Williams v. Joyce

• Decision Date: 14 January 1971
• Citation: 4 Or.App. 482,91 Adv.Sh. 1481,479 P.2d 513
• Parties: , 40 A.L.R.3d 1272 In the Matter of Beverly A. WILLIAMS aka Beverly A. Nicholson, Appellant-Cross-Respondent, v. Donald H. JOYCE, Respondent, Margaret C. Joyce, Respondent-Cross-Appellant.
• Court: Oregon Court of Appeals

Page 513

479 P.2d 513

4 Or.App. 482, 40 A.L.R.3d 1272

In the Matter of Beverly A. WILLIAMS aka Beverly A.

Nicholson, Appellant-Cross-Respondent, v. Donald H. JOYCE, Respondent, Margaret C. Joyce, Respondent-Cross-Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Sept. 23, 1970.

Decided Jan. 14, 1971.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for appellant-cross-respondent. With him on the briefs were Lee Johnson, Atty. Gen., Salem, and H. J. Belton Hamilton, Thomas N. Trotta, and Victor Levy, Asst. Attys. Gen., Portland.

William A. Martin, Portland, argued the cause for respondents-cross-appellant. With him on the briefs were Davis, Jensen, Martin & Robertson, and Donald H. Joyce, Portland.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

This matter arose out of a contention by the complainant, Mrs. Nicholson, that the petitioners, Mr. and Mrs. Joyce, refused to rent an apartment to her because she is a Negro.

The complainant appeals from a circuit court degree setting aside certain provisions of an administrative order, and petitioner Margaret Joyce cross-appeals. Initially, this was an administrative proceeding under ORS ch. 183 (Administrative Procedures Act) to determine issues of discrimination in housing based on race and color, ORS ch. 659 (Enforcement of Civil Rights).

The hearing was before the Commissioner of Labor (hereinafter referred to as the commissioner) and a tribunal of three citizens appointed by him under the provisions of ORS 659.060(5). ¹

The relief sought was an adequate remedy for the complainant and other persons similarly situated which would eliminate the effects of any discrimination found, and which would carry out the policy of Oregon's civil rights law. The commissioner found discrimination by both petitioners and entered a cease and esist order which provided monetary and other remedies. The Joyces petitioned the circuit court to review the commissioner's determinations under ORS ch. 183.

Upon review the circuit court issued its decree reversing and setting aside the administrative order in its entirety as to the petitioner Donald Joyce, and setting aside the following provisions of the order as to Margaret Joyce:

'(1) The agency requirement that for two years the respondents make periodic reports in writing to the agency concerning the terms and conditions under which their rental units are offered for rent.

'(2) The agency requirement that the respondents pay the reasonable future out-of-pocket expenses of the complainant if she should move from her interim apartment, required by respondents' continuing discrimination, to the apartment they had refused to rent to her.

'(3) The agency monetary award to the complainant to remove the effects of the frustration, anxiety and nervousness suffered by her as an effect of the discrimination.'

As to Margaret Joyce the court affirmed so much of the administrative order as directed her to cease and desist from the practice of discrimination and to pay to Mrs. Nicholson certain out-of-pocket expenses totaling $42.89.

The issues raised by the assignments of error on appeal and cross-appeal are:

(1) The sufficiency of the evidence of discrimination;

(2) The commissioner's authority to award compensatory damages under ORS ch. 659;

(3) The commissioner's authority to require reports from a person he has found to have violated the provisions of ORS 659.033;

(4) The constitutionality of ORS 659.031. We deal with the specific assignments of error in the course of discussing the issues raised by them.

THE SUFFICIENCY OF THE EVIDENCE OF DISCRIMINATION

The complainant appeals from the decree of the trial court finding no evidence of discrimination on the part of Donald Joyce. Margaret Joyce appeals from the finding of the trial court that there was evidence of discrimination by her.

Except in certain statutorily-specified instances, judicial review of the findings of administrative agencies does not confer upon the reviewing court the right to try the cause De novo.

'* * * (T)he reviewing court is not granted the power to weigh the evidence and substitute its judgment as to the preponderance thereof for that of the agency. The extent to which a reviewing court should review the action of an administrative agency has been expressed by this court, as follows:

"* * * Generally, they go no further than to determine whether the agency (1) acted impartially; (2) performed faithfully the duties delineated in the legislative acts which conferred jurisdiction upon it; (3) stayed within its jurisdiction; (4) committed no error of law; (5) exercised discretion judiciously and not capriciously; and (6) arrived at no conclusion which was clearly wrong.' * * *.' Bay v. State Board of Education, 233 Or. 601, 605, 378 P.2d 558, 560 (1963).

Because the sufficiency of the evidence is in issue, we set forth relevant testimony and other evidence in greater detail than would otherwise be necessary.

In 1943, Mrs. Joyce and her mother, Mrs. Forken, purchased a duplex apartment building, 712--718 N.E. 20th Avenue, in Portland, with funds provided by Mrs. Forken and Mrs. Joyce. The duplex apartments are side-by-side, with separate basements, separate garages and separate entrances. At the time of the purchase Mr. Joyce was in the military service. Mrs. Joyce testified that the premises were required so that her mother, legally blind, would have a place to live in familiar surroundings, and in the same neighborhood where she had resided since 1912. Title of record at all times forward from the date of the purchase was in Mr. and Mrs. Joyce and Mrs. Forken.

In 1947, Mr. Joyce quitclaimed his interest in the property to his wife and mother-in-law by a delivered, but unrecorded deed.

In September of 1945, when Mr. Joyce returned from the military service, Mrs. Forken moved to 718 N.E. 20th Avenue. Mr. and Mrs. Joyce occupied 712 N.E. 20th Avenue until 1957, when, because of the size of their family, they moved to a newer home. Mrs. Forken continued to live at 718 N.E. 20th Avenue.

Mrs. Joyce planned that 712 N.E. 20th Avenue be maintained for the benefit of Mrs. Forken, and that the income derived therefrom be used for Mrs. Forken's support and pleasure. In 1960, the Joyces acquired a contiguous parcel of real property known as 702--708 N.E. 20th Avenue as tenants by the entirety with a view toward enhancing the value of the whole by virtue of assembly.

From 1957, 712 N.E. 20th Avenue was rented to a series of tenants. During the course of their marriage the Joyces have acquired other property, all with a profit or income motive. Donald Joyce participated in the management, operation and maintenance of all of the properties, including the property in question. His joint bank account with his wife was the repository of rental payments and was used to pay expenses incident to the rentals. Newspaper ads, advertising 712 N.E. 20th Avenue for rent, were paid from that account. His office phone number was used in the rental ads. He personally sent letters as a landlord to tenants he wished to have vacate the premises. He billed tenants for rent and oil. The letters and billings were on his stationery and designated his office as the place for payment. The petitioners jointly shared all business expenses involved in the operation of 712 N.E. 20 th Avenue, and filed joint tax returns, sharing the income. No part of the income of expenses of 712 N.E. 20th Avenue was shared by Mrs. Forken.

On June 11, 1967, an ad placed by the petitioners appeared in two Portland newspapers specifying that the apartment in question was for rent. On that day the complainant and her fiance, now her husband, both Negroes, went apartment hunting. They read the ad, called the listed number, and were advised that it was still available. They went to the premises. A 'For Rent' sign was in the window. They knocked, and when Mrs. Joyce answered, asked to see the apartment. Mrs. Joyce responded that 'it was rented,' and refused to explain why the 'For Rent' sign was still in the window. The couple left and shortly thereafter the complainant telephoned the ad number again. An elderly lady, apparently Mrs. Forken, responded and asked several questions regarding the identity of the caller. The complainant lied so as to mask her identity, and the lady told her to come see the apartment. The next day the complainant called again, and in response to her inquiry was told by the same lady that the apartment was still available for rent.

On June 14, a field investigator of the Civil Rights Division of the Bureau of Labor, Mr. Rogers, began his investigation of Mrs. Nicholson's complaint. Through phone calls and a personal inspection of the premises, conducted by Mrs. Forken, he determined that the apartment was still vacant and available for rental. On June 15, Mr. Rogers contacted Donald Joyce at his office regarding the complaint. He was told at that time that the apartment was rented. Mr. Joyce then, and again on July 11, proceeded to specify terms and conditions of age and religion for tenancy which would prevent complainant and her fiance from qualifying. No religious standards had ever been required of previous tenants. Mr. Joyce further told Mr. Rogers that Negroes could not qualify for tenancy in the apartment because they would be incompatible with his mother-in-law who occupied the adjoining apartment.

Mr. Rogers made several attempts to arrange for an interview between the complainant and the Joyces. On June 28, Mr. Joyce refused to meet or discuss the matter further. The 'For Rent' sign remained in the window at 712 N.E. 20th Avenue continuously from June 11, 1967, until at least July 11, 1967, with the exception of 1 1/2 days from the evening of June 11, 1967, to June 13, 1967.

The trial court apparently found that Donald Joyce had not committed an act of discrimination, because he did not participate in the first...