Newport Beach plans to petition the
The City Council voted unanimously during a closed session meeting Tuesday to pursue the petition, the Daily Pilot reported.
At stake is an ongoing argument over whether group homes in Newport Beach can challenge the municipal ordinance limiting homes for recovering alcoholics and drug addicts at trial.
Many of the homes were forced out of the city by strict limits enacted in 2008 that were fueled by residents who complained about parking, traffic, cigarette smoke, noise and an ever-changing cast of neighbors.
In September, a three-member panel of the 9th Circuit Court of Appeals ruled that the city ordinance may have been motivated by discrimination against those in recovery.
The decision was heralded by some as a victory for sober-living homes, but it prompted concern from five dissenting judges on the 9th Circuit who later wrote a dissenting opinion -- prompting the city's petition to the Supreme Court.
"At least five U.S. 9th Circuit Court of Appeals justices believe that the city's position has merit and that the panel that heard the case should have decided in the city's favor," City Atty. Aaron Harp said.
In the dissenting opinion, the judges argued that the panel's decision lays the groundwork for cities to be held liable for accusations of discrimination when they shouldn't be.
"The panel's opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination," the dissent reads. "Our court, alone among the nation's appellate tribunals, has embarked on an uncharted and highly dubious course."
"In our opinion, the panel came up with a new theory of liability under the anti-discrimination laws that has never been recognized before, which opens up cities across the nation to potential liability," she said.
The city has 90 days from the date of the dissent to file its petition to the Supreme Court for review.
After the city files, Elizabeth Brancart, who represents the sober homes in the case, plans to file in opposition, arguing the dissent did not "portray the facts or the legal posture of the case accurately."
"We believe that the 9th Circuit applied settled law to the facts of this case that showed overwhelming evidence of an intent to discriminate against sober homes in the city of Newport Beach," she said, "and we are confident that any petition to the Supreme Court will not be granted."