from the Iowa District Court for Polk County, Michael D.
review from the Iowa Court of Appeals.
seeks further review of court of appeals decision affirming
damage award for housing discrimination and restoring
attorney fee award.
Latrice L. Lacey of Davenport Civil Rights Commission,
Davenport, for appellant. Dorothy A. O'Brien of
O'Brien & Marquard, P.L.C., Davenport, for
Randall D. Armentrout, Katie L. Graham, and Ryan G. Koopmans
(until withdrawal) of Nyemaster Goode, P.C., Des Moines, for
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.
review, we elect to allow the court of appeals decision to
stand on all issues except the award of fees incurred in the
agency 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.
Background Facts and Proceedings.
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.
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.
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
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, 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.
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),
§ 804(c) of the FHA. 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)). The Commission 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).
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.
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
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 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).
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
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.
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 Seeberger
requested an award of fees incurred during the judicial
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
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
filed an application for further review. We granted her
Scope of Review.
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 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
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
Attorney Fee Awards Under Municipal Civil ...