Officials Win Cover in Homeless Shelter Dispute

(CN) - Legislative immunity protects Boise officials from claims that they violated the constitutional separation of church and state by agreeing to lease and then sell a public building to a private Christian homeless shelter, the 9th Circuit ruled.

The federal appeals panel in Pocatello, Idaho, reversed a ruling denying legislative immunity to Mayor David Bieter and city council members who approved the plan to lease a homeless shelter formerly operated by Community House to the Boise Rescue Mission, a Christian-run shelter for men.

The shelter was built through a joint effort by the Community House and the city, which contributed more than $1.6 million and agreed to maintain and lease the building for $1 per year for 50 years.

The Community House provided emergency shelter, transitional housing and apartments for men, women and children.

But the relationship between Community House managers and the city grew strained, in large part due to the shelter's shaky financial situation. The Salvation Army stepped in as interim manager but, "for reasons unclear from the record, left after two weeks," according to the ruling.

That's when the Boise Rescue Mission offered to run the shelter. The mission agreed to offer emergency shelter and transitional apartments to men. (It had a policy of housing women and children separately from men.)

The city, relieved to be rid of the $80,000 per month cost of running the facility, eventually leased the building to the rescue mission, also for $1 per year for the first five years. The mission had the option to buy the property for $2 million by March 31, 2007.

Before the new lease went into effect, the Community House sued city officials, claiming the lease-turned-sale to a private Christian organization violated the constitutional separation of church and state, and the federal Fair Housing Act.

The federal district court allowed the claims against the individual city officials to proceed, but the 9th Circuit reversed on the basis of legislative immunity.

"We hold that Mayor Bieter and the members of the City Council are entitled to absolute legislative immunity for their actions in promoting and approving the lease and sale of Community House to the [Boise Rescue Mission]," Judge Stephen Trott wrote.

Also immune were city development officials Bruce Chatterton and Jim Birdsall, "because at the time the City approved the lease and sale, a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA," Trott concluded.

Writing separately, Chief Judge Alex Kozinski agreed that city officials were entitled to legislative immunity, but he took issue with the majority's qualified immunity analysis for Chatterton and Birdsall.

"[T]he majority acknowledges that it's probably unconstitutional to sell a public building at a below-market price offered only to an organization using it for religious indoctrination," Kozinski wrote. "But the majority also suggests that such a sale might not be unconstitutional if it would save the city some money and require the religious group to 'execute an important city policy' (original emphasis).

"The majority can't cite a single case or reason that justifies carving out that exception," he added. "And no wonder: Almost every municipal service costs money, but that doesn't mean a city can give away its sanitation department to the Muslims, its police department to the Jews or its schools to the Catholics in an exclusive sweetheart deal."

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