Why does the court say that HUD payment included as a lawful source of income? (the trial court said that it was not income, and therefore the discrimination was OK). Well, first, they don't feel obliged to follow the 7th Circuit in interpreting WI law: it's interesting, but not binding. The Chicago ordinance is broader than the WI statute. In CHI, they say, no discrimination based on how a tenant supports himself. Arguably, that should not include how the tenant is supported by the government.
So, they say it's broader, but it's a little bit of a strange statement... it's not necessarily broader. So then we look to another precedent: NJ, in this case. Why doesn't a CHI court take 7th Circuit more seriously than NJ (after all, 7th Cir. is in CHI). Well, they're not ruling on a matter of Federal law: it's a states' rights issue-- 7th Cir. doesn't make the law for CHI, and they are free to follow whom they want.
Note that if it's unlawful discrimination to reject HUD tenants, then all landlords are made a part of the HUD program. This puts the landlord at risk: property value, crime, etc. Other tenants, as well, are affected by this, so landlords can claim that the non-section-8 tenants will be driven out.
Plus, note, the statute doesn't say anything about Section 8. If the legislature wanted to include it, they could just have said so. Its absence suggests that this wasn't a priority for the legislature.
Oh, plus now the landlord might get HUD audits, and that could be a pain. We should be free not to contract with the government-- we should be able to say no to the red tape.
Not only can the government be distant and bureaucratic, but they can also be domineering: they might wind up compelling the landlord to renew leases with vouchered tenants. Let's not evern play that game. It is a scary game.
And remember Mitchell: it's harder to evict section 8 tenants than others. So this means that the imposition on landlords is greater. And the non-section-8 tenants have less protection. So who is going to get evicted, when it's time for evicting? The ones who are (indirectly) paying the section 8 rent.
Now the tenant correctly points out that because of the timing here, she has lost her section 8 voucher, and that's a terrible thing. Landlord can point out, though, that this is a wash: some other applicant, equally needy, has it now.
Now the disparate impact approach is an interesting one. The tax code has disparate impact, for example: some races pay more taxes than others. The tenant's disparate impact argument should be taken cautiously. If this is racial discrimination, in this case, the landlord can point out that he did take the daughter. And the landlord is himself a minority.
So in a sense, the root of the problem here is that HUD doesn't trust the tenant-- if they just gave the tenant cash, the landlord wouldn't have this issue. Of course, HUD doesn't feel they've got a choice: they aren't sure that the tenant would use the money 100% on rent.
Now part of HUDs goal is to disperse public housing, instead of concentrating it all in public units: this will accomplish racial and wealth integration. They want tenants to go and find apartments that are privately operated. They want to give the recipient the maximum flexibility, or else we wind up with bad projects again.
OK, so arguments for the tenant. First, textual: this is all pretty vague, with split precedent, etc. Courts should defer to administrative agencies who are knowledgeable about the subject. Local law should govern.
Also, to be anti-HUD isn't really a virtue. It weakens government, and makes it even less efficient, if people opt out of dealing with them. If landlords can just shrug off voucher tenants, section 8 won't be an effective program.
And egalite: there's nothing inherently wrong with being poor. It's snobbery on the part of the landlord and other tenants when the costs to this tenant (re-ghettoization) is so high. Wealth discrimination is condemned in many jurisdictions (like WI). And even so, dispersed poverty is better for society than concentrated poverty (even if it is hard on this particular landlord).
This tenant already applied for housing, and the consequences here are devastating.
This isn't a source-of-income issue. This is a racial issue. If you say "no section 8s here," what you're really doing is keeping minorities out. That should not be allowed. And this isn't just an indirect disparate impact: it's overt and direct.
And note also that children are not listed as a protected class.
This is a classic exclusio case: the statute doesn't protect children. If you include a bunch of stuff, you are presumed to have excluded the other stuff. So this issue of mootness and standing is an interesting one: the court wants to hear the case, but courts are only supposed to hear cases where the people still have an issue with one another.
In Cox, the court said that hippies are covered under the statute, even though they are not mentioned. But the statute does mention religion, and that's more like hippie-ism than being a child is.
And, in the intervening 10 years since Cox, the legislature took no steps to limit the interpretation taken in that case. So they are basically signalling approval. The counter to this theory is of course that legislative inaction signifies nothing: there are too many reasons why the legislature might remain silent.
The landlord points out that the legislature added gender to the law. So that suggests that the list is not merely illustrative, and that if they wanted something covered, it had to be mentioned. The court says no: they did this just to highlight it. That's sort of feeble: if the categories aren't important, why go to all the trouble of adding a new element?
And actually, the legislature tried to add children-- there were various bills that didn't pass. This shows that they ultimately didn't want them on there. And here, the court says that legislative failure could signify many different contradictory things. Sort of contradicting the reasoning above.
Now there is a thing that allows discrimination against children in mobile homes. The court says, exclusio, that the mobile home prohibition means, since it's not replicated elsewhere, that other things are excluded. Again, ironic.
The Flowers case was a "mere" court of appeals. And it was a "mere" 2.5 pages. It was just a couple of conclusionary sentences, not real analysis. And plus, it's wrong. So we don't follow it.
Note, of course, that the legislature did nothing after Flowers. So, we could perhaps, conclude that the legislature approved of it.
So, basically, the court cites a canon when it yields the proper result. Lots of times, the arguments presented in an opinion are rationalizations. We need to discern the reason from the rationalization. Mere technical arguments will not get us very far: we need to get to the meat of what is persuasive to the court.
Some nice arguments for the tenants: it's unhealthy to discriminate against children; also, courts should defend those in the greatest need-- parents with children will me more greatly inconvenienced by eviction than those childless neighbors who have to put up with them.
Cases like Mitchell support the tenants: we want security in housing. Once someone is a tenant, it should be hard to get rid of them.
Privacy of family choice (i.e., saying how your family is defined, and how many kids you'll have) is an almost constitutionally-protected thing. Also, this is overt age discrimination. The USSC has so far declined to declare age discrimination unconstitutional.
Of course, free contract says that I should be able to pick who I do business with. But, where the benefit of arbitrary discrimination is modest, and the cost is severe, we prohibit it.
Disparate impact concerns also: there are more single parent families headed by women than by men. So we're potentially making more apartments available to men than to women. It's also wealth discrimination. And maybe race: perhaps different minorities have different size families.
WI statutes prohibit discrimination on the basis of "family status." That is a euphamism mostly for "children."
Landlord-side arguments. Well, again, here goes the rents. And the other tenants are going to pay for the sort of damage children would do. We can't charge just the child-bearing households, for obvious reasons. This might not be a big increase, but we still need to think of who pays it. Ain't going to be the landlord. If the public is so excited about great housing for children, why don't they shoulder the burden of providing it? When the public foists some burden on a particular group, that is a "taking," and the government has to pay for it.
Realistically, the non-child tenants will not be happy about this. They will leave. Also, children can be the impetus for breaking the implied warranty of habitability. Look at Maxey: children caused the fire for which the landlord was penalized. And having children means more persons per square foot of apartment space. So is it possible to discriminate against large families, because at some point it's too much population density? The housing code has a density limit-- is this anti-child discrimination? We've got to draw this line someplace, or else we don't get the benefits of housing codes.
What about the fair housing implications for other tenants? Do older tenants have the capacity to isolate themselves from younger tenants? For fear of crime, for example.
Also, efficiency: do we really want to have to litigate about each allegedly destructive individual child? This effectively raises the amount of damage a child can do before it becomes economically feasible to pursue eviction on that basis.
Day care centers are of course not listed in any of the protected groups, but we've got disparate impact on women as a result. And maybe family status. And source of income.
Of course, the landlord doesn't care if the tenant runs a day care center-- they just don't want the day care center in the building.
Denying the tenants a lease was such a severe and humliating blow that the couple splits up. HUD is persuaded by this line of reasoning, and imposes penalties, etc. Amortized, this is about equivalent to losing all the landlords' profit in perpetuity.
And if HUD can't determine the maximum number of children per square foot, it's not reasonable to expect landlords to get it right. So the court just clobbers the ALJ.
US housing standards are incredibly high, and there's a lot more space per person than any place else in the world.
The court comes down in favor of the tenant who was denied housing. In WI, and in Madison, sexual orientation is specifically covered by statute. Now the legislation changed, so that the rules don't apply to roommates. But the policy perceived by the court was that even roommates can't have artificial discrimination.
The court sort of splits the difference: if the web site edits content so that certain folks can't see stuff on discriminatory bases, that's bad. If it just echoes the input it's given, then no problem.
The judge thinks (speech at UW) that the US should lighten up a bit, incidentally.
But is it reasonable to punish landlords for accepting illegal aliens?
No. This looks unconstitutional, and we can find a lot of ways that it is unconstitutional.
The lower court says that there's no federalfair insurance law, only a fair housing law.
But what does "make unavailable" mean? (it's illegal to make housing unavailable based on race). Where does that begin and end?
In Dunn, the court said that the statute did apply to insurance; generally when Congress gets excited about an opinion, it's because they disagree with it. In this case, some representatives tried to enact an amendment specifically to include insurance. It was beaten back. So then, citing Mackey, the court concludes that we can't infer anything specific from the fact that they failed to enact the proposed amendment (the opposite of Mackey, actually: that case says that we can draw a conclusion from legislative inaction).
Congress can delegate powers to agencies. Agencies interpret federal statutes all the time to resolve ambiguity. We only overrule them if their interpretation is "arbitrary and capricious." So now that HUD has made an interpretation, we should acquiesce with it. It's pretty much an easy case, says the court.
A second question: if an AmFam employee does something discriminatory, the injured party can sue the employer.
So, on the one hand, we don't want to outlaw a business's ability to allocate risk rationally. On the other hand, ostensibly rational decision making may be a mask for actual racism. On the third hand, even if the company isn't racist, if it strongly appears to be racist, maybe we can't allow it to do business that way.
Note that this has a chilling effect for would-be investors in insurance companies, because it's basically saying "you have to take a loss." And other policyholders will have to pay more, to cover risks that are not theirs. And so if the US public is so uptight about insurance rates in the inner city, why not subsidize them? Instead, they find a deep pocket (AmFam's), and take from it.
We should be careful about tampering with such a large and vibrant economy. Plus, liberty of contract: people shouldn't be forced to agree to terms they don't want.
If a bank has a branch in the inner city, it's not allowed to charge higher rates in the city than in the suburbs (effectively taking money from the inner city and loaning it out in the suburbs). Suburban banks didn't have this constraint, so they could out-compete. And so the bigger banks closed their inner city branches.
There are lots of cases where prices in the inner city are higher than they are in the suburbs (because of more need for security, e.g.). So if a grocery store has a city and a suburban branch, are they obligated to charge the same prices in both places?
This is even more controversial than affirmative action. We're not just mandating access to opportunity for success. We're mandating results, here. Are we saying that all races should have equal housing, regardless of the fact that some races have higher income? And regardless of the fact that some minority races have higher-than-average income?
Constitutional claims arise, but not takings. The concern also isn't that there was no hearing (i.e., due process). It's not a procedural due process issue-- it's a substantive due process concern. Also equal protection.
What's the equal protection concern? There's no "rational basis" for the statute. The test the court uses: is it a legitimate use of police powers? But legitimate = constitutional, so it's circular. Such provisions will be struck down if they are arbirtary, unreasonable, having no substatial relation to the health, safety, morals and general welfare of the public. All these criteria are too nebulous. Sometimes one or more terms are left out, but the magic incantation represented here generally has four words. They are symbolic, nobody is paying attention to them. The court is being 100% circular. USSC can do that.
Consitutional meaning doesn't change, but the application does, according to the court. Meaning is hard as a diamond, but application is soft as a pillow. So basically, we're rewriting a piece of the constitution, without acknowledging that we're doing it. We don't do this often, and we don't call attention to it.
Federalism: we should defer to local zoning councils-- they're involved, knowledgeable, etc. Also, zoning is one of the few areas (like education and juries) where local democratic power gets exercised. Police, education, and environmental issues are shifting to the state and then to the federal level.
It can promote efficient land use. That's a pretty decent basic policy. And we've seen it before.
One reason sometimes offered for zoning is that order and reason and planning are appealing. There are also good environmental reasons to promote land use planning: protection of endangered species, for example. Also, the only place that has no zoning laws is Houston TX: we like zoning because we're used to it-- it's not really a topic up to debate.
Arguments against zoning:
So the question before the court is whether the zoning rule is reasonable. This is a constitutional question: due process and equal protection. Also 5A takings, and 1A. But they lose on all those bases, because the court finds that there is a rational purpose to the statute: preserving the character of the area. They say that's rational, but they do not explain about what is rational about it, etc.
Why should the county win?