from the Iowa District Court for Polk County, Michael D.
Davenport Civil Rights Commission and Michelle Schreurs
appeal and Theresa Seeberger cross-appeals a district court
ruling on Seeberger's petition for judicial review.
Latrice L. Lacey, Davenport, for appellant Davenport Civil
Dorothy A. O'Brien of O'Brien and Marquard, P.L.C.,
Davenport, for appellant Michelle Schreurs.
Randall D. Armentrout and Katie L. Graham of Nyemaster Goode,
P.C., Des Moines, for appellee.
Potterfield, P.J., and Mullins and Bower, JJ.
Davenport Civil Rights Commission (Commission) and Michelle
Schreurs appeal a district court ruling on Theresa
Seeberger's petition for judicial review following an
agency determination of Schreurs's housing-discrimination
complaint. The Commission contends the district court erred
in concluding Schreurs's complaint was not filed under
the federal Fair Housing Act (FHA) and the Davenport
Municipal Code (2014) does not authorize an award of attorney
fees in the context of discriminatory housing practices.
Schreurs argues the district court erred in concluding the
municipal code and FHA do not entitle her to an award of
attorney fees incurred during administrative proceedings and
abused its discretion in refusing to award her attorney fees
in the judicial-review proceeding.
Seeberger cross-appeals the same ruling. She asserts that
holding her liable for her discriminatory statements violates
the First Amendment to the United States Constitution and
article I, section 7 of the Iowa Constitution because the
statements she made amount to protected speech.
Background Facts and Proceedings
purchased a three-bedroom residential property in Davenport,
Iowa in 2011. After living in the residence for approximately
one year, Seeberger married in October 2012 and moved into
her spouse's home. Seeberger owned four cats at this
time, but her spouse was allergic to them. Seeberger was not
willing to give up her house or her cats, so she decided to
retain ownership of the home and rent the rooms to tenants.
After she began renting the property to tenants, she visited
the property nearly every day to feed her cats. She also kept
much of her clothing and many of her furnishings in the home.
In or about August 2013, Schreurs and her daughter moved into
the property as tenants; the tenancy was not memorialized in
a written agreement. At that time, there were also two other
tenants residing in the home. Also around that time,
Seeberger separated from her spouse and moved to a nearby
apartment, where she lived until the end of August 2014. By
mid-2014, Schreurs and her daughter were the only tenants in
the home. Seeberger testified that, overall, Schreurs and her
daughter were good tenants.
about September 16, 2014, Seeberger visited the home and
discovered a bottle of prenatal vitamins on the kitchen
counter. Seeberger took a photograph of the bottle, text
messaged it to Schreurs, and questioned, "Something I
should know about?" The following day, Seeberger
returned to the home and asked Schreurs if she had received
the text message. When Schreurs responded in the negative,
Seeberger showed her the photograph of the prenatal vitamins.
Schreurs excitedly advised Seeberger her daughter, around
fifteen years old at the time, was pregnant. Seeberger, after
contemplating the situation for "thirty seconds to a
minute, " angrily advised Schreurs, "You guys will
have to be out in thirty days." Seeberger then stated,
"You don't pay rent on time the way it is, now
you're bringing another person into the mix."
Seeberger also stated "she's taking prenatal
vitamins, . . . . obviously you're going to keep the
baby." Seeberger testified she was disappointed with
Schreurs for her irresponsibility in allowing her young
daughter to become pregnant. Seeberger also asserted she
terminated the tenancy because she wanted her house back to
herself. Seeberger testified she began drafting a notice to
terminate Schreurs's tenancy on September 15, but she did
not tender the notice to Schreurs until after her discovery
of the prenatal vitamins. In her interview with the
Commission, however, she stated she did not draft this notice
until September 18. This notice advised Schreurs she needed
to vacate the property by October 19. Seeberger subsequently
advised Schreurs she would start staying at the home on
October 1, Seeberger, via text message, asked Schreurs
whether one of her ex-boyfriends was the father of her
grandchild-to-be. Schreurs came to the home with her
boyfriend. At this time, Seeberger, who was at the home,
confronted Schreurs, repeating her inquiry. This exchange
upset Schreurs. Schreurs and her daughter were completely
moved out of the home by October 5. After Schreurs and her
daughter's eviction, Seeberger allowed another tenant to
live in the home.
November 2014, Schreurs filed a housing-discrimination
complaint with the Commission alleging Seeberger
discriminated against her on the basis of her familial status
by making discriminatory statements. The complaint was
amended in February 2015 and again in March. Her complaint
and amended complaints noted they were filed pursuant to
Davenport Municipal Code section 2.58.305(C) and Section
804(c) of the FHA. Following its investigation, the
Commission issued a probable cause finding of discrimination.
matter proceeded to a public hearing before an administrative
law judge (ALJ) in November. The ALJ concluded, with regard
to Seeberger's statements on September 16 and 17, that
"[a]n ordinary listener listening to [her] statements
would find her statements discriminatory on the basis of
familial status" and "Seeberger engaged in a
discriminatory housing practice by making the
statements." The ALJ awarded Schreurs $35, 000.00 in
emotional-distress damages and imposed a civil penalty in the
amount of $10, 000.00. The ALJ subsequently awarded Schreurs
$23, 881.80 in costs and attorney fees pursuant to Davenport
Municipal Code section 2.58.350(G). The Commission approved the
ALJ's decision in its entirety, with the exception of the
award of damages, which it reduced to $17, 500.00.
February 2016, Seeberger filed a petition for judicial
review. In her subsequent brief in support of her petition,
Seeberger argued, among other things, that the agency action
was unconstitutional because it violated her
freedom-of-speech rights and the Davenport Municipal Code
does not provide for an award of attorney fees prior to
judicial review. In their briefings, Schreurs and the
Commission argued Seeberger's statements were not