Posted by: Patricia Salkin | February 23, 2011

9th Circuit Court of Appeals Finds City Officials Entitled to Immunity from Alleged Violations of the FHA and Establishment Clause Regarding Homeless Shelter

Community House, Inc. (CHI), a non-profit corporation, operated a homeless shelter and low-income transitional housing in a building it leased from the City of Boise under an Operating Agreement to work closely together in developing a comprehensive strategy to resolve the problem of homelessness.   Due to mounting financial issues, both parties agreed to an interim third party manager of the building and turned over the overall operational responsibility of the Community House to the City.  An Advisory Committee, formed by the mayor to explore strategies for Community House, issued a report recommending that Community House function as an asset in meeting basic emergency needs of the homeless, instead of continuing as a mixed-use facility. CHI transferred all assets to the City after terminating its lease and entering into a Management Agreement, and the City began seeking proposals from any party interested in direct management or ownership of Community House.   The City Council passed Ordinance 6402, which declared Community House underutilized and no longer necessary for public purposes and placed a deed restriction requiring the facility be used for ten years as a soup kitchen and shelter for the homeless.  Ordinance 6404 was also passed, which amended the deed restriction and required the property be used for ten years as a soup kitchen and as a shelter for a minimum of 66 single, homeless men, ages 18 years or older.

The City negotiated a lease with a purchase option with the Boise Rescue Mission (BRM), a private Christian organization that provides services to the homeless, to use the facility as an emergency homeless shelter and soup kitchen.  The City repaid CHI’s outstanding loan, closed the Community House, and BRM reopened the facility renaming it the River of Life Rescue Mission.  

CHI filed a civil rights complaint under 42 USC §1983 against the City and the Boise City Council, the mayor and municipal employees alleging that the anticipated lease of the building to BRM violated the First Amendment anti-Establishment Clause and the federal Fair Housing Act.  The United States District Court for the District of Idaho granted defendants summary judgment on the Due Process and FHA claims for religious discrimination and disparate treatment based on disability, but denied defendants summary judgment on Establishment Clause and remaining FHA claims, determining that the mayor, city employees and council members were not entitled to legislative or qualified immunity.

The 9th Circuit, determining the lease and sale of Community House to the BRM was legislative in character and effect found that both the members of the city council and the mayor were entitled to absolute legislative immunity.  The actions of the City in passing ordinances and resolutions by a majority vote were formally legislative in character and bore the hallmarks of traditional legislation because they were passed pursuant to the Idaho Code.  The impact the City’s actions had on the homeless community, a discrete group of people, was sufficient to be considered legislative as the lease and sale were an inseparable part of the longstanding and continuing attempt to ameliorate the city crisis.  Transferring ownership of the house to an organization that did not receive any public funds was a long-term solution to effectuating the policy of caring for the homeless while alleviating the repeated financial contributions the City had made to keep the shelter operating.  The mayor’s office participated in the entire legislative process regarding Community House by attending various Board meetings, requesting proposals, forming the Advisory Committee and remaining intricately involved in the City’s policy decision to provide shelter for the homeless.

The City employees were entitled to qualified immunity because a reasonable official would not have known at the time the City approved the lease and sale that such actions would violate the FHA or Establishment Clause.  The BRM was most likely to use the facility as a short-term, emergency homeless shelter, and it was not clearly established whether that constituted a “dwelling” to which the FHA would have applied.  The decision to lease to the BRM was reasonable because it was the only entity that proposed to purchase Community House, and the lease terms were (at worst) neutral compared to the CHI lease.  The sale of public property at less than market value to a religious organization that executed an important city policy and saved the city money had not been held to be unconstitutional.  The City had not received any viable bids at auction, and was empowered by Idaho law to dispose of the property it believed to be in the best interest of the city.

Community House, Inc v. City of Boise, Idaho, 2010 WL 3895700 (C.A.9 Idaho 9/6/10).

The opinion can be accessed at:

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