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Court of Appeals of Michigan.

Kristal McCREADY and Keith Kerr, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees.

Rose BAIZ and Peter Perusse, Plaintiffs-Appellants, v. John HOFFIUS and Terry Hoffius, Defendants-Appellees.

Docket Nos. 185152, 185314.

Decided: March 07, 1997

Before CORRIGAN, P.J., and TAYLOR and D.A. JOHNSTON *, JJ. Fleming & Fleming, P.C. by James B. Fleming and Anne D. Fleming, Jackson, (Jerrold Schrotenboer, of counsel), for plaintiffs-appellants. LaFlamme & Mauldin, P.C. by Richard N. LaFlamme, Jackson, for defendants-appellees. Rudolph A. Serra, Ferndale, and Thomas F. Coleman, Los Angeles, CA, Amici Curiae for Spectrum Institute, Triangle Foundation of Michigan, and American Association of Personal Privacy. Goldbaum, Gattorn & Stancato, P.C. by Henry Stancato, Detroit, Amici Curiae for Fair Housing Center of Metropolitan Detroit, Jackson County Fair Housing Center, Fair Housing Center of Greater Grand Rapids, Tri County Fair Housing Center, Muskegon Area Fair Housing Center, Fair Housing Center of Washtenaw County, American Civil Liberties Union of Michigan, and Michigan Protection and Advocacy Service.

In these consolidated appeals, plaintiffs appeal by right the orders granting summary disposition to defendants in this fair housing action.   We affirm.

Defendants John and Terry Hoffius, a married couple, rent residential property in Jackson, Michigan.   In June 1993, plaintiffs Kristal McCready and Keith Kerr contacted defendants in response to defendants' advertisement about housing for rent.   Defendants refused to rent to plaintiffs when they learned that McCready and Kerr were not married but intended to live in the same rental unit.   Similarly, plaintiff Rose Baiz telephoned defendants in July 1993 about the property.   Defendants also declined to rent to Baiz when they learned that she was not married to plaintiff Peter Perusse yet planned to live with him.   Defendant John Hoffius told plaintiffs that unmarried cohabitation violated his religious beliefs.

Plaintiffs filed two separate complaints with the Jackson Fair Housing Commission.   Testers from the commission posed as potential renters and contacted defendants.   Defendants did not ask the marital status of all the testers.   Defendants, however, refused to permit unmarried testers to inspect the apartments, claiming that the units only were available to married couples.   Defendants stated that they usually did not rent to unmarried couples.

Plaintiffs filed two separate actions in circuit court.   Defendants moved for summary disposition of plaintiffs' complaints, arguing in part that plaintiffs failed to state a claim upon which relief could be granted because the Civil Rights Act, M.C.L. § 37.2502(1);  M.S.A. § 3.548(502)(1), did not protect unmarried cohabitation.   Defendants also argued that, if the Civil Rights Act protected unmarried cohabitation, it was unconstitutional because it would force defendants to violate their sincerely held religious beliefs against unmarried cohabitation.

The cases were heard separately, but decided similarly.   Both circuit court judges opined that the cases involved statutory interpretation, and both declined to address the constitutional issues.   The judges noted that the Civil Rights Act protected status, not conduct.   They opined that unmarried cohabitation was unprotected conduct, not protected marital status.   Accordingly, they determined that the Civil Rights Act did not protect unmarried cohabitation.   We agree.

Plaintiffs first assert that defendants violated the Civil Rights Act by discriminating against them on the basis of their marital status.   Whether unmarried cohabitation enjoys protection from housing discrimination under the Civil Rights Act is an issue of first impression in this state.   Cases from other jurisdictions reflect divergent opinions on this issue.   For example, in Smith v. Fair Employment & Housing Comm., 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909 (1996), cert. pending, the landlord presented arguments similar to those of defendants in this case.   The California Supreme Court ruled that the California Fair Employment and Housing Act protected unmarried cohabitants against housing discrimination and rejected the landlord's argument that the unmarried tenants' sexual conduct, rather than their marital status, was at issue.  Id. at 1155-1161, 51 Cal.Rptr.2d 700, 913 P.2d 909.   See also Swanner v. Anchorage Equal Rights Comm., 874 P.2d 274 (Alaska 1994), cert. den. 513 U.S. 979, 115 S.Ct. 460, 130 L.Ed.2d 368 (1994);  Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994), both of which held in accordance with Smith.

In contrast, the Supreme Court of Wisconsin decided that a landlord's refusal to rent to unmarried tenants was based on their conduct of living together and not on their marital status in Dane Co. v. Norman, 174 Wis.2d 683, 691, 497 N.W.2d 714 (1993).   The Minnesota Supreme Court considered that state's criminal fornication statute when deciding this same issue in State by Cooper v. French, 460 N.W.2d 2 (Minn.1990).   The court concluded that the Minnesota Human Rights Act did not extend to protect unmarried, cohabiting couples in housing cases.  Id. at 7.   The court added:

Before abandoning fundamental values and institutions, we must pause and take stock of our present social order:  millions of drug abusers;  rampant child abuse;  a rising underclass without marketable job skills;  children roaming the streets;  children with only one parent or no parent at all;  and children growing up with no one to guide them in developing any set of values.   How can we expect anything else when the state itself contributes, by arguments of this kind, to further erosion of fundamental institutions that have formed the foundation of our civilization for centuries?  [Id. at 11.]

 Whether the Civil Rights Act protects unmarried cohabitants from housing discrimination raises questions of statutory interpretation.   Statutory interpretation is a question of law, which we review de novo.  Ballard v. Ypsilanti Twp., 216 Mich.App. 545, 549 N.W.2d 885 (1996).   When courts construe statutory meaning, their primary goal is to ascertain and give effect to legislative intent.  Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993), State Treasurer v. Schuster, 215 Mich.App. 347, 351, 547 N.W.2d 332 (1996).   This Court first considers the specific statutory language to determine the intent of the Legislature.  House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993);  Mino v. McCarthy, 209 Mich.App. 302, 304-305, 530 N.W.2d 779 (1995).   The Legislature is presumed to intend the meaning that the statute plainly expresses.  In re Austin Estate, 218 Mich.App. 72, 75, 553 N.W.2d 632 (1996).   Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear.  Id. at 76, 553 N.W.2d 632.

M.C.L. § 37.2502(1);  M.S.A. § 3.548(502)(1) provides in relevant part:

(1) A person engaging in a real estate transaction, or a real estate broker or salesman, shall not on the basis of religion, race, color, national origin, age, sex, familial status, or marital status of a person or a person residing with that person:

(a) Refuse to engage in a real estate transaction with a person.

The Civil Rights Act does not define the term “marital status.”   In defining a term, courts should attempt to give effect to the legislative intent.  Miller v. C.A. Muer Corp., 420 Mich. 355, 362, 362 N.W.2d 650 (1984).   The purpose of the Civil Rights Act is to prevent discrimination based on membership in certain classes and to “eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.”  Id. at 363, 362 N.W.2d 650.  “By including marital status as a protected class, the Legislature manifested its intent to prohibit discrimination based on whether a person is married.”  Id. (emphasis in original).

The public policy of this state, as reflected in our laws, favors the institution of marriage.   Under Michigan's Penal Code, unmarried cohabitation remains a misdemeanor.  M.C.L. § 750.335;  M.S.A. § 28.567 provides:

Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by fine of not more than $500.00.   No prosecution shall be commenced under this section after 1 year from the time of committing the offense.

 When promulgating new laws, the Legislature is charged with the knowledge of existing laws on the same subject and is presumed to have considered the effect of new laws on existing laws.  Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993);  Schuster, supra at 351-352, 547 N.W.2d 332.   The Legislature presumably was aware that the above statute criminalized lewd and lascivious cohabitation.   Because the Legislature would not have intended the Civil Rights Act to insulate criminal conduct, unmarried cohabitation is not protected conduct under the act.   See also Michigan Gaming Institute, Inc. v. State Bd. of Ed., 211 Mich.App. 514, 520-522, 536 N.W.2d 289 (1995) (Corrigan, J., dissenting).   Our Supreme Court adopted this dissent in its later opinion that reversed the opinion of the Court of Appeals, 451 Mich. 899, 547 N.W.2d 882 (1996).   Although courts are to construe liberally remedial statutes, Dudewicz v. Norris Schmid, Inc., 443 Mich. 68, 77, 503 N.W.2d 645 (1993), we decline to recognize the Civil Rights Act as preventing housing discrimination against unmarried couples and at the same time legitimizing criminal conduct.1

 Further, if two statutes lend themselves to a construction that avoids conflict, that construction should control.  House Speaker, supra at 568-569, 495 N.W.2d 539.   The construction should give effect to each statute without repugnancy, absurdity, or unreasonableness.  Michigan Humane Society v. Natural Resources Comm., 158 Mich.App. 393, 401, 404 N.W.2d 757 (1987).   Our construction avoids conflict between the Civil Rights Act and the criminal cohabitation statute.   The Civil Rights Act prohibits discrimination against couples who enjoy marital status, but the act is not violated when a landlord refuses to rent to unmarried persons who would be engaging in criminal unmarried cohabitation.

 When a prior and a subsequent act relate to the same subject, courts presume against repeal of the former statute by implication.   If possible, courts give effect to both acts.  Attorney General v. Public Service Comm., 161 Mich.App. 506, 513, 411 N.W.2d 469 (1987).   The intent to repeal must appear clearly, and the party claiming an implied repeal has a heavy burden.   Repeal may be inferred:  (1) when a subsequent legislative act clearly conflicts with a prior act, or (2) when a subsequent act clearly is intended to occupy the entire field covered by a prior enactment.  House Speaker, supra at 563, 495 N.W.2d 539.

Plaintiffs have not met their heavy burden of demonstrating that the Legislature intended to repeal the criminal cohabitation statute.   Had the Legislature intended to repeal the criminal cohabitation statute, it would have done so.   Plaintiffs have not produced a subsequent legislative act that clearly conflicts with the criminal cohabitation statute, nor have plaintiffs demonstrated a subsequent act that the Legislature clearly intended to occupy the field covered by the criminal cohabitation statute.   Making social policy is a job for the Legislature, not for this Court.  in RE kurzynieC estate, 207 531, 542-543, 526 N.W.2d 191 (1994).   Indeed, the appropriate branch for resolution of the moral issue presented is the legislative branch, which is well equipped to weigh these issues.

Plaintiffs next contend that society's need to provide equal access in housing outweighs defendants' religious beliefs that they should not rent to an unmarried couple.   Neither trial court addressed this issue in its opinion;  therefore, the issue is not preserved for review.  Bowers v. Bowers, 216 Mich.App. 491, 495, 549 N.W.2d 592 (1996).   Additionally, our Supreme Court has refused to reach constitutional claims that are unnecessary to the resolution of a case.  Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993).   We decline to review this unpreserved issue, and we will not reach the constitutional issue because it is unnecessary in deciding this matter.  Northgate Towers Associates v. Royal Oak Charter Twp., 453 Mich. 959, 557 N.W.2d 312 (1996).

Plaintiffs next argue that this Court should permit plaintiffs to amend their pleadings.   Plaintiffs did not raise this issue before the trial courts.   Accordingly, the issue is not preserved for review, and we decline to discuss it.  Vander Bossche v. Valley Pub, 203 Mich.App. 632, 641, 513 N.W.2d 225 (1994);  Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 98, 494 N.W.2d 791 (1992).   Moreover, our disposition of the preceding issues makes this issue moot.



1.   Note that the court in Smith v. Fair Employment & Housing, supra, acknowledged that it was not burdened by a statute that criminalized private sexual conduct between consenting adults.  Smith, supra at 1159, 51 Cal.Rptr.2d 700, 913 P.2d 909.

CORRIGAN, Presiding Judge.