STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

METROPOLITAN MILWAUKEE FAIR HOUSING COUNCIL, Complainant

LAWRENCE GOETSCH, Respondent

FAIR HOUSING DECISION
ERD Case No.  9051656

An Administrative Law Judge issued a decision in the above-captioned matter on July 3, 1991 dismissing the complaint.  The Complainant filed a timely petition for commission review.  Both parties have filed briefs.

Based on a review of the entire record, the Commission makes the following:

FINDINGS OF FACT

1.  Complainant Metropolitan Milwaukee Fair Housing Council (hereinafter, MMFHC) is a private nonprofit organization.  Its primary purpose is to insure that all citizens have equal access to housing opportunities and to expand locational choices for lower income and minority persons.  The organization serves a four-county metropolitan area, including Waukesha, Ozaukee, Washington and Milwaukee Counties.

2.  MMFHC has four programs to accomplish its purposes: Enforcement, Research and Technical Assistance, Outreach and Education and the Center for Integrated Living (CIL).   MMFHC's Enforcement Program receives and investigates complaints of discrimination in housing.  MMFHC's Outreach and Educational Program provides seminars to inform housing seekers and housing providers about their rights and responsibilities under fair housing laws.  MMFHC's Research and Technical Assistance Program conducts research into patterns of discrimination or residential segregation.  The primary purpose of MMFHC's CIL Program is to assist homeowners and renters to move into areas where the housing seekers' race is underrepresented.  Specifically, the program attempts to enhance racial integration through its placements.

3.  As part of the CIL's program, a CIL staff worker compiles a computer database of available housing by reviewing newspaper advertisements in 86 local publications.   If a CIL staff member notes an advertisement which may be considered to state or indicate discrimination, the advertisement is referred to MMFHC's Enforcement Program.   If an Enforcement Program staff member determines that the advertisement is discriminatory, the advertisement is referred to MMFHC's Board of Directors.  The Board of Directors then determines whether a discrimination complaint should be filed on behalf of MMFHC.

4.  The publication of advertisements which state or indicate discrimination in connection with housing discourages members of the public who are seeking housing by leading them to believe that they will confront discrimination in their attempts to find housing, thus increasing their fear or trepidation over the process of seeking housing.   Such advertisements can also misinform the community at large about the legal rights and responsibilities of persons involved in the rental and sale of residential housing.  By having such an impact, advertisements which state or indicate discrimination in connection with housing increase the amount of work that is required of MMFHC's Education and Outreach Program in order to educate members of the public concerning rights and responsibilities under fair housing laws, increase the amount of work that is required of MMFHC's CIL Program in counseling seekers of housing as to their rights under fair housing laws in the course of assisting them to find such housing, and require resources of the MMFHC which could have been expended in other programs to be devoted to efforts by its Enforcement Program to investigate and eradicate such advertisements.

5.  In January 1990 Respondent Lawrence Goetsch caused a classified advertisement to be placed in the Hartford Times Press.  By virtue of an association between the Hartford Times Press and the Lake County Reporter, the advertisement also appeared in the latter.  Both are newspapers with circulation in an area including counties in which MMFHC provides services.  The advertisement stated, in its entirety:

"Room with kitchen privileges, country setting.  No drugs, prefer a Christian. 567-3992. "

The advertisement was published on at least one day, January 25, 1990, in both publications.

6.  The advertisement was placed by Goetsch in an effort to sublet a room in a home which Goetsch had originally leased and lived in and which his son was then living in.

7.  On January 31, 1990, Fred Freiberg, CIL's Program Manager, referred the advertisement to the Enforcement Program.  Carla Wertheim, the Associate Director of MMFHC who oversees the Enforcement Program, reviewed the advertisement.  Based on her experience in dealing with housing discrimination complaints, Wertheim believed that the advertisement was discriminatory and that it would discourage renters who were non-Christian from applying for the housing listed.  She therefore referred the matter to MMFHC's Board of Directors.  The Board of Directors decided to file a complaint.  The combined time spent by all MMFHC's staff in identifying and deciding to file a discrimination complaint in this matter was one hour.

8.  When he composed the advertisement in question, Goetsch was primarily motivated by a desire to avoid renting to persons who used drugs, because of previous problems he had had with a former tenant who used drugs, and because his son had had problems with drugs.  He included the phrase "prefer a Christian" in the advertisement because he believed that Christians were less likely to take drugs than non-Christians.

9.  Goetsch received only one response to the advertisement.  He rented the room to that person without asking him if he was a Christian.

10.  An ordinary reader would have understood the advertisement placed by Goetsch as stating or indicating discrimination on the basis of religion in the rental of the housing in question.

Based on the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1.  Respondent Lawrence Goetsch is a person subject to the prohibitions on discrimination in housing contained in sec.  101. 22(2), Stats.

2.  Complainant Milwaukee Metropolitan Fair Housing Council is a person within the meaning of Wisconsin Administrative Code Chapter Ind 89. 01(11), entitled under Wisconsin Administrative Code Chapter Ind 89. 03(3) to file a complaint alleging a violation of sec.   101. 22(2), Stats. , and the complaint filed by MMFHC is one which the Department may receive and investigate under sec.  101. 22(4), Stats.

3.  Goetsch caused to be published an advertisement in connection with the rental of housing which stated or indicated discrimination on the basis of religion, in violation of sec.  101. 22(2)(d), Stats.

4.  Goetsch's violation of sec.  101. 22(2)(d), Stats. , was not wilful within the meaning of sec.  101. 22(6)(a), Stats.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:

ORDERS

1.  That Goetsch cease and desist from violating sec.  101. 22(2)(d), Stats. , as found herein.

2.  That Goetsch shall pay the sum of $5,814. 80 as reasonable attorney's fees and costs in this matter, by way of check made payable jointly to Metropolitan Milwaukee Fair Housing Council and Katherine L.  Charlton, and delivered to Ms.  Charlton.

3.  That Goetsch shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Order.  Such report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.  O.  Box 8126, Madison, Wisconsin 53708.

Dated and mailed December 6, 1991

/s/ Pamela I.  Anderson, Chairman

/s/ Richard T.  Kreul, Commissioner

/s/ James R.  Meier, Commissioner

MEMORANDUM OPINION

"Standing"  -- Respondent asserted, and the Administrative Law Judge agreed, that the Complainant MMFHC lacked "standing" in this matter, in reliance on both federal law concerning standing to sue in federal court and state law on standing to initiate judicial review proceedings.  Complainant argues that it does have standing, relying on the same general sources of law.  The Commission, however, is persuaded that the parties' arguments and the ALJ's rationale and conclusion are for the most part inapplicable to the issue presented here.  They have all assumed that there is some standing requirement for the filing of a complaint under the open Housing Act.  This assumption is unwarranted.  As is not infrequently the case with procedural concepts borrowed uncritically from judicial tribunals for application in administrative tribunals, the judicial concept which is borrowed does not fit well in this context.

In federal law, standing is a matter of subject matter jurisdiction arising from the Article III "case or controversy" restriction.  Warth v.   Seldin, 422 U. S.  490, 498-99 (1975).  There is no similar "case or controversy" limitation in the Wisconsin Constitution, and standing is thus not a matter of subject matter jurisdiction.  A requirement of some degree of standing has, however, been applied as matter of "sound judicial policy," and federal law standing rules are generally viewed as persuasive in resolving state law standing questions.  State ex rel.  First National Bank v.   M&I Peoples' Bank, 95 Wis.  2d 303, 308, n.  5, 290 N. W. 2d 321 (1980).

Although standing is in theory an issue that can arise in any case between any parties, most issues of standing arise in the context of challenges by private parties to governmental decisions, and because so many of those are rendered by administrative agencies, most standing cases involve attempts to initiate judicial review of administrative decisions.  Because the right to obtain judicial review of an administrative decision exists only to the extent and in the manner provided by statute, questions of "sound judicial policy" are not so much the focus of standing issues in judicial review proceedings as are questions of the effect of the Administrative Procedure Act, Chapter 227, Stats.  Two types of questions are presented: whether one has the right to participate in a judicial review proceedings, and whether one has the right to initiate them.  To be entitled to participation, one must merely have been a party to proceedings before the agency.  Section 227. 53(1)(d), Stats.  To be entitled to initiate judicial review, however -- to have what is conventionally thought of as standing, in other words -- one must be "aggrieved" by the agency decision.   Section 227. 53(1), Stats.  Most of the decisional law in Wisconsin on the question of standing therefore involves this question.

The ALJ concluded that because hearings under the Open Housing Act are "contested cases" under Chapter 227, because a contested case is defined as a proceeding in which the assertion by one party of any substantial interest is denied or controverted by any other party, and because the right to initiate judicial review is made dependent by secs.  227. 52 and 227. 53, Stats. , on the question of whether a party is "aggrieved" by a decision which "adversely affects the substantial interests" of the party, the law on standing of parties to initiate proceedings for judicial review is applicable to the questions about the right of parties to initiate proceedings before the agency.

The Commission disagrees with this analysis.  For one thing, the ALJ erroneously assumes that the definition of the term "contested case" itself creates the right to have a hearing and thus defines some sort of limitation on the right to proceed before an administrative agency.  It does not.  The right to a hearing arises elsewhere, and the only "limitation" imposed by the definition of "contested case" is one imposed on the administrative agencies themselves.   By Chapter 227's imposition of certain requirements for how "contested cases" must be handled, the definition effectively constrains administrative agencies, in cases falling within the definition, to meet those requirements.

Filing and pursuing a complaint before the Equal Rights Division is neither the commencement of an action in court nor the initiation of judicial review.  The law on standing discussed by the parties and the ALJ therefore has no direct applicability.   Administrative tribunals are creatures of the executive branch, and they are defined entirely by, and are entirely dependent on, the statutes creating them.

As was recognized in Cornwell Personnel Associates v.  DILHR, 92 Wis.  2d 53, 284 N. W. 2d 706 (Ct.  App.  1979), "The rules governing standing before an administrative agency are not necessarily the same as the rules governing standing to seek judicial review. " 92 Wis.  2d at 63.   While the ALJ deprecated the significance of this observation by labeling it dicta, the commission concludes that the actual holding in Cornwell unmistakably implies that the question of standing to initiate and pursue a matter before an administrative agency is in fact entirely dependent on the statutes and rules establishing the scope of that agency's jurisdiction.  If those statutes and rules create broad or general "standing," they govern, irrespective of how rules governing standing to initiate judicial review might be applied.

Cornwell concerned an employe who obtained unemployment compensation benefits after losing his full-time job.  While he was receiving benefits, he did some part-time work for Cornwell, but he eventually quit that work.   The Department determined that because he quit that work with good cause, his quitting did not affect his eligibility to continue to receive unemployment compensation benefits.  Cornwell sought a hearing on that determination, following which an administrative law judge reversed it.  The employe then sought review from the commission, which reinstated the finding of eligibility.  Cornwell then sought judicial review of the Commission's decision, but the circuit court and then the court of appeals held that Cornwell was not entitled to seek judicial review.  The employe's wages from Cornwell had been inadequate to support a claim for benefits based on that employment, and Cornwell's unemployment compensation account was therefore unaffected by the fact that the employe obtained benefits (which were all charged to his previous employer's account).  Thus, the court reasoned, no "substantial interest" of Cornwell was affected by the decision it sought review of, and it was thus not "aggrieved. " It was in this context that the court made the observation quoted above.

Clearly, the Department could not have denied or dismissed Cornwell's initial request for a hearing, notwithstanding the fact that Cornwell's unemployment compensation account was unaffected, because sec.  108. 09(2r), Stats. , provided that "any party to a determination" could request a hearing, and the Department had made Cornwell a party to the proceeding by listing it on the determination.  Thus, even though (in the court's judgment) application of conventional standing requirements resulted in the conclusion that Cornwell lacked standing, it was able to proceed before the agency because of express statutory authority for it to do so.  Cornwell thus establishes that, with respect to the question of standing before the administrative agency, it is not general standing principles but rather the specific legal authority of the agency that governs.

In the case of the authority to proceed before the Equal Rights Division on a complaint of housing discrimination, there is no express statutory language which limits the right to initiate and prosecute complaints to persons with any particular threshold level of "interest" in the violation alleged.  Statutory provisions preserving the possibility of "class action" complaints, sec.  101. 22(3), Stats. , and giving the ERD the right to initiate complaints on its own, sec.  101. 22(4)(b), Stats. , suggest a legislative intent that opportunities for complaints of housing discrimination to be brought before the ERD should be maximized.  The fact that any party who is merely "dissatisfied" with the Department's decision may in turn seek review before the Commission, sec.  101. 22(4p)(a), Stats. , also suggests this, in that it would allow parties not adversely affected by the Department's decision to nonetheless appeal to the Commission if they felt themselves to be "dissatisfied" with something such as the ALJ's rationale.

Most significant, however, is the fact that administrative rules promulgated by the Equal Rights Division pursuant to the authority established in sec.  101. 22(3), Stats. , provide expressly that "[a] complaint may be filed by any person," Wis.   Admin.  Code Chapter 89. 03(3).  "Person" is defined as including corporations and unincorporated organizations, Wis.  Admin.  Code Chapter 89. 01(11).  An administrative agency is bound by its own rules.  Thus, the Equal Rights Division cannot refuse any "person" the right to file a complaint alleging housing discrimination based on notions of "standing. "

Even if the Commission were to apply the law on standing cited by the parties in their arguments, it would arrive at the same result in this case.  The Commission concludes, contrary to the ALJ, that MMFHC did offer adequate proof that its interests were likely to be adversely affected by unlawfully discriminatory advertising of the type exemplified by the advertisement placed by Goetsch in this case.  Contrary to the ALJ's characterization of the testimony offered by MMFHC as mere "allegations" of injury without proof, the Commission finds that the testimony of Carla Wertheim in her deposition, received into the record as Exhibit 1, is itself proof of injury.   Wertheim clearly qualified as an expert in the area of housing discrimination.   Her testimony to the effect that discriminatory advertisements discourage persons seeking housing by leading them to believe that they will face discrimination, and that they lead to misunderstandings among the public at large concerning the permissibility of housing discrimination, was competent and persuasive evidence as to those facts.  Her extensive background in counseling and public education in housing discrimination matters, as well as her role of Associate Director of MMFHC with responsibility for that organization's counseling and public education efforts, made her competent to testify to the effect that such advertising would have on the work of the organization.  The ALJ apparently felt that MMFHC was obliged to produce individuals to testify that they had personally been discouraged by Goetsch's advertisement and therefore needed additional counseling or services from MMFHC.  The commission disagrees.  Wertheim's testimony was adequate to prove facts which, under both federal law standards and the "aggrieved" standard of Chapter 227, are sufficient to establish MMFHC's interest in the matter.

Therefore, the Commission concludes that the ALJ erred in dismissing the complaint in this matter based on lack of "standing. "

Liability -- There is no serious doubt but that Goetsch's advertisement, by its use of the term "prefer a Christian," indicated or stated discrimination on the basis of religion in housing.  The relevant test under the prohibition against discriminatory advertising in Title VIII of the Civil Rights Act of 1968, which is analogous to sec.  101. 22(2)(d), Stats. , is whether an advertisement would suggest to an ordinary reader that discrimination would be practiced with respect to the housing offered.  Ragin v.  New York Times, 923 F. 2d 995 (2nd Cir.  1991).  The Commission considers this test to be an appropriate one for the resolution of questions under sec.  101. 22(2)(d), Stats.  An ordinary person would be expected to draw such a suggestion from Goetsch's advertisement.

Whether Goetsch intended his advertisement to have the effect of discouraging non-Christians from applying to rent the property is ultimately immaterial.  His actions in choosing the words used and in having the advertisement published were certainly intentional.  Sec.  101. 22(2)(d), Stats. , neither expresses nor implies the necessity for any further intent as a requirement for a finding of illegality.   It turns simply on the substance of the advertisement and its effect.

Goetsch argued to the ALJ (although not to the Commission), that application of sec.   101. 22(2)(d), Stats. , to the advertisement in this case would violate Goetsch's constitutional right to freedom of expression and freedom of religion.  The Commission was persuaded, for the reasons adequately stated in MMFHC's February 9, 1991 Responsive Brief, that these arguments lack any substantial merit.

It is therefore apparent that Goetsch violated the Wisconsin Open Housing Act by causing the publication of an advertisement stating that, in connection with the rental of certain housing, he preferred a Christian.

Remedy -- The MMFHC seeks $1,000 in "damages," imposition of a $1,000 forfeiture on Goetsch, and attorney's fees.

The Open Housing Act provides, in sec.  101. 22(4)(d), Stats. , that upon a finding of discrimination the examiner shall "order such action by the respondent as will effectuate the purposes of this section. " In Davis v.  Piechowski (LIRC, October 24, 1986), the Commission stated that this language authorized awards of attorney's fees and "out-of-pocket expenses. " The meaning of that term is clarified by the cases in which such expenses have been awarded.  In LaShay v.  Walsh (LIRC, April 26, 1984) , the Commission affirmed without comment an order for payment of specific amounts found to have been expended by a victim of housing discrimination on replacement housing, moving expense, and additional transportation expense.  In Davis, the "out-of-pocket expenses" were for similar expenditures.  These are thus amounts which are actually spent by the injured party as a necessary consequence of the prohibited discrimination.  They are in the nature of expenses of mitigation.   They are readily quantifiable (and provable) by reference to actual expenditures made.

The term "out-of-pocket expenses" was expressly distinguished, in Davis, from compensatory damages.  Those had also been sought in the case, the ALJ had not awarded them and the complainant had not appealed that, and the Commission therefore noted that it would not decide the matter.  The "damages" which were not awarded in Davis were more akin to the conventional legal remedy of compensatory damages, representing monetary compensation for a non-monetary loss such as pain and suffering, humiliation, etc. , as opposed to equitable remedies.

In this case, the amounts sought as "damages" do not reflect actual expenditures of money by the MMFHC.  There would in fact have been no extra expenditures, since salaried staff would have been paid their salaries in any event whether required to work harder and longer because of the discrimination or not.   There are thus no real "out-of-pocket expenses. " The sum of $1,000 has clearly been selected by MMFHC arbitrarily.  It is not even arguably connected to any particular staff person or project and any particular number of "extra" hours of work.  It is, in effect, more similar to legal "damages" than it is to equitable "make whole" relief in the form of reimbursement of out-of-pocket expenses.

MMFHC's request is therefore an implicit argument that the Open Housing Act allows awards, not only of "out-of-pocket expenses," but also of the legal remedy of compensatory damages.  The Commission is of the opinion that such an argument can not be sustained.  Such a construction of the Open Housing Act should be avoided, because it would raise significant constitutional questions.  An argument can be made that the constitutional guarantee of the continuation of the common law right to a jury trial in civil matters requires the right to a jury trial in cases in which damages may be awarded because damages are a remedy at law as opposed to equity.  The delegation of power by the executive branch to administrative tribunals to make orders without a jury trial is permissible so long as the remedies are consistent with equity, since at common law there was no right to a jury trial in equity.  However, an essentially equitable tribunal cannot presume to award an essentially legal remedy such as damages, except where it is merely "incidental" to the awarding of equitable relief.  See, e. g. , Zahorian v.  Russell Fitt Real Estate, 62 N. J.  399, 413, 301 A. 2d 754, (1973).  The Commission would not consider an award of $1,000 in damages to be "incidental" here.

For these reasons, the Commission concludes that Complainant may not be awarded the "damages" which they seek in this matter.

MMFHC's request for the imposition of a forfeiture on Goetsch raises troubling issues concerning the interpretation of the Open Housing Act which have not to date been resolved or even explored in any judicial or administrative decisions.

The Open Housing Act requires that, when a complaint of housing discrimination is filed, a determination be made as to whether or not a preponderance of the evidence demonstrates that the respondent has engaged in discrimination in violation of the Act, and in such a case it directs that appropriate remedial action be ordered.  Section 101. 22(4)(d), Stats.  Additionally, however, the Open Housing Act separately requires a ruling on the question of whether a respondent found to have engaged in discrimination has wilfully violated the Act and, where such wilful violation is found, it requires the imposition of a forfeiture of not less than $100 nor more than $1000 for the first violation.  Section 101. 22(6), Stats.

Insofar as the Open Housing Act is remedial in purpose, and vests remedial authority in the Division under sec.  101. 22(4)(d), Stats. , the Act is to be broadly and not narrowly construed, in order to achieve its fundamental purposes.  See, Chomicki v.  Wittekind, 128 Wis.  2d 188, 194-95, 381 N. W. 2d 561 (Ct.   App.  1985).  However, the requirement of the imposition of a forfeiture contained in sec.  101. 22(6), Stats. , which appears under the paragraph heading "Penalty", is indisputably a penal provision.  Insofar as the Act is penal in nature, designed not to provide a remedy to the person wronged but to exact punishment from the person committing the wrong, it must be strictly construed.  Civil forfeiture actions, where penal in nature, are to be narrowly construed.  Rische Construction Co.  v.  May, 15 Wis.  2d 123, 127, 112 N. W. 2d 165 (1961).  The Act is therefore both remedial and penal in nature.  In Madison v.  Hyland, Hall and Co., 73 Wis.  2d 364, 373, 243 N. W. 2d 422 (1976), the Wisconsin Supreme Court stated:

"Where statutes are both penal and remedial, courts separate the penal provision from the remedial, giving the provisions establishing penalties strict construction and the remainder of the act a liberal construction. "

The Hyland, Hall case establishes that the Wisconsin Open Housing Act should be liberally construed only for purposes of determining whether there was liability for a violation of the Act adequate to give rise to a remedy under the remedial portions of the Act.  The Act must be narrowly construed where the question that is being addressed is whether or not there was a wilful violation of the Act for purposes of determining whether or not to apply a forfeiture under the penal forfeiture provision.

Another area of difficulty is the significance of the requirement in sec.  101. 22(6), Stats. , that the violation be "wilful" for a forfeiture to be imposed.   Discrimination is generally understood to be an intentional act, so a construction which interpreted the word "wilful" as simply meaning intentional would result in the word being surplusage.  Such constructions of statutory language are generally avoided where possible.  The fact that sec.  101. 22(6), Stats. , must be interpreted strictly also warrants a construction that gives real meaning to the term.   The Commission concludes that it is appropriate to look to the law which has developed under the Age Discrimination in Employment Act concerning awards of liquidated damages in cases of "wilful violations," 29 U. S. C.  § 626(b), for guidance on the meaning of the term "wilfully" as it appears in sec.  101. 22(6), Stats.  The U. S.  Supreme Court has construed the "wilfulness" standard under the ADEA as requiring proof of knowing or reckless disregard as to whether actions violate the law.  Transworld Airlines.  Inc.  v.   Thurston, 469 U. S.  111 (1985).  In McLaughlin v.  Richland Shoe Co. , 486 U. S.  128 (1988), the Court held that mere "unreasonableness" in determining its legal obligations would not suffice to show "recklessness" on the part of a defendant under Thurston.   Applying these standards, "wilfulness" has been found in cases in which a party ignored legal advice to the effect that its planned actions were unlawful, Kossman v.  Calumet Co. , 800 F. 2d 697 (7th Cir.  1986), cert.   denied, 107 S. Ct.  1294 (1987), and where a defendant adhered to a discriminatory plan despite prior adjudication against it.  Furr v.   AT&T, 824 F. 2d 1537 (10th Cir.  1987).

Applying these standards in this case, and mindful that the statute must be given a strict construction, the Commission is unable to conclude that the violation in this case was "wilful. " Certainly, Goetsch knew that he was using the term "prefer a Christian" when he placed the ad, and he did so intentionally.  What is absent, however, is reliable evidence that he did so in spite of knowing of the illegality of his conduct under the Open Housing Act, or in "reckless disregard" of the law.   Based on a review of his testimony, the Commission has serious doubts that Goetsch even knew of the existence of the Open Housing Act or of the potential illegality of his conduct under it.  Although the record made in this case establishes to the requisite degree of proof that the Respondent intentionally caused to be published an ad for rental housing that contained the phrase, "prefer a Christian," that record is considered by the Commission to be inadequate to establish that Respondent wilfully violated the Open Housing Act.

If examination of a party placing an ad showed some awareness that discrimination could be unlawful, this could be a basis for a finding of "reckless disregard" on their part as to whether their conduct violated that law.  If, for example, a publication itself were to be subjected to a complaint for publishing discriminatory ads, evidence that it had some awareness that some advertisements may be unlawful because they indicate discrimination could serve the same purpose.  Certainly, if such a party or publication had ever before been subject to such a complaint--or was simply aware that another party or publication had--the same result might be appropriate.  Here, however, the Commission found the record inadequate.  Because it cannot make a finding to the requisite degree of proof, that the Respondent's violation of the Open Housing Act was "wilful," no forfeiture is imposed.

MMFHC seeks fees at the rate of $125 per hour, for 45. 2 hours of work, plus $164. 80 in costs, for a total of $5,814. 80.  With one exception, Respondent concedes the reasonableness of the rate, hours, and costs.  The Commission, finding the request to be reasonable under all of the circumstances, grants it.  Although Respondent argues that fees should not be allowed for time spent on the fee issue, this argument is incorrect.  Donovan v.  Graebel Van Lines (LIRC, May 23, 1990, amended June 8, 1990), see Larson, Employment Discrimination (1990), § 58. 22, p.  11-106. 58, and cases cited therein.  Respondent argues that attorney's fees are not available in housing discrimination cases; the Commission has held to the contrary in Davis v.  Piechowski (LIRC, October 24, 1986).  The Commission does not consider that there are any "special circumstances" here justifying denial of fees.  Finally, there is no basis for a reduction in fees on a "partial success" theory, since MMFHC in fact achieved complete success in establishing that Respondent violated the law.   Reduction in attorney's fees because the extent of remedy was not as great as was sought, is not appropriate.  Collicott v.  Riverside Plating Co.   (LIRC, April 1, 1987).

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