Community House, Inc. v. City of Boise

• Decision Date: 09 November 2006
• Docket Number: No. 05-36195.,05-36195.
• Citation: 490 F.3d 1041
• Parties: COMMUNITY HOUSE, INC.; Marlene K. Smith; Greg A. Luther; Jay D. Banta, Plaintiffs-Appellants, v. CITY OF BOISE, Idaho; David H. Bieter, Mayor; Boise City Council; Maryann Jordan; Elaine Clegg; Vernon Bisterfeldt; David Eberle; Jerome Mapp; Alan Shealy, Boise City Council Members; Bruce Chatterton, Director, Planning and Development Services; Jim Birdsall, Manager, Housing and Community Development, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

490 F.3d 1041

COMMUNITY HOUSE, INC.; Marlene K. Smith; Greg A. Luther; Jay D. Banta, Plaintiffs-Appellants, v. CITY OF BOISE, Idaho; David H. Bieter, Mayor; Boise City Council; Maryann Jordan; Elaine Clegg; Vernon Bisterfeldt; David Eberle; Jerome Mapp; Alan Shealy, Boise City Council Members; Bruce Chatterton, Director, Planning and Development Services; Jim Birdsall, Manager, Housing and Community Development, Defendants-Appellees.

No. 05-36195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2006.

Filed November 9, 2006.

Amended June 8, 2007.

Howard A. Belodoff, Boise, ID, for the plaintiffs-appellants.

Phillip J. Collaer, Boise, ID, for the defendants-appellees.

Brent D. Sokol, Los Angeles, CA, for amici curiae Anti-Defamation League and Americans United for Separation of Church and State.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-05-00283-BLW.

Before: DAVID R. THOMPSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge THOMPSON; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

ORDER

The Opinion in this case was filed November 9, 2006, and published at 468 F.3d 1118 (9th Cir.2006). A timely petition for panel rehearing and for rehearing en banc was filed.

Footnote 2 of the Opinion, appearing at 468 F.3d at 1123, is deleted. A substituted footnote 2 is inserted in its place, which substituted footnote reads as follows:

2. Although we applied the FHA to a homeless shelter in Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir.1996), the question of whether the FHA generally applies to homeless shelters was not at issue because the parties did not dispute that the FHA applied. We have never squarely addressed the issue of whether all temporary shelters fit within the Act's definition of "dwelling," see 42 U.S.C. § 3602(b); nevertheless, we decline to do so here. While the lease states that the Community House facility is to be used as an "emergency homeless shelter," the facility provides more than transient overnight housing. The district court specifically found that the facility generates up to $125,000 in rent per year from forty-nine transitional housing units in which the tenants reside for up to a year and a half. We therefore have little trouble concluding that at least part of the facility "is occupied as, or designed or intended for occupancy as, a residence by one or more families," and thus qualifies as a "dwelling" under section 3602(b).

Moreover, at least in the handicap discrimination context, the regulations interpreting the coverage of the FHA specifically contemplate that "residences" within homeless shelters qualify as "dwellings." The regulations provide that a "dwelling unit" may include "other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling, rooms in which people sleep." 24 C.F.R. § 100.201. Examples of these other types of dwelling units "include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons." Id. (emphasis added).

With regard to the petition for panel rehearing and for rehearing en banc, Judges Thompson and Tashima voted to deny the petition for panel rehearing and recommended denial of the petition for rehearing en banc. Judge Callahan voted to grant the petition for panel rehearing and to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. See Fed. R.App. P. 35.

The petition for panel rehearing and for rehearing en banc is DENIED. No further petitions for panel or en banc rehearing will be entertained.

OPINION

THOMPSON, Senior Circuit Judge.

The plaintiffs-appellants Community House, Inc. ("CHI"), Marlene K. Smith, Greg A. Luther, and Jay D. Banta (collectively, "plaintiffs") appeal the district court's partial denial of their motion for a preliminary injunction against the defendants-appellees City of Boise, Idaho, its mayor, its city council members, and two of its employees.

The City of Boise owned a homeless shelter, Community House, which was managed by CHI and provided housing to men, women, and families. In 2004, the City assumed management of Community House and then leased it to the Boise Rescue Mission Ministries ("BRM"), a Christian non-profit organization. The women and families were removed from Community House, and the BRM now provides shelter there only to homeless men. The BRM also includes a religious component in the services it provides.

The district court declined to order reinstatement of residents that had been removed from Community House, but enjoined the practice of requiring residents to attend worship services in order to receive other services. The court did not preclude the use of Community House by the BRM for voluntarily-attended religious programs.

The plaintiffs assert that the district court abused its discretion by denying a preliminary injunction that (1) would have reinstated Community House residents excluded by the men only policy, and (2) would have voided the City's lease with the BRM. The plaintiffs argue that the men-only policy violates the Fair Housing Act, and that the lease with the BRM violates the Idaho Constitution and the Establishment Clause of the United States Constitution.

We have jurisdiction under 28 U.S.C. § 1292(a)(1). With regard to the plaintiffs' Fair Housing Act claims based on sex and familial discrimination, we reverse the district court's denial of a preliminary injunction that would have required reinstatement of all former residents. We conclude that the district court erred in applying the test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because the City's men-only policy is facially discriminatory. See Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 n. 16 (10th Cir.1995).

With regard to the plaintiffs' Establishment Clause claim, we reverse the district court's denial of a broader preliminary injunction. We conclude that the district court abused its discretion by determining that only a limited injunction was necessary to avoid an Establishment Clause violation. A broader preliminary injunction is required.

With regard to the plaintiffs' Idaho Constitution claim, which they have raised for the first time in this appeal, for the reasons hereafter set forth we exercise our discretion and decline to consider it.

I. BACKGROUND

CHI is a non-profit corporation that provides housing services to homeless and low income persons. Beginning in 1994, CHI and the City worked together to build a homeless shelter known as Community House. Community House contained both a homeless shelter and a low income housing unit. The homeless shelter could hold, in separate dormitories, sixty-six men, thirteen women, and ten families. The low income, or "transitional," housing contained ten family units and thirty-nine single-resident apartments. Community House could accommodate the disabled, and about seventy-five percent of its residents were disabled.

In 2004, following a dispute with CHI, the City took over operation of Community House. The City then initiated a Request for Proposal bid process for the operation of Community House, and ultimately chose the bid of the BRM. The City leased Community House to the BRM on September 2, 2005.

The BRM is a Christian non-profit organization that has served the homeless population of Boise, Idaho for almost fifty years, most recently at four facilities in both Boise and Nampa, Idaho. The BRM's Boise facilities include a homeless shelter for single men known as the Boise Rescue Mission, and a shelter for women and children known as the City Light Home.

The BRM's winning bid proposal contained a plan to move homeless men from the Boise Rescue Mission to the Community House facility, and then turn the Boise Rescue Mission into a shelter for homeless women and children. The BRM's policy is to segregate men and women into different facilities, and to segregate homeless singles from homeless families. It believes that the difficulties of serving the homeless population "are exacerbated in a mixed gender shelter environment."

The chief goal of the BRM is to "help people at their physical and spiritual points of need" by providing, among other assistance, "Christian teaching." Before dinner, the BRM offers a sixty-minute Christian chapel service. The service consists of singing, scripture reading, prayer, testimonies, and preaching.

In June of 2005, before its lease to the BRM commenced, the City told staff members at Community House not to accept any new residents. In August of 2005, in anticipation of the September 2005 transition to the BRM, the City informed residents of Community House that they needed to move. This move caused significant hardship for some residents, most notably women, families, and the physically disabled. There was already a shortage of housing in the area, and these persons, for the most part, had to move into much less desirable housing than Community House.

The plaintiffs filed this action under the Fair Housing Act¹ and other laws. The plaintiffs sought a preliminary injunction to prevent the removal of residents from Community House, to reinstate former residents, and to prevent the sale or lease of Community House during the pendency of this action. On October 28, 2005, the district court granted the plaintiffs' motion in part, enjoining the City from relocating any former resident of Community House to housing that is near the residence of a registered sex offender. The district court also enjoined the City from participating in a lease with the BRM if the BRM continued to require attendance at...