J.W. v. City of Tacoma, Wash.

• Decision Date: 25 November 1983
• Docket Number: No. 82-3199,82-3199
• Citation: 720 F.2d 1126
• Parties: J.W., K.W., L.J., T.S., L.S., F.S., P.G., and Else Blount, Plaintiffs-Appellees, v. CITY OF TACOMA, WASHINGTON; Mike Parker, Mayor of the City of Tacoma: Tim Strege, Barbara Bischel, John Hawkins, Douglas Sutherland, Jack Hyde, Steve Kirby, Hal Nielsen and Peter Rasmussen, Members of the Tacoma City Council; Erling Mork, City Manager of the City of Tacoma; Robert Hamilton, City Attorney of the City of Tacoma; Ben Thompson, Chief, Building Division of the City of Tacoma; in their official capacities and their officers, agents, employees and successors, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1126

720 F.2d 1126

J.W., K.W., L.J., T.S., L.S., F.S., P.G., and Else Blount, Plaintiffs-Appellees, v. CITY OF TACOMA, WASHINGTON; Mike Parker, Mayor of the City

of Tacoma: Tim Strege, Barbara Bischel, John Hawkins,

Douglas Sutherland, Jack Hyde, Steve Kirby, Hal Nielsen and

Peter Rasmussen, Members of the Tacoma City Council; Erling

Mork, City Manager of the City of Tacoma; Robert Hamilton,

City Attorney of the City of Tacoma; Ben Thompson, Chief,

Building Division of the City of Tacoma; in their official

capacities and their officers, agents, employees and

successors, Defendants-Appellants.

No. 82-3199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1983.

Decided Nov. 25, 1983.

Lonnie Davis, Tacoma, Wash., for plaintiffs-appellees.

Kyle Crews, Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, and FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

The City of Tacoma appeals from a declaratory judgment concerning the city's refusal to issue a special use permit authorizing persons formerly institutionalized for mental health treatment to be included in a group home located in a residential district. The district court held that the denial of the permit was arbitrary and violated the due process clause of the 14th amendment. We affirm.

I BACKGROUND

Else Blount, appellee in this action, operates a group home in the City of Tacoma, Washington. No more than eight residents live in the home at any given time. Among Blount's residents are former patients in mental institutions. For purposes of its zoning ordinance, Tacoma defines Blount's home as a "Group Care Home Class II," because it is a "state approved dwelling for persons leaving mental institutions." Tacoma, Wash., Code Sec. 13.06.010(34.1) (1983). Blount's home is located in a district of the city designated "R-2" residential by the city zoning ordinance. Under the ordinance, a Group Care Home Class II may be operated in an R-2 district with a special use permit. Id. Sec. 13.06.375(B)(m) (1982). An identical group home that did not include newly-released mental patients would be classed as a "Group Care Home Class I" and could be operated without a permit.

Soon after she began operating the residence as a Group Care Home Class II, Blount was informed that she was required to obtain a special use permit. She promptly applied. Following a hearing, and acting partly on the basis of an adverse recommendation by the Tacoma Department of Planning, a municipal Hearings Examiner denied the permit. Blount appealed the decision to the Tacoma City Council, which affirmed the denial of the permit by a 5-2 vote.

Blount then commenced this action in federal court. She challenged the ordinance both on its face, as unlawful discrimination The City of Tacoma now appeals from the district court ruling in Blount's favor.

against persons who have suffered from mental illness, and as applied. The district court, without reaching the facial challenge to the ordinance, ruled that the permit scheme had been applied to Blount's home in an arbitrary and unconstitutional manner. The court granted Blount's request for a declaration to that effect, and also entered a permanent injunction against application of the ordinance to Blount. The form of this relief has not been challenged on appeal. ¹

II DISCUSSION

Generally, a municipal zoning ordinance will not be held unconstitutional if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 4, 8, 94 S.Ct. 1536, 1538, 1540, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). Constitutional scrutiny of zoning regulations is heightened, however, when the regulations infringe a fundamental interest, see, e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981); Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (opinion of Powell, J.); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1347 (9th Cir.1982), or discriminate against a suspect class, see, e.g., Buchanan v. Warley, 245 U.S. 60, 74, 82, 38 S.Ct. 16, 18, 20, 62 L.Ed. 149 (1917); Kennedy Park Homes, Inc. v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir.1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971). The question here presented is whether an ordinance that imposes special disabilities upon residences for former mental patients must receive heightened review.

The Supreme Court has recently restated the basis for determining whether a given legislative action must be subjected to more than ordinary rationality review:

The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a "suspect class," or that impinge upon the exercise of a "fundamental right." With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.

Plyler v. Doe, 457 U.S. 202, 216-18, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982) (footnotes omitted). The Plyler opinion applied heightened scrutiny to legislation in the third category. The legislative classification at issue in Plyler affected a group that was not a suspect class and did not impinge on the exercise of a fundamental right. Because, however, the affected group possessed some of the characteristics of a suspect class, and the benefit denied to the group was, if not fundamental, important, the Court concluded that heightened scrutiny was appropriate.

In explaining the constitutional difficulties that presumptively accompany legislation impinging on suspect classes, the court noted:

Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.

457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14. The Plyler formulation is consistent with the approach in other cases in which the decision whether to apply intensified scrutiny turned upon whether the group singled out by statute had been subjected to unique disabilities on the basis of stereotyped characteristics not truly corresponding to the attributes of its members. Compare Mississippi University for Women v. Hogan, --- U.S. ----, 102 S.Ct. 3331, 3336-40, 73 L.Ed.2d 1090 (1982) (statute establishing single-sex nursing school invalid because based on "stereotyped view of nursing as an exclusively women's job") with Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (statute requiring police officers to retire at 50 valid because "persons over 50" had not been categorized on the basis of stereotyped characteristics). As Plyler itself makes clear, heightened scrutiny may be appropriate for legislative classifications that do not affect a "suspect class" but, nonetheless, raise constitutional problems of the same variety as those the Court treats as "presumptively invidious." See 457 U.S. at 216, 218 & n. 16, 102 S.Ct. at 2394, 2395 & n. 16.

In the present case, it is highly "likely" that the Tacoma ordinance distinguishes group homes that include former mental patients from other group homes on the basis of prejudices concerning persons who have been institutionalized for mental health treatment. The prevalence of such notions is amply demonstrated by the frequency of suits challenging zoning decisions relating to halfway houses for mental patients. See generally Annot., 100 A.L.R.3d 876 (1980). See also Hearings on Constitutional Rights of the Mentally Ill Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st & 2d Sess. 62-63 (1969-1970) (many people have an irrational fear of the mentally ill) cited in Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1200 (1974); cf. Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979) (recognizing that commitment for mental illness can result in unwarranted social stigma). But the city has produced no evidence to support a blanket assertion that former mental patients as a class are particularly dangerous, disruptive, or otherwise undesirable neighbors. ² We note also that the benefits the ordinance restricts are the former mental patients' access to housing and rehabilitative services. While they are not fundamental rights, they, like education at issue in Plyler, are essential to individuals' full participation in society. Indeed, for former mental patients, a reintegration into society accomplished through living, in a moderately structured setting in residential neighborhoods is an essential part of therapy. ³

We conclude that the Tacoma ordinance may well result from "archaic and stereotypic notions," and must therefore receive special judicial attention. See Mississippi University for Women v. Hogan, 102 S.Ct. at 3336.

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