United States of America v. Boote et al
Filing
61
ORDER granting in part and denying in part 24 Motion for Summary Judgment; denying 31 Motion for Summary Judgment; finding as moot 36 Motion to Dismiss; denying 57 Motion to Strike; denying 48 request for judicial notice; granting 46 Motion to Strike. The HUD conciliation statements filed at paragraph 9 of the Statement of Undisputed Facts (Doc. 43), Exhibit D to the Statement of Undisputed Facts (Doc. 43-4), and the references made in Missoula's brief in opposition at pages 8 and 21 (Doc. 44) are stricken from the record. Signed by Judge Donald W. Molloy on 4/3/2014. (NOS, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FILED
APR 03 2014
Clerk, u.s District Court
District Of Montana
Missoula
UNITED STATES OF AMERICA,
CV 13-05-M-DWM
Plaintiff,
ORDER
and
MONTANA F AIR HOUSING, INC.,
Intervening Plaintiff
vs.
ANTHONY BOOTE, RED DOG
CONSTRUCTION, LLC, CHARLES J.
CHANDLER, CITY OF MISSOULA, and
JOHN DOE,
Defendants.
On January 11,2013, the United States Department of Housing and Urban
Development ("HUD") filed a complaint alleging that Defendants Anthony Boote
("Boote"), Red Dog Construction, LLC ("Red Dog"), and Charles J. Chandler
("Chandler") violated the Federal Fair Housing Act Amendments ("Fair Housing
Act"), 42 U.S.C. § 3601 et seq. (Doc. 1.) HUD did not make any claims against
the City of Missoula ("Missoula"). On January 23, 2013, Intervening Plaintiff
Montana Fair Housing, Inc. ("Fair Housing") filed its Complaint in Intervention
1
against Boote, Red Dog, Chandler, and Missoula. (Doc. 7.) It alleged two counts
against Boote, Red Dog, and Chandler (Counts I and II), which were resolved by
entry of a Consent Order, (Docs. 3 and 3-1), and dismissed, (Doc. 8). The
Complaint in Intervention alleges two counts against Missoula: Count III:
violation ofthe Fair Housing Act and Count IV: violation of the Montana Human
Rights Act ("Human Rights Act"), Mont. Code Ann. § 49-2-101, et seq., and the
Montana Governmental Code of Fair Practices ("Code of Fair Practices"), Mont.
Code Ann. § 49-3-101, et seq.
Missoula is entitled to summary judgment as to part of Count III and part of
Count IV. Summary disposition in favor of Missoula is appropriate as to Fair
Housing's claims under 42 U.S.C. § 3604(f)(1) and (2), Montana Code Annotated
§ 49-2-305(1)(d) and (4)(c), and § 49-3-204. Genuine issues of material fact
prevent summary disposition of Fair Housing's remaining claims. Missoula's
motion to strike is denied. Fair Housing's motion to dismiss a count ofthe
Complaint in Intervention is denied as moot. Finally, Fair Housing's request for
judicial notice is denied and its motion to strike is granted.
FACTUAL BACKGROUND
I.
The Inez Property
On June 7, 2011, Boote and Chandler submitted a Commercial Building
2
Permit Application to Missoula to build a four-plex residential building at 215
Inez Street in Missoula, Montana ("the Inez Property"). (Missoula's SUF, Doc. 26
at ~ 2.) The building consisted of four dwelling units. Steve Meismer
("Meismer"), Senior Construction Plans Examiner for the Building Inspection
Division of the Missoula Public Works Department, reviewed and approved the
Inez Property plans. Meismer then stamped the plans with the following:
... Compliance with the requirements of the State Building Code for
physical accessibility to persons with disabilities does not necessarily
guarantee compliance with the Americans With Disabilities Act of 1990,
the Rehabilitation Act of 1973, the Fair Housing Amendments Act of
1988, Title 49, Chapter 2, commonly known as the Montana Human
Rights Act or similar federal, state, or local laws that mandate
accessibility to commercial construction of multifamily housing.
(Id. at ~ 9.) Meismer reviewed the plans to determine if they complied with the
city building code, i.e., the International Building Code (the "Building Code").
Meismer does not review designs for compliance with the Fair Housing Act or the
Human Rights Act and does not consider those laws in reviewing building
designs. (Id. at ~~ 4-5; Fair Housing's Br. in Opp., Doc. 41 at 2-3.)
Chandler commenced construction. (Missoula's SUF, Doc. 26 at ~ 10.)
Shortly thereafter, Chandler received a letter dated September 6,2011 from Fair
Housing, advising him that it was aware he was constructing a four-plex and of the
need for construction to comply with the Fair Housing Act. Missoula inspected
3
the construction as it progressed. (Id.) Once construction was completed,
Missoula issued a Certificate of Occupancy for the Inez Property as a four-plex on
February 8, 2012. (Id. at ~ 11.) The Certificate of Occupancy included the
following language:
Compliance with the requirements of the State Building Code for
physical accessibility to persons with disabilities does not necessarily
guarantee compliance with the Americans With Disabilities Act of1990,
the Rehabilitation Act of 1973, the Fair Housing Amendments Act of
1988, Title 49, Chapter 2, commonly known as the Montana Human
Rights Act or similar federal, state, or local laws that mandate
accessibility to commercial construction of multifamily housing.
(Id.)
II.
The Building Code
Sections 1101-1107 of the Building Code set out accessibility requirements
for a building with four or more dwellings. Pursuant to the Building Code,
[w]here there are four or more dwelling units or sleeping units intended
to be occupied as a residence in a single structure, every dwelling unit
and sleeping unit intended to be occupied as a residence shall be a Type
B unit. Exception: The number of Type B units is permitted to be
reduced in accordance with section 1107.7.
§ 1107.6.2.1.2.
Section 1107.7.1 states: "Structures without elevator service. Where no
elevator service is provided in a structure, only the dwelling and sleeping units
that are located on stories indicated in Sections 1107.7.1.1 and 1107.7.1.2 are
4
required to be Type A and Type B units." The referenced sections read as follows:
1107.7.1.1 One story with Type B units required. At least one story
containing dwelling units or sleeping units intended to be occupied as
a residence shall be provided with an accessible entrance from the
exterior of the structure and all units intended to be occupied as a
residence on that story shall be Type B units.
1107.7.1.2 Additional stories with Type B units. On all other stories
that have a building entrance in proximity to arrival points intended to
serve units on that story, as indicated in Items 1 and 2, all dwelling units
and sleeping units intended to be occupied as a residence served by that
entrance on that story shall be Type B units.
1.
2.
Where the slopes of the undisturbed site measured between the
planned entrance and all vehicular or pedestrian arrival points
with 50 feet (15 240 mm) ofthe planned entrance are 10 percent
or less,
and
Where the slopes ofthe planned finished grade measured between
the entrance and all vehicular or pedestrian arrival points within
50 feet (15 240 mm) of the planned entrance are 10 percent or
less.
Where no such arrival points are within 50 feet (15 240 mm) of the
entrance, the closest arrival point shall be used unless that arrival point
serves the story required by Section 1107.7.1.1.
(Doc. 32-18 at 2.) Section 1107.7.2 then states
Multistory units. A multistory dwelling or sleeping unit which is not
provided with elevator service is not required to be a Type B unit.
Where a multistory unit is provided with external elevator service to
only one floor, the floor provided with elevator service shall be the
primary entry to the unit, shall comply with the requirements for a Type
B unit and a toilet facility shall be provided on that floor.
5
(Doc. 38-10 at 3.) Building officials have the authority to render interpretations of
the Building Code and adopt policies and procedures in order to clarify its
application as long as they do so in compliance with the intent and purpose ofthe
Building Code. (Building Code § 104.1, Doc. 32-16.)
The Inez Property is a four-plex, requiring it meet the general rule that all its
units be Type B units unless any exceptions apply. The Inez Property has a unique
configuration, including three non-elevator units that start at ground level and are
two stories in height and a fourth unit in the basement that is single-story and
approximately 10' below ground level. (Doc. 38-10 at 3-4.) Meismer reviewed
and approved the Inez Project for compliance with the Building Code. Meismer
determined that because the Inez Project included three two-story dwellings and
one dwelling below grade, the units did not need to be Type B units per the
exceptions discussed above. (Id. at 4.) Fair Housing contends this interpretation
of the Building Code violates the Fair Housing Act, the Human Rights Act, and
the Code of Fair Practices, and that Missoula made improper compliance
statements to the parties involved in the project.
STANDARD
A party is entitled to summary judgment if it can demonstrate that "there is
no genuine dispute as to any material fact and the movant is entitled to judgment
6
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
facts that might affect the outcome of the lawsuit will preclude entry ofsummary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id at 248.
ANALYSIS
I.
Missoula is entitled to summary judgment as to Fair Housing's claims
under 42 U.S.C. § 3604(t)(1) and (2), but a genuine issue of material fact
remains as to Fair Housing's claims under 42 U.S.C. § 3617.
Missoula insists that its failure to review and approve the plan and
construction ofthe Inez Property for compliance with the Fair Housing Act is not
a violation ofthat Act. Based on the plain language of the Act, Missoula is
correct. The Fair Housing Act states that a municipality may review and approve
new construction for compliance with the Act, but that the Secretary may not
require that municipalities do so. 42 U.S.C. § 3604(f)(5)(B) and (C). Therefore,
Missoula did not violate the Fair Housing Act by failing to review or approve the
Inez Property for compliance with the Fair Housing Act. However, Fair Housing
contends Missoula's interpretation of its own Building Code violates the Fair
Housing Act by making housing "unavailable" to persons with disabilities and that
7
Missoula has interfered with individuals' housing rights through its statements and
conduct in conjunction with the Inez Property.
Missoula first contends its interpretation of the Building Code is not
relevant as the Complaint in Intervention does not allege a violation of the
Building Code. However, Fair Housing's contentions regarding the Building
Code are inextricably linked with its insistence that Missoula has violated the Fair
Housing Act. (Doc. 7 at ~ 27 ("It is the practice of [Missoula] to read, interpret
and implement the [Building Code] in a manner that is inconsistent with
accessibility requirements as set forth in the [Fair Housing Act] ....").) Second,
Missoula contends a challenge to its interpretation of the Building Code is more
properly reviewed by the Missoula Building Code Appeal Board, the Montana
Department of Labor and Industry, and the Building Code Council. The Fair
Housing Act does not require the filing of an administrative complaint before an
aggrieved person commences a civil action in federal court. 42 U.S.C. §
3613(a)(2); see also Gladstone Realtors v. Village a/Bellwood, 441 U.S. 91 103
104 (1979). Therefore, the failure to do so does not bar Fair Housing's ability to
bring claims under the Fair Housing Act.
Finally, Missoula contends its interpretation of the Building Code does not
fall under the Fair Housing Act because it is not a "land-use practice," but merely
8
a housing code. "Land-use practices," such as zoning decisions, are subject to the
Fair Housing Act.
See Pac. Shores Properties, LLC v. City ofNewport Beach,
730 F.3d 1142, 1157 (9th Cir. 2013) (regarding a zoning ordinance that allegedly
discriminated against group homes). Although the Ninth Circuit has provided
distinct definitions for "housing codes" and "land use restrictions," City of
Edmonds v. Wash. St. Bldg. Code Council, 18 F.3d 802,804 n. 3 (9th Cir. 1994),
the Fair Housing Act "prohihit[s] governmental entities from implementing or
enforcing housing policies in a discriminatory manner against persons with
disabilities," Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565, 573 (2nd Cir.
2003) (applying the Fair Housing Act to the interpretation of a fire codeY; see also
Pac. Shores Properties, LLC, 730 F .3d at 1157 (citing the legislative history of the
Fair Housing Act, including the desire that it "apply to state local land use or
health and safety laws, regulations, practices, or decisions which discriminate
against individuals with handicaps"). Thus, the interpretation and implementation
of Missoula's housing policies may give rise to a violation of the Fair Housing
Act.
A.
Fair Housing has failed to provide sufficient evidence of
discriminatory intent or disparate impact to show that Missoula
The Second Circuit notes that the Fire District did not specifically contest the
application of the Fair Housing Act to the fire code. Tsombanidis, 352 F.3d at 574.
9
made unavailable or denied a dwelling because of a handicap.
The Fair Housing Act renders it unlawful "[t]o discriminate in the sale or
rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter
because ofa handicap ...." 42 U.S.C. § 3604(f)(1). Under this statute, a plaintiff
can prove discrimination either by proving discriminatory intent (also called
disparate treatment) or disparate impact on the statutorily protected class. See
Comm. Concerning Community Improvement v. City a/Modesto, 583 F.3d 690,
711 (9th Cir. 2009). Here, the Building Code provides that housing complexes
with four or more dwellings must be built entirely with Type B units? Fair
Housing challenges Missoula's interpretation and application of the policy
exceptions stating when Type B units are not necessary.
1.
Intentional Discrimination
"A facially discriminatory policy is one which on its face applies less
favorably to a protected group." Community House, Inc. v. City a/Boise, 490 F.3d
1041, 1048 (9th Cir. 2006) (citation omitted). At the summary judgment stage, "a
plaintiff makes out a prima facie case of intentional discrimination under the [Fair
2
A Type B unit is defined as "[a] dwelling or sleeping unit designed and
constructed for accessibility in accordance with this code and the provisions for Type B units in
ICC A1l7.1, consistent with the design and construction requirements of the federal Fair
Housing Act." (Building Code, § 1102.1, Doc. 32-9.) Accessibility under the Building Code is
then referred to in the context of "accessibility to physically disabled persons." (Id. at § 1101.1.)
10
Housing Act] merely by showing that a protected group has been subjected to
explicitly differential-i.e. discriminatory-treatment." Id. at 1050 (citation
omitted). To recover under the theory of disparate treatment, "[p]roof of
discriminatory motive is crucial." Gamble v. City ofEscondido, 104 F.3d 300,
305 (9th Cir. 1997). If a plaintiff makes out a prima facie case of intentional
discrimination-showing that the policy or practice singles out a protected
group--the analysis then turns to the defendant's justification for the policy,
Community House, Inc., 480 F.3d at 1051, and if the policy was not implemented
"because of' the protected trait, the plaintiff s claim must fail. To create a triable
issue of fact as to intentional discrimination, a plaintiff may "produce direct or
circumstantial evidence demonstrating that a discriminatory reason more likely
than not motivated the defendant and that the defendant's actions adversely
affected the plaintiff in some way." Pac. Shores Properties, LLC, 730 F.2d at
1158 (citation and internal quotation marks omitted). Alternatively, a plaintiff
may show the existence of a similarly situated entity who or which was treated
better. Id.
Even assuming Fair Housing has made an adequate showing that Missoula's
interpretation of the Building Code singles out physically disabled persons, Fair
Housing has failed to present any evidence of discriminatory motive. Fair
11
Housing has not produced any evidence that these individuals have been treated
worse than others or produced direct or circumstantial evidence demonstrating that
a discriminatory reason more likely than not motivated Missoula to interpret the
Building Code in an allegedly discriminatory manner. For these reasons, Fair
Housing's intentional discrimination argument fails.
2.
Disparate Impact
Disparate impact analysis focuses on facially neutral policies or practices
that have a discriminatory effect. Tsombanidis, 352 F.3d at 574. To establish a
prima facie case under this theory, the plaintiff must show: (1) the occurrence of
certain outwardly neutral practices, and (2) a significant adverse or
disproportionate impact on persons of a particular type produced by the
defendant's facially neutral acts or practices. City ofModesto, 583 F.3d at 711;
see also 24 C.F.R. § 100.500. Although a plaintiff does not need to show the
defendant's action was based on discriminatory intent, the plaintiff has not met its
burden if it merely raises an inference of discriminatory impact. Tsom banidis , 352
F.3d at 575. The plaintiff must prove the practice actually or predictably results in
discrimination, 24 C.F.R. § 100.500(c)(1), and that there is a causal connection
between the facially neutral policy and the alleged discriminatory effect,
Tsombanidis, 352 F.3d at 575. If a plaintiff makes a prima facie showing, the
12
burden shifts to the defendant to "prove that its actions furthered, in theory and in
practice, a legitimate, bona fide governmental interest and that no alternative
would serve that interest with less discriminatory effect." Id.
Fair Housing has failed to make a prima facie showing of disparate impact.
"Statistical evidence is ... normally used in cases involving fair housing disparate
impact claims[,]" and in the absence of such evidence, a court may look to
qualitative evidence. Tsombanidis, 352 F3d at 575-76 ("To prevail on a theory of
disparate impact ... there must be some evidence that a significant number of
people suffering the handicap need [the housing] and that the [code] restricts a
substantial portion of similarly handicapped individuals from [receiving it].");
Darensburg v. Metro. Transp. Comn., 636 F 3d 511, 515 (9th Cir. 2011) (holding
plaintiffs failed to establish a prima facie case for disparate impact regarding a
railway expansion project because they did not provide an appropriate statistical
measure). Here, Fair Housing presents no statistical information or qualitative
evidence showing that § 1107.7.1 or its interpretation actually or predictably
created a shortage of housing for physically disabled individuals in the
community. Fair Housing merely contends that this practice "will predictably
(read inevitably) have the same adverse effect at future properties." (Fair
Housing's Br. in Opp., Doc. 41 at 21.) Fair Housing provides no information
13
regarding what types and quantities of housing are currently available to those
suffering from disabilities or how many have been denied or would be denied
housing based on Missoula's interpretation of the Building Code. Further,
Missoula presents evidence that the Inez Property is a unique design and is
therefore not reflective of most four-plex projects in Missoula. (Missoula's Reply,
Doc. 45 at 8; Doc. 43 at 5, ~ 12.) Fair Housing fails to explain how Missoula's
application of the Building Code to the Inez Property reflects its application ofthe
Building Code in any other instance.
Accordingly, summary judgment is granted in favor ofMissoula and denied
as to Fair Housing regarding Fair Housing's claims under 42 U.S.C. § 3604(£)(1).
B.
Missoula did not discriminate in the provision of services in
violation of 42 U.S.C. § 3604(f)(2).
Fair Housing contends Missoula performs plan review services in conflict
with the directive of the Building Code in a manner that violates 42 U.S.C. §
3604(t)(2). Fair Housing's argument as to this issue is unpersuasive as the
"service" alleged is the review and approval of design and construction. As
discussed earlier, Missoula does not have a duty under the Fair Housing Act to
review and approve designs and construction for compliance with the Act. To the
extent Fair Housing premises its argument on Missoula's interpretation of the
14
..
_._-----------------
Building Code, its argument suffers from the same inadequacies as discussed
above. Therefore, summary judgment is granted in favor of Missoula and denied
as to Fair Housing regarding Fair Housing's claims under § 3604(f)(2).
c.
A genuine issue of material fact remains as to whether Missoula
interfered with a person's exercise or enjoyment of a right under
42 U.S.C. § 3617.
Fair Housing contends triable issues of fact remain as to whether Missoula
interfered with the exercise of rights under federal fair housing laws. The Fair
Housing Act provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or
interfere with any person ... on account of his having aided or encouraged any
other person in the exercise or enjoyment of any right granted or protected" under
the Act. 42 U.S.C. § 3617. The language "interfere with" has been broadly
applied "to reach all practices which have the effect of interfering with the
exercise of rights under the federal fair housing laws." United States v. City of
Hayward, 36 F.3d 832,835 (9th Cir. 1994) (quotation marks and citation omitted).
Fair Housing alleges Missoula interfered by (1) failing to require a written
acknowledgment for the Inez Property, (2) making improper compliance
statements to Boote, Chandler, and Red Dog, (3) failing to provide its employees
with working knowledge of fair housing requirements, (4) failing to regularly
review its building department operations, and (5) failing to take any action to
15
remedy the alleged violations ofthe Fair Housing Act at the Inez Property. A
genuine issue of material fact remains as to what actions Missoula took regarding
an acknowledgment and what it told the designers and builders of the Inez
Property regarding their compliance with the Fair Housing Act. Fair Housing's
additional contentions are merely conclusory statements and, as such, do not
provide additional grounds for finding a genuine issue of material fact.
Missoula admits that it has no record of receiving an acknowledgment for
the Inez Property.3 If Missoula was required to take certain steps and it did not do
so, this may rise to the level of interference under the Fair Housing Act. Fair
Housing further argues that Missoula interfered when it informed the parties
involved in the Inez Property that their design and construction complied with Fair
Housing Act standards. Missoula contends no such statements were made and a
disclaimer was stamped on both the plans and the Certificate of Occupancy stating
that it had not reviewed the plans for compliance with the Fair Housing Act.
(Missoula's SUF, Doc. 26 at ~~ 4-7.) Although Fair Housing does not dispute the
presence and content of the disclaimers, it has presented evidence that Chandler
3
In 2003, a settlement was reached between Missoula and Fair Housing in which
Missoula agreed to take affirmative actions to assure that "all persons applying for a building
permit acknowledged in writing their obligations under the [Fair Housing Act.J" (Fair
Housing's Br. in Opp., Doc. 41 at 20.)
16
represented to HUD that Meismer told him the Inez Property complied with the
Fair Housing Act. (Fair Housing's St. Disp. Facts, Doc. 38 at 4-6.) This is
sufficient to raise a genuine dispute as to whether Missoula "interfered" in
violation of § 3617. Therefore, Missoula's motion for summary judgment is
denied as to Fair Housing's claims under 42 U.S.C. § 3617.
II. Missoula is entitled to summary judgment as to Fair Housing's claim
under § 49-2-305(1)(d) and (4)(c), but genuine issues of material fact
remain as to Fair Housing's claims under § 49-2-305(3) and (9).
A.
Missoula is a "person" for the purposes of § 49-2-305.
Montana Code Annotated § 49-2-305 prohibits an "owner, lessor, manager .
. . or any other person" from engaging in unlawful discriminatory practices. The
term "person" is defmed as "one or more individuals, labor unions, partnerships,
associations, corporations, legal representatives, mutual companies, joint-stock
companies, trusts, unincorporated employees' associations, employers,
employment agencies, organizations or labor organizations." Mont. Code Ann. §
49-2-101 (18).
Here, Missoula is a "person" for the purposes of § 49-2-305. Missoula's
insistence that a municipal corporation is distinct from a business corporation is
unpersuasive under the plain language of the statute, which includes "corporation"
in its defmition of "person." See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68
17
(1982) (stating that legislative purpose is generally expressed by the ordinary
meaning of the words used); United States v. Hunter, 101 F.3d 82, 84 (9th Cir.
1996) (stating that absent a clearly expressed legislative intent to the contrary, the
plain language of the statute is ordinarily conclusive); Fandrich v. Capital Ford
Lincoln Mercury, 901 P .2d 112, 115 (Mont. 1995) (looking first to "the plain
language of the statute" in construing § 49-2-101)).
Missoula's further contention that the Code of Fair Practices and the Human
Rights Act are mutually exclusive in situations involving municipalities is equally
unpersuasive. See Mont. Fair Housing v. City o/Bozeman, 854 F. Supp. 2d 832,
843-845 (D. Mont. 2012) (applying § 49-2-305 to the City of Bozeman); Ross v.
City o/Great Falls, 967 P.2d 1103, 1105 (Mont. 1998) (explaining that
"employer" under § 49-2-101 (11) applies to both public and private entities).
Additionally, the Montana Legislature "has indicated its clear intent that the
[Human Rights Act] be interpreted consistently with federal discrimination statues
and case law." BNSF Ry. Co. v. Feit, 281 P.3d 225, 228 (Mont. 2012)
(specifically referencing the Americans with Disabilities Act).
B.
Missoula is entitled to summary judgment as to Fair Housing's
claims under § 49-2-30S(1)(d) and 4(c).
Under Montana Code Annotated § 49-2-305(1)(d), "[i]t is an unlawful
18
discriminatory practice for the owner, lessor, or manager having the right to sell,
lease or rent a housing accommodation ... or for any other person ... to otherwise
make unavailable or deny a housing accommodation or property because of ...
physical or mental disability ...." Both Missoula and Fair Housing ask the Court
to cross-apply their arguments as to 42 U.S.C. § 3604(f)(1) of the Fair Housing
Act as the two are substantially equivalent. As Fair Housing's argument under §
3604(f)(1) lacked merit, so does Fair Housing's argument pursuant to § 49-2
305(1)(d). The same analysis applies for 42 U.S.C. § 3604(f)(2) and § 49-2
305(4)(c) regarding discrimination in the provision of services. Therefore,
Missoula is entitled to summary judgment as to these claims.
c.
A genuine issue of material fact prevents summary disposition of
Fair Housing's claims under § 49-2-305(3) and (9).
Under § 49-2-305(3), "[i]t is an unlawful discriminatory practice to make,
print or publish or cause to be made, printed, or published any notice, statement, or
advertisement that indicates any preference, limitation, or discrimination that is
prohibited by [§ 49-2-305(1)] or any intention to make or have a prohibited
preference, limitation, or discrimination." Under § 49-2-305(9), "[i]t is an
unlawful discriminatory practice to coerce, intimidate, threaten, or interfere with a
person in the exercise or enjoyment of or because of the person having exercised
19
or enjoyed or having aided or encouraged any other person in the exercise or
enjoyment of a right granted or protected by this section." As discussed above, a
genuine issue of material fact remains as to what statements and/or representations
Missoula made to the parties involved in the Inez Property regarding compliance
with fair housing laws, preventing summary disposition of Fair Housing's claims.
In.
Missoula is entitled to summary judgment as to Fair Housing's claims
under the Code of Fair Practices, § 49-3-204.
Finally, Fair Housing contends Missoula breached the affirmative duties
imposed upon it by the Code of Fair Practices when it failed to take appropriate
action in the exercise of its licensing and regulatory power in violation ofMontana
Code Annotated § 49-3-204. Missoula contends the Court does not have
jurisdiction to adjudicate this claim as the proper administrative procedures were
not followed. Fair Housing initially filed a motion to voluntarily dismiss this
claim (Doc. 36), which has since been voluntarily withdrawn (Doc. 52).
Montana Code Annotated § 49-3-315 provides that the procedures for
enforcing the Code ofFair Practices are the same as the procedures for enforcing
the Human Rights Act. The procedures for enforcing the Human Rights Act are
outlined in Montana Code Annotated § 49-2-501, et seq. Section 49-2-512(1)
provides in pertinent part:
20
The provisions of this chapter establish the exclusive remedy for acts
constituting an alleged violation of chapter 3 or this chapter, .... A
claim or request for relief based upon the acts may not be entertained by
a district court other than by the procedures specified in this chapter.
A person who has filed a charge of discrimination under the Code of Fair Practices
may not file a complaint in district court until it has filed a charge of
discrimination with the Human Rights Bureau and the Human Rights Bureau has
issued a notice of dismissal. Mont. Code Ann. § 49-2-512(3).
As it is uncontested that this matter must first be heard by and a decision
reached by the Human Rights Bureau before it may be heard by this Court,
summary judgment is appropriate on these grounds. (See Doc. 53.) Therefore,
Missoula's motion for summary judgment as to Fair Housing's claim under § 49
3-204 is granted and Missoula's motion to strike is denied.
IV.
Fair Housing's request for judicial notice is denied.
Fair Housing requests that the Court take judicial notice of certain webpages
produced by the International Code Council. (Doc. 48.) Fair Housing has failed
to provide any grounds for why the Court should take judicial notice of these
particular web pages. Furthermore, these facts are legislative facts, as opposed to
adjudicative facts, and are thus not properly subject to judicial notice under Rule
201 ofthe Federal Rules of Evidence. Fed. R. Evid. 201(a). Therefore, Fair
21
Housing's request is denied.
v.
Fair Housing's motion to strike is granted.
Fair Housing moves to strike statements made by its counsel during the
HUD conciliation process from all documents filed by Missoula, including:
(1)
(2)
(3)
Missoula's Statement of Disputed Facts (Doc. 43 at ~ 9);
Exhibit D to the Statement of Disputed Facts (Doc. 43-4); and
Brief in Opposition to Fair Housing's motion for summary
judgment (Doc. 44 at 8 and 21).
(Doc. 46.)
The Fair Housing Act prohibits the use of statements made in conciliation
from disclosure and subsequent use without the written consent of the parties in
the communication. 42 U.S.C. § 361 O(d)( 1). There is no indication under the
statute that this consent requirement is waivable. At a minimum, filing these
statements with the Court has made them public without the consent of Fair
Housing in violation of the statute. Therefore, Fair Housing's motion to strike the
abovementioned statements from the record is granted. This determination does
not affect the outcome ofthe other issues discussed in this order.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Missoula's motion for
summary judgment (Doc. 24) is GRANTED IN PART and DENIED IN PART. It
22
is GRANTED as to Fair Housing claims under 42 U.S.C. § 3604(f)(1) and (2)
(part of Count III), § 49-2-305(1)(d) and (4)(c) (part of Count IV), and § 49-3-204
(part of Count IV) and DENIED in all other respects.
IT IS FURTHER ORDERED that Fair Housing's motion for partial
summary judgment (Doc. 31) is DENIED.
IT IS FURTHER ORDERED that Fair Housing's motion to voluntarily
dismiss its claim (Doc. 36) is DENIED as MOOT.
IT IS FURTHER ORDERED that Missoula's motion to strike (Doc. 57) is
DENIED.
IT IS FURTHER ORDERED that Fair Housing's request for judicial notice
(Doc. 48) is DENIED.
IT IS FURTHER ORDERED that Fair Housing's motion to strike (Doc. 46)
is GRANTED. The HUD conciliation statements filed at ~ 9 of the Statement of
Undisputed Facts (Doc. 43), Exhibit D to the Statement of Undisputed Facts (Doc.
43-4), and the references made in Missoula's brief in opposition at pages 8 and 21
F
(Doc. 44) are stricken from the record.
Dated this
~~ay
of
r:.J.Jj)jIY
Donald W. Molloy, District Judge
United Sta~ District Court
23
~
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