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Seeberger v. Davenport Civil Rights Commission

Court of Appeals of Iowa

April 18, 2018

THERESA SEEBERGER, Petitioner-Appellee/Cross-Appellant,
DAVENPORT CIVIL RIGHTS COMMISSION, Respondent-Appellant/Cross-Appellee, and MICHELLE SCHREURS, Intervenor-Appellant/Cross-Appellee.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         The 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 Rights Commission.

          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.

          MULLINS, JUDGE.

         The 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.

         Theresa 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.

         I. Background Facts and Proceedings

         Seeberger 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.

         On or 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 September 26.

         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.

         In 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.[1] Following its investigation, the Commission issued a probable cause finding of discrimination.

         The 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).[2] 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.

         In 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 protected ...

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