John Jermanis

Jun 132011

SLPD officers involved in fatal shooting identified.

Anthony Morgan and Ryan Gill have record of police brutality.

The arrest of San Leandro Police Officer Jason Fredriksson for furnishing marijuana to a confidential informant with whom he was having an affair has put the San Leandro Police Department (SLPD) in the spotlight. In its wake, there have been several allegations of misconduct by Fredriksson and other San Leandro police officers. The SLPD has responded with its usual wall of silence and the City Council continues to look the other way. It’s hard to know how deep the problems at the SLPD are, but it’s becoming more and more clear than the Fredriksson case may be the tip of the iceberg.

Gwendolyn Killings

In late December 2010, a San Leandro police officer shot to death Gwendolyn Killings, an African-American woman from Hayward. Killings was driving a car that had been reported stolen earlier in the day; SLPD officers spotted it and chased it until it crashed just after the Oakland border, near the San Leandro city limits. The passenger got out of the car and fled. The two officers got out of their own car;  one officer chased the escaping passenger while the other approached the stopped car. That officer shot and killed Killings while she was in the car. The police would later say that the officer was afraid Killings would put the car in reverse and hit his partner. However, witnesses said the car was boxed in and couldn’t go anywhere. The SLPD has not disputed that account. The case is being investigated by the Oakland police as the shooting happened in Oakland, but no report has been released so far.

The Oakland Police, however, have released documents identifying Ryan Gill and Anthony Morgan as the two SLPD officers involved in the incident. We don’t know at this point which officer shot Killings but both officers have a history of allegations of police misconduct that should concern anyone interested in having a clean police department.

San Leandro Police Officer Ryan Gill

Ryan Gill, 33, is an affable and well-liked officer. He was named San Leandro Officer of the year in April 2011 and is admired for his broad knowledge and as a mentor of younger officers. He started his police career in the Oakland Police Department and was there for 7 years – which casts doubts on how  objectively Oakland PD will investigate their former colleague. In 2003, Gill shot to death an unarmed man. Gill and his partner entered the apartment of the victim while he was sleeping, woke him up and claim they were trying to restraint him when he struggled and tried to get Gill’s gun. Both Gill and his partner shot him. The City of Oakland settled the ensuing lawsuit. In another lawsuit settled by Oakland, Gill was accused of beating a man while arresting him. In a third incident, Gill walked out of a review board conduct hearing where he was to be questioned about a charge of falsely arresting a teenager after his partner ram a car into him.

San Leandro Police Officer Anthony Morgan

Gill’s partner, Anthony Morgan, has spent less time in the press but probably just as much in the courtroom. A quick search of the district court’s database shows two recent lawsuits against Morgan for police brutality. One was settled, but the other one is still open.

Unfortunately, the Killings shooting has not been the only recent killing at the hands of San Leandro Police. In 2005, SLPD officers tasered a man to death; the city settled that lawsuit for nearly $400,000. And Morgan is far from being the only SLPD officer with a history of brutality. Tricia Hynes, the lawyer most often appointed by Meyers Nave to represent the city in litigation, boasts on her webpage of how – thanks to her representation – the City of San Leandro only had to pay a few hundred thousand dollars in damages to seven plaintiffs who were beaten by a dozen SLPD officers while searching a home during a 4th of July party. She is even prouder of another case in which the brutal beating of an unarmed man by SLPD officers only cost the city $20,000.

Gill was hired by then-Police Chief Dale Attarian, an old-style San Leandro cop during whose tenure the City was subjected to multiple lawsuits for civil rights violations, sexual harassment and discrimination and police brutality. Attarian was hired by former City Manager John Jermanis, himself a product of the old-all-white-boys network that ruled San Leandro for decades. Jermanis’ hand-picked successor, Steve Hollister, was a former policeman and did not keep a close eye on the SLPD. Under both men, SPLD officers learned that they could do as they pleased with almost no risk of consequences.

SLPD Chief Sandra Spagnoli

It’s a new day in town, however. Sandra Spagnoli was recently hired as Police Chief with the express purpose of reforming the department – at least ridding it of its culture of sexual harassment. It is too soon to know whether she’ll undertake real, rather than purely cosmetic reforms. So far the indications are mixed – Spagnoli investigated the allegations against Fredriksson, but only after an independent witness had contacted multiple authorities with his accusations. Spagnoli has done nothing to discipline the handler of a police dog that got loose and killed another dog earlier in the year – and Gill was named “officer of the year” after Spagnoli became Chief.

San Leandro needs more than a perhaps-well-intentioned Chief of Police to clean up the Police Department of any criminality or maverick behavior by its officers. It needs elected officials willing to tackle the issue of the police head on. This is hard, because politicians usually kowtow to the police union in order to get their support during elections – Council members Ursula Reed and Joyce Starosciak, in particular, have relied on heavy police support for their campaigns. Starosciak herself is married to an Alameda County Deputy Sheriff.   However, even the strongest police advocates should note that a department that allows criminal behavior and abuse by its members tarnishes both the city and the institution of the police itself.

The City of San Leandro needs to do two things to nip this problem in the bud. One is to appoint a strong City Manager with experience dealing with insubordinate Police Departments. The other is to form a Citizens Police Oversight Commission (aka Review Board) to evaluate complaints of police misconduct, help set hiring practices and discipline standards and act as a liaison with the community. Currently, the city of Oakland is considering following San Francisco in getting private citizens to investigate allegations of Police misconduct, we might want to look into that as well. While Police Officers are protected by an incredibly generous bill of rights, a Citizens Commission could at least identify systematic problems within the police department and push for their resolution.

The question is whether the City Council has the political will to push for a meaningful review of what’s really going on at the Police Department, or whether the powers-that-be in San Leandro will just hope that the community forgets about the recent incidents and pray that there are no big scandals during their term of office.

May 312011

The demographics of San Leandro have changed dramatically in the last few years.  According to the 2011 census, just 27% of San Leandrans identify themselves as white, down from 51% in 2000.  In 1970, however, a full 97% of San Leandrans were white.  Africans American today make up almost 12% of the population; in 1970 they were 0.1%.  Those numbers were not happenstance, rather, they were the result of very specific and very successful policies of racial discrimination that kept non-whites, and in particular blacks, from moving into the city.   Originally, non-whites were kept out of town by restrictive covenants.  Once these were ruled unconstitutional, elected officials, the Chamber of Commerce, homeowner associations, apartment owners and realtors all conspired to prevent blacks from renting or buying property in town.  Realtors would not show houses to blacks, owners would not sell them, and anyone who refused to tow the line would feel the pressure from the rest.  Only in the late ’80s did San Leandro start to integrate.

San Leandro’s dirty history as one of the most racist town in America was definitely known to African Americans in nearby communities.  It became known to the rest of the country due to a couple of TV news stories (The Suburban Wall and the Invisible Wall) that showcased the problem.  But as time went on, and new people came to town, San Leandro’s racial history seemed to be forgotten.  It wasn’t until comedian Brian Copeland started his one-man-show “Not A Genuine Black Man”, which deals, in part, about perils he suffered as a black boy who moved into San Leandro in the 70’s, that the issue came back to light.  But not everyone was happy with that.

In 2005, City Manager John Jermanis and Public Library Director David Bohne decided to commission a book on the history of San Leandro.  They hired a young writer to do this, he produced an outline that included a chapter on this unpleasant aspect of San Leandro history.  The writer also proposed to talk to Brian Copeland about his own experiences.  Jermanis and Bohne ordered him to leave that part out of the book; when he refused on ethical grounds, they cancelled the whole book project.   Of course, they did that as quietly as possible.

I found out about the botched history book through an e-mail by Brian Copeland that a friend forwarded.  I set out to find out what had actually happened, and contacted Jermanis, Bohne and several city council members.  Jermanis originally talked to me, but when he realized that he couldn’t make his actions look in any way legitimate, he quickly stopped the conversation.  Bohne, meanwhile, made excuses for months to not accept my calls.  When I finally met him at a public event, he refused to even speak to me.  Jermanis, meanwhile, ordered the then public information officer Jane Crea to come up with a “story” to justify what they had done.  Unfortunately, her story had many holes and contradicted other facts.  What I learned from all of this, was that the racist policies that had driven this city until the 1980’s were alive and well at City Hall and at the Public Library.

I documented some of my conversations at the time on a webpage that I shared my friends and colleagues.  I’m sharing it with the public now because history – even history about the desire to censor history – needs to be known.

Jermanis retired a few years ago as City Manager, but Bohne continues to head the library.  Neither the City Council nor the Library Commission ever held either of them into account for their attempts to censor San Leandro history.

Apr 222011

(Note, to understand the particulars of this case please read A primer on the Faith Fellowship v. San Leandro lawsuit first).

The 9th circuit court of appeals has just denied the City of San Leandro’s petition for an en banc hearing of the apellate decision against the City on the Faith Fellowship case.  None of the 29 9th circuit judges requested to hear the case.  That is of little surprise, the petition not only had no merit but was terribly and insultingly written.  It was so bad that I’ve argued that it should be grounds to fire Meyers Nave, the law firm that represents the city and wrote the petition.  The City Council will be meeting next Monday in closed session to discuss what to do next.  They have three choices:  appeal to the Supreme Court, go to trial or settle.

I daresay that City Attorney Jayne Williams will recommend the first option.  A Supreme Court appeal will mean that Meyers Nave gets to charge the City even more money on attorney’s fees. It also allows Williams to continue telling the City Council that the her firm’s advise to deny Faith Fellowship’s rezoning petition was correct: the 9th circuit just got it wrong.  Most members of the San Leandro City Council are not very astute legally and may not realize that not only are the chances of the Supreme Court taking the case minute, but in all likelihood the current conservative, religious-loving Supreme Court would not side with the city against the church.  It is thus possible that the City Council may go along with Williams.  An appeal would slow down the case,  putting off paying the church’s damages for some years, but it will increase the legal costs for the city.

Going to trial presents significant legal risks to the city.  The facts are with the Church: former City Manager John Jermanis himself said that there we no other properties suitable to Faith Fellowship’s needs in San Leandro.  The City led the church on for a year, suggesting it would let it use the property if the church jumped through enough hoops, only to deny them the use of the property after they had bought it and for what looks like arbitrary reasons.  I think a jury, looking at the facts, is likely to agree with that conclusion.  But even if it doesn’t,  the church still gets to re-appeal the case to the 9th circuit on “equal protection” grounds, and the 9th circuit panel that heard the case originally hinted that it would side with the church.  Personally, I think the substantial issues on this case are already lost: the city violated RLUIPA and the church is entitled to “appropriate relief”.  The question the city should be addressing is what that means.

RLUIPA provides that “a person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government”.  It also provides for attorney fees’ for the prevailing plaintiff.  While it is universally accepted that this “appropriate relief” includes injunctive relief and that the court could order the City to allow the church to operate on the Catalina St. property, Faith Fellowship no longer owns said property.  It was forced to sell it last year, for $2.5 million under what it paid for, when it could no longer afford to pay its mortgage and run its existing facilities at the same time.  Faith Fellowship has indicated that at this point what it seeks are monetary damages, the $1.2 million that it made in mortgage payments while it owned the property and perhaps even the $2.5 million it lost when it sold it.

But it is not clear that RLUIPA allows for money damages.  While some courts have found that it does, following the Supreme Court’s reasoning in Franklin v. Gwinett, the US Supreme Court just ruled in Sossamon v. Texas (in a case involving prisoners’ religious rights) that  the phrase “‘[a]ppropriate relief’ is open-ended and ambiguous about what types of relief it includes” and that, at least in the case of lawsuits against states (which, unlike municipalities, enjoy sovereign immunity) it should not be interpreted to include monetary damages.  Now, because the Sossamon court ruled on very specific circumstances, it’s not clear how lower courts will interpret the decision.  They may very well conclude that it would be inconsistent to read RLUIPA’s grant of “appropriate relief” to include monetary damages when the state actor is a municipality or county, but to not include them when the actor is a state.  Or they may decide that the fact that Supreme Court specifically differentiated Sossamon from Franklin means that Franklin applies to non-sovereign RLUIPA defendants.  Personally, I think the latter is the more compelling interpretation of the Sossamon decision, but I think that the City (if it hired a good law firm to represent it) could make a viable argument that “appropriate relief” does not include monetary damages.  At the very least, the City should be able to convince the court to limit those damages.

But litigation is expensive.  The City admits that it has spent $450,000 pursuing this case so far, though the real amount may indeed be higher.  It will likely be on the hook for Faith Fellowship’s attorney fees as well – which may very well be higher than the city’s.  A trial, even if purely on the money issues, and the appeals that would follow it, would prove terribly expensive.  Personally, I think the city needs to do whatever it can to settle the case – as long as Faith Fellowship is reasonable on its demands.  Now, the City Attorney should go to the City Council and put the figures on the table: this is how much we’ve spent so far, this is how much we’re on the hook for the Church’s attorney’s fees, this is how much more we’re likely to have to spend if we go to trial and lose.  Then, based on those costs and on Faith Fellowship’s damages, the city should make a reasonable settlement offer.  Without knowing those figures, I’d say something like $1.5 million plus attorney’s fees seems reasonable.   City help in identifying and rezoning a suitable property should be part of the deal as well.  It would behoove Faith Fellowship to accept such a settlement as well: they could get the money now rather than in a few years.  That would mean they could go on and buy a new property now – when prices are still low – and be able to move soon rather than years from now, when all the litigation would be finally over.  I can only hope that both sides will see reason.

Update 10/11:  The City appealed this case to the US Supreme Court last summer, their appeal was denied.

Apr 012011

A few weeks ago a federal appeals court ruled that the city of San Leandro might have violated federal law by not allowing the Faith Fellowship Foursquare Church to use a building that it had bought in the industrial zone of San Leandro as a church. Last week, the city asked for a rehearing in the case and the final disposition of the case will probably take at least a few months. If, as I predict, the city ultimately loses, it may have to pay damages and legal bills amounting to several million dollars – which will not be covered by insurance.

So what is this case about? I’ve written many comments about this on San Leandro Patch, but I thought a little primer would be helpful for San Leandro citizens who are trying to figure out what is really going on. Please note that this primer reflects my personal understanding of the case based on public information. I apologize for any errors and invite your comments and corrections.

What is Faith Fellowship?

Faith Fellowship was founded in San Leandro in 1945. It was at one time a prominent church but its membership had dwindled to only 65 people by 1993 when its old pastor left. It recruited Gary Mortara, who quickly grew the congregation so that by 2006 up to 1,700 people attended church services. Faith Fellowship became part of the International Church of the Foursquare Gospel, a Pentecostal evangelist church. Like most Pentecostals, church members believe in faith healing, speaking in tongues and the approaching judgment day. Mortara’s sermons are available online for the curious.

Faith Fellowship’s congregation increased and quickly outgrew its original space and the addition built on an adjacent lot. In 2006, the church started looking for a location in San Leandro that could accommodate all of its membership. The only one they could find available was a 46,000 sq. ft. building on four acres on Catalina Street in west San Leandro. In March 2006, the Church entered into an agreement with the owner to buy the property, paid a $100,000 non-refundable deposit and went to the city with its request to operate a church in that building.

Why couldn’t Faith Fellowship move their church to the Catalina St. property?

The San Leandro Zoning Code divides the city into different zoning areas and determines how property located in each area can be used. The code only allows assembly  use (defined to include “facilities for religious worship”) of properties zoned residential, and then with a conditional use permit. The Catalina St. property, however, was zoned “industrial park.”

How did the City respond to Faith Fellowship’s request to move its church to the Catalina St. property?

City planners met with representatives of the Church on May 3, 2006. The planners explained the zoning situation to the church and offered suggestions about how to proceed. City planners suggested that the Church make a request to change the specific zoning of the Catalina property from “industrial park” (IP) to “industrial light” (IL) and petition to amend the zoning code so as to allow assembly use in IL-zoned areas. The church heeded this suggestion and filed the requests. The Church paid an additional $50,000 to the owner to extend the date by when the sale had to be completed. Throughout this process, the church paid additional amounts to extend the purchase agreement.

In early June 2006, this matter was considered by the City Council’s Business Development Committee, composed of Mayor Shelia Young and two City Council Members. The committee was concerned about what allowing assembly use on all IL-zoned properties would mean for the city and decided to proceed cautiously, involving multiple city bodies, including the Planning Commission and the Board of Zoning Adjustments (BZA) in the decision. Meanwhile, planners at City Hall came up with an alternative plan: the creation of an “Assembly Use Overlay District”. According to this plan, city planners would identify properties not zoned residential but amenable to assembly use, and assembly use would then be allowed in such properties. The city’s Planning Commission and the BZA gave the go ahead to this plan but by the end of 2007, city planners had not yet identified properties on which assembly use would be permitted. The owner of the Catalina St. property was no longer willing to extend the purchase contract, so the church was put in the position of either completing the $5.375 million purchase or forfeiting $250,000 in non-refundable deposits. Church officials believed that they would be able to operate their church on the property, so they purchased the property.

In February 2007, city planners announced a list of eight criteria they would use to determine which properties could become part of the assembly use overlay district. Two hundred properties (later reduced to 196) were identified which met those criteria. In March, the City Council approved the creation of an Assembly Use Overlay District based on those criteria.

One of those criteria was that the property not be located in certain “General Plan Focus Areas“, more specifically, in downtown San Leandro, Bayfair, Marina Blvd/SOMAR or all of west San Leandro. Another criteria was that the property be within 1/4 mile of an arterial street. Clearly, the Catalina St. property did not meet those criteria. The church petitioned to have the church rezoned, but the Planning Commission and later the City Council turned it down based on those criteria and others, including one that the Catalina St. property was within 1/4 mile of businesses with Hazardous Materials Business Plans (HMBP).

What did the Church do then?

After the City Council refused to re-zone the Catalina St. property, the church got creative and requested a conditional use permit for the property for “entertainment uses,” as allowed by the zoning code. Again, the Board of Zoning Adjustments and the City Council denied the church’s request.

The City did offer to work with the Church to identify another property within the AUOD it could use, though ultimately it was unsuccessful.  While continuing to work with the city to find a solution, the church filed a lawsuit asking that the City be mandated to allow the church to operate in the Catalina property.

So what’s the status of the property now?

After crossing escrow on the property in January 2007, the Church made monthly mortgage payments on the property but was unable to move in. Eventually, it could not afford to make those payments anymore and run its current facility at the same time, so in 2010 the church sold the property to the Alameda County Joint Apprenticeship & Training Committee for the Electrical Trade, which will use the building as a training center.

What are the legal issues at play?

The Church alleged that by denying its petition for rezoning, the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law which states that no city can impose a land regulation which imposes a “substantial burden” on a religious assembly, unless the government has a compelling interest to do so and cannot do so by less restrictive means. The act also prohibits government entities from treating religious assemblies “on less than equal terms” with nonreligious assemblies and from excluding religious assemblies from a jurisdiction.

RLUIPA has been found to be constitutional both by the 9th Circuit and many other federate courts.

The church also alleged that the City violated its first amendment rights to freedom of religion and freedom of speech and its 14th amendment rights to due process and equal protection of the laws.

How did the church allege the City violated RLUIPA?

The church alleged that by denying it the use of the Catalina property, the City put a substantial burden on their religious exercise because the church members were unable to meet together as a congregation and perform their religious duties in the buildings they currently occupy. They assert that the Catalina St. property was the only one in the city of San Leandro that they could buy and would fit their needs.

The church asserted that the City violated the “equal protection” clause of RLUIPA because it allows “commercial entertainment” on properties zoned industrial, but not religious assembly use. It contends that any gathering of 50 people or more should be considered an assembly, as per the building code, and that the City discriminates against churches by allowing people to assemble on properties zoned IP for entertainment, educational, shopping and other purposes but not for religious exercise.

It further claimed that the City only imposed the requirement that its facilities not be within 1/4 mile of a site with a HMBP of the Church.

What was the City’s response?

The City claimed that churches are allowed in more than half of the city and that there are a number of properties within this area that are large enough to accommodate the church. While none of those properties were for sale, the City asserted that RLUIPA does not protect churches from the “reality of the marketplace.” The City also contended that the Church does not need to have all its members congregate at once and that it could have different church activities happen in different parts of town. The City maintained that its zoning code is religiously neutral and therefore any burden it imposed on the church was to be considered “accidental” rather than “substantial.” Furthermore, it claimed it had a compelling interest in maintaining the industrial base of San Leandro and that the facility in question was key to that, having once employed 400 people.

With respect to the equal protection claims, the City’s main argument rested on its definition of “assembly.” It contended that for a group of people gathered at one place to be considered an assembly, they must gather for “associational purposes.” Audiences of commercial entertainment venues do not have such purposes. Therefore, they are different enough from religious assemblies that the city can legally allow them, while disallowing religious assemblies.

As to the HMBP issue, the City asserted that there was no evidence that was the reason the City Council voted to deny the Church its request to use the Catalina St. property.

What did the District Court say?

The District Court sided with the City on all grounds and granted summary judgment on its favor. It found that the zoning law was religiously neutral in that it did not target religious assemblies alone, so that the burden it imposed was accidental and not substantial. It also found that as long as there is land in the city that could be used by the church, the fact that the land is not on the market or not immediately suitable to the needs of the church, does not constitute a substantial burden. The court, furthermore, dismissed the church’s requirement that all they be able to conduct all church’s activities on a single site.

The District Court also found that the City’s desire to follow the General Plan is a compelling government interest and that there were no less restrictive means to further that interest.

The district court also agreed with the City’s arguments vis a vis RLUIPA’s equal protection clause (as well as the first & 14th amendment claims) and on the HMBP issue.

The Church appealed the District court decision.

What did the Appellate Court say?

The 9th circuit appellate court unanimously voted to reverse the district court’s decision. This panel found that the church had presented enough evidence to merit a jury trial on the question of whether the City had imposed a substantial burden on the church and that the city’s stated interests in preserving the industrial park as such were not compelling as a matter of law.

The appellate court did not rule on the equal protection or constitutional claims, but said that if the jury were to find there was no substantial burden, the Church could re-appeal to the 9th circuit to have its equal protection claims re-examined.

Why did the Appellate Court say the City might have imposed a substantial burden on the Church?

The Court rejected the argument that laws of general applicability cannot by law impose a substantial burden on the free exercise of religion. Instead, it said that its practice was to look at the particular facts of each case to determine whether the implementation of the law imposed a substantial burden on the claimant (church). The court stated “a substantial burden exists where the governmental authority puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.'”

The Court went on to say that the testimony of the church’s real estate agent and then City Manager John Jermanis that there was no other site that would serve the Church’s need was enough evidence for a jury to rule on that particular question. And that the District Court erred by not accepting the Church’s assertions that its core beliefs required all of its membership to be in one building at one time; it is not up to the Court to determine the truth or falsity of stated religious beliefs.

It also disagreed with the District Court that the mere availability of lots large enough to accommodate the membership of the church meant that no substantial burden had been imposed on the church. Rather, quoting the 2nd circuit, it found that “when the religious institution “has no ready alternatives, or where the alternatives require substantial ‘delay, uncertainty, and expense,’ a complete denial of the [religious institution’s] application might be indicative of a substantial burden.” ”

Finally, it found that the fact that the evidence supported the Church’s position that the location of the church within 1/4 mile of businesses with Hazardous Materials Business Plans was a reason why it was denied rezoning of the Catalina property.

Why did the Appellate Court say the City does not have a compelling interest to not have the Church move into the Catalina property?

The 9th circuit court ruled, quoting a district court case, that “preservation of industrial lands for industrial uses does not by itself constitute a ‘compelling interest’ for purposes of RLUIPA.” It found that revenue generation is also not a compelling interest, as otherwise municipalities could keep churches out completely.

Why did the 9th circuit not rule on the equal protection or constitutional claims?

As a rule, federal courts will not address a constitutional question presented by a case if they can avoid doing so by ruling on other grounds. In this case, the 9th circuit was able to side with the church on the substantial burden question, it could thus avoid ruling on the first and 14th amendment questions.

It’s a bit more difficult to understand why it did not rule on the equal protection/total exclusion clauses of RLUIPA. One possibility is that an equal protection analysis would by necessity touch on the 14th amendment.  Another, and my favored explanation, is that it felt that if it ruled that there had been an equal protection violation, it would have to direct the District Court to grant summary judgment in favor of the church. During oral arguments it became clear that the court had great problems with the City’s argument that there was a significant difference between a group of people getting together to pray (not allowed under the zoning code) and a group of people getting together to watch a wrestling match (allowed). The only differences the city’s attorney could articulate were those that showed the latter activity as less desirable for the area. The Court asked both attorneys what it should do if it found the city had violated the church’s equal protection rights – the church’s attorney asked for summary judgment and the city’s attorney could not articulate why summary judgment in favor of the church should not be granted.

If it was granted, moreover, the Court’s decision would go well beyond San Leandro and affect all cities that have similar zoning codes. My guess is that the Appellate Court did not want to deal with that issue if it didn’t have to, so it ruled on substantial burden grounds to give the city the opportunity to settle with the church and have this issue go away.

What happened next?

The Appellate Court reversed the District Court’s summary judgment in favor of the city, and sent the case back to the district court for a trial on the question of whether the city imposed a substantial burden on the church’s free exercise of religion.

The city has petitioned for a rehearing en banc on this issue. If accepted, the case would be heard by an 11-judge panel of 9th circuit judges.

Will the petition for an en banc hearing be accepted?

In my personal opinion, it’s very unlikely. Very few cases are accepted for an en banc hearing, and I think the city’s arguments are weak and rely on misinterpretations of the Appellate Court’s ruling. However, it is possible that enough 9th circuit judges would be interested in hearing this case that they would vote for an en banc hearing.

On what grounds did the city ask for an en banc hearing?

The 9th circuit will grant en banc hearings only for cases where 1) there is an issue of exceptional importance, 2) there is a need for uniformity in the circuit’s jurisprudence (i.e. other Appellate Courts ruled differently on similar facts) or 3) the Appellate Court’s decision conflicted with decisions from the Supreme Court or other circuits.

The city’s petition for rehearing is an interesting document that I will discuss at length. My general impression is that it was either written by someone who had no knowledge or understanding of law (a first year law school intern, perhaps?) or by someone who was just going through the motions, making half-baked arguments with as much contempt for the Appellate Court and the church as it could muster. This is not a document on which the city should be proud to put its name.

The city claims that the Appellate Court’s ruling that RLUIPA may compel a municipality to rezone a property if there is no alternative property in the city that would fit the needs of a religious institution is in violation of the Establishment Clause of US Constitution and that means this is an issue of exceptional importance. The city, however, doesn’t develop the argument very well nor does it make a case as to why this constitutional question is any more important than the hundreds of other constitutional questions the 9th circuit considers on a weekly basis.

The city further argues that the “substantial burden” test that the Appellate Court created conflicts with those of other circuits and previous 9th circuit opinions.  But while it’s true that on Civil Liberties for Urban Believers the 7th circuit initially adopted a pretty strict definition of  “substantial burden”, it widened it in later cases making it clear that  a burden need not to be insuperable to be substantial.  The city goes on to misapply the holdings of other cases to support its assertion that they create standards of review significantly different from those of the 9th Circuit panel.  For example, it quotes Petra Presbyterian for the proposition that “the ban on churches in the industrial zone cannot constitute a substantial burden on religion,” when the issue in question here is whether the denial of rezoning of the specific property (and not the zoning code itself) imposed a substantial burden. What Petra Presbyterian did hold was that “When there is plenty of land on which religious organizations can build churches (or, as is common nowadays, convert to churches buildings previously intended for some other use) in a community, the fact that they are not permitted to build everywhere does not create a substantial burden.” Whether in fact there is “plenty of land” or the equivalent is a factual question, of course, and one that the 9th Circuit determined that a jury should decide. Similarly, the city quotes San Jose Christian College for the proposition that no substantial burden is imposed by an ordinance that precluded a religious college to operate in one of its facilities, because it could still do so at other facilities within the city and because such ordinance was applied equally to non-religious actors. But the ordinance in that case was one that required all applicants to submit a complete application for rezoning – the college had refused to do so. In other cases, the city confuses dicta for a holding, for example in Midrash Sephardi, the Court did say that “that the congregations may be unable to find suitable alternative space does not create a substantial burden within the meaning of RLUIPA,”but did so on a footnote.

In a section that approximates a rant more than a legal argument, the city also gets into the meat of its argument as to why the Appellate Court’s ruling should not stand. Whether deliberately or not, however, the city grotesquely mischaracterizes the issues. For example, it claims “the question is not whether the market allowed the Church to purchase a particular property, but whether a city can be compelled to amend its zoning ordinance to insure property is available which meets the Church’s criteria” – but the issue is in this case is whether a particular property should be rezoned, not whether the whole Zoning Code must be amended. Similarly, it claims that the Appellate Court’s ruling would force the city to act as a real estate broker and find suitable sites for religious institutions, when this issue will only arise when a religious group has found a site it wants to use and the city refuses to let it do so without a compelling reason. Moreover, it’s up to the religious group to prove that no other suitable sites exist. The city goes on to show its contempt for the church by referring to its core beliefs as a “subjective laundry list of preferences.”

The final argument the city makes is the most interesting one to me. The substantial burden test on RLUIPA applies only to situations in which the government has in place procedures that permit it to make “individualized assessments of the proposed uses for the property involved.” The Appellate Court stated in its decision that there is no dispute that the city’s treatment of the church’s applications constitutes an “individualized assessment” – however, the city actually disputes this in this rehearing petition. It correctly states that the enactment of the Zoning Code is not an “individualized assessment.” It argues that as a corollary, a petition to amend the Zoning Code should not be considered an “individualized assessment” either. However, the issue in this case is, again, the city’s refusal to rezone the Catalina St. property, not to amend the Zoning Code.

April 22 update: the petition for rehearing has been denied.
May update: The City has decided to appeal this case to the Supreme Court.
October update: The Supreme Court denied certiorari on this case.