Keys Youth Serv. v. City of Olathe, s. 99-3387

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LUCERO, McKAY, and MURPHY; McKAY
Citation248 F.3d 1267
Parties(10th Cir. 2001) KEYS YOUTH SERVICES, INC., a Kansas not-for-profit corporation, Plaintiff-Appellee/Cross-Appellant, v. CITY OF OLATHE, KANSAS, a Municipal corporation, Defendant-Appellant/Cross-Appellee. & 99-3388
Docket NumberNos. 99-3387,s. 99-3387
Decision Date11 May 2001

Page 1267

248 F.3d 1267 (10th Cir. 2001)
KEYS YOUTH SERVICES, INC., a Kansas not-for-profit corporation, Plaintiff-Appellee/Cross-Appellant,
CITY OF OLATHE, KANSAS, a Municipal corporation, Defendant-Appellant/Cross-Appellee.
Nos. 99-3387 & 99-3388
May 11, 2001


(D.C. No. 98-CV-2398)

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Copyrighted Material Omitted

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Anthony F. Rupp (Andrew M. DeMarea with him on the briefs) of Shughart Thomson & Kilroy, P.C., Overland Park, Kansas, for Appellant/Cross-Appellee City of Olathe, Kansas.

James H. Ensz of Ensz & Jester, P.C., Kansas City, Missouri, for Appellee/Cross-Appellant Keys Youth Services, Inc.

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

Defendant Olathe City, Kansas, appeals from the district court's summary judgment determination that it denied a zoning permit to Plaintiff Keys Youth Services, Inc., based on Keys' familial status in violation of the Fair Housing Act (FHA), 42 U.S.C. 3604. Keys cross-appeals from the court's bench trial ruling that Olathe's denial of the zoning permit was not based on Keys' handicap status under the FHA and that the permit denial did not violate state law. We have jurisdiction under 28 U.S.C. 1291.


Keys operates several youth group homes. It purchased a house in an Olathe neighborhood zoned for single-family residential use for the purpose of establishing another group home for ten troubled adolescent males. Unable to qualify as a "family" by Olathe's definition, Keys applied for a special use permit from the city council in order to run the proposed home. In response, the neighbors filed a protest petition with the Olathe Planning Commission. At the subsequent hearings on the matter, they argued that the troubled juveniles would increase area crime and pose a threat to the many children in the area, and that surrounding property values would decrease. At some of these same hearings, Keys supplied the Commission with evidence suggesting the neighbors' fears were unjustified. In the end, the Planning Commission recommended to the Olathe City Council that Keys be denied a special use permit. By a 4-3 vote, the City Council agreed and Keys subsequently sued.

Keys alleged in its suit that Olathe and four city council members denied it a special use permit for its juvenile group home based on the potential occupants' "familial status" and "handicaps" in violation of the FHA. Keys also alleged that Olathe's permit denial violated Kansas state law. The district court dismissed the claims against the individual council members on qualified immunity grounds. See Keys Youth Servs., Inc. v. City of Olathe, 38 F. Supp.2d 914, 925, 927 (D. Kan. 1999) [hereinafter Keys Youth I]. The court granted complete summary judgment to Keys on its "familial status" claim. See Keys Youth Servs., Inc. v. City of Olathe, 52 F. Supp.2d 1284, 1305-07 (D. Kan. 1999) [hereinafter Keys Youth II], modified by Keys Youth Servs., Inc. v. City of Olathe, 67 F. Supp.2d 1228, 1229, 1231 (D. Kan. 1999). The court also granted

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Keys summary judgment on its claim that the potential group home residents qualified for handicap status but left for trial the issue of whether Olathe had discriminated on that basis and whether Olathe had violated state law. See Keys Youth II, 52 F. Supp.2d at 1299-1305. Following the bench trial, the district court ruled for Olathe on both issues. See Keys Youth Servs., Inc. v. City of Olathe, 75 F. Supp.2d 1235 (D. Kan. 1999) [hereinafter Keys Youth IV]. Olathe appeals from the court's summary judgment decision on the familial status claim, while Keys cross-appeals from the court's dismissal of the individual city council members and the court's bench trial decisions on the handicap discrimination and state law claims.


A. Familial Status Discrimination

We review de novo the district court's grant of summary judgment and apply the same legal standard employed by that court. See Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999). To wit, summary judgment should be granted if the evidence submitted shows "that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326. In the instant case, both parties sought summary judgment on the familial status issue.

Since its amendment in 1988, the FHA has prohibited discriminatory housing practices based on familial status. See 42 U.S.C. 3604(a)-(e). The FHA defines "familial status" as (1) one or more minors (2) "domiciled with" (3) a parent or legal custodian or the designee of a parent or custodian. Id. 3602(k).1 Keys' group home satisfies the first element: there are one or more minors.

Regarding the second element, Olathe intimated to the district court that Keys' living arrangements did not satisfy the "domiciled with" requirement. Aplt. App. II, at 331, 340-41 (Def. Mem. in Support of Summ. J. Mot., at 14, 23-24). For unknown reasons, the district court did not address this point, although it did make relevant factual findings (discussed infra). See Keys Youth II, 52 F. Supp.2d at 1294. Olathe raises the issue again on appeal, and we think it warrants discussion given the somewhat novel application of law to facts presented by Keys' claim.2

There is no material dispute regarding the "living" arrangements at Keys' proposed youth group home. Ten minors would live at the home. They would be

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supervised twenty-four hours a day by a rotating staff of Keys' employees. Though by no means dispositive, we note that Dr. Edward Neufeld, a licensed psychologist who counsels Keys' existing group home occupants, characterized the Keys' homes as "therapeutic milieus" rather than a "family environment" because, in his view, "these are not group homes that are characterized by a foster parent or two foster parents who are there all the time. It's more a staffing situation." Aplt. App. II at 463.

More specifically, the summary judgment record indicates that in the proposed home in question a "manager" would work from 7:00 a.m. to 3:00 p.m., Monday through Friday; an "assistant manager" and a "staff number 3" employee would work from 2:00 p.m. to 10:00 p.m., Monday through Friday; and an "additional staff member" would work from either 10:00 p.m. to 6:00 a.m. or 11:00 p.m. to 7:00 a.m. each night. Aplt. App. III at 854-55 (Depo. of Keys Program Director). In addition, one "teaching parent" ("shift number 1") would work from 6:00 a.m. Monday morning to 2:00 p.m. Tuesday afternoon, and from 2:00 p.m. Wednesday to 2:00 p.m. Thursday; another "teaching parent" ("shift number 2") would work from 2:00 p.m. Tuesday to 2:00 p.m. Wednesday, and from 2:00 p.m. Thursday to 10:00 p.m. Friday; a "weekend staff person" would work 10:00 p.m. Friday until 6:00 a.m. Monday morning; and a "part-time staff person" would work 10:00 a.m. to 10:00 p.m. Saturday and Sunday. Id. at 855. In sum, as the district court put it, "The staff works on day and night shifts and does not reside at the home." Keys Youth II, 52 F. Supp.2d at 1294.

"Familial status" requires that the minors be domiciled "with" their caretaker. This means that the youths and Keys' staff must be domiciled together, at the same dwelling. See, e.g., H.R. Rep. No. 100-711, at 23 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2184 ("The Committee intends to cover by this definition a parent or other person having legal custody, or that individual's designee, domiciled with a child or children under age 18."). The question thus becomes whether any Keys' staff members would be "domiciled" at the proposed home with the youths.3

The FHA does not define "domiciled," nor are we aware of a federal or state court that has done so in the "familial status" context. We therefore look "both to the generally accepted meaning of the term 'domicile' and to the purpose of the statute" for the appropriate definition. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1988) (defining "domicile" for purposes of the Indian Child Welfare Act). "Domicile" is a familiar, if not precisely defined, concept in the law. It is typically used for jurisdictional or conflict of laws purposes which "require general recognition of a single State with which the individual, actually or presumptively, is most closely connected." Martinez v. Bynum, 461 U.S. 321, 340 (1982) (Marshall, J., dissenting); see also Restatement (Second) of

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Conflict of Laws 11 cmt. f (1971). For purposes of the FHA, however, we must fix the Keys employees' domicile within a specific dwelling, not simply a particular state. Where necessary, we therefore narrow the following principles of domicile accordingly.

A "domicile" is an individual's "'true, fixed, and permanent home and principal establishment.'" Eastman v. Univ. of Mich., 30 F.3d 670, 672-73 (6th Cir. 1994) (quoting Black's Law Dictionary 484 (6th ed. 1990)). Traditionally, an individual has only one domicile at a time. See Williamson v. Osenton, 232 U.S. 619, 625 (1914). An adult establishes a domicile "by physical presence in a place [i.e., a dwelling] in connection with a certain state of mind concerning one's intent to remain there." Holyfield, 490 U.S. at 48; see also Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983); Restatement (Second) of Conflict of Laws 15. There is no question that Keys' staff would be physically present in the group home during their respective shifts. To establish it as their domicile, however, they must also intend to remain--to make that dwelling their home. See Restatement (Second)...

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