Wilkison v. City Of Arapahoe

• Decision Date: 25 April 2019
• Docket Number: No. S-18-196,S-18-196
• Citation: 302 Neb. 968,926 N.W.2d 441
• Parties: Brooke WILKISON, individually and on behalf of Brianna Wilkison, a minor child, appellee, v. CITY OF ARAPAHOE, appellant.
• Court: Nebraska Supreme Court

302 Neb. 968

926 N.W.2d 441

Brooke WILKISON, individually and on behalf of Brianna Wilkison, a minor child, appellee,

v.CITY OF ARAPAHOE, appellant.

No. S-18-196

Supreme Court of Nebraska.

Filed April 25, 2019.

Kevin D. Urbom, Arapahoe City Attorney, for appellant.

Nathaniel J. Mustion, Ogallala, of Mousel, Brooks, Schneider & Mustion, P.C., L.L.O., for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

The City of Arapahoe, Nebraska, appeals the declaratory judgment and injunction entered by the district court for Furnas County enjoining Arapahoe from enforcing an ordinance against Brooke Wilkison (Brooke) to prohibit his retention of a Staffordshire terrier at his home within the city limits of Arapahoe. This order, in declaring the ordinance invalid as applied to Brooke, determined that the ordinance would violate the federal Fair Housing Act (FHA)¹ by permitting a discriminatory housing practice and precluding Brooke from mitigating the ill effects of his handicap by living with his emotional assistance animal. Arapahoe, on appeal, claims the FHA does not apply to municipal ordinances, that it should not have been enjoined from enforcing its ordinance against Brooke, and that it was error to determine that it was a reasonable accommodation under the FHA to allow Brooke to keep the dog. For the reasons set forth herein, we reverse, and remand.

BACKGROUND

In 1984, Brooke underwent brain surgery

which resulted in partial paralysis to the left side of his body. This paralysis and its effects remain, and Brooke contends that his medical issues cause him to be easily frustrated.

In 2015, Brooke got an American Staffordshire terrier—what is commonly known as a pit bull—and brought him to his home in Arapahoe. Brooke testified that the dog, named "Chewy," is a regular companion and provides him with support for dealing with the frustration he experiences as a result of his physical limitations.

Arapahoe passed an ordinance in December 2016 relating to "dangerous dogs." Section 6-109 of the ordinance defined a "dangerous dog" as "any dog that has inflicted injury upon a human being that required medical treatment by a physician or any other licensed health care professional." That section also described prohibited certain breeds and stated:

The following breeds shall be prohibited and or banned from being within the city limits of Arapahoe at any time. These breeds are as follows: Pit Bulls & Staffordshire Terriers, Rottweilers, and any cross breed that contains one or more of those breeds. With reference to those who own these breeds and have been licensed within the City of Arapahoe prior to January 1st, 2017, the animal will be grandfathered in as acceptable, however, in the event that said animal is found to be at large the grandfather status will be revoked and will be deemed prohibited at that time.

Section 6-111 of the ordinance directed that the owner of a prohibited dog is guilty of a Class IIIA misdemeanor, and § 6-112 of the ordinance instructed that a prohibited dog that has inflicted injury "shall be immediately confiscated by an animal control authority, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner."

Brooke’s dog was not registered with Arapahoe prior to January 1, 2017. According to Brooke’s wife, she attempted to register the dog but was refused due to incorrect paperwork. In January, after the ordinance went into effect, a law enforcement officer informed Brooke he would have to get rid of the dog, because it was one of the prohibited breeds under the ordinance.

Following the interaction with the law enforcement officer, Brooke obtained a statement on a prescription pad from a physician assistant, who is one of Brooke’s medical providers, that recommended Brooke be able to keep the dog inside as a therapy animal, given his disability. Brooke, individually and on behalf of his daughter, then filed suit in the district court seeking a declaratory judgment and an injunction to prevent Arapahoe from implementing and enforcing the ordinance. Brooke asserted three causes of action: (1) that the ordinance violated the FHA which prohibits housing practices that discriminate on the basis of disability; (2) that the ordinance violated the U.S. Constitution’s Equal Protection Clause, because it singled out certain breed owners for disparate treatment without any rational purpose for doing so; and (3) that the ordinance violated the U.S. Constitution’s Due Process Clause, because it deprived him of property without proof that the dog was a vicious or dangerous animal.

After a trial in this matter, the court issued an order declaring the ordinance invalid as applied to Brooke’s retention of the dog in his home and enjoining Arapahoe from enforcing the ordinance against Brooke. The court determined that, if enforced against Brooke, the ordinance would violate the FHA "by permitting a discriminatory housing practice, i.e., precluding Brooke from mitigating the ill effects of his handicap by living with his emotional assistance animal." Thus, the court concluded that the ordinance was "preempted by the FHA in the context of Brooke’s use of his emotional support animal." The court rejected Arapahoe’s argument that its ordinance was exempted from the operation of the FHA. The court specified that nothing in the injunction or declaratory judgement precludes Arapahoe from requiring licensing of any animal kept within Arapahoe’s city limits by Brooke. Because it granted relief based on the FHA, the court did not consider the causes of action based on the Equal Protection and Due Process Clauses.

ASSIGNMENTS OF ERROR

Arapahoe assigns, restated, that the district court erred in entering the declaratory judgment and enjoining the city from enforcing the ordinance by (1) holding that the FHA applies to the ordinance enacted by the city and (2) determining that keeping a specific animal prohibited by the city ordinance is a reasonable and necessary accommodation under the FHA.

STANDARD OF REVIEW

An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.² An action to declare an ordinance void and to enjoin its enforcement is equitable in nature.³ In reviewing an equity action for a declaratory judgment, an appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.⁴

Interpretation of a municipal ordinance is a question of law, on which we reach an independent conclusion irrespective of the determination made by the court below.⁵ When reviewing preemption claims, a court is obligated to harmonize, to the extent it legally can be done, state and municipal enactments on the identical subject.⁶ The interpretation of statutes and regulations presents questions of law which we review de novo.⁷

ANALYSIS

APPLICABILITY OF FHA

Arapahoe’s first assignment of error centers on the applicability of the FHA. The FHA, as originally enacted in 1968, prohibited the denial of housing on the basis of race, color, religion, or national origin.⁸ The FHA was amended in 1988 to protect against discriminatory practices on the basis of disability.⁹ The stated policy is "to provide, within constitutional limitations, for fair housing throughout the United States."¹⁰ The U.S. Supreme Court has held that when construing the FHA, courts are to give a generous construction to the FHA’s broad and inclusive language.¹¹

The FHA defines a discriminatory housing practice as any act that is unlawful under 42 U.S.C. § 3603 (effective dates of certain prohibitions), 42 U.S.C. § 3604 (discrimination in sale or rental of housing and other prohibited practices), 42 U.S.C. § 3605 (discrimination in residential real estate-related transactions), or 42 U.S.C. § 3606 (discrimination in provision of brokerage services) of this title.¹² Under 42 U.S.C. § 3617, "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed ... any right granted or protected by section[s] 3603, 3604, 3605, or 3606 of this title." Section 3617 sets forth that an interference claim does not demand a substantive violation of §§ 3603through 3606, but instead requires proof of three elements: (1) that the petitioner exercised or enjoyed "any right granted or protected by" §§ 3603 through 3606, (2) that the respondent’s conduct constituted interference, and (3) that a causal connection existed between the exercise or enjoyment of the right and the respondent’s conduct.¹³

In addition, 42 U.S.C. § 3615 provides:

Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.

In the instant case, Arapahoe does not assign the district court erred in determining the elements of a § 3617 claim existed. Instead, Arapahoe contends that § 3603(b) exempts it from the requirements of the FHA.

The applicable language of 42 U.S.C. § 3603(b)(1) provides that nothing in § 3604 (other than subsection (c)) shall apply to "any single-family house sold or rented by an owner," provided that "such private individual owner does not own more than...