Newport Beach hires Citizens United attorney

A former U.S. solicitor general who has argued dozens of prominent cases before the Supreme Court has agreed to represent Newport Beach in its bid for judicial intervention in the city's years-long legal battle with sober-living homes.

The city this week hired attorney Theodore Olson, whose credits include Bush vs. Gore and Citizens United vs. Federal Election Commission.

Newport Beach will pay Olson $280,000 to petition the high court to review a case that opened the city up to discrimination lawsuits based on a zoning ordinance that pushed out dozens of group homes for recovering addicts.

Olson has a well known legal biography. In Citizens United, he successfully argued before the Supreme Court that a cap on independent political expenditures was unconstitutional. In Bush vs. Gore, he helped convince the high court to end the 2000 presidential election recount, allowing George W. Bush to become president over former Vice President Al Gore.

The City Council voted last month to request the Supreme Court review, and after compiling a short list of about 10 attorneys capable of taking the case, Newport Beach settled on Olson to lead that campaign.

"We wanted people who'd argued before the Supreme Court at least 20 times and also had background and experience dealing with these particular issues," Newport Beach City Atty. Aaron Harp said.

If the justices decide to take the case, Olson will continue to represent the city, according to Harp.

Newport has been fighting its legal battle with rehabilitation homes since 2008, when residents' complaints about a proliferation of the sober-living facilities moved council members to act.

In the latest ruling in September, the U.S. 9th Circuit Court of Appeals said that Newport Beach may have discriminated by passing the ordinance even if the law's language was not itself discriminatory.

Lawyers representing the rehab homes say they collected reams of evidence showing that the city's true intent was to keep out the facilities and their recovering addicts.

One example is Councilman Mike Henn implying the city wanted to ban all group homes if it would withstand a legal challenge, according to the 9th Circuit.

"The record is so obvious that the sole reason for adopting this ordinance was to close down the sober homes," said the plaintiff's attorney, Steven Polin.

The ruling that a federal judge improperly dismissed the case paved the way for the lawsuit to go back to trial.

But last month, a group of five 9th Circuit judges wrote a separate opinion disagreeing with their colleagues' ruling.

Basing a decision on the Newport Beach ordinance's "sinister intent," as opposed to its actual language, could produce lawsuits without any actual evidence of discrimination, the justices wrote, calling the idea "an entirely unprecedented theory."

Harp pointed to those conflicting opinions as one reason this situation is ripe for review by the Supreme Court, which takes up to 100 cases a year.

"This has the potential to cost cities across the country millions of dollars defending against meritless claims," he said.

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