Mister v. A.R.K. Partnership, 2-89-1076

• Decision Date: 25 April 1990
• Docket Number: No. 2-89-1076,2-89-1076
• Citation: 553 N.E.2d 1152,197 Ill.App.3d 105,143 Ill.Dec. 166
• Parties: , 143 Ill.Dec. 166 Mary V. MISTER, et al., Plaintiffs-Appellees, v. A.R.K. PARTNERSHIP, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1152

553 N.E.2d 1152

197 Ill.App.3d 105, 143 Ill.Dec. 166

Mary V. MISTER, et al., Plaintiffs-Appellees, v. A.R.K. PARTNERSHIP, et al., Defendants-Appellants.

No. 2-89-1076.

Appellate Court of Illinois,

Second District.

April 25, 1990.

Rehearing Denied May 22, 1990.

Thomas A. Appel (argued), Appel & Appel, Ltd., Lansing, for A.R.K. Partnership. Bruno Zordan, Sandi Martin, Leclair Apartments.

Miriam N. Geraghty (argued), Kinoy, Taren, Geraghty & Potter, P.C., Chicago, for Mary V. Mister, Robert Keene, Steve Dunn, Becki Rhodes.

Justice INGLIS delivered the opinion of the court:

Defendants, A.R.K. Partnership (A.R.K.) et al., owners and managers of certain rental apartments, bring this appeal from an order of the circuit court of Du Page County denying their motion to dissolve a temporary restraining order entered against them. The restraining order prohibited defendants from renting two of their apartments to any persons except plaintiffs during the pendency of plaintiffs' separate civil rights action against defendants before the Illinois Human Rights Commission (the Commission). That action is based on plaintiffs' claim that defendants' policy of refusing to rent apartments to unmarried couples of the opposite sex violates the prohibition against discrimination based on sex or marital status found in the Illinois Human Rights Act (the Act) (Ill.Rev.Stat.1987, ch. 68, par. 1-102(A)).

On appeal, defendants raise several arguments in support of their contention that the trial court should have dissolved the temporary restraining order entered against them. Defendants claim the trial court erred in finding that: (1) plaintiffs demonstrated a likelihood of success on the merits of their complaint, because the Act does not protect unmarried cohabitation; (2) plaintiffs would suffer irreparable injury unless the temporary restraining order was granted; and (3) the equities balanced in plaintiffs' favor. Defendants also argue that their constitutional rights to religious freedom and their right to use their property as they wish would be impaired if they were forced to rent to unmarried couples. The resolution of this cause requires this court to address an issue of first impression in Illinois, namely, whether the Act prohibits discrimination against unmarried, cohabiting couples in real estate transactions.

The facts underlying this appeal can be briefly summarized. Plaintiffs in this action are two unmarried couples. Each couple is comprised of a male and female who presently live together. On July 8, 1989, plaintiffs Mary Mister and Robert Keene responded to a newspaper advertisement seeking tenants for the LeClair Apartments, defendants' apartment complex in Wheaton, Illinois. Mister and Keene met with defendant Sandi Martin, a rental agent for the LeClair Apartments, and selected a two-bedroom apartment to rent for $675 per month beginning September 1, 1989. Mister and Keene submitted $50 to process their credit applications and $100 to hold the apartment until they moved in. Subsequently, the couple gave notice to their previous landlord that they would be moving out of their apartment by September 1, 1989. On July 13, 1989, Jan Rowe, a representative of defendant A.R.K., contacted Mister at work and asked if she and Keene were married. Mister responded that they were not and that, although the two were engaged, no definite wedding date had been set. Rowe informed Mister that defendants had a strict policy against renting apartments to unmarried couples of the opposite sex. On July 17, 1989, Mister and Keene received a letter from defendant Bruno Zordan of A.R.K. informing them that their "application was rejected because of our company policy on unmarried couples." Plaintiffs' $150 advance money was returned with the letter.

Plaintiffs Steve Dunn and Becki Rhodes also applied to rent a two-bedroom apartment at the LeClair apartments. The two hoped to move into the apartment complex on August 1, 1989. After selecting an apartment, Dunn and Rhodes filled out credit applications and submitted $50 to process the applications and $100 to hold the apartment until they moved in. At some point thereafter, Dunn received a call from Norm Martin of LeClair Apartments. Martin asked Dunn whether he and Rhodes were married, and Dunn responded that they were not. On July 12, 1989, Dunn was contacted by Jan Rowe of LeClair Apartments to inform him that the owners would not rent apartments to unmarried couples. The $150 deposit was returned to them. Dunn and Rhodes' previous lease expired on July 31, 1989, and the couple was only able to extend the lease until the end of August.

All four plaintiffs contended that they were ready, willing and able to move into LeClair Apartments on September 1, 1989. Both couples averred that the apartments they selected were convenient, within their price range and attractive to them. It is not disputed that defendants would have rented to plaintiffs if they were married or if each opted to live with a member of the same sex (i.e., two males or two females could rent an apartment at LeClair). Although defendants assert that the basis for their rental policy is their religious belief that unmarried cohabitation is immoral, there is nothing in the record concerning defendants' religious beliefs.

On July 25, 1989, plaintiffs filed a complaint against defendants with the Commission. The complaint alleged that defendants' policy of refusing to rent to unmarried couples of the opposite sex violated plaintiffs' right to be free from discrimination in real estate transactions on the basis of sex or marital status (Ill.Rev.Stat.1987, ch. 68, pars. 1-102(A), 3-102(A)). On July 31, 1989, plaintiffs appeared before the circuit court and requested emergency relief in the form of a temporary restraining order pursuant to section 7-104 of the Act (Ill.Rev.Stat.1987, ch. 68, par. 7-104). Plaintiffs sought to prevent defendants from renting two units at LeClair apartments to anyone other than plaintiffs. Plaintiffs alleged that, if the order was not issued, defendants might rent all LeClair apartment units and render ineffectual any prospective relief from the Commission. Submitted along with plaintiffs' complaint was the certification of the director of the Illinois Department of Human Rights stating, inter alia, that the civil rights complaint alleged a prima facie violation of the Act. (See Ill.Rev.Stat.1987, ch. 68, par. 7-104(A)(1).) The trial court entered an agreed order temporarily restraining defendants from renting the apartments that plaintiffs sought.

Subsequently, after a hearing at which both parties were represented, the trial court entered a temporary restraining order enjoining defendants from renting the apartments in question. The court found, among other things, that plaintiffs had demonstrated a likelihood that they would succeed on the merits of their claim before the Commission; that plaintiffs might be irreparably harmed if the restraining order did not issue because defendants might rent all available units at the LeClair Apartments and thus render ineffective any relief awarded by the Commission; and that the injury to plaintiffs if no restraining order issued would be greater than that to defendants if they were restrained. Defendants were enjoined from renting two apartments at LeClair to anyone but plaintiffs pending further order of the court. The court required plaintiffs to post bond with their attorney in an amount equal to two months' rent.

On September 8, 1989, defendants filed a motion to dissolve the temporary restraining order. After hearing argument from counsel for both parties on September 18, 1989, the trial court denied the motion to dissolve the temporary restraining order. Defendants now appeal from the entry of that order.

The Act provides that, generally, the Commission, not the circuit courts of Illinois, has exclusive jurisdiction over civil rights complaints. (People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill.App.3d 517, 520-21, 77 Ill.Dec. 882, 461 N.E.2d 505.) Section 7-104(A)(1) of the Act, however, also allows a civil rights complainant to petition the circuit court for temporary relief to prevent a civil rights respondent "from doing or causing any act which would render ineffectual an order which the Commission may enter with respect to the complainant." (Ill.Rev.Stat.1987, ch. 68, par. 7-104(A)(1).) The circuit court proceedings in most cases are governed by the established rules for injunctive relief. (Ill.Rev.Stat.1987, ch. 68, par. 7-104(A)(2).) Where injunctive relief is sought in the case of alleged discrimination in a real estate transaction, however, the Act provides that such relief must be limited to five days in duration unless the defendant agrees otherwise or the court finds that there is substantial evidence of discrimination. (Ill.Rev.Stat.1987, ch. 68, par. 7-104(A)(3).) Here, defendants have not argued that the length of the injunction is improper.

There are three kinds of injunctive relief that may be awarded by Illinois courts: a temporary restraining order, a preliminary injunction, and a permanent injunction. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill.2d 373, 385, 91 Ill.Dec. 636, 483 N.E.2d 1271.) In the present case, plaintiffs were awarded what is usually the most transitory of the three varieties of injunctive relief, a temporary restraining order. Where, as here, the defendant is afforded notice and a hearing, there is no practical difference in results between a temporary restraining order and a preliminary injunction. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill.2d 514, 524, 349 N.E.2d 36.) A party seeking a preliminary injunction (or its functional equivalent, an indefinite temporary restraining order with notice and a hearing) must establish that: (1) he...