Newport Beach plans to petition the U.S. Supreme Court to overturn a lower court decision that determined its group home ordinance is discriminatory.
City Council members voted unanimously during a closed session meeting Tuesday to pursue the petition, City Atty. Aaron Harp said Wednesday.
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 a 2008 law placing strict limits on them. The ordinance was fueled by residents who complained about parking, traffic, cigarette smoke, noise and an ever-changing cast of neighbors.
In September, a three-person panel of 9th Circuit judges 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 other judges, who later wrote a dissenting opinion.
One 9th Circuit judge asked the groups involved in the case to explain whether a larger panel should rehear an appeal in the case, but not enough support was found among judges to do so.
Still, five judges chose to write 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,” Harp said.
The dissenting opinion was written by Judge Diarmuid O’Scannlain, who was joined by Judges Richard Tallman, Consuelo Callahan, Carlos Bea and Sandra Ikuta.
In it, they argue 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 opinion reads. “Our court, alone among the nation’s appellate tribunals, has embarked on an uncharted and highly dubious course.”
The dissent did not “portray the facts or the legal posture of the case accurately,” said Elizabeth Brancart, who represents the sober homes in the case.
The city has 90 days from the date of the dissent to file its petition to the Supreme Court for review.
“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,” Harp echoed.
Still, after the city files a petition to the Supreme Court, Brancart plans to file in opposition.
“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.”