HomeMy WebLinkAboutNon-Discrimination Ordinance Public Comment from Michael J. San Souci 3-27-14 Law OfTiee of
MICHAEL J. SAN SOUCI
Stoneridge Professional Plaza Phone(406)586-2221
2135 Charlotte St..Suite IA Fax(406)582-1966
Bozeman. MT 59718-2741 Email misansouci'a;:jol.com
sansoucilaw corn
March 27, 2014
HAND-DELIVERED
Mayor& Commissioners
City of Bozeman
121 North Rouse Ave.
Bozeman, MT 59715
Re: Your Consideration of Proposed Non Discrimination Ordinance
Dear Mayor, Deputy Mayor& Commissioners:
I am writing at this time to express some very serious legal concerns I have with your
potential enactment of the proposed non-discrimination ordinance (NDO). I have thoroughly
reviewed applicable state law, relevant case law, and the draft ordinance, itself. Even putting
aside the inescapably related issue of its probable infringement on certain closely-held,
constitutionally-protected rights and, most notably, the free exercise of religious beliefs, it is my
sincere and considered opinion that its passage, in any form, would be ill-advised and essentially
unlawful.
My analysis is based on two distinct, but inseparably interrelated, fundamental concepts:
(1) that the entire field of anti-discrimination regulation of this nature is clearly a matter of
statewide concern preempted by, and exclusively reserved to, state law and the State Legislature,
and (2) that a municipality, such as the City of Bozeman, also would be acting well beyond the
scope of its recognized legal authority in attempting to create new avenues of legal redress in the
rqt):;r.�,�;. The fact that ot4er sister cities(Missoula, lieiena and Butte) may have acted hastily in
their respective passage of similar ordinances would not, of course, warrant or justify Bozeman
heading down this same path.
Summary
It is my understanding that you are under a considerable amount of pressure from the
ACLU to enact the NDO and, as so often happens in these cases, this kind of unrelenting
lobbying effort is unsurprising. In any event, I did have an opportunity to review a previous
opinion letter from the ACLU's Montana Public Policy Director addressed to the issue of
potential state preemption of a similar local ordinance seeking to regulate discrimination based
on sexual orientation and gender identity. The essence of the ACLU's contention in this regard
is as follows:
City Commissioners
March 27, 2014
Page 2
"The local ordinance is creating a separate scheme, with its own violations,
enforcement mechanism, and remedy, thereby not implicating the [Montana
Human Rights Act] or state constitution."
Not only does this contention beg the issue, but the conclusion is patently mistaken. It
also bears mentioning that the Montana Supreme Court case upon which the ACLU apparently
relies for support of this proposition, American Cancer Society v. State, 100 P. 3d 1085 (2004),
dealt with the right of a locality to enact an anti-smoking ordinance for buildings open to the
general public, and whether the state legislature could thereafter validly enact a bill to exempt
and/or surcharge certain local establishments. Consequently, it is easily distinguishable in its
facts and analysis. However, to the extent American Cancer Society may have any application to
the present controversy, it would stand in stark opposition to, rather than in support of, passage of
the NDO.
Apart from acknowledging that the Legislature can effect a prohibition of the enactment
of a city ordinance through express prohibitory language, the Court's opinion in American
Cancer Society further observed:
"Alternatively, a legislative prohibition can arise through a direct inconsistency
between a state legislative act and the legislation of a self-governing unit. For
example, the City of Billings could not supersede the state statutory requirement
that charges against a suspended firefighter must be presented to the city council
for a hearing."Id. at 1089, ¶14. (citation omitted)
Additionally, the Court in American Cancer Society underscored:
"The Legislature has very clearly delineated fourteen powers that self-governing
municipalities are `prohibited' from exercising. Section 7-1-111, MCA. It has
also JGl 166iil1 ll•Y.ii 5p0CIf1 powers that local governments with sC:lf-government
powers are `prohibited' from exercising `unless the power is specifically delegated
by law. ...' Section 7-1-112, MCA. Together, these two statutes constitute
prohibition through express statutory language." Id. at¶16.
In relevant part, §7-1-111, MCA, expressly prohibits a self-governing city, such as
Bozemen, from exercising "(1) any power that applies to or affects any private civil relationship,
except incident to the exercise of an independent self-government power." Section 7-1-112,
MCA, expressly provides that among those powers requiring a legislative delegation is
"(4) the power to exercise any judicial function, except as incident to the exercise of an
independent self-government administrative power." Clearly, either, or both, of these statutes
would invalidate the NDO being urged by the ACLU, and currently under consideration by
Bozeman—not to mention those similar ordinances already enacted elsewhere.
City Commissioners
March 27, 2014
Page 3
It seems beyond cavil that the Montana State Legislature has signified its intent to
preempt, and control, virtually the entire field of discrimination law on a uniform, statewide
basis, and thereby avoid what already has occurred in the cities of Missoula, Helena and Butte—
piecemeal, and conflicting, legislation at the local level. This intent to legislate within, and
thereby effectively preempt the field of anti-discrimination law, is clearly manifested in the
relevant provision of the Montana Human Rights Act (MHRA), §49-2-512(1), MCA, which
requires that the pursuit of any discrimination-based claim first comply with, and exhaust, clearly
delineated administrative procedures through the Montana Human Rights Bureau, as a
prerequisite to filing an appropriate action, if at all, in district court. This section expressly
provides:
The provisions of this chapter establish the exclusive remedy for acts constituting an
alleged violation of Chapter 3 or this Chapter, including acts that may otherwise also
constitute a violation of the discrimination provisions of Article 11, Section 4, of
the Montana Constitution or 49-1-102, 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. (emphasis added)
In Harrison v. Chance, 797 P. 2d 200, 203 (Mont. 1990), the Supreme Court
acknowledged that the MHRA provides the exclusive remedy for any acts of alleged
discrimination thereunder. Moreover, those few cases in Montana which have urged the
consideration of the sexual orientation classification, although arising in different contexts, have
maintained that any potential right to protection thereunder would necessarily come, if at all,
within the meaning of Article 11, Section 4. Therefore, given the plain language of this statute,
it is apparent that the Legislature fully intended to reserve to itself the authority to regulate the
entire field of discrimination law on a statewide basis, and the potential inclusion of this
classification has been considered, but thus far rejected, at the State level. Consequently, because
of the prospect of conflicting policies, operational effect and the need for uniformity, the State
sc eillc 14 Su per�!asi_4c,tliat it was lrlts,idecl tc exclusively occupy the field aria' thereby precludes
the co-existence of municipal regulation. A number of courts in other jurisdictions, which have
addressed similar issues, have invalidated municipal incursion into such matters of statewide
concern.
For example, in Lilly v. City of Minneapolis, 527 N.W. 2d 107 (Minn. App. 1995), rev
den. (1995), a concerned resident and taxpayer sought a restraining order to enjoin the city from
implementing a local resolution to grant insurance benefits to an expansive list of relatives, and
same sex domestic partners, not defined as "dependents" in a corresponding state statute.
Following a hearing, the district court determined that the city's resolutions were ultra vires
under Minnesota law, and that providing such coverage for same sex domestic partners
contravened a countervailing state public policy and, therefore, violated state law. The court
thereafter granted the plaintiff's motion for a declaratory/summary judgment, as well as a
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March 27. 2014
Page 4
permanent injunction. In upholding the rulings of the district court, the appellate court
disregarded the city's claim (which essentially mirrors that of the ACLU) that in "matters of
municipal concern, home rule cities have all the legislative power possessed by the legislature
of the state, save as such power is expressly or impliedly withheld." (527 N.W. 2d at 111) In
rejecting this argument, the court in Lilly observed in relevant part:
"A municipality has no inherent powers, but only such powers as are expressly
conferred by statute or are implied as necessary in aid of those powers which are
expressly conferred. ... [I]fa matter presents a statewide problem, the implied
necessary powers of a municipality to regulate are narrowly construed unless the
legislature has expressly provided otherwise." (citations omitted) Id.
Most importantly, however, the court in Lilly further underscored that "the city's actions
also concern the statewide problem of discrimination. This court has previously held that
discrimination is a statewide concern and therefore, the authority of the city of Minneapolis to
combat discrimination must be narrowly construed." Id., citing City of Minneapolis Comm'n on
Civil Rights v. University gfMinn., 356 N.W. 2d 841, at 843 (Minn. App. 1984). Consequently,
the court in Lilly concluded:
"A home rule charter city is exactly that— `home rule'on matters of a purely local
nature. A home rule city may not exceed statutory authority by its mere fiat as was
done here. ... when the legislature by clear definition has made the subject matter one
of statewide concern and has defined who may receive such benefits, [since]
discrimination, as well as the definition of family relationships and dependent status,
are statewide concerns. " (Id. at 113) (emphasis added)'
Similarly, in McCrory Corp. v. Fowler, 570 A. 2d 834, at 838 (Md. 1990), the court
invalidated a county code because it was not, in reality, a "local law" within the meaning of the
st'a purpuited to authorize a uir%-uit court civil action for damages by any
person who had "been subjected to any act of discrimination prohibited under this division ...."
The court in McCrory also declared that"the creation of new causes of action in the courts has
traditionally been done either by the General Assembly or by [the Supreme Court] under its
authority to modify the common law"and that the "creation of new judicial remedies has
traditionally been done on a statewide basis." Id. Accordingly, the court in McCrory concluded
that "an ordinance attempting to combat employment discrimination by creating a new private
judicial cause of action is not a `local law' under the ... the Maryland constitution, and thus not
within the power of Montgomery County to enact."Id. See also,Sweeney v. Hartz Mountain
Corp., 573 A. 2d 32, at 34 (Md. 1990), invalidating a similar county ordinance.
' Moreover, the court in Lilly made this determination despite the fact that its legislature
had previously included "sexual orientation" within its suspect classifications.
City Commissioners
March 27, 2014
Page 5
Conversely, in City of Atlanta v. McKinney, 454 S.E. 2d 517, 521 (Ga. 1995), the court
upheld an aspect of a city's anti-discrimination ordinance, premised on sexual orientation, but
only to the extent that it pertained solely to the city's power to implement policies governing its
own employees and property, and because the challenged ordinances did not purport to regulate
either private employers or public employers other than those employed by the city of Atlanta.
On that basis alone, the court in McKinney concluded that the ordinances could be construed as
reasonable laws "related to the city's own affairs and local government." Id. at 521-22.
Importantly, however, a.strong, and perhaps better reasoned, concurring and dissenting opinion
in McKinney noted that Georgia law "recognizes and protects certain classifications of people
from discrimination," and concluded in relevant part:
"By these general laws, Georgia has clearly entered the field of anti-
discrimination law, yet has not included a person's sexual orientation among
the proscribed bases of discrimination. Therefore, sexual orientation ordinances,
like the registry ordinance, are preempted by the general law of this state. (citations
omitted)
The Fair Employment Practices Act of 1978, ... prohibits employment
discrimination by the State because of race, color, religion, national origin, sex,
handicap, or age. (citation omitted) I agree a municipality may pass a law on the
same subject matter which is not inconsistent with the State's version.... In my
opinion, however, an ordinance which protects more classes than does the Fair
Employment Practices Act is inconsistent with the Act. However, even if the sexual
orientation ordinances were consistent with the ... Act, the other provisions of general
law enumerated above, which apply to the City and private employers as well as the
State, preempt the sexual orientation ordinances." Id. at 524-25. (emphasis added)
Also see, Delaney v. Superior Fast Freight, 18 Cal. Rptr, 2d 33, at 35-37 (Cal. App.
1993) 'holding&,.,t-a if,,'s attempted ban on sexual orientation. discrimination,,alas effectively
preempted by a state ban on the very same subject matter]. Similarly, in Yellow Freight Systems
v. Mayor's Comm'n, 791 S.W. 2d 382 (en Banc) (Mo. 1990), the court invalidated a city's
attempt to create a new private cause of action as a remedy for discrimination sought to be
prohibited by ordinance. Therefore, these courts understandably have resisted the notion that
municipalities should be able to create separate substantive law in areas generally reserved to the
concept of statewide uniformity. See, e.g., City of Bloomington v. Chuckney, 331 N.E. 2d 780,
783 (Ind. App. 1975) ["a city should not be able to enact its own separate law of contracts or
domestic relations since these areas are unsuited to less than statewide legislation"],
In Yellow Freight Systems, the city of Springfield, a home rule charter city, adopted an
ordinance which established a Mayor's Commission on Human Rights (as authorized by state
Iaw), but which also purported to create a municipal agency with the power to hear contested
City Commissioners
March 27, 2014
Page 6
cases of discrimination in employment and housing, and give relief in accordance with its stated
purpose. The ordinance further provided that an appeal, or the enforcement of the commission's
decision, could be brought in the county circuit court and that the city attorney could bring
proceedings in the city's municipal court against anyone allegedly violating the ordinance. An
action was initiated by a former employee, after which the commission ordered the defendant-
company to reinstate the terminated employee, and awarded her backpay damages. Yellow
Freight then sought a judicial declaration that the commission's decision violated provisions of
the State Constitution, exceeded statutory authority; exceeded authority granted by the city
charter, and requested injunctive relief against the commission. The trial court eventually
granted the relief requested by the aggrieved company, after which the City, its Mayor's
Commission and the individual plaintiff, appealed. In relevant part, the Missouri Supreme Court
observed that "the instant ordinance creates a right and liability which do not exist at common
law and prescribes the remedy." (citations omitted) 791 S.W. 2d at 384. The court further
observed:
"A well-established general rule illustrates the basic Iimitation upon the authority
of a city to create a cause of action for recovery by an individual: `[A] municipal
corporation cannot create by ordinance a right of action between third persons
or enlarge the common law or statutory duty or liability of citizens among
themselves."' (citing 6E. McQuillin, Mun. Corporations, Section 22.01 3" ed. Rev.
1988)
"The State by granting to [the) City the right to adopt and frame a charter for
its own government did not confer upon [the] City the right to assume under
its charter all of the powers which the State may exercise within the City, but
conferred the right to assume those powers incident to it as a municipality."
Id. at 385
Finally, it i_--msurprising that the Missouri Supreme Court concluded:
Section 213.030 [of the state statute], in terms similar to §213.020.3, vests the
State Commission on Human Rights with the power and duty to "seek to eliminate
and prevent discrimination.' Yet, in addition to that phrase, §213.030 expressly
grants the State Commission power and authority to hold hearings and pass upon
complaints of violation of state law in accordance with [the] procedure prescribed
by §213.075. A [local] commission created by virtue of§213.020.3 can seek to
eliminate discrimination as an advisory commission. Nothing in subsection
213.020.3 gives every city, town, village or county the power to create a cause of
action for the violation of an anti-discrimination ordinance and to create an agency
to determine and enforce a violation of that ordinance. The failure of the legislature
to include in §213.020.3 an express grant of power to determine violations and make
City Commissioners
March 27, 2014
Page 7
awards, such as that deemed necessary in §213.030, establishes its intent that
such power is not included in §213.020.3. Id. at 387.
Consequently, if the reasoning of the ACLU- which, unfortunately, was adopted by
Bozeman's sister cities-is to be accepted, any political subdivision within this state could,
through enactment of ordinances, simply bypass the legislature; effectively influence state
jurisprudence regardless of legislative intent, and essentially compel enforcement of its own,
albeit conflicting, local procedures. in the process, this clearly and unmistakably would violate
the principle of-state sovereignty over its political subdivisions "-amounting to a patent
expansion, and corresponding usurpation, of respective power and authority.
To this end, the district courts in Montana have original jurisdiction in all civil matters at
law and in equity, along with criminal and probate jurisdiction under §3-5-302, MCA, as well as
appellate jurisdiction from all inferior courts within a given county, under §3-5-303, MCA.
Conversely, the jurisdiction of a municipal court is far more limited, including its relative
jurisdictional limit (i.e., the amount in controversy cannot exceed $12,000); §3-10-301, MCA.
While it is tritely true that municipal courts are said to have exclusive jurisdiction over civil
and/or criminal offenses involving the violation of city ordinances, such jurisdiction is, by its
very nature, otherwise limited to specified categories of offenses not remotely related to anti-
discrimination legislation of this nature. See §§3-11-103(1),(2), MCA.
Therefore, even putting aside the preemption issue as it pertains to the regulation of
discrimination law, a local government with self-government powers, such as Bozeman,
nevertheless would be usurping the legislative function by attempting to establish and implement
civil remedies in its municipal court for any type of alleged discrimination since §7-1-111(1),
MCA, expressly prohibits the municipality from exercising any power that"applies to or affects
any private or civil relationship." Suffice it to say that matters involving housing and
employment-areas to which the proposed ordinance purports to apply- are just such private
and civil relatidn;;hips"afid, not coincidentally, already are regulated under the provisions of the
MHRA and otherwise. For example, §7-1-111(13), MCA, clearly prohibits the exercise of any
power that would tend to regulate landlords for matters already covered under the Montana
Landlord-Tenant Act, Title 70, Chapters 24-25. Of course,these very statutory enactments
reflect the relevant preemption holding, as discussed in the Montana Supreme Court's American
Cancer Society opinion.
Additionally, in seeking to create such a private right of action, and purporting to give any
person alleged to have been aggrieved thereunder the right to seek unspecified civil remedies
(presumably including damages), Section I.C. of the proposed ordinance effectively grants the
local municipal court broad power to impose "injunctive relief," ... or"other equitable relief'-
powers clearly and unequivocally reserved solely to the state district courts or, in the case of the
MHRA, to the Department of Labor-and beyond the scope of those powers granted to the
City Commissioners
March 27, 2014
Page 8
municipal courts. Any such jurisdiction of a municipal court to potentially impose affirmative
relief of this nature is, quite clearly, limited to orders of abatement or correction under the
municipal infraction statute, §7-1-451(4)(d), MCA. There is no corresponding authority granted
under any of the other sections pertaining to municipal court jurisdiction; §§3-6-103, 3-10-301,
MCA, or under §3-11-102, MCA, which conceivably empower a municipal court to award or
fashion affirmative or equitable relief of this nature.
Finally, §7-1-113, MCA, expressly provides that local governmental powers cannot be
"inconsistent" with state law in any area affirmatively subjected to state control. Obviously, this
is a legislative mandate respecting the concept of field preemption. As stated above, Title 49
expressly provides that discrimination is "exclusively"within the province of the Montana
Human Rights Bureau; the Department of Labor&Industry and, if necessary, the jurisdiction of
the district court. While the proposed Bozeman ordinance essentially recognizes, and
acknowledges, this fundamental precept, on the one hand, it nevertheless attempts a legal end-run
under the auspices that the ordinance would recognize "violations [premised on the sexual
orientation and gender identity classification] ... not specifically addressed by Montana State
law." ... As stated above, it is clear that the determination of those classes to be protected from
discrimination falls squarely within the purview of legislative control, rather than being subject
to local control and, of course, the legislature has thus far determined not to include sexual
orientation and/or gender identity within the suspect categories. Consequently, the omission of
this classification has, of course, come after repeated deliberations at the State level, and within
the Legislature's exclusive power,thereby obviating the authority of a locality, such as Bozeman
(Missoula, Helena, Butte or otherwise), from attempting to regulate or control the same at the
local level.
Conclusion
As stated above, this is a very serious matter, warranting the careful evaluation of the City
and its Con-artission.
If called upon to review the potential invalidity of this kind of ordinance, I firmly believe
that the Montana District and Supreme Courts would unhesitatingly adopt and follow the
reasoning and analysis of the above-referenced body of case law from those other jurisdictions
which have dealt with, and squarely addressed, these preemption issues.
Based on all of the above, it is respectfully requested that the Commission resist any urge
to overstep its bounds and wade into this area of regulation which, as matter of law, is reserved to
our State Legislature. Another factor you may want to consider is the large contingent of local
residents who diametrically oppose this measure on other grounds, as well.
City Commissioners
March 27, 2014
Page 9
Thank you for your time and consideration in this matter and, if you or the City Attorney
(to whom a courtesy copy of this correspondence is being provided) would care to discuss these
issues,please feel free to contact me at your earliest convenience.
Very 'Truly Yours,
MICHAEL J. SAN SOUCI AC
MJSS:mw
cc: Greg Sullivan, Esq.
Chris Kukulski