623 F.3d 945 (9th Cir. 2010), 09-35780, Community House, Inc. v. City of Boise, Idaho

Docket Nº:09-35780.
Citation:623 F.3d 945
Opinion Judge:TROTT, Circuit Judge:
Party Name:COMMUNITY HOUSE, INC.; Marlene K. Smith; Greg A. Luther; Jay D. Banta, Plaintiffs-Appellees, v. CITY OF BOISE, IDAHO; Boise City Council, Defendant, and David H. Bieter, Mayor; Maryann Jordan; Elaine Clegg; Vernon Bisterfeldt; David Eberle; Jerome Mapp; Alan Shealy; Bruce Chatterton, Director, Planning and Development Services; Jim Birdsall, Manage
Attorney:Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise, ID, for the plaintiffs/appellees. Phillip J. Collaer, Anderson, Julian & Hull LLP, Boise, ID, for the defendants/appellants.
Judge Panel:Before: ALEX KOZINSKI, Chief Circuit Judge, STEPHEN S. TROTT and N. RANDY SMITH, Circuit Judges. Opinion by Judge TROTT; Concurrence by Chief Judge KOZINSKI. Chief Judge KOZINSKI, concurring:
Case Date:October 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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623 F.3d 945 (9th Cir. 2010)

COMMUNITY HOUSE, INC.; Marlene K. Smith; Greg A. Luther; Jay D. Banta, Plaintiffs-Appellees,

v.

CITY OF BOISE, IDAHO; Boise City Council, Defendant,

and

David H. Bieter, Mayor; Maryann Jordan; Elaine Clegg; Vernon Bisterfeldt; David Eberle; Jerome Mapp; Alan Shealy; Bruce Chatterton, Director, Planning and Development Services; Jim Birdsall, Manager, Housing and Community Development, Defendants-Appellants.

No. 09-35780.

United States Court of Appeals, Ninth Circuit.

October 6, 2010

Argued and Submitted May 24, 2010.

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Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise, ID, for the plaintiffs/appellees.

Phillip J. Collaer, Anderson, Julian & Hull LLP, Boise, ID, for the defendants/appellants.

Appeal from the United States District Court for the District of Idaho, Ted Stewart, District Judge, Presiding. D.C. No. 1:05-cv-00283-BLW.

Before: ALEX KOZINSKI, Chief Circuit Judge, STEPHEN S. TROTT and N. RANDY SMITH, Circuit Judges.

Opinion by Judge TROTT; Concurrence by Chief Judge KOZINSKI.

OPINION

TROTT, Circuit Judge:

The lawsuit underlying this appeal arises from the City of Boise, Idaho's communal assumption almost twenty years ago of shared responsibility for the care and housing of a vulnerable sector of its population-the homeless.

In connection with the City's legislative objectives, Community House, Inc. (" CHI" ) leased from the City in 1994 as part of a public/private partnership a building that CHI operated as a homeless shelter and as low-income transitional housing. In 2004, CHI and the City agreed to terminate the lease agreement and CHI's right to manage the building. In 2005, the City leased the building to the Boise Rescue Mission (" BRM" ), an organization that operates the facility as a homeless shelter for single men and that includes in its activities Christian religious services and pre-meal prayers. In 2007, the BRM purchased the facility pursuant to an option contained in the lease agreement.

After CHI agreed to terminate its lease but before the City's new lease with the BRM, CHI, along with several individual plaintiffs, filed a civil rights complaint under 42 U.S.C. § 1983 against the City and the Boise City Council, alleging, among other things, that the anticipated lease of the building to the BRM violated the First Amendment's anti-Establishment Clause and the federal Fair Housing Act (" FHA" ). CHI additionally named as defendants the following individuals: (1) David Bieter, the mayor of the City of Boise; (2) Maryann Jordan, Elaine Clegg, Vernon Bisterfeldt, David Eberle, Jerome Mapp, and Alan Shealy, members of the Boise City Council; (3) Bruce Chatterton, the Director of Planning and Development Services; and (4) Jim Birdsall, the Manager of Housing and Community Development.1

The City, the City Council, and the individual defendants moved for summary judgment. Of relevance to this limited appeal, the district court denied summary judgment to the individual defendants as a group, determining that they were not entitled either to legislative or qualified immunity.

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Cmty. House, Inc. v. City of Boise, 654 F.Supp.2d 1154, 1165-66 (D.Idaho 2009) (" Cmty. House II " ), The court determined that genuine issues of material fact precluded qualified immunity on the Establishment Clause claims, but because the individual defendants did not explicitly raise at that time a qualified immunity defense with respect to the FHA claims, the court did not consider that issue. Id.

We are now faced with the second interlocutory appeal in this case. Because the individual defendants appeal from a denial of summary judgment on the basis of immunity, we have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. Robinson v. York, 566 F.3d 817, 821 (9th Cir.2009).

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 BRM. Additionally, municipal employees Chatterton and Birdsall as individuals are entitled to qualified immunity 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. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.

I

BACKGROUND

A. The History of Community House

Boise, like many other cities, has experienced over time a dramatic increase in its homeless population. The general population of Boise increased by more than 22% in the late 1980s, driving up the local cost of housing. Because Boise's employment opportunities failed to keep up with its growing population, the number of homeless grew quickly. Surveys conducted in the early 1990s showed a 20% increase in the Boise homeless community. As recognized by CHI in its Second Amended Complaint, Boise was in the throes of a " homeless crisis," to which the citizenry responded in dramatic fashion. CHI describes these efforts in Paragraphs 42-46 of its Second Amended Complaint:

42. .... In 1992, Director Michael Hoffman sponsored actress Sally Fields [sic], to perform a play that raised over $70,000. The Rotary Club of Boise committed $50,000 and $25,000 in in-kind services to address the homeless crisis in Boise.

43. In June 1992, the Community Assistance Center, Inc. was incorporated and Bylaws were adopted for the purpose of raising donations to develop a full continuum of programs and services and to address the needs of the homeless and to establish a decent, safe, and sanitary community shelter.

44. In January 1993, the Articles were amended to change the name of the corporation to Community House, Inc. In August 1993, the Articles were amended to clarify the purposes of the corporation.

45. Social service agencies, community leaders, and the corporate community participated in fundraising, including Terry Reilly Health Clinic, Boise City/Ada County Housing Authority, Job Service of Idaho, Idaho Department of Health and Welfare, YWCA, Idaho Vocational Rehabilitation, Social Security Administration, Veterans Administration Medical Center, El-Ada Community Action Agency, United Way of Ada County, Junior League, Child Care Connections, Salvation Army, City of Boise, Boise Police Department, St. Luke's Hospital, Boise Neighborhood Housing Services, Ada County Community Services,

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Central District Health Services, Channel 7 KTVB, Oppenheimer Development, WestOne Bank, H.W. Morrison Foundation, and FUNDSY.

46. In subsequent years, case and in-kind contributions from individuals and corporations, including Albertsons and Hewlett-Packard, amounted to millions of dollars.

In the early 1990s, the City of Boise formally joined this community effort and began working with CHI to plan, design, and construct a new facility to help meet the needs of the homeless population of Boise. On February 8, 1994, the City Council passed Resolution 12635, which, according to CHI's Second Amended Complaint, " recognized the importance of establishing a facility for homeless and very low income individuals." The Resolution set forth the City's agreement to enter into a partnership with CHI as well. The same day, the City and CHI signed a Memorandum of Understanding (" MOU" ) to " enter into a cooperative public/private partnership with the primary objective being to provide housing and comprehensive services for the homeless in our community." The new facility, to be named Community House, would be located in Boise near downtown at the corner of 13th Street and River Street. The parties envisioned that the City would own the building and that CHI would lease it from the City. CHI would operate the facility as " a homeless shelter and resource center ... [that would] provide emergency, temporary, and transitional housing for homeless families and individuals."

Both the City and CHI contributed to the construction of Community House. The City contributed over $1.6 million in Community Development Block Grant (" CDBG" ) and Home Investment Partnership Program (" HOME" ) funds, and CHI contributed nearly $400,000 in private donations and over $650,000 from a loan under the Federal Home Loan Bank (" FHLB" ) Affordable Housing Program.

On November 1, 1994, the City Council passed Resolution 13056, which approved the lease of Community House to CHI. The City agreed to lease the building for $1 per year for fifty years, to keep and maintain the facility in good condition, and to make needed repairs.

On November 30, 1994, the parties entered into an Operating Agreement, in which the City and CHI agreed " to work closely together in developing a comprehensive strategy to resolve the problem of homelessness in the City of Boise." The City granted CHI the right to manage the facility for sixty months, with a renewal term of sixty months. Thus, if renewed, the Operating Agreement would expire by its own terms on November 30, 2004.

Throughout CHI's management, Community House contained an emergency shelter, transitional housing, and single residence occupancy apartments (" SROs" ). Residents included men, women, and families. Some occupants paid rent, and the City realized around $125,000 per year in rental income. From 1995 to 2003, the City gave CHI over $200,000 per year in CDBG and HOME funds to run Community House, totaling more than $2 million. The City and CHI renewed the Operating...

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