Testimony

House Bill 1158

House Judiciary Committee

January 11, 2005

Chairman DeKrey and members of the Committee, thank you for the opportunity to present testimony in favor of House Bill 1130. I am Cheryl Bergian, Director of the North Dakota Human Rights Coalition. The Coalition includes a broad-based, statewide membership of individuals and organizations interested in the furtherance of human rights in North Dakota; the Coalition’s mission is to effect change so that all people in North Dakota enjoy full human rights.

We support the work of the Division of Human Rights in the North Dakota Department of Labor for the enforcement of the North Dakota Human Rights Act and North Dakota Housing Discrimination Act. However, we have some objections to changes the Labor Commissioner is proposing to the North Dakota Housing Discrimination Act.

An issue has arisen regarding enforcement of the North Dakota Housing Discrimination Act and the interplay among the North Dakota Department of Labor, the North Dakota Attorney General’s Office, and the person while has filed a complaint under the North Dakota Housing Discrimination Act. The Attorney General’s Office has taken the position that they do not represent the complainant in enforcement actions under the Act, and that they only represent the State of North Dakota (the Labor Department). This has resulted in the Attorney General’s Office’s refusal to communicate with the complainant after a probable cause determination has been issued by the Labor Department, and to only communicate with the Labor Department. The ultimate result is that the Attorney General’s Office and the Labor Department have actually settled a complaint under the Act without informing the complainant that the settlement was in the offing, and without conferring with the complainant regarding that settlement.

This is not how the federal government acts when the U.S. Department of Justice and the U.S. Department of Housing and Urban Development enforce the federal Fair Housing Act, upon with the North Dakota Housing Discrimination Act is modeled. The DOJ files complaints in the name of the complainant and HUD, and confers with the complainant and HU regarding the progress of the complaint and any settlement prospects. The DOJ does acknowledge that it represents only HUD as it proceeds, but it sees its role as enforcing the Fair Housing Act for both the complainant and HUD.

The NDHRC asks that the following amendments proposed by the Labor Commissioner in HB 1158 be amended and deleted by this committee:

14-02.5-31(1), page 1, lines 9-12

14-02.5-31(3) page 1, lines 19-23 and page 2, lines 1-5

14-02.5-36, page 2 lines 19-20.

The Labor Commissioner is also asking that the North Dakota Housing Discrimination Act, 14-02.5-32, page 2, lines 12-13, be amended to state that punitive damages are not available under the chapter, through the department or through an administrative hearing. The NDHRC understands that this is because of an informal opinion of the Attorney General’s office, by e-mail during the 2003 Legislative Session, that the award of punitive damages under the Act by the department or in an administrative hearing may be unconstitutional. The Attorney General’s Office has not issued a formal opinion on this question, nor was the Attorney General’s Office able to provide the basis for this informal, undocumented opinion. The NDHRC asks that the Committee amend and delete the amendment to 14-02.5-31(1), page 2, lines 12-13 because of the uncertainty of the need for this amendment. According to a conversation with the Attorney General’s Office, the possibility of unconstitutionality of the provision is based on decisions in some other states by courts regarding those states’ constitutions. The North Dakota Supreme Court has not issued an decision regarding this question, nor has it had an opportunity to address the question under North Dakota’s Constitution. It is speculation at this point how the North Dakota Supreme Court would respond on this question, and to amend the North Dakota Housing Discrimination Act at this time is premature and unnecessary.

We ask for a do pass recommendation, with the above amendments, on House Bill 1130. I appreciate this opportunity to testify on behalf of the North Dakota Human Rights Coalition.