Lake Co. dad gets new trial after potential landlord denies rental because of kids

A new trial has been ordered for a Lake County father who was refused a rental home after telling the owner that he had children.

Darrin Bowman, who has two minor children, was considering renting a Lake County home from Betty Jo Wilkening. The unit was available and Bowman was qualified to rent it, but once Wilkening learned that his children would live with him on the weekends, she refused to allow him to complete a rental application.

When Bowman’s single friend without children was later shown the same home and encouraged to apply, Bowman brought his concerns to the Indiana Civil Rights Commission, arguing that he was discriminated against because he has kids. The commission issued a notice that found there was “reasonable cause” to conclude Wilkening had violated the Indiana Fair Housing Act on the basis of familial status. Gregory Wilson Sr., in his capacity as the executive director of the commission, thus sued Wilkening on behalf of Bowman and the commission.

Wilkening countered that the commission’s claims were “groundless, unreasonable, and frivolous.” She argued the commission had neither made its determination of reasonable cause within 100 days of Bowman filing his complaint, nor found that it was impracticable to make its determination within the 100-day time period. She also claimed that it never notified Bowman and Wilkening of the reasons for the delay.

The Lake Superior Court granted her motion for judgment on the evidence, including on grounds that the commission failed to comply with Indiana Code § 22-9.5-6-8(c) by failing to meet the 100-day deadline. It later ordered the commission to pay $51,572.99 for Wilkening’s attorney fees.

But the Indiana Court of Appeals reversed, agreeing with the commission that the trial court erred in granting Wilkening’s motion for judgment on the evidence because it misinterpreted the “shall” in I.C. § 22-9.5-6-8 to be mandatory rather than directory.

The appellate court first noted that the statute neither specifies any express or implied adverse consequences for the commission’s failure to comply with the 100-day notice provision, nor contains language indicating that the 100-day deadline was intended to be jurisdictional.

“In addition, compliance with the 100-day notice provision does not go to the essence of the statute’s purpose, which is to assure fair housing practices in Indiana,” Judge Rudolph Pyle wrote for the appellate court.

“… Lastly, a mandatory construction of the word ‘shall’ in INDIANA CODE § 22- 9.5-6-8 would thwart the legislative purpose of the statute by requiring the dismissal of potentially valid IFHA cases based simply on the Commission’s delay. This would be an absurd and unjust result, which would be patently inconsistent with the intent of the IFHA,” Pyle wrote, concluding that “shall” in the statute is directory and not mandatory.

The COA determined its conclusion was consistent with federal decisions construing 42 U.S.C. § 3610, the federal equivalent to I.C. § 22-9.5-6-8.

It therefore reversed and remanded the case for a new trial in Gregory Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission v. Betty Jo Wilkening, 20A-PL-1960.