Statutory Drafting Assignment: Comments and Best Student Answers from Prior Classes

STATUTORY DRAFTING ASSIGNMENT: COMMENTS AND BEST STUDENT ANSWERS FROM PRIOR CLASSES

(1) Overview: This assignment required you to try to draft statutory language to solve several different legal problems. The comments, based largely on prior classes’ work, are arranged one problem at a time in the order you got them. These are followed by general comments about drafting and then by good student answers.

(2) Comments on Fulfilling Assigned Tasks

(a) Prohibiting Discrimination Against Cohabiting Couples: Probably the easiest way to accomplish this is to define “marital status” to include “cohabitant” or a similar term. If you do this, you need to be careful to include the other kinds of marital status that the legislature probably intended to begin with (married, single, divorced, widowed, separated). Using a version of the DaneCounty statute is one sensible way to do this.

You also have to define “cohabitant” or “cohabitation” to make clear what is covered. I think a simple effective definition of cohabitant might be something like “a cohabitant is an adult who is sharing a dwelling or is seeking to share a dwelling with one other adult.” Many students followed DaneCounty and defined cohabitant to include people living in larger groups. Given that the purpose of including the provision is to protect unmarried couples and that the sponsor wants to exclude groups of students anyway, I see no reason to protect groups of three or more here. Some students required that “cohabitants” show they are living together as husband and wife or that they share expenses. This seems to me unnecessarily burdensome. Why should the landlord be able to evict only those couples who keep separate checking accounts?

Regardless of how you accomplish the first task, you need to make clear that you only intend to prohibit discrimination against the couple because they are cohabiting. Some students have drafted provisions that made it “discrimination” to refuse to rent to cohabiting couples without specifying the reason. Presumably it is OK to refuse to rent to the couple because they are bankrupt serial killers.

(b) Make clear that landlords can refuse to rent to groups of three or more unmarried students.The simplest way to do this is to define “cohabitant” in a way that does not include people in groups of three or more. Prior students who added a separate provision ran into a number of problems. The following sample is typical:

Nothing in this act shall be read to prevent a landlord from refusing to rent a single dwelling to a group of three or more unmarried students.

First, “Nothing in act shall be read to prevent …” means that you have exempted the landlord not just from the marital status provisions but also from the prohibitions on discrimination because of race, sex, religion, etc. You need to clarify that your exception just applies to marital status: “It is not discrimination because of marital status for a landlord to refuse to rent a dwelling to ….”

Second, you need to decide if it matters that the students are related. In other words. can you use this exemption to deny housing to three sisters or four brothers?

Third, you probably need to define “students.” Do you mean to include people from kindergarten through graduate school? People going to school part time at night? People enrolled in KarateSchool or cooking classes? Is there any reason to treat students differently from plumbers? You could satisfy the assignment by allowing the landlord to ban any group of three or more unrelated adults.

I liked the following passage (even though it did not define “students”) because it seems to get right at the heart of what landlords care about.

Where students over the age of 18 are unrelated by blood or marriage, the landlord may limit the number of them living together to not more than 2 students per dwelling.

(c) Exception for religious landlords: This is probably the hardest segment of the assignment. Many if not most prior students drafted exemptions that were overbroad and would protect the landlord far more than they intended. Several prior studentsinadvertently wrote provisions that allowed a landlord who showed a sincere religious objection to housing cohabiting couples to be exempt from the act altogether. Some other recurring strengths and weaknesses:

(i) Many prior studentsexempted housing providers for both sale and rentals. Is there any reason to give a religious exemption to a seller?

(ii) Some prior studentslimited the number of units a landlord could control and still invoke the exception. (e.g., by adding smallholders exemptions like those in the FHA to the Wisconsin statute). I think this is a good idea.

(iii) Some prior studentsrequired that the religious belief in question be part of a traditional religion or be verified in an authoritative book or holy writing. Be careful. The Establishment Clause bars the government from favoring one kind of religion over another. That means the statute can’t favor the “traditional” over the new nor the religion based in holy writings to one where adherents find revelation in other ways.

(iv) Some prior studentswanted the landlord to have to make a showing beyond just affirmation of a sincere religious belief. One clever version from both 1999 and 2002 required the landlord to have the policy posted prominently.

(3) General Drafting Issues

(a) Inconsistency: Your amendment will be most useful if it is consistent internally and with the rest of the statute. An important aspect of consistency is using in the body of the statute the precise terms that you define at the beginning. For example, many prior studentsdefined “cohabit,” then used “cohabitant” or “cohabitation” in the operative provisions of the statute. Similarly, make the definition fit the precise form of the word you are using. For example, a “cohabitant” is a person; “to cohabit” is a verb. The definition of the former (but not the latter) can be “a person who is sharing a dwelling with one other person.” The definition of the latter should be “to share a dwelling with one other person.”

The other kind of consistency involves thinking through how the amendment fits into the existing statute. Here, I’m not talking about the numbering scheme, which is bizarre in Wisconsin, and which I told you not to worry about. Instead, my concern is that your amendment needs to dovetail substantively with what’s already there. For example, the statute already says that “marital status” is a protected class and that housing decisions taken on account of “marital status” constitute “discrimination.” Thus, once you define marital status to include cohabiting, you need not create a separate provision saying that discrimination against cohabiting couples is illegal. Similarly, the statute already defines “discrimination.” If you create new definitions for this term without carefully considering the existing definition, you will make the statute very difficult to interpret.

Also be careful about who you intend to cover with your provisions. “Discrimination” under the statute includes actions by sellers, brokers, agents, landlords, building managers, banks, insurers, etc. The statute repeatedly deals with this by referring to the party the statute is regulating as “a person.” To be consistent, you might do your own amendment in the same fashion: “A person shall not discriminate against cohabiting couples.” If you use other terms, especially “landlord,” you raise the issue of whether the provision applies to owners, insurers, etc. You probably want to be very sure that you only want to regulate landlords before you do this.

(b) Undefined/Underdefined Terms: Be careful aboutusing terms that might be subject to multiple interpretations without providing a definition. For example, does “student”include people not enrolled full-time? People who are students in the spring and fall, but have jobs during the summer? Make your definitions inclusive. As noted above, if you define “marital status” as “being married, single, or living together in a couple whether married or not,” a court may decide divorced and separated people are not covered.

“Cohabiting” also needs a definition. If you simply mean living together, why not say so? If you mean sharing resources or romance, you need to define carefully. If you define “cohabiting couple” as two persons living “as husband and wife regardless of marriage,” do you mean they have to share finances, arguments, a bed? Do they have to call themselves “husband and wife”? When you define “cohabiting couple” as “any two persons who live together in a single dwelling unit,” a court might choose to read that definition as excluding people who currently are not living together, but rather are seeking housing in which to live together.

(c) Ease of Enforcement: Many prior studentsdrafted legal tests without specifying the mechanisms that would bring them into play. One very large drafting problem with regard to the exemption for religious landlords is how it will operate in practice. Many students have required that, before invoking the exemption, the landlord “prove” or “demonstrate” or “show” a sincere religious belief, etc. Do you mean that each time the landlord wants to refuse an applicant, she has to go to court and make the showing? I think that would be an administrative nightmare, but if you want to try it, be clear about it. One way to solve the problem is to simply list the criteria a landlord would have to meet, and let the landlord invoke them if sued by rejected tenants. A clever way to resolve the problem is to allow the landlord to apply locally to get some sort of license or variance. The landlord will then have the opportunity to prove the religious belief once in a non-hostile forum. A few students in the past have suggested some version of this.

Another type of enforcement problem is creating a legal test that would take a lot of careful fact-based analysis to resolve. You want to think hard before you force the parties to do complex litigation to determine whether a statutory exemption applies. For example, many students have dictated that the religious exemption would only apply if “there was no compelling state interest to the contrary” or if “there was no substantial effect on the availability of housing.” Although these tests might be appropriate for a court engaging in (relatively infrequent) constitutional litigation, in this kind of statute, they will result in massive expensive litigation, potentially in every single case in which the exemption is invoked. Remember that you are drafting for the legislature. Your job is to help make legislative factual determinations (or at least guesses) such as whether there is a compelling state interest to overcome the religious concerns or whether there will be enough housing. If events prove your guesses wrong, you can amend the statute. But the legislature usually won’t want to hand housing policy over to the lawyers and courts.

Some students suggested tests that might be very intrusive or themselves raise constitutional concerns. Some students required that the cohabiting couple be having sexual relations. Should they have to prove that to get statutory protection? Some students required that the landlord belong to a “recognized religion” or that the religious beliefs be “objectively verifiable.” “Recognized religions” suggests that personal religious beliefs unconnected to an organized church don’t fly. Favoring organized over personal religions raises the same kinds of constitutional questions as favoring any group of religions over others. It suggests both Establishment and Free Exercise concerns. “Objectively verifiable” suggests that you need someone from outside to testify that the religion indeed does have the claimed belief. Again, this tends to favor organized mainstream religions.

Finally, many students put the Sherbert test into the statute. Even assuming it was a good idea as a constitutional test, it makes a problematic statute. Sherbert requires that there be “a religion” involved, that the “conduct in question be religiously based,” and that the claimant be “sincere in his or her religious belief.” First, from a statutory perspective, this test feels redundant. Could the second and third prongs be true if the first wasn’t? Can you act in accordance with a sincere religious belief without involving “a religion?” Second, the “conduct in question” language is designed to cover all sorts of behavior. Here, we are talking about discrimination under the statute. Thus, a simplified version might be, “Discrimination on the basis of marital status is not prohibited if it results from a person’s sincere religious beliefs.”

(4) Good Examples of Student Drafting

(a) Whole Assignment: This statute contains some clever ideas, particularly handling both of the first two issues in a single sentence. However, the religious exemption is very strict and might be hard to enforce.

(1) Amendment to §66.432(2): Nothing in this subsection shall be construed as supporting discrimination in housing against unmarried adult cohabitants, of the same or of opposite sexes, except where otherwise provided in [the amendments below.]

(2) Amendment to §106.04:

(a) “Marital status” means either married, divorced, widowed, separated, single, or not more than two non-married adult cohabitants, whether of the same sex or of opposite sexes.

(b) Nothing in this section regarding marital status or sexual orientation shall apply to those landlords who own four or fewer total units of non-contiguous rental property or eight or fewer units of contiguous rental property and who find the cohabitation of unmarried persons repugnant to their religious beliefs. Any landlord who claims this exemption may be compelled to present evidence of those religious beliefs that shall include:

(i) proof of membership in a religious institution (such as a letter or affidavit from a clergyperson; and

(ii) federal income tax returns from the previous year demonstrating contributions to tax-exempt religious institutions equaling no less than 5% of the landlord’s taxable personal income for that year.

(b) Cohabitation/Students Slightly Edited: This is a nice simple way to handle this part of the problem using the Dane County ordinance as a model.

“Marital status” defined. "Marital status" means being married or single.

(1) For purposes of this provision, being single includes the following conditions:

a. Being divorced;

b.Being widowed;

c.Being separated from one’s spouse;

d. Being unmarried.

e.Seeking to share housing with another unrelated unmarried person.

(2) It is not discrimination based on "marital status" to refuse to provide housing to groups of three or more unrelated unmarried persons seeking to share housing together.

(c) Cohabitation/Students: This is a quite different and clever way to address this issue.

Section 106.04(1m)(k) is amended to include in the definition of “family status:”

6. A person’s household includes one adult who is neither legally related nor placed in the household under court order.

(d) Religious Exemption: This is a nice combination of a smallholders’ exemption and a very straightforward religious exemption.

Nothing in the prohibition against marital status and sexual orientation discrimination applies to an owner renting any single family house, room, or units in a dwelling, whose sincere religious beliefs would be violated by renting to unmarried cohabitants, homosexual or bisexual persons.

(e) Religious Exemption Slightly Edited: This is a clever requirement to add on to protect applicants from arbitrary operation of the policy.

Religious Exception. A landlord who has a strong religious belief that two unrelated adults shall not live together may decline to rent an apartment unit to such a couple provided that the landlord has

(1) Posted a sign stating the intent to adhere to this belief in plain view of all those applying for housing on his property; and

(2) Printed clearly at the beginning of any application form the intent to adhere to this belief.

(f) Whole StatuteThis was a very strong entry from the Spring 2005 class:

(1) “Marital Status” means any of the following conditions that apply to a person or a couple seeking to rent or purchase housing:

1. A person is single and has never married.
2. A person is formerly married; including widowed, divorced, or separated.
3. A couple is married.
4. A couple is cohabitating, but not married.

(2) It is not discrimination based on marital status to refuse to rent to groups of three or more unrelated and unmarried individuals.

(3)(a) Notwithstanding anything in this section but subject to subd. (b), an individual landlord may refuse to rent a dwelling unit on the basis of marital status:

1. Provided that the individual landlord’s reason for refusal is a sincere religious belief against unmarried cohabitation.
2. Provided further that the individual landlord does not rent out more than four dwelling units at any given time.
3. Provided further that the dwelling unit is rented by the individual landlord without the services of an agent or a person in the housing business.

(b) Any advertisement or written notice published, posted or mailed in connection with the rental of a dwelling unit under subd. (a) may not violate subsection (2)(d).