                 IN THE SUPREME COURT OF IOWA
                              No. 16–1534

                        Filed February 15, 2019


THERESA SEEBERGER,

      Appellee,

vs.

DAVENPORT CIVIL RIGHTS COMMISSION,

      Appellant,

and

MICHELLE SCHREURS,

      Intervenor-Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Michael D.

Huppert, Judge.



      Landlord seeks further review of court of appeals decision affirming

damage award for housing discrimination and restoring attorney fee

award. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.



      Latrice L. Lacey of Davenport Civil Rights Commission, Davenport,

for appellant.

      Dorothy A. O’Brien of O’Brien & Marquard, P.L.C., Davenport, for

intervenor-appellant.
                                   2

      Randall D. Armentrout, Katie L. Graham, and Ryan G. Koopmans

(until withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.
                                          3

WATERMAN, Justice.

      In this case, we must decide whether the court of appeals erred in

awarding attorney fees incurred in agency proceedings under a fee-

shifting provision in Division II of the Davenport Civil Rights Ordinance

for a housing discrimination violation charged under Division III that

lacks a corresponding fee-shifting remedy. The owner of a single-family

home terminated the lease of a tenant whose daughter became pregnant,

resulting   in   a   complaint    filed   with    the   Davenport   Civil   Rights

Commission (Commission) alleging discrimination based on familial

status in violation of the Davenport Civil Rights Ordinance and the

Federal Fair Housing Act (FHA).               The landlord responded that her

comments and actions were protected under the First Amendment. An

administrative law judge (ALJ) found the landlord committed the Division

III fair housing violation, awarded the tenant $35,000 in damages for

emotional distress and $23,882 in attorney fees and costs, and imposed

a $10,000 civil penalty.    The Commission approved the ALJ’s decision

except that it reduced the emotional distress award to $17,500.                On

judicial review, the district court rejected the landlord’s free speech

defense but reversed the damages award and civil penalty based on a

“small   landlord”    exemption     in    the    Ordinance   and    directed   the

Commission to recalculate those amounts. The district court vacated the

fee award, ruling that the fee-shifting provision in Division II was

inapplicable and that fees could not be awarded by the Commission

under the FHA. All parties appealed, and we transferred the case to the

court of appeals, which reinstated the fee award under Division II of the

Ordinance. We granted the landlord’s application for further review.

      On our review, we elect to allow the court of appeals decision to

stand on all issues except the award of fees incurred in the agency
                                    4

proceedings. For the reasons elaborated below, we hold the fee-shifting

provision in Division II of the Ordinance is inapplicable to the fair

housing violation in Division III. We also hold the Commission could not

award fees under the FHA.      Accordingly, we affirm the district court

judgment.

      I. Background Facts and Proceedings.

      In 2011, Theresa Seeberger purchased a three-bedroom, single-

family home on North Ripley Street in Davenport. Seeberger lived in the

house with her four cats until she got married in 2012. Her spouse was

allergic to cats. When Seeberger moved out of the North Ripley house,

she left behind her cats, much of her clothing, and some furniture.

Seeberger visited the house almost daily to feed her cats.

      In December 2012, Seeberger began renting out bedrooms in the

house.   In August 2013, Michelle Schreurs and her fifteen-year-old

daughter rented one of the bedrooms. There was no written lease, but

Schreurs agreed to pay $300 monthly in rent.          Although two other

tenants lived in the house when they moved in, by July 2014, Schreurs

and her daughter were the only tenants.

      On September 16, Seeberger visited the house and found prenatal

vitamins on the kitchen counter. She took a photo of the vitamins with

her cell phone and sent the photo to Schreurs with a text asking,

“Something I should know about?”

      The following day, Seeberger returned and was at the house when

Schreurs arrived home from work.        Seeberger asked if Schreurs had

received the text message and again asked about the prenatal vitamins.

Schreurs excitedly told Seeberger that her daughter was pregnant.

Seeberger paused for a moment and then responded that Schreurs and

her daughter would have to move out in thirty days. When asked why,
                                             5

Seeberger stated, “You don’t even pay rent on time the way it is, and . . .

[n]ow you’re going to bring another person into the mix.”                     Noting the

prenatal vitamins, Seeberger continued, “[O]bviously you’re going to keep

the baby.”         The following day, Seeberger left a letter at the house

informing Schreurs that her lease would expire on October 19. Schreurs

and her daughter moved out October 5.

       In November, Schreurs filed a complaint with the Davenport Civil

Rights Commission.             She amended her complaint twice, ultimately

claiming that Seeberger discriminated against her based on familial

status in violation of Division III, section 2.58.305(C) of the Davenport

Municipal Code (2014), 1 and § 804(c) of the FHA. 2 As a small landlord,

Seeberger was only liable for the alleged discriminatory statements she

made in violation of section 2.58.305(C).              Seeberger was exempt from

liability under the remaining subsections of section 2.58.305, including

any liability for terminating Schreur’s tenancy.               See Davenport, Iowa,

Mun. Code § 2.58.310 (exempting small landlords from liability for

subsections 2.58.305(A), (B), (D), (E), and (F)). 3                  The Commission

       1Davenport    Municipal Code section 2.58.305(C) provides that the following is
unlawful:

       To make, print or publish, or cause to be made, printed or published any
       notice, statement or advertisement, with respect to the sale or rental of a
       dwelling that indicates any preference, limitation, or discrimination
       based on race, color, creed, religion, sex, national origin or ancestry, age,
       familial status, marital status, disability, gender identity, or sexual
       orientation or an intention to make any such preference, limitation or
       discrimination.
Davenport, Iowa, Mun. Code § 2.58.305(C).
       2Codified   at 42 U.S.C. § 3604(c) (2012).
        3The Municipal Code exempts, subject to certain conditions, “[a]ny single-family

house sold or rented by an owner” and rooms in a dwelling that have “living quarters
occupied or intended to be occupied by no more than four (4) families living
independently of each other, if the owner actually maintains and occupies one of such
living quarters of his residence.” Davenport, Iowa, Mun. Code § 2.58.310(A)(1)–(2).
There are similar exemptions under the FHA. 42 U.S.C. § 3603(b)(1)–(2). The latter
                                         6

conducted an investigation.           In March 2015, the director of the

Commission issued a probable cause finding, concluding that there was

probable cause to find Seeberger had discriminated against Schreurs

based on familial status in violation of section 2.58.305(C) and the FHA,

42 U.S.C. § 3604(c).

       The complaint was set for a public hearing before an ALJ. After

the hearing, the ALJ issued a ruling finding that “[a]n ordinary listener

listening   to   Seeberger’s     statements     would     find    her   statements

discriminatory on the basis of familial status” and that “Seeberger

engaged in a discriminatory housing practice by making the statements.”

The ALJ issued a cease and desist order, awarded Schreurs $35,000 in

emotional distress damages, and assessed a $10,000 civil penalty

against Seeberger. On December 23, Schreurs filed an application for

attorney fees.    Seeberger resisted.        The ALJ found that Schreurs was

entitled to attorney fees under Davenport Municipal Code section

2.58.350(G) and awarded Schreurs $23,200 in attorney fees and $681.80

in costs.

       In January 2016, the Commission approved the ALJ’s decision,

except that it reduced the award of emotional distress damages to

$17,500. The Commission also approved the ALJ’s decision with regard

to attorney fees and costs and determined Seeberger was responsible for

the costs of the hearing.

       Seeberger filed a petition for judicial review.           Seeberger argued,

among other things, that the Ordinance violated her right to free speech

under the United States and Iowa Constitutions and did not authorize an

_______________________
exemption is known “as the ‘Mrs. Murphy’ exemption on the theory then that the
statute did not reach the metaphorical ‘Mrs. Murphy’s boardinghouse.’ ” United States
v. Space Hunters, Inc., 429 F.3d 416, 425 (2d Cir. 2005).
                                     7

award of attorney fees incurred in the agency proceedings.         Schreurs

intervened in the judicial review proceedings.          Schreurs and the

Commission argued that Seeberger’s statements were not protected

speech and that Schreurs was entitled to attorney fees under Davenport

Municipal Code section 2.58.175(A)(8) in Division II of the Ordinance and

under the FHA, 42 U.S.C. § 3612(p).

      The district court concluded that Seeberger’s statements were not

protected speech under the First Amendment of the United States

Constitution or article I, section 7 of the Iowa Constitution. The court

found that, contrary to the limitation of liability for small landlords, “the

damages that were awarded were tied to the termination of the tenancy

by [Seeberger], not just her discriminatory statements.”          The court

reversed the damages award and civil penalty, concluding,

             Although the [Commission] reduced the ALJ’s award
      by half, there is no analysis that would reflect whether they
      differentiated between damages properly related to the
      discriminatory statement and improperly related to the
      termination of the tenancy. As a result, the award of
      damages to [Schreurs] was improper and should be reversed.
      As it is unclear whether the [Commission’s] calculation of an
      appropriate civil penalty may have relied upon such an
      improper causal connection, that penalty should also be
      reversed.

      The district court also concluded that Davenport Municipal Code

section 2.58.175(A)(8) “does not clearly authorize an award of attorney

fees in the context of a discriminatory housing practice.”      The district

court vacated the attorney fees award.

      Schreurs and the Commission moved for additional findings. They

requested the court reconsider its ruling on attorney fees under section

2.58.175(A)(8) and expand its findings to address whether Schreurs was

entitled to fees under the FHA. The Commission also asked the court to

award attorney fees under section 2.58.350(G).         Both Schreurs and
                                           8

Seeberger requested an award of fees incurred during the judicial review

proceedings.

      The district court denied all of the motions. The court declined to

reconsider its ruling disallowing fees under section 2.58.175(A)(8). The

court concluded that “the mere fact that the . . . complaint was cross-

filed with the federal authorities does not expand the [Commission’s]

authority to award attorney fees beyond what is allowed under the city

ordinance” and fees under the FHA “were unavailable to [Schreurs] in her

state court proceeding.” The court concluded that Schreurs waived her

claim to attorney fees under Municipal Code section 2.58.350(G).

Finally, the district court declined to award attorney fees to either

Seeberger or Schreurs for fees incurred during judicial review.

      All parties appealed.         We transferred the case to the court of

appeals. The court of appeals concluded that the Davenport Municipal

Code was not unconstitutional as applied to Seeberger and did not

infringe upon her right to free speech.               The court of appeals also

concluded that Schreurs was entitled to attorney fees under Municipal

Code section 2.58.175(A)(8) and reversed the district court’s denial of

fees. Finally, the court of appeals concluded the district court’s denial of

fees for the judicial review proceedings was not “clearly unreasonable or

untenable,” and affirmed the district court on that ground.

      Seeberger filed an application for further review. 4 We granted her

application.

      II. Scope of Review.

      On further review, we have the discretion to “review any or all of

the issues raised on appeal.” Cote v. Derby Ins. Agency, Inc., 908 N.W.2d


      4Neither   Schreurs nor the Commission applied for further review.
                                      9

861, 864 (Iowa 2018) (quoting Papillon v. Jones, 892 N.W.2d 763, 769

(Iowa 2017)). We choose to confine our review to the award of attorney

fees incurred in the agency proceedings and let the court of appeals

decision stand as the final decision on the remaining issues. See id. We

review the district court’s ruling construing the Ordinance for correction

of errors at law. Simon Seeding & Sod, Inc. v. Dubuque Human Rights

Comm’n, 895 N.W.2d 446, 455 (Iowa 2017).

      III. Analysis.

      We must construe the Davenport Civil Rights Ordinance to

determine whether the district court correctly ruled that the fee-shifting

provision in Division II is inapplicable to a housing discrimination

complaint prosecuted under Division III. We must also decide whether

the district court correctly ruled that the Commission lacked authority to

award fees under the FHA. We address each issue in turn. We begin

with an overview of fee awards under local civil rights ordinances.

      A. Attorney      Fee   Awards       Under   Municipal   Civil   Rights

Ordinances.

      We reiterate the importance of fee awards in civil rights
      cases: “The reason a successful civil rights litigant is entitled
      to attorney fees ‘is to ensure that private citizens can afford
      to pursue the legal actions necessary to advance the public
      interest vindicated by the policies of civil rights acts.’ ”

Simon Seeding & Sod, Inc., 895 N.W.2d at 473 (quoting Lynch v. City of

Des Moines, 464 N.W.2d 236, 239 (Iowa 1990)). But we require that the

ordinance “contain[] an express provision clearly authorizing an award of

attorneys’ fees.”   Id. (quoting Botsko v. Davenport Civil Rights Comm’n,

774 N.W.2d 841, 846 (Iowa 2009)).           This is “because attorneys’ fee

awards are a derogation of the common law, they ‘are generally not

recoverable as damages in the absence of a statute or a provision in a
                                    10

written contract.’ ”   Botsko, 774 N.W.2d at 845 (quoting Kent v. Emp’t

Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993)).            “Our demanding

approach is consistent with cases in other jurisdictions which reject

awarding statutory attorneys’ fees by implication and require express

language.” Id.

      In Botsko, the issue was “whether the ordinance enacted by the

City of Davenport at the time of this proceeding contained an express

provision clearly authorizing an award of attorneys’ fees.” Id. at 846. We

held the operative provision of the ordinance at the relevant time did not

allow fees.   Id. (“[W]e will not read into the ordinance a fee-shifting

provision when the local legislative body did not approve one.”).      We

rejected the argument that a fee-shifting provision should be implied

because the ordinance was intended to execute the policies of the Iowa

Civil Rights Act, which contains an express fee-shifting provision. Id. at

845–46.

      The city subsequently amended Division II of its ordinance to add

section 2.58.175(A)(8).    Id. at 845 n.2.   The fighting issue today is

whether section 2.58.175(A)(8) applies to a fair-housing violation charged

under Division III.

      B. Attorney Fees for the Agency Proceedings. The Davenport

Civil Rights Ordinance is organized into three divisions: Division I—

General, Division II—Unfair Practices, and Division III—Fair Housing. It

is undisputed that Seeberger was charged with a fair housing violation

under Division III and was not charged with violating any provision

under Division II. Notably, Division II expressly allows fee awards for the

agency proceedings while the corresponding remedy section in Division

III does not. We conclude the terms of Division III control.
                                     11

      1. Division III—fair housing.       Schreurs filed her discrimination

complaint under, and Seeberger was found to have violated, Davenport

Municipal Code section 2.58.305(C).          This section is located under

Division III, the fair housing provision of the civil rights ordinance.

Division III expressly provides the relief an ALJ may order when the

respondent has engaged in a discriminatory housing practice:

      If the administrative law judge finds that a respondent has
      engaged in or is about to engage in a discriminatory housing
      practice, such administrative law judge shall promptly issue
      an order for such relief as may be appropriate, which may
      include actual damages suffered by the aggrieved person and
      injunctive or other equitable relief. Such order may, to
      vindicate the public interest, assess a civil penalty against
      the respondent in an amount not to exceed those established
      by the Federal Fair Housing Act in 42 U.S.C. Section 3612.

Id. § 2.58.340(F)(3). This section does not provide for attorney fees. Id.

      The housing discrimination division allows a discretionary attorney

fee award in a different section governing judicial review.              Id.

§ 2.58.350(G).   Section 2.58.350 is titled “FAIR HOUSING—Judicial

Review” and subsection (G) states,

      G. “Attorney Fees:” The administrative law judge or the
      court may at its discretion allow the prevailing party, other
      than the commission, reasonable attorney fees and costs
      resulting from any administrative proceeding brought under
      this section, any court proceeding arising therefrom, or any
      civil action.

Id. § 2.58.350(G).

      Schreurs argues that she is entitled to an award of attorney fees

under section 2.58.350(G).    She made her request for fees under this

provision at the agency level. The ALJ, relying on section 2.58.350(G),

awarded Schreurs $23,200 in attorney fees. The Commission affirmed

the ALJ’s award of attorney fees.
                                       12

      On judicial review, however, Schreurs argued that she was entitled

to fees under a different provision not in the fair housing section, section

2.58.175(A)(8).   The district court rejected that argument, determining

that the fee-shifting provision in Division II was inapplicable to the fair

housing violation charged under Division III. We agree, but first address

the on-and-off-again reliance by Schreurs on section 2.58.350(G).

      In its ruling on the petition for judicial review, the district court

found that the parties had conceded that section 2.58.350(G) governing

judicial review did not apply to fees previously incurred in the agency

proceedings.      The Commission and Schreurs then invoked section

2.58.350(G) in a rule 1.904(2) motion, which the district court denied,

stating the parties had waived that argument.                 On appeal, the

Commission and Schreurs relied on section 2.58.175(A)(8) and the FHA

and argued section 2.58.350(G) as an alternative ground for reinstating

the fee award.       The court of appeals stated, “Schreurs and the

Commission did not argue on judicial review that Schreurs was entitled

to fees under the municipal code provision the ALJ actually awarded

them, section 2.58.350(G).”      The court of appeals reversed the district

court based on section 2.58.175(A)(8) alone and concluded, “This

disposition makes it unnecessary for us to decide whether Schreurs was

entitled to attorney fees under 2.58.350(G) or, in the alternative, the

FHA.” 5

      We agree with the district court that Schreurs and the Commission

waived any claim to fees under section 2.58.350(G) by not raising that

ground in district court until after the court filed its decision on judicial


      5In   resisting Seeberger’s application for further review, Schreurs and the
Commission rely solely on section 2.58.175(A)(8) and the FHA without mentioning
section 2.58.350(G).
                                          13

review vacating the fee award.          Having waived that ground in district

court, those parties could not revive it in their appellate briefings.

Accordingly, we confine our analysis to whether section 2.58.175(A)(8) of

Division II applies to this Division III fair housing violation.

      2. Division II—unfair practices.           Schreurs argues that she is

entitled to an award of attorney fees under Division II—Unfair Practices.

Division   II    lists   discriminatory      practices   including    employment,

accommodation, retaliation, and education. See Davenport, Iowa, Mun.

Code § 2.58.100 (employment); id. § 2.58.110 (accommodations or

services); id. § 2.58.120 (credit); id. § 2.58.125 (education); id. § 2.58.130

(aiding and abetting); id. § 2.58.140 (retaliation).         Another section of

Division II states that

      if the Commission determines the respondent has engaged in
      a discriminatory practice, the Commission shall issue an
      order requiring the respondent to cease from the
      discriminatory practice and to take necessary remedial
      action as in the judgment of the commission will carry out
      the purposes of this chapter.

Id. § 2.58.170(L).       Section 2.58.175 in Division II is titled “Remedial

Action,” and subsection (A)(8) provides,

            A. The remedial action ordered by the Commission
      may include the following actions to be taken by respondent,
      in addition to any other remedy allowed by law:
                ....
             8. Payment to the complainant of damages for an
      injury caused by the discriminatory practice which damages
      shall include but are not limited to back pay, front pay, all
      economic damages, emotional distress damages, and
      reasonable attorney fees.

Id. § 2.58.175(A)(8) (emphasis added).

      Schreurs argues that section 2.58.175(A)(8) is a general remedial

provision pertaining to all areas of discrimination, including housing

discrimination     under     Division     III.   Schreurs    points    to   section
                                     14

2.58.175(A)(4),   which   enumerates      “[s]ale,   exchange,   lease,   rental,

assignment or sublease of real property” as a possible remedial action.

Schreurs argues that because there is no language in Division II’s

remedy provision excluding housing discrimination, the agency was free

to award attorney fees based on its plain language.          The Commission

notes the ambiguity of the city’s civil rights ordinance, but argues that all

of the divisions are to be read together.

      The district court noted that section 2.58.175(A)(8) was listed in

Division II under a section titled “Remedial Action,” which appears after

the part of the ordinance governing complaints of unfair practices in

areas other than housing. The district court noted that the procedures

in Division II differ from the procedures in Division III for discriminatory

housing practices.     The district court ruled that Schreurs was not

entitled to an award of attorney fees under section 2.58.175(A)(8).

      On appeal, the court of appeals noted the differences between

Divisions II and III but stated, “[B]ased on the plain language and

statutory scheme of the ordinance, we conclude the remedial action

provision in division two, section 2.58.175, encompasses all areas of

discrimination, including housing.” The court of appeals reinstated the

attorney fee award based on section 2.58.175(A)(8) alone. We disagree.

      We decline to transport the remedy provision from Division II to

Division III. To do so would render superfluous the remedies expressly

allowed in Division III, section 2.58.340(F)(3) (providing for an award of

actual damages, civil penalties, and equitable relief). See Oyens Feed &

Supply, Inc. v. Primebank, 808 N.W.2d 186, 193 (Iowa 2011) (preferring

interpretation that gives effect to all terms and avoids surplusage).

Moreover, Division III specifically governs fair housing complaints. “To

the extent ‘there is a conflict or ambiguity between specific and general
                                      15

statutes, the provisions of the specific statutes control.’ ”   Id. at 194

(quoting Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 815

(Iowa 2011)).

      We find no language in either division indicating that a violation of

Division III is governed by the remedy provision in Division II. Rather,

each division provides its own specific remedies and exemptions.        See

Shumate v. Drake Univ., 846 N.W.2d 503, 512–13 (Iowa 2014) (declining

to find an implied private right to sue under Iowa Code chapter 216C

when the legislature expressly provided a private right to sue in chapter

216E).

      Tellingly, the city chose to include a fee-shifting provision for

agency proceedings under Division II but not in the corresponding

remedy provision in Division III.          We assume that omission was

intentional. See Shumate, 846 N.W.2d at 513 (“We find these omissions

telling.”); Oyens, 808 N.W.2d at 193 (noting legislative intent is expressed

by omission as well as inclusion of terms and selective placement of term

is presumed intentional).    If the city wanted to allow fee-shifting for

litigating fair housing complaints under Division III, presumably it would

have said so in section 2.58.340(F)(3). See Oyens, 808 N.W.2d at 194.

We will not expand the relief allowed in that provision in the guise of

interpretation.   To do so would violate our mandate that fee-shifting

provisions in ordinances must be clearly expressed within the terms of

the ordinance, not implied. Botsko, 774 N.W.2d at 846.

      3. Fair Housing Act. Finally, Schreurs argues she is entitled to an

award of attorney fees under the FHA. The district court rejected that

argument, and the court of appeals declined to reach it. The FHA allows

a discretionary fee-shifting award:
                                   16
             In any administrative proceeding brought under this
      section, or any court proceeding arising therefrom, or any
      civil action under this section, the administrative law judge
      or the court, as the case may be, in its discretion, may allow
      the prevailing party, other than the United States, a
      reasonable attorney’s fee and costs.

42 U.S.C. § 3612(p).

      Seeberger argues that the Commission does not have the authority

to award damages under the FHA. Schreurs and the Commission argue

that the Commission may award fees under the FHA and that failing to

award fees under the FHA ignores the long-standing file-sharing

agreement between administrative agencies. The district court ruled the

Commission could only award attorney fees authorized under the

Municipal Code and Schreurs would have to pursue attorney fees under

the FHA in a federal action.

      In Van Meter Industries v. Mason City Human Rights Commission,

we rejected the argument that a local civil rights commission could

award punitive damages under a federal statute. 675 N.W.2d 503, 516–

17 (Iowa 2004).

      [The plaintiff’s] argument ignores the limited jurisdiction of
      this local civil rights commission. Under Iowa Code section
      216.5, the Iowa Civil Rights Commission is given the power
      to determine complaints alleging an unfair or discriminatory
      practice under Iowa Code chapter 216. In addition, a city
      may create a local civil rights commission to protect the
      rights of citizens secured by the Iowa Civil Rights Act. Thus,
      the Commission in this case acted under the authority and
      subject to the limitations of chapter 216, not federal law.
      Therefore, it correctly determined that it had no power to
      award punitive damages.

Id. (citations omitted).

      The same reasoning applies with regard to an award of attorney

fees by the Commission under federal law.          See also Iowa Code

§ 216.19(1) (2015) (“All cities shall, to the extent possible, protect the
                                     17

rights of the citizens of this state secured by the Iowa civil rights Act.”

(Emphasis added.)).

      Schreurs relies on Dutcher v. Randall Foods, 546 N.W.2d 889 (Iowa

1996), in support of her argument. Her reliance on Dutcher is misplaced.

Dutcher involved a court declining to award attorney fees pursuant to the

Fair Labor Standards Act after a jury rendered a verdict and awarded

damages in favor of the plaintiff.    Id. at 894–95.   That case did not

involve a municipal civil rights commission awarding attorney fees under

federal law.   The Commission argues that the Iowa Civil Rights Act

permits an award of attorney fees in fair housing cases. However, the

Commission did not award, and Schreurs is not requesting, an award of

attorney fees under the Iowa Civil Rights Act. We conclude the district

court correctly denied an award of attorney fees under the FHA.

      IV. Conclusion.

      For the above reasons, we vacate the decision of the court of

appeals awarding attorney fees for the agency proceedings, affirm the

court of appeals decision on the remaining issues, and affirm the

judgment of the district court.

      DECISION OF THE COURT OF APPEALS AFFIRMED IN PART

AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

      All justices concur except Appel and Wiggins, JJ., who concur in

part and dissent in part.
                                     18

                    #16–1534, Seeberger v. Davenport Civil Rights Comm’n

APPEL, Justice (concurring in part and dissenting in part).

      I concur in part and dissent in part.

     I. Commission Authority to               Award   Attorney     Fees   for
Proceedings Before the Commission.

      We recently reiterated the importance of the availability of attorney

fees in civil rights cases. Simon Seeding & Sod, Inc. v. Dubuque Human

Rights Comm’n, 895 N.W.2d 446, 473 (Iowa 2017). Our cases have long

explained that “[t]he reason a successful civil rights litigant is entitled to

attorney fees ‘is to ensure that private citizens can afford to pursue the

legal actions necessary to advance the public interest vindicated by the

policies of civil rights acts.’ ” Lynch v. City of Des Moines, 464 N.W.2d

236, 239 (Iowa 1990) (quoting Ayala v. Ctr. Line, Inc., 415 N.W.2d 603,

605 (Iowa 1987)). Federal courts have long given attorney fees provisions

in civil rights statutes a broad construction because the statutes further

policies favoring private enforcement of civil rights legislation. See, e.g.,

Newman v. Piggie Park Enters., 390 U.S. 400, 401–02, 88 S. Ct. 964,

965–66 (1968) (per curiam); Parker v. Califano, 561 F.2d 320, 327–28

(D.C. Cir. 1977); Smith v. La Cote Basque, 519 F. Supp. 663, 666

(S.D.N.Y. 1981). That said, “we will not substitute ‘generalized language’

for language ‘expressly authorizing the payment of attorneys’ fees to the

prevailing party.’ ” Simon Seeding & Sod, 895 N.W.2d at 473 (quoting

Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 846 (Iowa

2009)). Yet, we should not seek to evade express attorney fees provisions

in civil rights statutes through cramped and technical interpretation.

      In this case, the plain language of the Davenport Civil Rights

Ordinance expressly authorizes the Davenport Civil Rights Commission

to award attorney fees related to the administrative proceedings that
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occurred in this case. The ordinance provides that the Commission may

order payment of attorney fees caused by a discriminatory practice.

Davenport, Iowa, Mun. Code § 2.58.175(A)(8). The term “discriminatory

practice” is defined in the ordinance as “those practices specified as

unlawful    or    discriminatory        in   this    chapter.”        Id.   § 2.58.030(R).

Discriminatory housing practices are among those specified as unlawful

in chapter 2.58. Id. § 2.58.300(B). Therefore, the Commission may order

payment of attorney fees caused by a discriminatory housing practice.

Since    this    case    involved   a    discriminatory         housing     practice,    the

Commission was authorized to award attorney fees in this case.                          The

district court erred in concluding otherwise, and I would reverse the

district court ruling that Michelle Schreurs is not entitled to attorney fees

before the Commission because they are not authorized by statute. That

ruling is wrong.

        But there is more.          Pursuant to section 2.58.175(A)(8), the

Commission “may” award attorney fees. Id. § 2.58.175(A)(8). Because of

the term “may,” the Commission has discretion under the Ordinance to

award attorney fees when a complainant proves a discriminatory

practice.       The     Commission       determined          that   Schreurs    proved    a

discriminatory        practice,   and    the      district    court   has   upheld      that

determination.        As a result, the Commission clearly has the power to

award Schreurs attorney fees in this case.

        The district court, however, vacated the damages award. I agree

for the reasons stated by the district court. But because we do not know

if the Commission’s discretionary decision to award Schreurs attorney

fees was influenced by the size of the emotional distress award, I would

also vacate the Commission’s award of attorney fees and remand the

question to the Commission.             Once the Commission redetermines the
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damages issue, it should consider whether to exercise its discretion to

award attorney fees.

      In reconsidering the discretionary question of whether to award

attorney fees incurred for proceedings before the Commission, it is

important to note that, unlike section 2.58.350(G), there is no

requirement under section 2.58.175(A)(8) that the complainant be a

prevailing party. Compare id. § 2.58.350(G), with id. § 2.58.175(A)(8). All

that is required under section 2.58.175(A)(8) to permit the Commission

to exercise its discretion and award complainant attorney fees is a

finding that the respondent engaged in a discriminatory practice.      See

id. § 2.58.175(A)(8). That predicate has already been established. Yet,

the Commission must exercise its discretion anew in the event that it

alters the damages award in this case.

      II. District Court Authority to Award Attorney Fees.

      Schreurs may also be entitled to attorney fees related to the

judicial review proceedings before the district court.     The ordinance

provides that “the court may at its discretion allow the prevailing party,

other than the commission, reasonable attorney fees and costs resulting

from . . . any court proceeding arising” from an administrative proceeding

brought under section 2.58.350 of the ordinance. Id. § 2.58.350(G).

      Under that provision, Schreurs sought attorney fees for the

proceedings before the district court in a posttrial motion. According to

Schreurs, she was a “prevailing party” in the district court proceedings

because the court affirmed the Commission on liability and remanded for

a finding on damages. According to Schreurs, the district court’s ruling

on the merits of her claim “alter[ed] the legal relationship between the

parties by modifying the defendant’s behavior in a way that directly

benefits the plaintiff.” Dutcher v. Randall Foods, 546 N.W.2d 889, 895
                                    21

(Iowa 1996) (quoting Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S. Ct.

566, 573 (1992)).

         The district court denied Schreurs’s motion.   The district court

concluded, “[b]ased on the current status of the proceedings, [Schreurs]

is not entitled to an award of fees as a prevailing party, since the

outcome of this judicial review proceeding did not result in an

enforceable judgment against the petitioner.”       The judicial review

proceeding did not render a definitive judgment on whether Schreurs is

entitled to damages but only vacated the Commission’s $17,500 damages

award and remanded the matter to the Commission in order to allow the

Commission to consider whether it gave inappropriate consideration of

damages arising out of the termination of the tenancy when it calculated

the damage award.

         On remand, we do not know what the Commission will do. It is

certainly possible the Commission will affirm the award on the ground

that it already reduced the damages from $35,000 to $17,500 in order to

eliminate any recovery based on the termination of the tenancy. Or, the

Commission may reduce the $17,500 award to some other figure that is

still substantial.   We just do not know.    At the end of the day, the

Commission may affirm the award, and the district court may affirm the

new award.

         Suppose, for instance, on remand the Commission affirms the

$17,500 emotional distress award and the respondent obtains no relief

from the Commission. The respondent decides not to appeal. Schreurs

has nothing to appeal as she has will have prevailed on the key contested

issue before the Commission.      The matter does not return to district

court.    In this instance, even though Schreurs has prevailed, and the

district court proceedings affirming the Commission’s finding of a
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violation of the Ordinance against a vigorous assault played an essential

part in her success, she would not have the opportunity to obtain

attorney fees from the district court even though the district court’s

ruling rejected the respondent’s claim on the merits of the civil rights

claim and merely remanded the damage award for clarification.

      I believe we should reverse the district court’s decision and remand

the case to the district court with instructions for the district court to

issue a limited remand to the Commission under Iowa Rule of Appellate

Procedure 6.1004 for the sole purpose of determining the appropriate

amount of damages. Once the Commission has made its determination,

the district court should then consider the merits of any damages

remedy afforded by the Commission.          Once the district court has

considered the merits of the revised damages, then the district court will

be in a position to consider whether Schreurs is a prevailing party in this

litigation under section 2.58.350(G) of the ordinance.

      Wiggins, J., joins this concurrence in part and dissent in part.
