351 P.3d 367
Ariz. Ct. App.2015Background
- Tempe, through Tempe Housing Services (THS), administers HUD’s Section 8 Housing Choice Voucher Program (HCVP) and adopted policies to comply with federal, state, and local nondiscrimination laws.
- Ron Bircher filed a fair housing complaint with the Arizona Attorney General (AAG), alleging THS denied his voucher application because of a disability; HUD referred the FHA claim to the AAG under a Memorandum of Understanding.
- The AAG issued a Notice of Charge and opened an investigation; Tempe resisted and filed suit in superior court seeking declaratory and special action relief to stop the AAG’s investigation.
- Cross-motions for summary judgment addressed whether municipal corporations and a THS manager are “persons” under the Arizona Fair Housing Act (AFHA), whether THS’s administration of HCVP is covered conduct, and whether the AAG improperly refused to dismiss without investigation.
- The trial court granted summary judgment for the State/AAG, held municipalities are "persons" under A.R.S. § 41-1491(9), that THS’s voucher administration falls within the AFHA, and that the AAG properly continued its investigation; the court awarded the AAG $108,090 in attorneys’ fees under A.R.S. § 12-348.01.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a municipal corporation is a “person” under A.R.S. § 41-1491(9) | Tempe: municipal corporations are public entities and not included in the statutory list, so AFHA does not apply | AAG: statute includes “corporations,” and that term reasonably includes municipal corporations; federal analogues treat municipalities as "persons" | Municipal corporations are “persons” under A.R.S. § 41-1491(9); Tempe is covered |
| Whether administering HCVP is conduct covered by the AFHA | Tempe: it does not sell or rent housing, so AFHA does not apply | AAG: denying or granting voucher assistance can make dwellings ‘‘unavailable or deny’’ housing, so public housing agencies are covered | Administration of HCVP can make dwellings unavailable and falls within the AFHA |
| Whether the AAG abused discretion by refusing to summarily dismiss the complaint | Tempe: presented affidavits and an injunction which (it says) refute Bircher’s allegations, so the complaint should be dismissed | AAG: statutorily obligated to investigate all complaints promptly; cannot dismiss based on limited respondent materials before investigation | AAG did not act arbitrarily or capriciously; it properly continued the mandated investigation |
| Whether AAG entitled to attorneys’ fees under A.R.S. § 12-348.01 and whether $300/hr was reasonable | Tempe: §12-348.01 may not apply; if it does, hourly rate unsupported and should be capped lower | AAG: Tempe’s suit was a ‘‘lawsuit’’ triggering mandatory fees; submitted affidavit and Bar data supporting $300 as prevailing market rate | AAG entitled to fees under §12-348.01; $300/hr upheld as reasonable based on evidence and lack of contrary proof |
Key Cases Cited
- Canady v. Prescott Canyon Estates Homeowners Ass’n, 204 Ariz. 91 (App. 2002) (federal FHA interpretations persuasive in construing the AFHA)
- Braden ex rel. Gabaldon v. State, 228 Ariz. 323 (2011) (discusses when statutes distinguish public entities from general categories)
- Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988) (the FHA applies to municipalities)
- United States v. City of Parma, 661 F.2d 562 (6th Cir. 1981) (municipality is a “person” under the FHA)
- United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974) (municipality subject to FHA liability)
- Village of Bellwood v. Gladstone Realtors, 569 F.2d 1013 (7th Cir. 1978) (no reason to construe FHA to exclude municipal corporations)
- State ex rel. Corbin v. Tocco, 173 Ariz. 587 (App. 1992) (prevailing market rate standard for awarding AAG attorneys’ fees)