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Homefinders, Inc. v. City of Evanston

OPINION FILED NOVEMBER 15, 1976.

THE HOMEFINDERS, INC., ET AL., APPELLANTS,

v.

THE CITY OF EVANSTON ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Edward F. Healy, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Germaine Engelhardt, and her employer, The Homefinders, Inc., commenced this action in the circuit court of Cook County for review of an administrative decision of the Evanston Fair Housing Review Board which had fined each of them for violation of the Evanston Fair Housing Ordinance. The circuit court reversed the Board's decision, and was, in turn, reversed by the appellate court, which affirmed the Board's order on the ground that the circuit court lacked jurisdiction to review the matter (Homefinders, Inc. v. City of Evanston (1975), 28 Ill. App.3d 789). We granted leave to appeal.

The plaintiff corporation is a Wilmette based real estate company engaged in the sale of real estate in Evanston and other communities in the Chicago area. Plaintiff Germaine Engelhardt is a sales representative employed by Homefinders. The defendants are the City of Evanston, the Evanston Fair Housing Review Board, the individual members of the Board, and the Evanston Human Relations Commission.

The Evanston Fair Housing Ordinance contains provisions licensing and regulating real estate brokers and prohibiting various forms of discrimination in real estate transactions on account of race, color, religion or national origin. The ordinance creates a seven-member Fair Housing Review Board consisting of a member of the Evanston Human Relations Commission, a licensed real estate broker practicing in Evanston, an attorney licensed to practice in Illinois, and four members at large, all of whom shall be residents of Evanston. The member of the Evanston Human Relations Commission is appointed by that body, and the other members are appointed by the mayor with the consent of the city council. The Board is charged with the duty of receiving, investigating and seeking conciliation of complaints charging discrimination, holding hearings on complaints, making findings of fact and recommendations in accordance with the ordinance and securing compliance by violators. The Board is also empowered to impose specified penalties and fines against those found guilty of violating the ordinance. The ordinance provides that appeals from decisions of the Board may be taken in accordance with the procedures specified in the Administrative Review Act of Illinois (Ill. Rev. Stat. 1971, ch. 110, pars. 264-279).

On June 20, 1972, the Evanston Human Relations Commission filed a complaint with the Evanston Fair Housing Review Board alleging that The Homefinders, Inc., and certain of its officers and sales representatives had engaged in discriminatory practices in violation of the Evanston Fair Housing Ordinance. Hearings before the Board commenced on November 30, 1972. Four white women testified that they made separate visits to Homefinders' offices in Wilmette at the request of the Evanston Human Relations Commission to test compliance with the Fair Housing Ordinance. Each of the four "testers" represented to Homefinders' sales representative that she was interested in buying a home in Evanston, and after looking at a list of Evanston homes which were for sale, she expressed an interest in particular homes which she knew to be in racially integrated areas of the city. Each of them testified that the sales representative then made unsolicited, negative remarks concerning the homes in question, including comments with respect to decreasing property values, racial incidents in the schools and the general undesirability of the area in which the homes were located as compared to other areas. The sales representatives denied making some of the remarks attributed to them and further testified that certain other statements had been made in response to particular inquiries from the testers. Following the close of the hearings, the Fair Housing Review Board filed a written report dated April 19, 1973, which included findings that The Homefinders, Inc., and its sales representative, Germaine Engelhardt, had violated specified antidiscrimination provisions of the Fair Housing Ordinance on two separate occasions. Penalties were imposed upon Germaine Engelhardt of $100 for each of the two violations and upon Homefinders in the amount of $500 each.

The complaint for review filed by plaintiffs in the circuit court asserted various grounds for reversal of the report of the Fair Housing Review Board including an allegation that "the Report was issued by the Board in violation of the provisions of its own enabling act (Ordinances of the City of Evanston, No. 27-0-70, Ch. 25 1/2) in that the Board wholly failed to have five board members who participated in each hearing and wholly failed to vest the determination of the penalty in the entire Board, as therein required." Although the circuit court made no written findings, it is apparent from the record before us that this was the principal ground upon which the order of reversal was based.

The appellate court did not reach the merits of the questions raised in the circuit court in view of its conclusion that the circuit court lacked jurisdiction to review the decision of the Fair Housing Review Board. In so holding, the appellate court followed Nowicki v. Evanston Fair Housing Review Board (1974), 25 Ill. App.3d 129, in which that court relied upon decisions of this court in Paper Supply Co. v. City of Chicago (1974), 57 Ill.2d 553, and Cummings v. Daley (1974), 58 Ill.2d 1, in support of its conclusion that the City of Evanston was without power to declare the Administrative Review Act applicable to administrative decisions rendered under the Evanston Fair Housing Ordinance. The appellate court's decision in Nowicki was reversed by this court in Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill.2d 11, which was decided subsequent to the date of the appellate court's decision in this case. We there held that even though the administrative agency's decision was not subject to review under the provisions of the Administrative Review Act, it was nevertheless reviewable by common law certiorari and that the complaint filed in the circuit court was sufficient to permit review on that basis. Our decision in Nowicki is controlling here. As we stated in that case: "Labels have long since lost their significance in determining the legal sufficiency of a complaint in an ordinary action at law or in equity, and we see no reason why they should retain significance in actions to review the determinations of administrative agencies." (62 Ill.2d 11, 15.) The complaint in this case sought judicial review of the decision of the Fair Housing Review Board. Notwithstanding the fact that the complaint was entitled "Complaint for Administrative Review" and included a prayer for review under the Administrative Review Act in accordance with the terms of Evanston Fair Housing Ordinance, we are of the opinion that the complaint was sufficient to warrant treatment as a common law writ of certiorari instead of solely an action under the Administrative Review Act. Accordingly, the decision of the appellate court holding that the circuit court lacked jurisdiction to review the decision of the Evanston Fair Housing Review Board is reversed. However, since all issues have been argued and briefed in this court, and remandment to the appellate court for consideration of the merits would involve unnecessary delay, it is appropriate that we retain jurisdiction for that purpose.

We turn then to the question of whether the Fair Housing Review Board acted within the scope of the powers conferred upon it by ordinance when only four of its seven members conducted hearings and issued a report which made findings and imposed fines. As enacted in 1970, pertinent provisions of section 25 1/2-17 of the Evanston Fair Housing Ordinance prescribed the powers and duties of the Fair Housing Review Board. They provided that administrative hearings of complaints filed with the Board

"shall be conducted by any five or more members of the Board thereof who thereafter shall attend all adjourned meetings of the complaint upon due and reasonable notice to all parties."

As discussed later in this opinion, an amendatory ordinance was passed by the Evanston city council on October 9, 1972, purporting to reduce the minimum number to three. The ordinance goes on to provide:

"At the conclusion of the hearings, the Board shall render a written report with findings which shall be served by mail upon the complainant and the respondent. Only those members who attend all hearings may participate in the final determination of the complaint. However, to reach a decision, a majority of the hearing members must concur in the findings."

The ordinance then empowers the Board to impose certain penalties as follows:

"The Board shall be empowered at the conclusion of such proceedings, and as part of its report to suspend or revoke, for a period not to exceed one year, the license of any broker licensed by the City of Evanston who shall have been a respondent to any proceedings thus filed and found ...


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