ND Fair Housing Council, Inc. v. Peterson

Decision Date01 May 2001
Docket Number No. 20000197., No. 20000130
Citation625 N.W.2d 551,2001 ND 81
PartiesNORTH DAKOTA FAIR HOUSING COUNCIL, INC., Plaintiff and Appellant, Robert Ray Kippen, and Patricia Yvonne Kippen, Plaintiffs, v. David PETERSON and Mary Peterson, Defendants and Appellees. North Dakota Fair Housing Council, Inc., Plaintiff, Robert Ray Kippen, and Patricia Yvonne Kippen, Plaintiffs and Appellants, v. David Peterson and Mary Peterson, Defendants and Appellees.
CourtNorth Dakota Supreme Court

Edwin W.F. Dyer III, Dyer & Summers, P.C., Bismarck, ND, and Christopher Brancart (argued), Brancart & Brancart, Pescadero, CA, for plaintiffs and appellants.

Jack G. Marcil (argued) and Timothy G. Richard, Fargo, ND, for defendants and appellees.

SANDSTROM, Justice.

[¶ 1] In 1999, an unmarried couple tried to rent from David and Mary Peterson. The Petersons refused because the unmarried couple were seeking to cohabit. The North Dakota Fair Housing Council ("Housing Council") and Robert and Patricia Kippen—the unmarried couple, who had since married—sued, claiming housing discrimination in violation of the North Dakota Human Rights Act. They appeal the summary judgment dismissing their claims. We affirm, concluding the Petersons lawfully refused to rent to the unmarried couple seeking to cohabit.

I

[¶ 2] On March 8, 1999, Robert Kippen and Patricia DePoe tried to rent a house or duplex from the Petersons. The Petersons refused because the couple was unmarried and seeking to unlawfully cohabit. In April 1999, the couple married. On August 26, 1999, the North Dakota Fair Housing Council, a nonprofit corporation, and the Kippens sued the Petersons, alleging housing discrimination in violation of N.D.C.C. ch. 14-02.4, the North Dakota Human Rights Act.

[¶ 3] The Petersons moved to dismiss the Housing Council for lack of standing, arguing the Housing Council was not an "aggrieved person" entitled to relief under the housing statute. The district court granted the motion, holding the Housing Council lacked standing under the North Dakota Human Rights Act and holding it was not a real party in interest. The Housing Council appealed from the dismissal, arguing it is an aggrieved party and has standing to sue the Petersons.

[¶ 4] Subsequent to the dismissal of the Housing Council, the district court dismissed the Kippens' claim by summary judgment. The district court granted summary judgment in favor of the Petersons, concluding no genuine issue of material fact existed, North Dakota public policy disfavored cohabitation, and, based on the North Dakota Human Rights Act and North Dakota's cohabitation statute, the Petersons were entitled to deny the Kippens housing.1 The Kippens appealed, arguing the district court misinterpreted North Dakota law.

[¶ 5] The Housing Council's and the Kippens' appeals were timely. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] We are asked to decide whether refusing to rent to an unmarried couple because they are seeking to cohabit violates the discriminatory housing practices provision of the North Dakota Human Rights Act, N.D.C.C. § 14-02.4-12. The question is one of statutory interpretation, a question of law, fully reviewable on appeal. Gregory v. North Dakota Workers Comp. Bureau, 1998 ND 94, ¶ 26, 578 N.W.2d 101.

[¶ 7] North Dakota Century Code § 12.1-20-10 provides:

Unlawful cohabitation. A person is guilty of a class B misdemeanor if he or she lives openly and notoriously with a person of the opposite sex as a married couple without being married to the other person.

[¶ 8] The pertinent human rights statute in effect at the time of the alleged violation, North Dakota Century Code § 14-02.4-12 (1995),2 provided:

Discriminatory housing practices by owner or agent. It is a discriminatory practice for an owner of rights to housing or real property or the owner's agent or a person acting under court order, deed or trust, or will to:

1. Refuse to transfer an interest in real property or housing accommodation to a person because of race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance;

2. Discriminate against a person in the terms, conditions, or privileges of the transfer of an interest in real property or housing accommodation because of race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance; or

3. Indicate or publicize that the transfer of an interest in real property or housing accommodation by persons is unwelcome, objectionable, not acceptable, or not solicited because of a particular race, color, religion, sex, national origin, age, physical or mental disability, or status with respect to marriage or public assistance.

A

[¶ 9] We have not previously addressed the relationship between N.D.C.C. §§ 12.1-20-10 and 14-02.4-12. The issue, however, has been addressed in a formal attorney general's opinion and in two federal district court opinions. We begin with a review of the history of the legislation.

[¶ 10] North Dakota has prohibited unlawful cohabitation since statehood.3 1890 N.D. Sess. Laws ch. 91, § 16. The provision, as codified in 1895, see N.D.R.C. ch. 28, § 7171 (1895), remained essentially unchanged until the 1970s:

Unlawful cohabitation—Punishment.— Every person who lives openly and notoriously and cohabits as husband or wife with a person of the opposite sex without being married to such person, is guilty of a misdemeanor and shall be punished by imprisonment in the county jail for not less than thirty days nor more than one year, or by a fine of not less than one hundred dollars nor more than five hundred dollars.

N.D.C.C. § 12-22-12 (1960).

[¶ 11] The 1971 legislative assembly provided for an interim committee to draft a new criminal code. 1971 N.D. Sess. Laws, H.C.R. 3050. The interim committee considered whether to recommend repeal of the prohibition on unlawful cohabitation. One member argued for keeping a prohibition to prevent fraud. See Minutes of Interim Comm. on Judiciary "B" 12 (July 20-21, 1972) (noting Rep. Hilleboe's belief the statute should be retained with emphasis on fraud). A proposed interim committee draft on unlawful cohabitation contained a prohibition if the conduct was "with intent to defraud another or others of money or property," but that language was omitted from the committee's recommendation. See Minutes of Interim Comm. on Judiciary "B" 8 (Aug. 24-25, 1972) (noting alternative fraud language).

[¶ 12] Because sexual offenses were a controversial portion of the proposed new criminal code, alternative provisions were submitted to the 1973 legislature in three separate bills. All three bills contain the same language on unlawful cohabitation with the exception that one alternative would have made the offense a Class A misdemeanor instead of a Class B misdemeanor. See A Hornbook to the North Dakota Criminal Code, 50 N.D. L.Rev. 639, 742 (1974) (identifying the alternative bills: S.B.2047, S.B.2048, and S.B.2049). Testifying before the 1973 legislature, Professor Thomas Lockney, who had been a member of the interim committee, said:

All three alternatives continue to prohibit unlawful cohabitation. Under Alternative 1, the penalty is for a Class A misdemeanor; under 2 and 3 a Class B misdemeanor.

Hearing on S.B.2047, S.B.2048, and S.B. 2049 Before the House Judiciary Comm., 43rd N.D. Legis. Sess. (Jan. 17, 1973) (testimony of Thomas M. Lockney, Attorney-at-Law). The new criminal code was approved by the 1973 legislature, with a delayed effective date of July 1, 1975. 1973 N.D. Sess. Laws chs. 116, 117; see also A Hornbook to the North Dakota Criminal Code, 50 N.D. L.Rev. 639 (1974).

[¶ 13] The 1983 legislature adopted the North Dakota Human Rights Act. 1983 N.D. Sess. Laws ch. 173. The legislative history reflects no discussion of the cohabitation statute.

[¶ 14] The issue of a claimed conflict between the cohabitation statute and the Human Rights Act was presented to the attorney general in 1990. In a formal opinion, the attorney general wrote:

N.D.C.C. § 14-02.4-12 provides, in part:
14-02.4-12. Discriminatory housing practices by owner or agent. It is discriminatory practice for an owner of rights to housing or real property or the owner's agent or a person acting under court order, deed or trust, or will to:

1. Refuse to transfer an interest in real property or housing accommodation to a person because of race, color, religion, sex, national origin, age, physical or mental handicap, or status with respect to marriage or public assistance;

(Emphasis supplied.) However, N.D.C.C. § 12.1-20-10 prohibits unmarried persons of the opposite sex from openly living together as a married couple. The North Dakota Supreme Court has not ruled on the apparent conflict between N.D.C.C. §§ 14-02.4-12's protection of a person's right to housing notwithstanding the person's marital status, and N.D.C.C. § 12.1-20-10's prohibition against allowing unmarried couples to live as a married couple. However, there has been similar litigation in other states whose laws prohibit both cohabitation and discriminatory housing practices based on marital statutes. In McFadden v. Elma Country Club, 26 Wash.App. 146 [195], 613 P.2d 146 (1980), the court held that, notwithstanding a statute prohibiting discrimination based upon marital status, a country club could refuse to admit to membership an unmarried woman cohabiting with a man. Id. at 152. The court's holding was based upon the fact the statute prohibiting cohabitation was not repealed when the discrimination statute was enacted. This fact the court said "would vitiate any argument that the legislature intended `marital status' discrimination to include discrimination on the basis of a couple's unwed cohabitation." Id. at 150.

As in the McFadden case,
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