(CN) - The 9th Circuit missed an opportunity to review en banc whether Newport Beach, Calif., discriminated against group homes for recovering drug addicts, several judges complained Tuesday.
"The panel's opinion in these consolidated cases invents 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," Judge Diarmuid O'Scannlain said in his dissent joined by Judges Carlos Bea, Richard Tallman, Consuelo Callahan and Sandra Ikuta.
All five are Republicans, including Tallman, whom President Bill Clinton appointed to get his judicial nominees through the conservative-controlled Senate.
At issue is a restrictive ordinance Newport Beach adopted in 2008 amid the surge of residential group homes and complaints from neighbors about them. The law made it much more difficult for such facilities to open and operate by creating a substantial permitting scheme for which very few group homes would qualify.
Within a year of the new law's approval, about one-third of the city's 73 group homes had shut down or were about to, and only nine remained another year on, according to the ruling.
But the 9th Circuit ruled against the city last year, finding that the law discriminated against the disabled.
"Plaintiffs' evidence shows that the city's purpose in enacting the ordinance was to exclude group homes from most residential districts and to bring about the closure of existing group homes in those areas," Judge Stephen Reinhardt has said for the Pasadena-based panel, which included Chief Judge Alex Kozinski.
The ordinance had originally also included vacation homes, which cater to a rich clientele, but it was narrowed after "pressure from citizens who owned short-term lodgings," Reinhardt wrote.
"In short, a jury could find, based on the record before us, that the primary purpose of the ordinance was to shut down group homes and prevent new ones from opening in Newport Beach, but to do so in facially neutral terms to avoid invalidation by a court," Reinhardt added.
A bid to rehear the case en banc failed to garner a majority Tuesday, leading O'Scannlain to question how the court will coherently apply this new theory of liability.
"What sorts of pre- or post-enactment statements may a court examine for this impermissible intent - utterances during committee meetings, quotations from newspaper articles, political stump speeches," he wrote. "Who among the various government actors must express this intent - only those officers with a vote on the city council, or any municipal employee involved in the drafting? What may or may not private citizens say in support of local initiatives, and when may they say it, lest any of their ill motives taint the legislative process? Such questions hardly seem appropriate for principled and consistent judicial inquiry."
To hold a municipality liable on simply the accusation that the legislation had discriminatory intent is an "absurd result," O'Scannlain wrote.
He called it "regrettable" that the court failed to grant a rehearing en banc.
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