Missoula judge dismisses discrimination complaint against local, national realtors
Pastor, realtor to appeal ruling to Montana Supreme Court
Judge Jason Marks said he will grant a motion to dismiss a case a pastor filed against realtor groups because the judge does not believe it is ripe, not on the merits. (Keila Szpaller/The Daily Montanan)
In a rare ruling from the bench, a Missoula County District Court judge found Wednesday that a case a Clinton pastor filed against the National Association of Realtors and Missoula Organization of Realtors wasn’t “ripe” — a decision the plaintiff will appeal.
After an hour of oral arguments, Judge Jason Marks said he would dismiss the case because he believes the plaintiff, realtor and pastor Brandon Huber, should first go through an administrative process through his professional organization before bringing a complaint to court.
“Certainly, to the degree that there’s an adverse finding, Mr. Huber can absolutely bring a claim based on that,” Marks said. “I’m not judging on the merits of the religious speech claim in any way, shape or form. But I do not believe this case is ripe.”
After the hearing, lawyer Matthew Monforton, who represents Huber, said he will appeal the judge’s order granting the motion to dismiss the case. Monforton said he does not believe his client should be subjected to attacks based on his religion, as he had argued during the hearing.
“The realtors’ ethics hearing is going to be a circus of anti-Christian bigotry,” Monforton said. And he told the judge his client shouldn’t stand for it. “The main attraction is going to be Pastor Huber’s deeply held religious beliefs. That is unacceptable.”
The case drew a full gallery. After the hearing, Sen. Theresa Manzella, a Hamilton Republican, and Jordan Hall, a Sidney pastor involved in his own high profile legal dispute with a transgender Native lobbyist, prayed with Huber outside the courtroom.
The clash with the realtor groups came after Huber said in a letter that the Clinton Community Church would break ties with the Missoula Food Bank and Community Center over its support for people who are LGBTQ because their values did not align. A community member — a third party and not a real estate client of his — then accused Huber of “hate speech” in an ethics complaint filed with the Missoula Organization of Realtors.
In the lawsuit filed in November 2021, Huber alleged religious discrimination by the Missoula Organization of Realtors, of which he is a member. He also alleged a 2020 prohibition on hate speech by the National Association of Realtors is too vague to be enforced by the local organization and violates the Montana Constitution.
But the Missoula Organization of Realtors hasn’t held a hearing on the complaint against Huber, and in court, lawyers for the realtor groups argued Huber wouldn’t have a legitimate case for the judge until after he exhausts his administrative remedies. Lawyer Natasha Jones, who represents the Missoula Organization of Realtors, said the third-party complainant alleged that Huber “referred to an entire segment of the community as an abomination.”
“To this, Huber has denied the allegation, but not in the proper forum,” Jones said.
In the meantime, she said Huber remains a full member of the Missoula Organization of Realtors with all of his membership rights intact, and he retains all of the related benefits, including access to a real estate database, the Multiple Listing Service, or MLS. The realtors haven’t made any findings against him, she said, so he has yet to experience any “adverse effect” to bring the court.
“The fact remains that the case is not ripe for determination, and therefore, this court lacks jurisdiction,” said Jones, with Boone Karlberg of Missoula.
On behalf of the National Association of Realtors, lawyer Raph Graybill said in signing on as a realtor, Huber agreed to certain terms set by the organization, including that he go through a hearing process spelled out by realtors if an ethical dispute arises. Instead, Graybill said Huber now wants to run to the court with his lawsuit, but that’s not the place for him to defend himself.
“You have to show the invasion of a legally protected interest,” Graybill said.
That may still happen, he said, but neither the local nor the national group has come to any conclusion about the merits of the case. Since it hasn’t happened yet, he argued Huber shouldn’t be allowed to use the court’s resources for a decision.
Additionally, Graybill said the Montana Human Rights Act protections weren’t at issue; he said the act protects people from being discriminated against in access to housing, for instance, but it doesn’t protect Huber from going through an administrative hearing through a housing organization. Graybill also strongly objected to the idea that in holding up a “facially neutral policy,” the National Association of Realtors would be conducting a “circus of anti-Christian bigotry.”
Court documents quoted the hate speech prohibition and note it applies to all realtor speech, not just speech relating to the job: “Realtors must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.” The lawsuit notes the code’s appendix defines “hate speech” as that “intended to insult, offend or intimidate a person because of some trait (as race, religion, sexual orientation, national origin, or disability).”
On behalf of Huber, Monforton said the “hate speech” policy enacted by the National Association of Realtors in 2020 subjects realtors to discipline for “merely reading Bible verses.” And he said Huber should not be on trial before the realtors just because he told his church he believes the Food Bank’s position violates his church’s Biblical dogma.
“This is the most religiously bigoted policy in any industry anywhere in the country, and it’s also a violation of Montana law,” said Monforton, of Monforton Law Offices in Bozeman.
Huber’s communication about the break with the Food Bank said the following, in part: “This past week, we found printed material in the lunches that we were handing out that went against our Biblical doctrine. After conversations with the food bank, we have found that our beliefs and that of the Missoula Food Bank do not align.”
Monforton disagreed that Huber needs to wait for a negative administrative outcome because the “proceeding itself is the punishment.” Already, the realtors found the pastor’s statements to be “potentially unethical conduct,” and already, they forwarded the complaint to an ethics panel, Monforton said. But he said Huber never consented to an “ethics tribunal” where his protected religious conduct would be at issue.
“The Bible is not hate speech, and a proclamation of Biblical principle is not, as the realtors contend, potentially unethical conduct,” he said.
Monforton also said Huber shouldn’t have to waste time and money and endure the stress of an ethics hearing every time someone feels offended by him reciting the wrong Biblical verse in one of his sermons. And he said people in the LGBTQ community object to many Bible verses.
“After we get done beating this ethics complaint, there will be another. And another. And another. That’s the interference,” Monforton said.
Jones also had argued Huber had no contract claim. Rather, she said private, voluntary associations have a right to adopt, interpret and enforce rules governing the ethical conduct of their members for the public good, and the rules are a voluntary condition of membership.
In noting he would find the case was not ripe, Marks said he was not going to wade into the contract issue. He also said Huber could return to court if he faced an adverse finding in the future.
After the hearing, Monforton said he had seen several judges in California rule from the bench, but he hadn’t witnessed it himself in Montana. In explaining his reason for appeal, Monforton said he believes the judge misunderstood his argument, and he said as much to Marks.
“We agree to disagree, your honor,” he said.
In a statement, Missoula Organization of Realtors CEO Jim Bachand said his organization was pleased with the decision: “The allegations were premature given there has been no hearing on Mr. Huber’s case and no findings have been made against him. He was never disciplined and remains a member of the Missoula Organization of REALTORS® and the National Association of REALTORS® and has full access to multiple listing services.
“In accordance with its practices, the Missoula Organization of REALTORS®, upon signed order by the judge, will determine when to re-schedule the previously planned ethics hearing and carefully review the matter, while following due process to ensure fairness to all involved parties.”
This story was updated to include comment from MOR CEO Jim Bachand.
Letter from Huber
In a letter to the congregation, Pastor Brandon Huber said the following, in part: “This has been a great honor for us to be able to support the kids and families in our community with these meals throughout the summer months.
“This past week, we found printed material in the lunches that we were handing out that went against our Biblical doctrine. After conversations with the food bank, we have found that our beliefs and that of the Missoula Food Bank do not align.
“Due to this, Clinton Community Church has decided to end our partnership with the Missoula Food Bank effective today, July 2, 2021.”
The church launched its own lunch program, and Huber described its position and goal in his social media post, which is quoted in the lawsuit and attached as an exhibit: “Clinton Community Church wants our community to know that we love and support each and everyone of you, no matter your background or where you are in life. As a church, we strive to show the love of Jesus in all we do throughout this community, while standing up for Biblical principles, Biblical truths, and our beliefs. It is our goal to continue to serve the FREE lunches to kids in our community.”
Statement from Realtors
The Missoula Organization of Realtors earlier said it believes its rule against hate speech is lawful: “As a local association of the National Association of Realtors, we take our role very seriously in upholding a rule such as this to ensure discrimination has no place among our realtors. Both NAR and the Missoula Organization of Realtors are confident this practice will withstand judicial scrutiny.
“When handling ethics complaints, MOR carefully reviews all matters and follows due process to ensure fairness to all involved parties. It will be up to the MOR hearing panel to determine whether any of the matters raised in the complaint constitute a violation based on the evidence presented.”
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