227 F.3d 1214 (9th Cir. 2000), 99-15098, White v. Lee

Docket Nº:99-15098, 99-15109, 99-16033
Citation:227 F.3d 1214
Party Name:ALEXANDRA WHITE, JOSEPH DERINGER, and RICHARD GRAHAM, Plaintiffs-Appellees Cross-Appellants, v. RUSSELL LEE, in his individual and official capacities aka Bruce Lee; LYNN TAMIYASU-LEE, as special administrator of the estate of Russell Bruce Lee; LAVERA GILLESPIE, PAUL SMITH, ROBERT ZUROWSKI, and JOHN PHILLIPS, in their individual and official capac
Case Date:September 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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227 F.3d 1214 (9th Cir. 2000)




RUSSELL LEE, in his individual and official capacities aka Bruce Lee; LYNN TAMIYASU-LEE, as special administrator of the estate of Russell Bruce Lee; LAVERA GILLESPIE, PAUL SMITH, ROBERT ZUROWSKI, and JOHN PHILLIPS, in their individual and official capacities, Defendants-Appellants-Cross-Appellees,


ELIZABETH JULIAN, in her official capacity, Defendant-Cross-Appellee.

Nos. 99-15098, 99-15109, 99-16033

United States Court of Appeals, Ninth Circuit

September 27, 2000

Argued and Submitted July 10, 2000

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Robert M. Loeb, United States Department of Justice, Civil Division, Washington, D.C., for the defendants-appellants/ cross-appellees.

Kenneth L. Marcus, Cooper, Carvin & Rosenthal, PLLC, Washington, D.C., Michael E. Rosman, General Counsel, Center, for Individual Rights, Washington, D.C., David DeGroot, San Francisco, California, for the plaintiffs-appellees/crossappellants.

Margaret B. Demers, Sidley & Austin, Washington, D.C., for amicus curiae National Fair Housing Alliance.

Appeal from the United States District Court for the Northern District of California. Marilyn H. Patel, District Judge, Presiding. D.C. No. CV-95-01757-MHP

Before: William C. Canby, Jr., Stephen Reinhardt, Ferdinand F. Fernandez, Circuit Judges.

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REINHARDT, Circuit Judge:

This case involves the Fair Housing Act, 42 U.S.C.S 36013631, and the First Amendment. On November 1, 1993 a housing rights advocacy group filed an administrative complaint with an office of the U.S. Department of Housing and Urban Development (HUD) in San Francisco. The complaint alleged that three neighbors in Berkeley opposed the conversion of a motel into a multi-family housing unit because they believed that the project would bring people into the neighborhood who were mentally disabled or disabled through substance abuse. Upon receiving the complaint, the San Francisco HUD office initiated an eight-month investigation into the neighbors' activities and beliefs. During the course of its investigation, HUD officials questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses, and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project; informed them and a major metropolitan newspaper that they had violated the Fair Housing Act; and advised them to accept a "conciliation proposal" that required them to cease all litigation and the distribution of "discriminatory" newsletters and flyers. The HUD officials in San Francisco recommended finding that the neighbors had violated the Fair Housing Act, but officials in Washington ultimately concluded that no violation had occurred and that the neighbors had engaged solely in activity protected by the First Amendment.

The three Berkeley neighbors then filed this civil rights action alleging that the investigation conducted by the HUD officials in San Francisco violated their First Amendment rights. The officials argue that they were required by the Fair Housing Act to investigate whether the neighbors had filed a lawsuit in state court with an unlawful discriminatory motive. At the very least, they argue, they are entitled to qualified immunity. The district court denied the officials' motion for summary judgment on the issue of qualified immunity, entered partial summary judgment in favor of the neighbors on the issue of liability, and dismissed as moot the neighbors' claim for declaratory and injunctive relief. Only the issue of damages remains for trial.1 We affirm the district court in all respects.


A. Statement of Facts

The following facts are undisputed.

1. The Parties

Plaintiffs Alexandra White, Joseph Deringer, and Richard Graham are residents of Berkeley, California. White and Deringer are married to each other. Graham is their neighbor.

At all times relevant to this case, defendant Elizabeth Julian was the assistant secretary of HUD for Fair Housing and Equal Opportunity (FHEO). Defendant LaVera Gillespie was the director of the Regional Office of FHEO in San Francisco ("the San Francisco Office"). Defendant Paul Smith was the San Francisco Office's investigations branch chief. Defendant Russell Bruce Lee (now deceased) was an investigator, and defendant Robert Zurowski was an investigator-conciliator. Defendant John Phillips was special assistant to the HUD regional administrator.

2. Conversion of the Bel Air Motel

On May 12, 1992, a local nonprofit housing developer, Resources for Community Development (RCD), applied for a use permit from Berkeley's Zoning Adjustment Board. RCD sought to convert the Bel Air Motel, a property on University Avenue, to a multi-family housing unit for homeless persons. The use permit required approval by both the Zoning Adjustment

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Board and the Berkeley City Council.2

The plaintiffs lived close to the Bel Air Motel and were opposed to its proposed conversion. They expressed their opposition in a variety of ways. They wrote to the Berkeley City Council, spoke out before the Zoning Adjustment Board and at other public meetings, and published a newsletter with articles critical of the project. The front page of the February 1993 issue of the plaintiffs' newsletter, Flatland News, for example, contained an article titled "City Forcing Bel Air Project Down Our Throats." The plaintiffs discussed their opposition to the project with the local press and attempted to persuade merchants on University Avenue to oppose the Bel Air project also.

The Zoning Adjustment Board granted RCD its use permit on October 1, 1992. An appeal to the Berkeley City Council failed, by a 4-4 vote, in April 1993. That same month, a coalition in which plaintiffs were involved ("the Coalition of Neighborhood Groups Opposing the Bel Air Conversion") filed a lawsuit against Berkeley and RCD in state court. Plaintiff White verified the complaint. It alleged that one of the Zoning Adjustment Board's members, Linda Maio, was also a member of RCD's board and, because of this conflict of interest, improperly participated in the Zoning Adjustment Board's hearings. On April 19, the coalition moved for a preliminary injunction to prevent the issuance of an effective use permit. The Alameda County Superior Court denied the motion and set the case for trial on November 15, 1993. Although RCD's use permit became effective in May 1993, the developer thereafter experienced difficulty obtaining promised funds for the project from Berkeley and had to seek repeated extensions from other funders.

The Superior Court entered final judgment against the plaintiffs' coalition on February 3, 1994.

3. HRI's Complaint to HUD

Marianne Lawless (now deceased) was the executive director of Housing Rights, Inc. ("HRI"), a Berkeley housing rights advocacy group. She had testified at a hearing in support of the Bel Air project. On October 15, 1993, Lawless wrote a letter to the San Francisco Office stating her intention to file a HUD administrative complaint against the plaintiffs. Lawless attached a letter dated October 12 from the executive director of RCD to the Housing and Civil Enforcement Section of the Department of Justice complaining about the plaintiffs' opposition to the Bel Air project.3 Lawless also attached several flyers and other documents which, she stated, "demonstrate the discriminatory scare tactics used by the opponents."4

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A HUD complaint intake analyst in the San Francisco Office (not a defendant here) spoke with Lawless about her complaint. The analyst wrote in a memorandum that "Ms. Lawless stated that these named residents, also known as the `Coalition of Neighborhood Group Opposing RCD Plan for the Bel-Air Conversion[,]' is [sic] a very vocal group who stand firm in their belief that the homeless persons moving into the area will be undesirables who are mentally disabled or disabled through substance abuse."

The analyst concluded that HUD had jurisdiction and should accept Lawless's complaint for processing, and a supervisor concurred. On October 26, the intake analyst drafted an administrative complaint against the plaintiffs on Form HUD-903. Boxes on the form were checked indicating that HRI had been "[i]ntimidated, interfered[with], or coerced . . . to keep [HRI] from the full benefit of the Federal Housing Law" and that the plaintiffs had engaged in discrimination on the basis of mental handicap. The complaint included the following statement written on HRI's behalf:

We are a fair housing agency in the city of Berkeley. As such, one of our missions is to ensure equal opportunities for all persons. The above named respondents have impaired our ability to ensure equal housing by impeding the proposed conversion of the Bel Air Motel to permanently house lowincome homeless persons. One of their principal arguments against this project is that it will benefit people that are diagnosed as mentally disabled or disabled through substance abuse. Although the respondents unsuccessfully attempted to obtain a preliminary injunction against the developer acquiring a use permit, they have been given a trial date for November 15, 1993. We believe the above named individuals are blocking the proposed project because they perceive the primary residents of the facility will be the...

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