June 2001 Newsletter
The North Dakota Fair
Housing Council (NDFHC) hosted an Attorney Training Seminar in Fargo on June
12, 2001. The seminar was
well attended and focused on federal/state fair housing laws, case
organization and litigation.
Any attorneys interested
in co-counseling on fair housing cases should contact the NDFHC for more
information.
NORTH
DAKOTA SUPREME COURT RULES ON MARITAL STATUS CASE
In May, the North Dakota Supreme Court ruled on a case involving
housing discrimination against unmarried couples.
In 1999, a Fargo couple was denied housing because they were not
married. After investigating
the allegation, the North Dakota Fair Housing Council (NDFHC) and the
Fargo couple filed a case in state court alleging that unmarried couples
were protected under the state protected class of “status with respect
to marriage” in the North Dakota Human Rights Act.
The couple later married.
The state court ruled that there was no protection for unmarried
couples in the Human Rights Act due to a state anti-cohabitation law.
The decision was appealed to the North Dakota Supreme Court.
The Supreme Court ruled that North Dakota does have a
cohabitation law which prohibits opposite sex couples from residing
together outside of marriage. This
law applies to not only rental housing, but home owners as well.
Some version of the unlawful cohabitation statute has been on the
books since North Dakota’s statehood.
The statute reads: “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”.
The Supreme Court also ruled that unmarried couples are not
protected under the state protected class of “status with respect to
marriage”. Thus, it is
legal under state law to refuse to rent to unmarried couples of the
opposite sex. Judge Kapsner dissented in the opinion.
The full opinion can be read on the North Dakota Supreme Court web
site (www.court.state.nd.us) and is titled North Dakota Fair Housing
Council/Kippen v. Peterson. You
may also contact the NDFHC for a copy of the opinion.
PARTIES
AGREE TO SETTLEMENT IN FAIR HOUSING CASE
BISMARCK, ND, June 27, 2001 – The North Dakota Fair Housing
Council (NDFHC) and two Minot families have reached a $65,000 settlement
in a lawsuit alleging discriminatory housing practices against families
with children against a Minot mobile home park owner.
In 1998, the NDFHC received complaints of discrimination based upon
familial status against Sera Linke who owns the 266 unit Holiday Village
Mobile Home Park in Minot. On the basis of the complaints and complaints the NDFHC had
received previously, the NDFHC conducted an investigation of Ms. Linke’s
business operations.
The investigation by the NDFHC confirmed the basis for the
complaints. As a result,
complaints were filed in 1999 with the U.S. Department of Housing &
Urban Development (HUD) alleging housing discrimination based upon
familial status. The
complaints charged that Ms. Linke denied or refused to negotiate rental
housing to families with children, discriminated against families with
children in the terms or conditions of housing, made statements with
respect to the rental of housing which indicate a preference based upon
familial status, and interfered with the exercise or enjoyment of rights
of families with children under the Federal Fair Housing Act.
HUD conducted its own investigation and issued a charge of
discrimination against Ms. Linke on January 4, 2000.
Ms. Linke requested the case be heard in District Court and
complaints were filed.
The terms of the consent order and settlement agreement provide
that the plaintiffs will share $65,000 in damages, attorney fees and costs
in bringing the lawsuit. Individual and NDFHC recoveries were based on the harm
experienced. Ms. Linke admits
no liability in the consent decree. Amy
Schauer Nelson, Executive Director of the NDFHC stated, “We are pleased
that we were able to reach this settlement and look forward to working
with Ms. Linke in the future.”
The federal law that governs housing discrimination is the Fair
Housing Act (FHA), which was passed by Congress in 1968.
The FHA forbids discrimination in the sale, rental or financing of
housing on the basis of race, color, religion, national origin, gender,
familial status (presence of children), or disability.
The North Dakota Century Code on Human Rights forbids similar kinds
of discrimination and also gives further protection to individuals on the
basis of age, and status with respect to marriage and public assistance.
The North Dakota Fair Housing Council (NDFHC) is a North Dakota
non-profit organization located in Bismarck.
The NDFHC’s mission is to provide support, encouragement, and
assistance to those seeking equal access to housing in the state of North
Dakota. The NDFHC also
investigates complaints of housing discrimination.
The NDFHC and the individual plaintiffs were represented in the
lawsuit by Ed Dyer, a Bismarck lawyer, and by Christopher Brancart, a
lawyer from Pescadero, California who specializes in fair housing
litigation. A copy of the
consent decree is available by request to the NDFHC.
The 2001 North Dakota Legislative Session provided some changes to
state housing discrimination laws.
First, there has been a change when it comes to the state protected
class “status with respect to marriage”.
New law effective this fall makes it LEGAL for a housing provider
to deny housing to an unmarried opposite sex couple.
The following language has been added into the North Dakota Human
Rights Act, “Nothing in this chapter prevents a person from refusing to
rent a dwelling to two unrelated individuals of opposite gender who are
not married to each other.” Under
this change, housing providers are not required to deny unmarried couples,
but may deny them if they choose to.
As always, a housing provider should be consistent in whatever
policy they choose and apply it to everyone.
Second, a revision was made to the state’s Housing Discrimination
Law in regards to the state protected class “status with respect to
public assistance”. Public
assistance is now defined as “the condition of being a recipient of
federal, state, or local assistance, including medical assistance, or of
being a tenant receiving federal, state, or local subsidies, including
rental assistance or rent supplements.”
Individuals who feel they have been discriminated against in
housing because they receive public assistance, may file a complaint with
the ND Department of Labor’s Human Rights Division.
These changes also become effective August 1, 2001.
Under previous law, the only recourse for someone who felt they
were discriminated against in housing due to public assistance was to file
a complaint in state court.
Bills were once again introduced to establish an independent human
rights commission to educate and enforce the state’s discrimination
laws. One bill was defeated
while the other was changed dramatically from its original form to no
longer include a human rights commission.
An additional change from this session which does not effect
housing discrimination laws, involves the broadening of the powers of the
North Dakota Department of Labor’s Human Rights Division.
Under new law effective this fall, the Division is now authorized
to accept complaints of discrimination in all areas of public service and
public accommodations based upon race, color, religion, sex, disability,
age, familial status, national origin, or status with respect to marriage
or public assistance. Previously,
the Division could only accept complaints alleging housing and employment
discrimination.
The North Dakota Legislature next meets in 2003.