summary disposition to defendants in this fair housing action. We affirm.

Defendants John and Terry Hoffius, a married couple, rent residential property in Jackson, Michigan. In June 1993, plaintiffs Kristal McCready and Keith Kerr contacted defendants in response to defendants' advertisement about housing for rent. Defendants refused to rent to plaintiffs when they learned that McCready and Kerr were not married but intended to live in the same rental unit. Similarly, plaintiff Rose Baiz telephoned defendants in July 1993 about the property. Defendants also declined to rent to Baiz when they learned that she was not married to plaintiff Peter Perusse yet planned to live with him. Defendant John Hoffius told plaintiffs that unmarried cohabitation violated his religious beliefs.

Plaintiffs filed two separate complaints with the Jackson Fair Housing Commission. Testers from the commission posed as potential renters and contacted defendants. Defendants did not ask the marital status of all the testers. Defendants, however, refused to permit unmarried testers to inspect the apartments, claiming that the units only were available to married couples. Defendants stated that they usually did not rent to unmarried couples.

Plaintiffs filed two separate actions in circuit court. Defendants moved for summary disposition of plaintiffs' complaints, arguing in part that plaintiffs failed to state a claim upon which relief could be granted because the Civil Rights Act, M.C.L. § 37.2502(1); M.S.A. § 3.548(502)(1), did not protect unmarried cohabitation. Defendants also argued that, if the Civil Rights Act protected unmarried cohabitation, it was unconstitutional because it would force defendants to violate their sincerely held religious beliefs against unmarried cohabitation.

The cases were heard separately, but decided similarly. Both circuit court judges opined that the cases involved statutory interpretation, and both declined to address the constitutional issues. The judges noted that the Civil Rights Act protected status, not conduct. They opined that unmarried cohabitation was unprotected conduct, not protected marital status. Accordingly, they determined that the Civil Rights Act did not protect unmarried cohabitation. We agree.

Plaintiffs first assert that defendants violated the Civil Rights Act by discriminating against them on the basis of their marital status. Whether unmarried cohabitation enjoys protection from housing discrimination under the Civil Rights Act is an issue of first impression in this state. Cases from other jurisdictions reflect divergent opinions on this issue. For example, in Smith v. Fair Employment & Housing Comm., 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909 (1996), cert. pending, the landlord presented arguments similar to those of defendants in this case. The California Supreme Court ruled that the California Fair Employment and Housing Act protected unmarried cohabitants against housing discrimination and rejected the landlord's argument that the unmarried tenants' sexual conduct, rather than their marital status, was at issue. Id. at 1155-1161, 51 Cal.Rptr.2d 700, 913 P.2d 909. See also Swanner v. Anchorage Equal Rights Comm., 874 P.2d 274 (Alaska 1994), cert. den. 513 U.S. 979, 115 S.Ct. 460, 130 L.Ed.2d 368 (1994); Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994), both of which held in accordance with Smith.

In contrast, the Supreme Court of Wisconsin decided that a landlord's refusal to rent to unmarried tenants was based on their conduct of living together and not on their marital status in Dane Co. v. Norman, 174 Wis.2d 683, 691, 497 N.W.2d 714 (1993). The Minnesota Supreme Court considered that state's criminal fornication statute when deciding this same issue in State by Cooper v. French, 460 N.W.2d 2 (Minn.1990). The court concluded that the Minnesota Human Rights Act did not extend to protect unmarried, cohabiting couples in housing cases. Id. at 7. The court added:

Before abandoning fundamental values and institutions, we must pause and take stock of our present social order: millions of drug abusers; rampant child abuse; a rising underclass without marketable job skills; children roaming the streets; children with only one parent or no parent at all; and children growing up with no one to guide them in developing any set of values. How can we expect anything else when the state itself contributes, by arguments of this kind, to further erosion of fundamental institutions that have formed the foundation of our civilization for centuries? [Id. at 11.]

Whether the Civil Rights Act protects unmarried cohabitants from housing discrimination raises questions of statutory interpretation. Statutory interpretation is a question of law, which we review de novo. Ballard v. Ypsilanti Twp., 216 Mich.App. 545, 549 N.W.2d 885 (1996). When courts construe statutory meaning, their primary goal is to ascertain and give effect to legislative intent. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993), State Treasurer v. Schuster, 215 Mich.App. 347, 351, 547 N.W.2d 332 (1996). This Court first considers the specific statutory language to determine the intent of the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993); Mino v. McCarthy, 209 Mich.App. 302, 304-305, 530 N.W.2d 779 (1995). The Legislature is presumed to intend the meaning that the statute plainly expresses. In re Austin Estate, 218 Mich.App. 72, 75, 553 N.W.2d 632 (1996). Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Id. at 76, 553 N.W.2d 632.

M.C.L. § 37.2502(1); M.S.A. § 3.548(502)(1) provides in relevant part:

(1) A person engaging in a real estate transaction, or a real estate broker or salesman, shall not on the basis of religion, race, color, national origin, age, sex, familial status, or marital status of a person or a person residing with that person:

(a) Refuse to engage in a real estate transaction with a person.

The Civil Rights Act does not define the term "marital status." In defining a term, courts should attempt to give effect to the legislative intent. Miller v. C.A. Muer Corp., 420 Mich. 355, 362, 362 N.W.2d 650 (1984). The purpose of the Civil Rights Act is to prevent discrimination based on membership in certain classes and to "eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases." Id. at 363, 362 N.W.2d 650. "By including marital status as a protected class, the Legislature manifested its intent to prohibit discrimination based on whether a person is married." Id. (emphasis in original).

The public policy of this state, as reflected in our laws, favors the institution of marriage. Under Michigan's Penal Code, unmarried cohabitation remains a misdemeanor. M.C.L. § 750.335; M.S.A. § 28.567 provides:

Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by fine of not more than $500.00. No prosecution shall be commenced under this section after 1 year from the time of committing the offense.

When promulgating new laws, the Legislature is charged with the knowledge of existing laws on the same subject and is presumed to have considered the effect of new laws on existing laws. Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993); Schuster, supra at 351-352, 547 N.W.2d 332. The Legislature presumably was aware that the above statute criminalized lewd and lascivious cohabitation. Because the Legislature would not have intended the Civil Rights Act to insulate criminal conduct, unmarried cohabitation is not protected conduct under the act. See also Michigan Gaming Institute, Inc. v. State Bd. of Ed., 211 Mich.App. 514, 520-522, 536 N.W.2d 289 (1995) (Corrigan, J., dissenting). Our Supreme Court adopted this dissent in its later opinion that reversed the opinion of the Court of Appeals, 451 Mich. 899, 547 N.W.2d 882 (1996). Although courts are to construe liberally remedial statutes, Dudewicz v. Norris Schmid, Inc., 443 Mich. 68, 77, 503 N.W.2d 645 (1993), we decline to recognize the Civil Rights Act as preventing housing discrimination against unmarried couples and at the same time legitimizing criminal conduct. ¹

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