A federal appeals court has rejected a call by a minority of conservative judges to reconsider a panel decision that Newport Beach’s ban on group homes for recovering addicts may discriminate against people based on disability.
So upset were members of the conservative wing of the 9th U.S. Circuit Court of Appeals that an independent call was made by conservatives on the court to rehear the case by an 11-judge en banc panel. The call for rehearing failed to get the majority votes needed Tuesday.
But five judges dissented from that decision, led by Judge Diarmuid O’Scannlain.
He accused the original three-judge panel of inventing “an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect.”
Newport Beach passed an ordinance in 2008 that banned group homes for recovering alcoholics or drug addicts. A challenge to the law by group home operators was thrown out by a trial judge, but the 9th Circuit panel reinstated the lawsuit in September.
“The district court erred in disregarding the evidence that they city’s sole objective in enacting and enforcing its ordinance was to discriminate against persons deemed to be disabled under state and federal housing discrimination laws,” wrote Judge Stephen Reinhardt in the September opinion.
The ruling opened the door for the group home operators to seek financial compensation for allegedly lost money or because the homes had to shut down.
A member of the appeals court called for a rehearing, without a request by the city. The call did not receive a majority vote of the 27-judge court. O’Scannlain and four other conservatives on the court issued a dissent.
He said, as a result of the panel decision, “A single member of any protected class will now be able to challenge a facially neutral – and evenly applied – municipal ordinance without having suffered any actual discrimination.”
He pointed to other circuit courts as having rejected challenges to facially neutral laws based on discriminatory motives by cities, including the St. Louis-based 8th Circuit and the 10th Circuit, based in Denver.
He argued that, “In the fast majority of cases where a city evenhandedly enforces a neutral ordinance, there is no discrimination.” He concluded that the court’s denial of an en banc rehearing was a “regrettable failure.”
O’Scannlain was joined by Judges Richard Tallman, Consuelo Callahan, Carlos Bea and Sandra Ikuta.
The original three-judge panel opinion was written by Reinhardt and joined by Chief Judge Alex Kozinski and Judge Sidney Thomas.
Case: PacificShores Properties v. City of Newport Beach, No. 11-55460
Original panel decision: PacificShores Properties v. City of Newport Beach