Filed February 06, 2012 (merits-stage brief)
A group of property owners brought an equal protection claim against the City of Indianapolis due to the City’s decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.
IMLA has submitted a brief in this case to emphasize that the City’s actions meet the rational basis standard. City’s have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief. We invite you to read this excellent brief.
UPDATE: The Supreme Court dismissed this case after both parties agreed to dismiss on February 10, 2012.
Original post from November 10, 2011:
The Supreme Court recently granted cert in Magner v. Gallagher, a case that will likely have implications for local governments. IMLA submitted an important amicus brief in this case, you can read our brief here and see a mention of our brief in a recent Forbes.com article.
Like many cities, St. Paul has a property maintenance code which establishes minimum maintenance standards for all structures, including provisions on light, ventilation, heating, sanitation, fire safety, etc. In 2002, the City established the Department of Neighborhood Housing and Property Improvement (DNHPI) as an executive department responsible for administering and enforcing the code.
The director of DNHPI increased the level of code enforcement target at rental properties, and directed proactive “sweeps” to detect code violations. DNHPI sought to compel property owners to take greater responsibility for their properties or, alternatively, force changes in ownership. To achieve its objectives, DNHPI employed a variety of strategies for renter-occupied dwellings, including orders to correct or abate conditions, condemnations, vacant-building registration, fees for excessive consumption of municipal services, tenant evictions, real-estate seizures, revocations of rental registrations, tenant-remedies actions, and if necessary, court action.
Plaintiffs in this case are essentially landlords, with portfolios ranging from one property to over forty properties. These landlords received code enforcement citations that in many cases, cited between ten and twenty-five violations per property. As a result, Plaintiffs claim they suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances.
Plaintiffs brought a number of claims (11 in total), and the district court dismissed all on summary judgment. The plaintiffs appealed to the Eighth Circuit Court of appeals, where the Court affirmed in all aspects except one. On review, the 8th Circuit held that disparate impact theory applied to a claim of racial discrimination under the FHA when a city applies its housing maintenance code to substandard housing, because the cost to repair tended to reduce housing options for people of color. The standard used by the 8th Circuit is that a plaintiff “must show a facially neutral policy ha[d] a significant adverse impact on members of a protected minority group.” Plaintiffs are NOT required to show that the policy or practice was formulated with discriminatory intent. The Circuits are split on this. The Seventh Circuit (and a few others have follow) includes the following factors to be used: (1) how strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229 (1976)]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.
SCOTUSblog is a good place to follow the action.
The Supreme Court just released its opinion in Los Angeles County v. Humphries, No. 09-350, slip op. (U.S. Nov 30, 2010). The Court ruled that the “policy or custom” Monell requirement in Section 1983 cases applies irrespective of whether the relief sought is monetary or prospective.
The Humphries were accused of child abuse in California, but later exonerated. Under state statute, their names were added to a child abuse database for a period of 10 years. The statute has no procedures for challenging a person’s inclusion in the child abuse database, and neither California nor Los Angeles County instituted such procedures. The Humphries filed suit under Section 1983, seeking damages, and injunction, and a declaration that public officials and Los Angeles County had deprived them of their constitutional rights by failing to provide procedures to contest inclusion in the database.
The district court granted summary judgment in favor of the government entities, but the Ninth Circuit disagreed, stating that the Fourteenth Amendment required California to provide notice and “some kind of hearing.” The Ninth Circuit held that the Humphries were entitled to declaratory relief, and possible damages on remand. The Ninth Circuit held that the Humphries were prevailing parties and awarded $600,000 in attorney’s fees and that $60,000 must be paid by Los Angeles County. The County denied that it was liable and that, in respect to the County, the plaintiffs were not prevailing parties. The Country claimed that as a municipal entity, it was liable only if a municipal “policy or custom” caused the Humphries to be deprived of their constitutional rights. In this case, it was California policy, not Los Angeles County policy, that brought the deprivation. However, the Ninth Circuit saw no reason to remand in respect to the County’s obligation to pay the $60,000 in attorney’s fees because “the limitations to liability established in Monell do not apply to claims for prospective relief.” The County filed its cert petition asking the Supreme Court to decide a circuit split on whether or not Monell’s policy or custom requirement applies to both claims for damages and claims for prospective relief.
The Court reasoned that nothing in Section 1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text of the statute suggests the opposite when it provides that a person who meets Section 1983 elements “shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress.” In addition, the Supreme Court in Monell thought that Congress intended potential Section 1983 liability where a municipality’s own violations were at issue but not where only the violations of others were at issue. To find the requirement inapplicable where prospective relief is at issue would undermine Monell’s logic. The case has been remanded back to the Ninth Circuit for further proceedings consistent with the opinion.
Posted By: Dwight Merriam, Robinson & Cole, LLP
I’ve been busy and I have missed doing my occasional blog postings. Given this dramatic event last week, however, I had to set aside everything else to tell you that on Thursday, September 9th, the Ninth Circuit held that getting a tattoo is protected speech. Click here for the decision.
Said the court: “We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable ‘time, place, or manner’ restriction.”
So, to get your tattoo with no sniveling zoning enforcement officers on your tail – you will soon be able to go to Hermosa Beach, California, and see Johnny Anderson, shown here hard at work at his shop, Yer Cheat’n Heart Tattoo and Body Piercing, in Gardena:
Exercise your First Amendment right to have a little ink shot under your skin. It’s your expression and his art. Here’s how Johnny describes it:
The tattoo designs that are applied by me are individual
and unique creative works of visual art,designed by me in collaboration with the person who is to receive the tattoo. The precise design to be used is decided upon after discussion with the client and review of a draft of the design. The choices made by both me and by the recipient involve consideration of color, light, shape, size, placement on the body, literal meaning, symbolic meaning, historical allusion, religious import, and emotional content. I believe my designs are enormously varied and complex, and include realistic depictions of people, animals and objects, stylized depictions of the same things, religious images, fictional images, and geometric shapes and patterns. . . . Sometimes, several kinds of images are combined into a single tattoo or series of tattoos. . . . I have studied the history of tattooing, and I draw significantly on traditional Americana tattoo designs and on Japanese tattoo motifs in creating my images, while all the while trying to add my own creative input to make the designs my own.
NPR reported the comments of City Attorney Michael Jenkins: “We are disappointed by the decision reached by this three-judge panel of the Court of Appeals. The Hermosa Beach City Council places a priority on protecting the public’s health and safety, and it adopted this ordinance because of the potential health hazards caused by unsanitary tattoo practices.”
The court’s slip opinion runs 28 pages, loaded with carefully-articulated First Amendment analysis and graphic descriptions of the tattooing process. Do you think there wasn’t a bit of a smile among some of those justices and clerks as they etched there own ponderous words onto some hard drive:
Tattooing is a process like writing words down or drawing a picture except that it is performed on a person’s skin. As with putting a pen to paper, the process of tattooing is not intended to “symbolize” anything. Rather, the entire purpose of tattooing is to produce the tattoo, and the tattoo cannot be created without the tattooing process any more than the Declaration of Independence could have been created without a goose quill, foolscap, and ink. Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.
The court concluded:
In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.
So, if you don’t allow tattoo parlors, expect to hear from the entrepreneurs of skin illustration shortly, maybe with the free speech clause inked on the…well, wherever…
As soon as I finished reading the decision, I hopped right down to Johnny’s and one of his assistants, who was pretty excited because he said I was his very first customer, inked this great tattoo (I think his shaking was just first-time nervousness) which I will proudly show at the New Orleans meeting:
So sayeth the Tenth Circuit in Green v. Haskell County Board of Commissioners on June 8, 2009, followed on July 30th by the court en banc voting 6 to 6 to deny a rehearing. Close only counts in horseshoes and hand grenades.
In reading the dissent to the en banc decision, you will see the frustration and angst among both local officials and the jurists as to where to draw the line.
The board of commissioners of Haskell County, Oklahoma, authorized a Ten Commandments monument, eight feet tall, in front of the county’s courthouse in Stigler. Here it is up close:
And here it is in context:
Here is the layout of the front lawn (Appendix C, page 51 of the decision):
As you may recall, the U.S. Supreme Court decided two Decalogue cases in 2005, allowing the monument in one, Van Orden v. Perry, and finding an Establishment Clause violation in the other, McCreary County v. ACLU of Kentucky. The difference appears to be that the former had been up for many years and did not have any apparent history of being placed in support of religion.
The Haskell County monument, emplaced on November 5, 2004, was up just a year before it was challenged and the there was ample evidence that many supporters wanted it there for religious purposes. It was sponsored by Michael Bush, a construction worker and part-time minister who helped raise the money for it from local churches. Two of the three county commissioners, and several ministers, attended the unveiling of the monument (along with 200 people and representatives of 17 churches) and participated in a rally afterwards.
In speaking of the monument sometime in November 2004, one county commissioner reportedly said:
“That’s what we’re trying to live by, that right there…The good Lord died for me. I can stand for him, and I’m going to…I’m a Christian and believe in this. I think it’s a benefit to the community.”
Another county commissioner said:
“God died for me and you, and I’m going to stand up for him.”
At a rally two weeks later attended by 300-400 people, one commissioner said:
“I’ll stand up in front of that monument and if you bring a bulldozer up here you’ll have to push me down with it.”
At least one photograph in the press showed all three commissioners standing next to the monument.
The commissioners failed to distinguish their personal religious beliefs from that of the Board and consequently “left the impression that a principal or primary reason for the erection and maintenance of the display was religious.”
The Alliance Defense Fund plans to petition for certiorari in the U.S. Supreme Court.
“Americans shouldn’t be forced to abandon their religious heritage simply to appease someone’s political agenda,” said ADF Senior Counsel Kevin Theriot. “As some of the dissenting judges pointed out, the three-judge panel’s decision is in conflict with both the U.S. Supreme Court and other federal appellate courts. There is no difference between this Ten Commandments display and the one at the Texas state capitol that was upheld by the U.S. Supreme Court nearly five years ago.”
Here is a checklist I have prepared, based on my review of the several cases, for local government lawyers to use in managing the placement of religious monuments on public property:
1. Put up several monuments at once, including totally secular ones, like the Star Wars Pledge of Allegiance:
Star Wars Pledge of Allegiance
By Miba Reywes
I pledge allegiance to George Lucas,
the master of all that is Star Wars,
and to the movies he has created,
one galaxy, in war,
OT and PT, with Jedi
and blasters for all.
In Haskell County, the minister who sponsored the display added the Mayflower Compact on the back apparently to somehow neutralize the religious content of the display. Really, he did that. The Board didn’t know about it.
2. Have the commissioners who vote to approve the monument say things like: “So what are the Ten Commandments – I never heard of ‘em.” And “Ten? I thought there were two – drink beer and party.”
3. After the vote to authorize the monument, have a couple of commissioners say something showing that they didn’t really know what they were voting on, like: “Decalogue? I thought we were building a ‘deck of logs’ in the park.” In that way you totally insulate the commissioners from any religious intent.
4. Have Larry Flynt sponsor the monument. He’s got a kind of religion, yes, but not usually associated with this type of display.
5. Have all the ministers and other religious types stay away from the unveiling.
6. On further thought, don’t have an unveiling – have it erected on some moonless night behind the densest bush you have and a few weeks later approve a new landscape plan that eliminates the bush.
7. Glue moss to the side in the shadows and prominently engrave on the bottom of any display: “Erected anonymously and without public support on November 14, 1957”.