IN THE SUPREME COURT OF IOWA
No. 16–1534
Filed February 15, 2019
THERESA SEEBERGER,
Appellee,
vs.
DAVENPORT CIVIL RIGHTS COMMISSION,
Appellant,
and
MICHELLE SCHREURS,
Intervenor-Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Michael D.
Huppert, Judge.
Landlord seeks further review of court of appeals decision affirming
damage award for housing discrimination and restoring attorney fee
award. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
Latrice L. Lacey of Davenport Civil Rights Commission, Davenport,
for appellant.
Dorothy A. O’Brien of O’Brien & Marquard, P.L.C., Davenport, for
intervenor-appellant.
2
Randall D. Armentrout, Katie L. Graham, and Ryan G. Koopmans
(until withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.
3
WATERMAN, Justice.
In this case, we must decide whether the court of appeals erred in
awarding attorney fees incurred in agency proceedings under a fee-
shifting provision in Division II of the Davenport Civil Rights Ordinance
for a housing discrimination violation charged under Division III that
lacks a corresponding fee-shifting remedy. The owner of a single-family
home terminated the lease of a tenant whose daughter became pregnant,
resulting in a complaint filed with the Davenport Civil Rights
Commission (Commission) alleging discrimination based on familial
status in violation of the Davenport Civil Rights Ordinance and the
Federal Fair Housing Act (FHA). The landlord responded that her
comments and actions were protected under the First Amendment. An
administrative law judge (ALJ) found the landlord committed the Division
III fair housing violation, awarded the tenant $35,000 in damages for
emotional distress and $23,882 in attorney fees and costs, and imposed
a $10,000 civil penalty. The Commission approved the ALJ’s decision
except that it reduced the emotional distress award to $17,500. On
judicial review, the district court rejected the landlord’s free speech
defense but reversed the damages award and civil penalty based on a
“small landlord” exemption in the Ordinance and directed the
Commission to recalculate those amounts. The district court vacated the
fee award, ruling that the fee-shifting provision in Division II was
inapplicable and that fees could not be awarded by the Commission
under the FHA. All parties appealed, and we transferred the case to the
court of appeals, which reinstated the fee award under Division II of the
Ordinance. We granted the landlord’s application for further review.
On our review, we elect to allow the court of appeals decision to
stand on all issues except the award of fees incurred in the agency
4
proceedings. For the reasons elaborated below, we hold the fee-shifting
provision in Division II of the Ordinance is inapplicable to the fair
housing violation in Division III. We also hold the Commission could not
award fees under the FHA. Accordingly, we affirm the district court
judgment.
I. Background Facts and Proceedings.
In 2011, Theresa Seeberger purchased a three-bedroom, single-
family home on North Ripley Street in Davenport. Seeberger lived in the
house with her four cats until she got married in 2012. Her spouse was
allergic to cats. When Seeberger moved out of the North Ripley house,
she left behind her cats, much of her clothing, and some furniture.
Seeberger visited the house almost daily to feed her cats.
In December 2012, Seeberger began renting out bedrooms in the
house. In August 2013, Michelle Schreurs and her fifteen-year-old
daughter rented one of the bedrooms. There was no written lease, but
Schreurs agreed to pay $300 monthly in rent. Although two other
tenants lived in the house when they moved in, by July 2014, Schreurs
and her daughter were the only tenants.
On September 16, Seeberger visited the house and found prenatal
vitamins on the kitchen counter. She took a photo of the vitamins with
her cell phone and sent the photo to Schreurs with a text asking,
“Something I should know about?”
The following day, Seeberger returned and was at the house when
Schreurs arrived home from work. Seeberger asked if Schreurs had
received the text message and again asked about the prenatal vitamins.
Schreurs excitedly told Seeberger that her daughter was pregnant.
Seeberger paused for a moment and then responded that Schreurs and
her daughter would have to move out in thirty days. When asked why,
5
Seeberger stated, “You don’t even pay rent on time the way it is, and . . .
[n]ow you’re going to bring another person into the mix.” Noting the
prenatal vitamins, Seeberger continued, “[O]bviously you’re going to keep
the baby.” The following day, Seeberger left a letter at the house
informing Schreurs that her lease would expire on October 19. Schreurs
and her daughter moved out October 5.
In November, Schreurs filed a complaint with the Davenport Civil
Rights Commission. She amended her complaint twice, ultimately
claiming that Seeberger discriminated against her based on familial
status in violation of Division III, section 2.58.305(C) of the Davenport
Municipal Code (2014), 1 and § 804(c) of the FHA. 2 As a small landlord,
Seeberger was only liable for the alleged discriminatory statements she
made in violation of section 2.58.305(C). Seeberger was exempt from
liability under the remaining subsections of section 2.58.305, including
any liability for terminating Schreur’s tenancy. See Davenport, Iowa,
Mun. Code § 2.58.310 (exempting small landlords from liability for
subsections 2.58.305(A), (B), (D), (E), and (F)). 3 The Commission
1Davenport Municipal Code section 2.58.305(C) provides that the following is
unlawful:
To make, print or publish, or cause to be made, printed or published any
notice, statement or advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or discrimination
based on race, color, creed, religion, sex, national origin or ancestry, age,
familial status, marital status, disability, gender identity, or sexual
orientation or an intention to make any such preference, limitation or
discrimination.
Davenport, Iowa, Mun. Code § 2.58.305(C).
2Codified at 42 U.S.C. § 3604(c) (2012).
3The Municipal Code exempts, subject to certain conditions, “[a]ny single-family
house sold or rented by an owner” and rooms in a dwelling that have “living quarters
occupied or intended to be occupied by no more than four (4) families living
independently of each other, if the owner actually maintains and occupies one of such
living quarters of his residence.” Davenport, Iowa, Mun. Code § 2.58.310(A)(1)–(2).
There are similar exemptions under the FHA. 42 U.S.C. § 3603(b)(1)–(2). The latter
6
conducted an investigation. In March 2015, the director of the
Commission issued a probable cause finding, concluding that there was
probable cause to find Seeberger had discriminated against Schreurs
based on familial status in violation of section 2.58.305(C) and the FHA,
42 U.S.C. § 3604(c).
The complaint was set for a public hearing before an ALJ. After
the hearing, the ALJ issued a ruling finding that “[a]n ordinary listener
listening to Seeberger’s statements would find her statements
discriminatory on the basis of familial status” and that “Seeberger
engaged in a discriminatory housing practice by making the statements.”
The ALJ issued a cease and desist order, awarded Schreurs $35,000 in
emotional distress damages, and assessed a $10,000 civil penalty
against Seeberger. On December 23, Schreurs filed an application for
attorney fees. Seeberger resisted. The ALJ found that Schreurs was
entitled to attorney fees under Davenport Municipal Code section
2.58.350(G) and awarded Schreurs $23,200 in attorney fees and $681.80
in costs.
In January 2016, the Commission approved the ALJ’s decision,
except that it reduced the award of emotional distress damages to
$17,500. The Commission also approved the ALJ’s decision with regard
to attorney fees and costs and determined Seeberger was responsible for
the costs of the hearing.
Seeberger filed a petition for judicial review. Seeberger argued,
among other things, that the Ordinance violated her right to free speech
under the United States and Iowa Constitutions and did not authorize an
_______________________
exemption is known “as the ‘Mrs. Murphy’ exemption on the theory then that the
statute did not reach the metaphorical ‘Mrs. Murphy’s boardinghouse.’ ” United States
v. Space Hunters, Inc., 429 F.3d 416, 425 (2d Cir. 2005).
7
award of attorney fees incurred in the agency proceedings. Schreurs
intervened in the judicial review proceedings. Schreurs and the
Commission argued that Seeberger’s statements were not protected
speech and that Schreurs was entitled to attorney fees under Davenport
Municipal Code section 2.58.175(A)(8) in Division II of the Ordinance and
under the FHA, 42 U.S.C. § 3612(p).
The district court concluded that Seeberger’s statements were not
protected speech under the First Amendment of the United States
Constitution or article I, section 7 of the Iowa Constitution. The court
found that, contrary to the limitation of liability for small landlords, “the
damages that were awarded were tied to the termination of the tenancy
by [Seeberger], not just her discriminatory statements.” The court
reversed the damages award and civil penalty, concluding,
Although the [Commission] reduced the ALJ’s award
by half, there is no analysis that would reflect whether they
differentiated between damages properly related to the
discriminatory statement and improperly related to the
termination of the tenancy. As a result, the award of
damages to [Schreurs] was improper and should be reversed.
As it is unclear whether the [Commission’s] calculation of an
appropriate civil penalty may have relied upon such an
improper causal connection, that penalty should also be
reversed.
The district court also concluded that Davenport Municipal Code
section 2.58.175(A)(8) “does not clearly authorize an award of attorney
fees in the context of a discriminatory housing practice.” The district
court vacated the attorney fees award.
Schreurs and the Commission moved for additional findings. They
requested the court reconsider its ruling on attorney fees under section
2.58.175(A)(8) and expand its findings to address whether Schreurs was
entitled to fees under the FHA. The Commission also asked the court to
award attorney fees under section 2.58.350(G). Both Schreurs and
8
Seeberger requested an award of fees incurred during the judicial review
proceedings.
The district court denied all of the motions. The court declined to
reconsider its ruling disallowing fees under section 2.58.175(A)(8). The
court concluded that “the mere fact that the . . . complaint was cross-
filed with the federal authorities does not expand the [Commission’s]
authority to award attorney fees beyond what is allowed under the city
ordinance” and fees under the FHA “were unavailable to [Schreurs] in her
state court proceeding.” The court concluded that Schreurs waived her
claim to attorney fees under Municipal Code section 2.58.350(G).
Finally, the district court declined to award attorney fees to either
Seeberger or Schreurs for fees incurred during judicial review.
All parties appealed. We transferred the case to the court of
appeals. The court of appeals concluded that the Davenport Municipal
Code was not unconstitutional as applied to Seeberger and did not
infringe upon her right to free speech. The court of appeals also
concluded that Schreurs was entitled to attorney fees under Municipal
Code section 2.58.175(A)(8) and reversed the district court’s denial of
fees. Finally, the court of appeals concluded the district court’s denial of
fees for the judicial review proceedings was not “clearly unreasonable or
untenable,” and affirmed the district court on that ground.
Seeberger filed an application for further review. 4 We granted her
application.
II. Scope of Review.
On further review, we have the discretion to “review any or all of
the issues raised on appeal.” Cote v. Derby Ins. Agency, Inc., 908 N.W.2d
4Neither Schreurs nor the Commission applied for further review.
9
861, 864 (Iowa 2018) (quoting Papillon v. Jones, 892 N.W.2d 763, 769
(Iowa 2017)). We choose to confine our review to the award of attorney
fees incurred in the agency proceedings and let the court of appeals
decision stand as the final decision on the remaining issues. See id. We
review the district court’s ruling construing the Ordinance for correction
of errors at law. Simon Seeding & Sod, Inc. v. Dubuque Human Rights
Comm’n, 895 N.W.2d 446, 455 (Iowa 2017).
III. Analysis.
We must construe the Davenport Civil Rights Ordinance to
determine whether the district court correctly ruled that the fee-shifting
provision in Division II is inapplicable to a housing discrimination
complaint prosecuted under Division III. We must also decide whether
the district court correctly ruled that the Commission lacked authority to
award fees under the FHA. We address each issue in turn. We begin
with an overview of fee awards under local civil rights ordinances.
A. Attorney Fee Awards Under Municipal Civil Rights
Ordinances.
We reiterate the importance of fee awards in civil rights
cases: “The reason a successful civil rights litigant is entitled
to attorney fees ‘is to ensure that private citizens can afford
to pursue the legal actions necessary to advance the public
interest vindicated by the policies of civil rights acts.’ ”
Simon Seeding & Sod, Inc., 895 N.W.2d at 473 (quoting Lynch v. City of
Des Moines, 464 N.W.2d 236, 239 (Iowa 1990)). But we require that the
ordinance “contain[] an express provision clearly authorizing an award of
attorneys’ fees.” Id. (quoting Botsko v. Davenport Civil Rights Comm’n,
774 N.W.2d 841, 846 (Iowa 2009)). This is “because attorneys’ fee
awards are a derogation of the common law, they ‘are generally not
recoverable as damages in the absence of a statute or a provision in a
10
written contract.’ ” Botsko, 774 N.W.2d at 845 (quoting Kent v. Emp’t
Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993)). “Our demanding
approach is consistent with cases in other jurisdictions which reject
awarding statutory attorneys’ fees by implication and require express
language.” Id.
In Botsko, the issue was “whether the ordinance enacted by the
City of Davenport at the time of this proceeding contained an express
provision clearly authorizing an award of attorneys’ fees.” Id. at 846. We
held the operative provision of the ordinance at the relevant time did not
allow fees. Id. (“[W]e will not read into the ordinance a fee-shifting
provision when the local legislative body did not approve one.”). We
rejected the argument that a fee-shifting provision should be implied
because the ordinance was intended to execute the policies of the Iowa
Civil Rights Act, which contains an express fee-shifting provision. Id. at
845–46.
The city subsequently amended Division II of its ordinance to add
section 2.58.175(A)(8). Id. at 845 n.2. The fighting issue today is
whether section 2.58.175(A)(8) applies to a fair-housing violation charged
under Division III.
B. Attorney Fees for the Agency Proceedings. The Davenport
Civil Rights Ordinance is organized into three divisions: Division I—
General, Division II—Unfair Practices, and Division III—Fair Housing. It
is undisputed that Seeberger was charged with a fair housing violation
under Division III and was not charged with violating any provision
under Division II. Notably, Division II expressly allows fee awards for the
agency proceedings while the corresponding remedy section in Division
III does not. We conclude the terms of Division III control.
11
1. Division III—fair housing. Schreurs filed her discrimination
complaint under, and Seeberger was found to have violated, Davenport
Municipal Code section 2.58.305(C). This section is located under
Division III, the fair housing provision of the civil rights ordinance.
Division III expressly provides the relief an ALJ may order when the
respondent has engaged in a discriminatory housing practice:
If the administrative law judge finds that a respondent has
engaged in or is about to engage in a discriminatory housing
practice, such administrative law judge shall promptly issue
an order for such relief as may be appropriate, which may
include actual damages suffered by the aggrieved person and
injunctive or other equitable relief. Such order may, to
vindicate the public interest, assess a civil penalty against
the respondent in an amount not to exceed those established
by the Federal Fair Housing Act in 42 U.S.C. Section 3612.
Id. § 2.58.340(F)(3). This section does not provide for attorney fees. Id.
The housing discrimination division allows a discretionary attorney
fee award in a different section governing judicial review. Id.
§ 2.58.350(G). Section 2.58.350 is titled “FAIR HOUSING—Judicial
Review” and subsection (G) states,
G. “Attorney Fees:” The administrative law judge or the
court may at its discretion allow the prevailing party, other
than the commission, reasonable attorney fees and costs
resulting from any administrative proceeding brought under
this section, any court proceeding arising therefrom, or any
civil action.
Id. § 2.58.350(G).
Schreurs argues that she is entitled to an award of attorney fees
under section 2.58.350(G). She made her request for fees under this
provision at the agency level. The ALJ, relying on section 2.58.350(G),
awarded Schreurs $23,200 in attorney fees. The Commission affirmed
the ALJ’s award of attorney fees.
12
On judicial review, however, Schreurs argued that she was entitled
to fees under a different provision not in the fair housing section, section
2.58.175(A)(8). The district court rejected that argument, determining
that the fee-shifting provision in Division II was inapplicable to the fair
housing violation charged under Division III. We agree, but first address
the on-and-off-again reliance by Schreurs on section 2.58.350(G).
In its ruling on the petition for judicial review, the district court
found that the parties had conceded that section 2.58.350(G) governing
judicial review did not apply to fees previously incurred in the agency
proceedings. The Commission and Schreurs then invoked section
2.58.350(G) in a rule 1.904(2) motion, which the district court denied,
stating the parties had waived that argument. On appeal, the
Commission and Schreurs relied on section 2.58.175(A)(8) and the FHA
and argued section 2.58.350(G) as an alternative ground for reinstating
the fee award. The court of appeals stated, “Schreurs and the
Commission did not argue on judicial review that Schreurs was entitled
to fees under the municipal code provision the ALJ actually awarded
them, section 2.58.350(G).” The court of appeals reversed the district
court based on section 2.58.175(A)(8) alone and concluded, “This
disposition makes it unnecessary for us to decide whether Schreurs was
entitled to attorney fees under 2.58.350(G) or, in the alternative, the
FHA.” 5
We agree with the district court that Schreurs and the Commission
waived any claim to fees under section 2.58.350(G) by not raising that
ground in district court until after the court filed its decision on judicial
5In resisting Seeberger’s application for further review, Schreurs and the
Commission rely solely on section 2.58.175(A)(8) and the FHA without mentioning
section 2.58.350(G).
13
review vacating the fee award. Having waived that ground in district
court, those parties could not revive it in their appellate briefings.
Accordingly, we confine our analysis to whether section 2.58.175(A)(8) of
Division II applies to this Division III fair housing violation.
2. Division II—unfair practices. Schreurs argues that she is
entitled to an award of attorney fees under Division II—Unfair Practices.
Division II lists discriminatory practices including employment,
accommodation, retaliation, and education. See Davenport, Iowa, Mun.
Code § 2.58.100 (employment); id. § 2.58.110 (accommodations or
services); id. § 2.58.120 (credit); id. § 2.58.125 (education); id. § 2.58.130
(aiding and abetting); id. § 2.58.140 (retaliation). Another section of
Division II states that
if the Commission determines the respondent has engaged in
a discriminatory practice, the Commission shall issue an
order requiring the respondent to cease from the
discriminatory practice and to take necessary remedial
action as in the judgment of the commission will carry out
the purposes of this chapter.
Id. § 2.58.170(L). Section 2.58.175 in Division II is titled “Remedial
Action,” and subsection (A)(8) provides,
A. The remedial action ordered by the Commission
may include the following actions to be taken by respondent,
in addition to any other remedy allowed by law:
....
8. Payment to the complainant of damages for an
injury caused by the discriminatory practice which damages
shall include but are not limited to back pay, front pay, all
economic damages, emotional distress damages, and
reasonable attorney fees.
Id. § 2.58.175(A)(8) (emphasis added).
Schreurs argues that section 2.58.175(A)(8) is a general remedial
provision pertaining to all areas of discrimination, including housing
discrimination under Division III. Schreurs points to section
14
2.58.175(A)(4), which enumerates “[s]ale, exchange, lease, rental,
assignment or sublease of real property” as a possible remedial action.
Schreurs argues that because there is no language in Division II’s
remedy provision excluding housing discrimination, the agency was free
to award attorney fees based on its plain language. The Commission
notes the ambiguity of the city’s civil rights ordinance, but argues that all
of the divisions are to be read together.
The district court noted that section 2.58.175(A)(8) was listed in
Division II under a section titled “Remedial Action,” which appears after
the part of the ordinance governing complaints of unfair practices in
areas other than housing. The district court noted that the procedures
in Division II differ from the procedures in Division III for discriminatory
housing practices. The district court ruled that Schreurs was not
entitled to an award of attorney fees under section 2.58.175(A)(8).
On appeal, the court of appeals noted the differences between
Divisions II and III but stated, “[B]ased on the plain language and
statutory scheme of the ordinance, we conclude the remedial action
provision in division two, section 2.58.175, encompasses all areas of
discrimination, including housing.” The court of appeals reinstated the
attorney fee award based on section 2.58.175(A)(8) alone. We disagree.
We decline to transport the remedy provision from Division II to
Division III. To do so would render superfluous the remedies expressly
allowed in Division III, section 2.58.340(F)(3) (providing for an award of
actual damages, civil penalties, and equitable relief). See Oyens Feed &
Supply, Inc. v. Primebank, 808 N.W.2d 186, 193 (Iowa 2011) (preferring
interpretation that gives effect to all terms and avoids surplusage).
Moreover, Division III specifically governs fair housing complaints. “To
the extent ‘there is a conflict or ambiguity between specific and general
15
statutes, the provisions of the specific statutes control.’ ” Id. at 194
(quoting Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 815
(Iowa 2011)).
We find no language in either division indicating that a violation of
Division III is governed by the remedy provision in Division II. Rather,
each division provides its own specific remedies and exemptions. See
Shumate v. Drake Univ., 846 N.W.2d 503, 512–13 (Iowa 2014) (declining
to find an implied private right to sue under Iowa Code chapter 216C
when the legislature expressly provided a private right to sue in chapter
216E).
Tellingly, the city chose to include a fee-shifting provision for
agency proceedings under Division II but not in the corresponding
remedy provision in Division III. We assume that omission was
intentional. See Shumate, 846 N.W.2d at 513 (“We find these omissions
telling.”); Oyens, 808 N.W.2d at 193 (noting legislative intent is expressed
by omission as well as inclusion of terms and selective placement of term
is presumed intentional). If the city wanted to allow fee-shifting for
litigating fair housing complaints under Division III, presumably it would
have said so in section 2.58.340(F)(3). See Oyens, 808 N.W.2d at 194.
We will not expand the relief allowed in that provision in the guise of
interpretation. To do so would violate our mandate that fee-shifting
provisions in ordinances must be clearly expressed within the terms of
the ordinance, not implied. Botsko, 774 N.W.2d at 846.
3. Fair Housing Act. Finally, Schreurs argues she is entitled to an
award of attorney fees under the FHA. The district court rejected that
argument, and the court of appeals declined to reach it. The FHA allows
a discretionary fee-shifting award:
16
In any administrative proceeding brought under this
section, or any court proceeding arising therefrom, or any
civil action under this section, the administrative law judge
or the court, as the case may be, in its discretion, may allow
the prevailing party, other than the United States, a
reasonable attorney’s fee and costs.
42 U.S.C. § 3612(p).
Seeberger argues that the Commission does not have the authority
to award damages under the FHA. Schreurs and the Commission argue
that the Commission may award fees under the FHA and that failing to
award fees under the FHA ignores the long-standing file-sharing
agreement between administrative agencies. The district court ruled the
Commission could only award attorney fees authorized under the
Municipal Code and Schreurs would have to pursue attorney fees under
the FHA in a federal action.
In Van Meter Industries v. Mason City Human Rights Commission,
we rejected the argument that a local civil rights commission could
award punitive damages under a federal statute. 675 N.W.2d 503, 516–
17 (Iowa 2004).
[The plaintiff’s] argument ignores the limited jurisdiction of
this local civil rights commission. Under Iowa Code section
216.5, the Iowa Civil Rights Commission is given the power
to determine complaints alleging an unfair or discriminatory
practice under Iowa Code chapter 216. In addition, a city
may create a local civil rights commission to protect the
rights of citizens secured by the Iowa Civil Rights Act. Thus,
the Commission in this case acted under the authority and
subject to the limitations of chapter 216, not federal law.
Therefore, it correctly determined that it had no power to
award punitive damages.
Id. (citations omitted).
The same reasoning applies with regard to an award of attorney
fees by the Commission under federal law. See also Iowa Code
§ 216.19(1) (2015) (“All cities shall, to the extent possible, protect the
17
rights of the citizens of this state secured by the Iowa civil rights Act.”
(Emphasis added.)).
Schreurs relies on Dutcher v. Randall Foods, 546 N.W.2d 889 (Iowa
1996), in support of her argument. Her reliance on Dutcher is misplaced.
Dutcher involved a court declining to award attorney fees pursuant to the
Fair Labor Standards Act after a jury rendered a verdict and awarded
damages in favor of the plaintiff. Id. at 894–95. That case did not
involve a municipal civil rights commission awarding attorney fees under
federal law. The Commission argues that the Iowa Civil Rights Act
permits an award of attorney fees in fair housing cases. However, the
Commission did not award, and Schreurs is not requesting, an award of
attorney fees under the Iowa Civil Rights Act. We conclude the district
court correctly denied an award of attorney fees under the FHA.
IV. Conclusion.
For the above reasons, we vacate the decision of the court of
appeals awarding attorney fees for the agency proceedings, affirm the
court of appeals decision on the remaining issues, and affirm the
judgment of the district court.
DECISION OF THE COURT OF APPEALS AFFIRMED IN PART
AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except Appel and Wiggins, JJ., who concur in
part and dissent in part.
18
#16–1534, Seeberger v. Davenport Civil Rights Comm’n
APPEL, Justice (concurring in part and dissenting in part).
I concur in part and dissent in part.
I. Commission Authority to Award Attorney Fees for
Proceedings Before the Commission.
We recently reiterated the importance of the availability of attorney
fees in civil rights cases. Simon Seeding & Sod, Inc. v. Dubuque Human
Rights Comm’n, 895 N.W.2d 446, 473 (Iowa 2017). Our cases have long
explained that “[t]he reason a successful civil rights litigant is entitled to
attorney fees ‘is to ensure that private citizens can afford to pursue the
legal actions necessary to advance the public interest vindicated by the
policies of civil rights acts.’ ” Lynch v. City of Des Moines, 464 N.W.2d
236, 239 (Iowa 1990) (quoting Ayala v. Ctr. Line, Inc., 415 N.W.2d 603,
605 (Iowa 1987)). Federal courts have long given attorney fees provisions
in civil rights statutes a broad construction because the statutes further
policies favoring private enforcement of civil rights legislation. See, e.g.,
Newman v. Piggie Park Enters., 390 U.S. 400, 401–02, 88 S. Ct. 964,
965–66 (1968) (per curiam); Parker v. Califano, 561 F.2d 320, 327–28
(D.C. Cir. 1977); Smith v. La Cote Basque, 519 F. Supp. 663, 666
(S.D.N.Y. 1981). That said, “we will not substitute ‘generalized language’
for language ‘expressly authorizing the payment of attorneys’ fees to the
prevailing party.’ ” Simon Seeding & Sod, 895 N.W.2d at 473 (quoting
Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 846 (Iowa
2009)). Yet, we should not seek to evade express attorney fees provisions
in civil rights statutes through cramped and technical interpretation.
In this case, the plain language of the Davenport Civil Rights
Ordinance expressly authorizes the Davenport Civil Rights Commission
to award attorney fees related to the administrative proceedings that
19
occurred in this case. The ordinance provides that the Commission may
order payment of attorney fees caused by a discriminatory practice.
Davenport, Iowa, Mun. Code § 2.58.175(A)(8). The term “discriminatory
practice” is defined in the ordinance as “those practices specified as
unlawful or discriminatory in this chapter.” Id. § 2.58.030(R).
Discriminatory housing practices are among those specified as unlawful
in chapter 2.58. Id. § 2.58.300(B). Therefore, the Commission may order
payment of attorney fees caused by a discriminatory housing practice.
Since this case involved a discriminatory housing practice, the
Commission was authorized to award attorney fees in this case. The
district court erred in concluding otherwise, and I would reverse the
district court ruling that Michelle Schreurs is not entitled to attorney fees
before the Commission because they are not authorized by statute. That
ruling is wrong.
But there is more. Pursuant to section 2.58.175(A)(8), the
Commission “may” award attorney fees. Id. § 2.58.175(A)(8). Because of
the term “may,” the Commission has discretion under the Ordinance to
award attorney fees when a complainant proves a discriminatory
practice. The Commission determined that Schreurs proved a
discriminatory practice, and the district court has upheld that
determination. As a result, the Commission clearly has the power to
award Schreurs attorney fees in this case.
The district court, however, vacated the damages award. I agree
for the reasons stated by the district court. But because we do not know
if the Commission’s discretionary decision to award Schreurs attorney
fees was influenced by the size of the emotional distress award, I would
also vacate the Commission’s award of attorney fees and remand the
question to the Commission. Once the Commission redetermines the
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damages issue, it should consider whether to exercise its discretion to
award attorney fees.
In reconsidering the discretionary question of whether to award
attorney fees incurred for proceedings before the Commission, it is
important to note that, unlike section 2.58.350(G), there is no
requirement under section 2.58.175(A)(8) that the complainant be a
prevailing party. Compare id. § 2.58.350(G), with id. § 2.58.175(A)(8). All
that is required under section 2.58.175(A)(8) to permit the Commission
to exercise its discretion and award complainant attorney fees is a
finding that the respondent engaged in a discriminatory practice. See
id. § 2.58.175(A)(8). That predicate has already been established. Yet,
the Commission must exercise its discretion anew in the event that it
alters the damages award in this case.
II. District Court Authority to Award Attorney Fees.
Schreurs may also be entitled to attorney fees related to the
judicial review proceedings before the district court. The ordinance
provides that “the court may at its discretion allow the prevailing party,
other than the commission, reasonable attorney fees and costs resulting
from . . . any court proceeding arising” from an administrative proceeding
brought under section 2.58.350 of the ordinance. Id. § 2.58.350(G).
Under that provision, Schreurs sought attorney fees for the
proceedings before the district court in a posttrial motion. According to
Schreurs, she was a “prevailing party” in the district court proceedings
because the court affirmed the Commission on liability and remanded for
a finding on damages. According to Schreurs, the district court’s ruling
on the merits of her claim “alter[ed] the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly
benefits the plaintiff.” Dutcher v. Randall Foods, 546 N.W.2d 889, 895
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(Iowa 1996) (quoting Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S. Ct.
566, 573 (1992)).
The district court denied Schreurs’s motion. The district court
concluded, “[b]ased on the current status of the proceedings, [Schreurs]
is not entitled to an award of fees as a prevailing party, since the
outcome of this judicial review proceeding did not result in an
enforceable judgment against the petitioner.” The judicial review
proceeding did not render a definitive judgment on whether Schreurs is
entitled to damages but only vacated the Commission’s $17,500 damages
award and remanded the matter to the Commission in order to allow the
Commission to consider whether it gave inappropriate consideration of
damages arising out of the termination of the tenancy when it calculated
the damage award.
On remand, we do not know what the Commission will do. It is
certainly possible the Commission will affirm the award on the ground
that it already reduced the damages from $35,000 to $17,500 in order to
eliminate any recovery based on the termination of the tenancy. Or, the
Commission may reduce the $17,500 award to some other figure that is
still substantial. We just do not know. At the end of the day, the
Commission may affirm the award, and the district court may affirm the
new award.
Suppose, for instance, on remand the Commission affirms the
$17,500 emotional distress award and the respondent obtains no relief
from the Commission. The respondent decides not to appeal. Schreurs
has nothing to appeal as she has will have prevailed on the key contested
issue before the Commission. The matter does not return to district
court. In this instance, even though Schreurs has prevailed, and the
district court proceedings affirming the Commission’s finding of a
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violation of the Ordinance against a vigorous assault played an essential
part in her success, she would not have the opportunity to obtain
attorney fees from the district court even though the district court’s
ruling rejected the respondent’s claim on the merits of the civil rights
claim and merely remanded the damage award for clarification.
I believe we should reverse the district court’s decision and remand
the case to the district court with instructions for the district court to
issue a limited remand to the Commission under Iowa Rule of Appellate
Procedure 6.1004 for the sole purpose of determining the appropriate
amount of damages. Once the Commission has made its determination,
the district court should then consider the merits of any damages
remedy afforded by the Commission. Once the district court has
considered the merits of the revised damages, then the district court will
be in a position to consider whether Schreurs is a prevailing party in this
litigation under section 2.58.350(G) of the ordinance.
Wiggins, J., joins this concurrence in part and dissent in part.