Appellate court comment hints at improper motivation for regulation
The Ninth Circuit recently sent Costa Mesa back to the trial court to continue litigating two challenges to its group-home ordinance. The issue on appeal was one of standing, not a ruling on the merits of the city’s ordinance. But a final comment by the appellate court hints that the court thinks that the ordinance might be improperly motivated.
Background
Costa Mesa has a group-home ordinance that imposes special permitting and distancing requirements on sober-living homes. In 2020, Costa Mesa won on two summary-judgment motions in its attempt to defend its group-home ordinance, successfully arguing that the group-home operators failed to establish that their residents were actually disabled or that the city regarded the residents as disabled. Some celebrated, but the celebration was premature.
The operators filed an appeal, which the Ninth Circuit upheld on January 3, 2023. In its decision, the Ninth Circuit sent the city and group-home operators back to the district court to continue the litigation.
Group-home Operators Have Standing without Proving Individual Residents’ Disability
The Ninth Circuit panel that heard the appeal reversed the grant of summary judgement in both cases, holding that the operators have standing to sue, not because they have proven the disability status of particular residents, but because the operators themselves claimed to be “aggrieved by housing discrimination against the disabled” and to “have been injured by a discriminatory housing practice.” (SoCal Recovery, LLC v. City of Costa Mesa (9th Cir. 2023) 56 F.4th 802, 813–814.) Those claims, the court held, do not require a “case-by-case” demonstration of individual disability; there is no “need for Appellants [operators] to present individualized evidence of the ‘actual disability’ of their residents.” (Id. at 814.) “[S]ober living home operators can satisfy the ‘actual disability’ prong on a collective basis by demonstrating that they serve or intend to serve individuals with actual disabilities.” (Ibid., italics in the original.) Merely having “policies and procedures to ensure that they serve or will serve those with actual disabilities” is enough. (Id. at 815.) As the panel points out in its opinion, this has been the Ninth Circuit’s approach for years. (Ibid., citing multiple case from the Ninth and other Circuits.)
Consequently, the Ninth Circuit panel remanded the cases back for the trial court to evaluate all evidence of the operators’ intent to serve the disabled as a class. Under the Ninth Circuit ruling, the plaintiff operators should be able to quite easily show their intent to house and serve disabled persons, so the challenge will likely proceed from there.
Court Hints at Improper Intent
While the recent decision is really about standing, its broader lesson might ultimately be found in the court’s final note about “unfounded fears and stereotypes.” In considering the basis for the Costa Mesa regulations per se, the Ninth Circuit panel quotes several statements made at city meetings that the court thought reflected “unfounded fears and stereotypes” about the residents and their disabilities. This comment harkens back to the Ninth Circuit’s negative treatment of Newport Beach’s sober-living home regulations nearly a decade ago, when another Ninth Circuit panel went further than any court had before in attributing discriminatory intent of members of the public to that city council.
In remanding the current case, the Ninth Circuit instructed the trial court to consider “appropriate evidence as to whether the City’s actions were based on unfounded fears and stereotypes.” Public testimony opposing sober-living homes had described residents of sober-living homes as “capable of mayhem and violence” and as the cause of “[c]rime and homelessness.” Left alone, these statements might not have been attributed to the city, but some of them were picked up for mention by decision-makers during deliberations. The Ninth Circuit panel went out of its way to point this out as it sent the parties back to continue their litigation.
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