Keeping Tabs on the Ninth Circuit
January 13, 2023 - This Week at the Ninth

This Week At The Ninth: The First Amendment and Disability Rights in the OC

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This week, the Court addresses whether the dismissal of a volunteer member of a municipal advisory board implicates the First Amendment and considers a challenge to zoning ordinances designed to limit sober living homes.

The Court holds that the First Amendment does not protect a volunteer member of a municipal advisory board from dismissal by the city councilperson who appointed her.

The panel: Judges Watford, Hurwitz, and Vitaliano (E.D.N.Y.), with Judge Hurwitz writing the opinion.

Key highlight: “Three structural features of the [municipal advisory board], taken together, legally make its members public surrogates of the appointing councilperson. First, each councilperson appoints one member to the board. Second, that councilperson can remove her appointee at her discretion. Third, the [municipal advisory board]’s purpose is to advise about public policy—its legal duty is to interface with the City Council’s constituents and make recommendations concerning an important government function. Under these circumstances, which flow directly from the municipal code, an elected official is allowed to distance herself from an appointee who might be a political liability.” (Internal quotation marks omitted.)

Background: Each member of the Huntington Beach City Council appoints one member of the City’s Participation Advisory Board (“CPAB”). The CPAB holds public meetings and makes recommendations to the Council regarding housing for low and middle-income residents. Each councilperson may remove her appointee without cause. Councilperson Kim Carr appointed Shayna Lathus to the CPAB but was alarmed to subsequently see photographs of Lathus at an immigrants’ rights rally standing near people Carr believed were “Antifa.” Carr required Lathus to denounce Antifa on social media and then, finding the denunciation insufficient, dismissed Lathus from her position on the CPAB. 

Lathus sued Huntington Beach, alleging that her dismissal constituted retaliation for First Amendment-protected activity and that the compulsory public denunciation of Antifa constituted unconstitutionally compelled speech. The district court concluded that Lathus’s suit was precluded by Blair v. Bethel School District, 608 F.3d 540 (9th Cir. 2010), and dismissed with prejudice.

Result: The Ninth Circuit affirmed. It disagreed with the district court’s conclusion that Blair controlled the outcome of the case. While Blair involved retaliation by elected officials against one of their own, Lathus was an appointed volunteer. Nonetheless, the Court continued, under Branti v. Finkel, 445 U.S. 507 (1980), appointed public officials such as Lathus may be removed based on First Amendment activity if political affiliation is an appropriate qualification for their office. That was the case here for two reasons. First, the public could reasonably assume that each CPAB member’s words and actions reflected the views of the councilperson who appointed them, especially since each councilperson enjoyed the authority to remove her appointee at will. Second, the CPAB advised the Council on important policy matters, and a councilperson “is entitled to an appointee who represents her political outlook and priorities.” This analysis also disposed of Lathus’s compelled speech claim: “[A]n elected official can compel the public speech of her representative because that speech will be perceived as the elected official’s own.”

The Court also held that the district court had not abused its discretion by dismissing Lathus’s complaint without leave to amend. Amendment would be futile because the analysis was properly focused on “the inherent duties of the position in question, not the work actually performed.” Biggs v. Best, Best & Krieger, 189 F.3d 989, 997 (9th Cir. 1999) (internal quotation marks omitted). “Three structural features of the CPAB” demonstrated that Lathus could not plead around the Court’s conclusion that political affiliation was an appropriate qualification for her position: (1) that each councilperson appointed one member of the CPAB, (2) that each councilperson could remove her appointee at will, and (3) the CPAB’s role advising on policy.

The Court holds that “sober living homes” need not prove that each of their residents are disabled to bring disability-discrimination claims. 

The panel: Judges Wardlaw, Bennett and G. Katzmann (Ct. Int’l Trade), with Judge Bennett writing the opinion.

Key highlight: “That every resident may not have been disabled does not mean Appellants were not aggrieved by discrimination against the disabled. Appellants should not have been required to prove the actual disability of their residents, in ‘a case-by-case manner,’ to meet the actual disability prong for their sober living homes.”

Background: The City of Costa Mesa enacted zoning ordinances designed to limit “sober living homes.” The ordinances defined a “[s]ober living home” as “a group home for persons who are recovering from a drug and/or alcohol addiction and who are considered handicapped under state or federal law.”

Plaintiffs operated homes in the City. They sought permits under the new ordinances and were denied. They then brought suit, alleging violations of the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA). The district court granted summary judgment to the City, concluding that Plaintiffs had not demonstrated that individual residents of their homes were “disabled” under the FHA and ADA or “handicapped” under FEHA.

Result: The Ninth Circuit reversed. As the Court explained, under all three statutes, “disability” (or “handicap” in FEHA) is defined as: (1) a “physical or mental impairment which substantially limits one or more of [a] person’s major life activities,” (2) “a record of having such an impairment,” or (3) “being regarded as having such an impairment.”

Addressing the first possible definition, the Court agreed that the “sober living homes need not provide individualized evidence of their residents’ disabilities to establish a cause of action for disability discrimination.” Rather, the Court held, such plaintiffs “can satisfy the ‘actual disability’ prong on a collective basis by demonstrating that they serve or intend to serve individuals with actual disabilities.” Plaintiffs could meet this burden by pointing, for example, to “admissions criteria and house rules”—such as requirements that its residents be in drug treatment and submit to regular drug tests—or to the testimony of employees or former residents.

In addition, the Court continued, the district court had also applied the wrong legal standard in determining whether Plaintiffs could show that their residents were “regarded as” disabled, an independent basis for their claims. The Court held that the district court had improperly required a showing that the City subjectively believed that the individual residents of these homes were substantially impaired in a major life activity. Instead, the Court clarified, the Plaintiffs need only show that the City regarded them as disabled. Here, the Court noted, the ordinances themselves contained evidence of that fact—they specifically defined “sober living homes” in terms of their “disabled” residents. Moreover, other evidence buttressed Plaintiffs’ claim, including “the oral testimony given at public hearings and written statements submitted to the City by residents opposing the permit applications for [Plaintiffs’] sober living homes reflect[ing] stereotypes about the homes’ residents.” 

The Court remanded for the district court to apply the correct legal standards to Plaintiffs’ evidence.