COURT OF APPEALS DECISION DATED AND RELEASED May 1, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3317-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
METROPOLITAN MILWAUKEE
FAIR HOUSING COUNCIL,
Plaintiff-Appellant,
v.
THE HARTFORD TIMES
PRESS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Washington County:
JAMES B. SCHWALBACH, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER
CURIAM. Metropolitan Milwaukee Fair Housing Council (the
Council) has appealed from an order awarding it $100 as attorney's fees and
costs incurred in a circuit court action commenced by the Hartford Times Press
(the Times) pursuant to § 101.22(5), Stats.,
1989-90. The Council contends that it
was entitled to reasonable attorney's fees and costs of approximately $17,000 in
the circuit court action. Pursuant to
this court's order of January 4, 1996, and a presubmission conference, the
parties have submitted memorandum briefs.
Upon review of those memoranda and the record, we affirm the order of
the trial court.
We affirm on the ground
that the statutes applicable to this action did not expressly authorize an
award of attorney's fees on judicial review in the circuit court and limited
costs to $100. This action arose from
advertisements for rental housing placed in the Times in January and December
1990. In February 1991, the Council
filed a complaint with the equal rights division of the Department of Industry,
Labor and Human Relations (DILHR), alleging that under § 101.22(2)(d), Stats., 1989-90, the first advertisement
constituted discrimination based upon religion, and the second constituted
discrimination based upon both religion and sex.
At the time the Council
commenced complaint proceedings, it had the option of commencing a private
civil rights action in the circuit court or proceeding through the
administrative hearing process before DILHR under § 101.22(4), Stats., 1989-90, which included a
hearing before an administrative law judge and review by the Labor and Industry
Review Commission (LIRC). The losing party
in that process was entitled to seek judicial review in the circuit court
pursuant to § 101.22(5), which included a right to a jury trial.
By electing to proceed
through the administrative agency hearing process, the Council elected not to
use the other remedy available under § 101.22(7), Stats., 1989-90, in discrimination cases, which was a private
civil rights action in circuit court.
Under the 1989-90 statute, a prevailing plaintiff in a private civil
rights action was entitled to reasonable attorney's fees. Id. The statute at the time contained no similar provision for an
award of attorney's fees before either the agency or the circuit court when a
complainant chose the administrative hearing route.
The Council proceeded
under the administrative hearing provisions of § 101.22(4), Stats., 1989-90, and prevailed before
both the administrative law judge and LIRC.
LIRC awarded it $1723 in attorney's fees and costs. The Times sought judicial review of LIRC's
decision pursuant to § 101.22(5), and a jury trial was held. The jury found that both advertisements
constituted discrimination based upon religion, but that the second
advertisement did not constitute discrimination based on sex. The jury found no damages.
Subsequently, the
Council requested $17,599 in attorney's fees incurred in the circuit court
proceeding. The trial court awarded the
$1723 assessed by LIRC for attorney's fees in the agency proceedings, but
awarded only $100 as attorney's fees and costs in the circuit court, relying on
§ 101.22(5), Stats.,
1989-90.[1]
In contending that the
trial court erred in limiting costs and attorney's fees to $100, the Council
relies on the current version of § 101.22, Stats. It contends
that § 101.22(6)(i) allows an administrative law judge to award attorney's
fees in a proceeding before DILHR, and on case law holding that when a statute
authorizes the award of attorney's fees before an administrative law judge,
then they may also be awarded in the courts, even absent express statutory
authorization. The Council also relies
on § 101.22(6m), which authorizes the award of attorney's fees when a
complainant brings a private civil rights action.
The defect in the
Council's argument is twofold: (1) it
did not bring a private civil rights action under either the old or current
version of the statute, and therefore has no statutory right to attorney's fees
under either § 101.22(6m), Stats.,
or § 101.22(7), Stats.,
1989-90; and (2) § 101.22(6)(i), which currently authorizes administrative
law judges to award attorney's fees and upon which the Council piggybacks its
claim of entitlement to circuit court fees, is inapplicable to these
proceedings. The current provisions of
§ 101.22, relied on by the Council apply only to acts of discrimination
committed after September 1, 1992, long after these advertisements were placed
and the proceedings were commenced before DILHR. See 1991 Wis. Act 295, §§ 43, 44.[2]
The statutes applicable
to this action did not expressly authorize the administrative agency or the
trial court to award reasonable attorney's fees, and, in reference to judicial
review proceedings pursuant to § 101.22(5), Stats., 1989-90, provided:
"Costs in an amount not to exceed $100 plus actual disbursements
for the attendance of witnesses may be taxed to the prevailing party on the
appeal." Based upon § 101.22(5),
we agree with the trial court that costs, including attorney's fees, are limited
to $100 for the judicial review proceedings involved here.[3]
This
result does not conflict with Richland Sch. Dist. v. DILHR, 174
Wis.2d 878, 498 N.W.2d 826 (1993); Shands v. Castrovinci, 115
Wis.2d 352, 340 N.W.2d 506 (1983); State ex rel. Hodge v. Town of Turtle
Lake, 180 Wis.2d 62, 508 N.W.2d 603 (1993), or the other Wisconsin
cases cited by the Council. In Shands,
115 Wis.2d at 357-59, 340 N.W.2d at 508-09, the court determined that a
prevailing party was entitled to attorney's fees on appeal when attorney's fees
were statutorily authorized in the circuit court. In Hodge, 180 Wis.2d at 76, 508 N.W.2d at 608, a
statute expressly authorized the award of reasonable attorney's fees in the
trial court. In Richland School
District, the court determined that attorney's fees incurred in
judicial review and appeal proceedings could be awarded because even though no
statutory provision expressly authorized their award in the courts, statutes
authorized their award before the administrative agency. Discussing other cases dealing with this
issue, it held that fees were properly awarded in the circuit court and on
appeal "[i]n accordance with these cases holding that a statute
authorizing recovery of fees at either an administrative proceeding or a court
proceeding includes recovery of attorney fees on appeal." Richland Sch. Dist., 174
Wis.2d at 911, 498 N.W.2d at 838-39.
Here, no statute provided for the award of attorney's fees by the
administrative agency or the trial court.
Watkins v. LIRC, 117
Wis.2d 753, 345 N.W.2d 482 (1984), is also distinguishable. As discussed in Watkins, the
Wisconsin Fair Employment Act (WFEA) did not expressly authorize the award of
attorney's fees by the administrative agency or circuit court. However, the Wisconsin Supreme Court held
that DILHR's authority to award them could be fairly implied from the provision
permitting it to order such action "as will effectuate the purpose of this
subchapter" and from the statutory language indicating that the WFEA
should be liberally construed to accomplish its purposes, which are to make
victims whole and discourage discrimination in employment. Id. at 763-64, 345 N.W.2d at
487.
Unlike the WFEA,
§ 101.22, Stats., 1989-90,
contained no provision mandating liberal construction. In addition, § 101.22(5) expressly
provided for costs in an amount not to exceed $100 plus actual disbursements on
judicial review. The Watkins
decision does not discuss any similar limitation applicable to the WFEA. We therefore conclude that Watkins
provides no basis for disturbing the trial court's order.[4] Cf. Milwaukee Teachers' Educ.
Ass'n v. Milwaukee Bd. of Sch. Directors, 147 Wis.2d 791, 797, 433
N.W.2d 669, 671-72 (Ct. App. 1988) (indicating that Watkins has
been limited to its specific circumstances).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The trial court inadvertently cited § 100.22(5), Stats., rather than § 101.22(5), Stats., 1989-90. It clearly intended to refer to § 101.22(5), which contains the provisions discussed by it, rather than § 100.22, which deals with milk purchases.
[2] Although the Council relies on provisions in the current version of the statute in its brief on appeal, it makes no argument contesting the Times' contention that the 1989-90 version of the statute applies to this action.
[3] In footnote one of its brief, the Council
argues that § 101.22(5), Stats.,
1989-90, is inapplicable. It contends
that this provision was simply renumbered in the current version of the statute
as § 101.22(10)(c), Stats.,
and, like subsec. (10)(c), applies only to proceedings alleging discrimination
in public places of accommodation or amusement. This argument is meritless.
While § 101.22(10)(c) deals strictly with violations involving public
accommodations and amusements, § 101.22(5), Stats., 1989-90, was not similarly limited. By its express terms, it was applicable to
judicial review of orders of LIRC pertaining to "any alleged
discrimination or act prohibited under sub. (9)." (Emphasis added.)
Discrimination was defined in § 101.22(2)(d), Stats., 1989-90, to include
discrimination in advertising rental housing.
Acts prohibited under § 101.22(9), Stats., 1989-90, were acts related to public places of
accommodation and amusement. When
§ 101.22(5), Stats.,
1989-90, was renumbered as § 101.22(10)(c), Stats., it was amended to delete the provisions applicable to
acts of discrimination unrelated to public accommodations and amusements. See 1991 Wis. Act 295,
§ 23. Those provisions were then
dealt with in other portions of § 101.22, Stats.
If, as contended by the Council, the judicial review proceedings of § 101.22(5), Stats., 1989‑90, referred only to public accommodation and amusement proceedings, it would have meant that DILHR and LIRC lacked authority before September 1, 1992, to receive, investigate and decide claims of discrimination except those related to public accommodations and amusements, which is plainly not the case. This is so because the subsection authorizing the processing of complaints by DILHR used the same language as § 101.22(5), Stats., 1989-90. See § 101.22(4), Stats., 1989-90 (giving DILHR the power to receive and investigate complaints charging "a violation of this section if the complaint is filed with the department no more than 300 days after the alleged discrimination or act prohibited under sub. (9) occurred."). (Emphasis added.)
[4] We recognize that LIRC awarded attorney's
fees to the Council, even though it lacked express statutory authority to do so
at the time. In finding implicit
authority to do so, it relied upon its own interpretation of Watkins v.
LIRC, 117 Wis.2d 753, 345 N.W.2d 482 (1984), and its own prior
application of Watkins in another case before it.
The trial court confirmed LIRC's award, which will not be reviewed by us because no cross-appeal was filed by the Times. However, because the award was made by LIRC in the absence of express statutory authority and because we are not bound by LIRC's construction of Watkins, we reject any argument that the existence of the award, standing alone, mandates that attorney's fees also be awarded in the judicial review proceedings.