TERRY L. MORRIS and DIANE MORRIS, Complainants,

VS.

DARREL COX and PATTI COX, Respondents

CONCLUSIONS OF LAW

1. The complaints were timely filed, processed and the issues in the complaints are properly before this Hearing Officer and ultimately before the Iowa Civil Rights Commission.

2. Darrel Cox and Patti Cox are persons as defined in Iowa Code §601A.2(2) 1985, and are, therefore subject to Iowa Code §601A.11, 1985, which provides in pertinent part as follows:

It shall be an unfair or discriminatory practice for:

1. Any person to intentionally aid, abet, compel, or coerce another person to engage in any of the practices declared unfair or discriminatory by this chapter.

Some actions are so defined by statute or common law that they may be illegal if committed only by certain persons or classes of persons. For example, Iowa Code §601A.8 (1985), provides in part as follows:

It shall be an unfair or discriminatory practice for any owner, or person acting for an, of rights to housing or real property, with or without compensation, including but not limited to persons licensed as real estate brokers or salesmen, attorneys, auctioneers, agents or representatives by power of attorney or appointment, or any person acting under court order, deed of trust, or will:

1. To refuse to sell, rent, lease, assign or sublease any real property or housing accommodation or part, portion or interest therein, to any person because of the race, color, creed, sex, religion, national origin or disability of such person.

2. To discriminate against any person because of his (sic) race, color, creed, sex, religion, national origin or disability, in the terms, conditions or privileges of the sale, rental, lease assignment or sublease of any real property or housing accommodation or any part, portion or interest therein.

3. To directly or indirectly advertise, or in any other manner indicate or publicize that the purchase, rental, lease, assignment, or sublease of any real property or housing accommodation or any part, portion or interest therein, by persons of any particular race, color, creed, sex, religion, national origin or disability is unwelcome, objectionable, not acceptable or not solicited.

4. To discriminate against the lessee or purchaser of any real property or housing accommodation or part, portion or interest of the real property or housing accommodation, or against any prospective lessee or purchaser of the property or accommodation, because of the race, color, creed, religion, sex, disability, age or national origin of persons who may from time to time be present in or on the lessee's or owner's premises for lawful purposes at the invitation of the lessee or owner as friends, guests, visitors, relatives or in any similar capacity. [emphasis added]

It is clear that the statute defines certain persons or classes of persons whose actions could be illegal (unfair or discriminatory), i.e. owners or persons acting for owners. In criminal law, a person not so defined or not within the class of those by whom the crime may be personally perpetrated may, by aiding and abetting the commission of the offense, also be rendered criminally liable. Under the federal aiding and abetting statute, individuals aiding and abetting a federal offense may be punished as principals. 21 AM.Jur.2d Criminal Law, §164, at 320-321 (1981).

An aider or abettor is one who advises, counsels, procures, or encourages another to commit a crime. The aider or abettor need not know that the activity constitutes a crime. Mere presence and consent are not sufficient to constitute aiding or abetting, but it is not necessary to know every last detail of the offense. The involvement of an aider or abettor may be shown circumstantially and an act of slight importance may warrant a jury's finding of participation in the crime. A person cannot aid and abet unless another commits the offense. 21 AM.Jur.2d Criminal Law, §164, at 324-326 (1981). Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held as a principal unless the aider knew the perpetrator of the act had the required intent or the aide possessed the required intent. To prove a violation of the federal aiding and abetting statute it must be shown that the aider associated with the act, participated in it as something the aider wished to bring about and sought through action to make it succeed. Furthermore, there must be evidence that the aider shared the state of mind required for the statutory offense although need not have the exact intent as the principal, but such intent, often difficult to demonstrate by direct proof, may be inferred from the surrounding circumstances. 21 AM.Jur.2d Criminal Law, §171, at 329 (1981). The liability of an aider and abettor extends to the natural and reasonable consequences of the acts knowingly and intentionally aided and encouraged. 21 AM.Jur.2d Cumulative Supplement July 1986, Criminal Law, §171, at 51.

Common law concepts of civil liability for aiding and abetting are set forth under Subsection (b), section 876, Restatement of Torts, i.e., a person is liable for harm resulting to a third person if the person knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other. The Court in Landy v. Federal Deposit Insurance Corporation, 486 F.2d 139 (1973), identified three elements required for liability: (1) that an independent wrong exist; (2) that the aider or abettor know of that wrong's existence; and (3) that substantial assistance be given in effecting that wrong. The Court cited Restatement of Torts §436 in identifying the relevant factors in determining if the assistance given is substantial enough to make an individual liable for the act of another: (1) the amount of assistance given; (2) the presence or absence at the time of the act; (3) relation to other person; and (4) state of mind.

The issue winch must be addressed is whether or not Darrel Cox and Patti Cox aided and abetted in the eviction of Terry Morris, Diane Morris and the four Morris children from the house at 1140 Union Street, Boone, Iowa. The Morris family paid the required deposit and one month's rent directly to the owners of the house, the Hoffmans who live in Scottsdale, Arizona. They moved in on July 6, 1985. On July 16, 1985, ten days later, Leonard Nelson, an attorney acting on behalf of the Hoffmans, had the Morris family served with an eviction notice. The only contact with the Hoffmans between those two dates was the phone call on July 12, 1985, made by Patti Cox in winch she informed the Hoffmans that there was a Black man and a white woman and four children moving in at 1140 Union and another white lady with three children who was there frequently. She also informed the Hoffmans that there was a dog in the backyard and the lawn needed mowing. They talked for thirteen minutes. Would the Morris family be evicted for having a dog in the backyard? Both realty agents were informed that there was a dog. There was no restriction on having pets. Would the Morris family be evicted because the lawn had not been mowed? If the lawn had been mowed when they moved in, it would only have been six days since it had been cut; this was in July when grass does not ordinarily grow fast. The lawn of the Cox house had not been mown for eight days; the Hesser lawn across the street had not been mown for two weeks. The unmowed lawn is not a credible reason for eviction. Would the Morris family have been evicted because a white woman and three children visited them frequently? Because some toys were left on the driveway? None of these are credible reasons for eviction. The only information provided by Patti Cox to the Hoffmans which could have triggered the eviction was that a Black man and a white woman lived in that house. The Coxes witnessed events at 1140 Union for less than a day and a half before they took action. Darrel Cox first went down to see John Clark. He inquired whether or not there was an ordinance which would prevent two families from living at 1140 Union. There was none. It is noted that there were not two families living at 1140 Union. Darrel informed John Clark that there was apparently a Black Man and four children with a white wife and another white lady with three or four children moving in. Learning there was no ordinance to prevent the move at 1140 Union, Darrel went home and discussed the situation with his wife Patti. They decided to take further action by calling the Hoffmans directly. Their reason for calling was to see who was living in the house and whether the Hoffmans had rented the house. Now this house was a little more than a driveways distance from where the Coxes lived. Neither Darrel or Patti walked across that driveway to find out who their neighbors were. Instead they made a phone call to Arizona. Why would they do that? The Morris family was home. Darrel saw the Black children in the yard playing. The neighbors had expressed their confusion as to the occupants of the house who were witnesses testified that they knew of no reasons why the Morris family should be evicted.

What was the relationship between the Coxes and the Hoffmans? The Coxes had once rented the house at 1140 Union from the Hoffmans. They were aware that renters usually helped find other renters for that house when they moved out. The Coxes did so when they moved out and would have been aware of the Hoffmans' rental policies.

What were the consequences of the phone call from Patti Cox to the Hoffmans? The Hoffmans told Patti Cox that they would check things out. Shortly thereafter, the Hoffmans called John Clark. They were belligerent and wanted to know why he had not checked the renters out. They threatened to sue him. What additional information could Clark have provided the Hoffmans? He could have explained that only one family with a dog and four children were renting. Why would they threaten to sue him for that? There is no evidence that there was a restriction on number of children. Clark became concerned that he would lose the potential list for sale of the house at 1140 Union because he had not "checked the renters out." The eviction notice was served on the Morris family. They were given 30 days to remove themselves. Although Clark denies being a party to the renting of the house, Leonard Nelson, Hoffman's attorney, called him and told him that "We're in a lot of trouble."

This is concluded that the eviction of the Morris family from the rental unit at 1140 Union Street, Boone, Iowa was based on the fact that the unit was rented to a white woman who was married to a Black man. It is further concluded that the decision to evict the Morris family was a direct result of the information provided to the Hoffmans in the phone call made on July 12, 1985 by Patti and Darrel Cox. It is further concluded that the phone call made by Patti and Darrel Cox to the Hoffmans was with the intent to provide information which they were reasonably certain would result in the eviction of the Morris family. It is therefore concluded that Patti Cox and Darrel Cox violated Iowa Code §601A.11 by aiding and abetting Alma and Allen Hoffman in evicting the Morris family from 1140 Union Street, Boone, Iowa, on July 16, 1985. Respondent's motion to dismiss is denied.