Supreme Court

US Supreme Court says “No” to San Leandro

 US Supreme Court says “No” to San Leandro  Faith Fellowship v. SL case, Legal  No Responses »
Oct 042011
 

Today (Oct. 3, 2011), the US Supreme Court denied certiorari on the City of San Leandro vs. Faith Fellowship case.  As it is its practice, the Supreme Court did not provide a reason for this denial.  What this means is that if this case it’s not settled, it will go on to trial.  The jury will then have to decide basically whether the Church could have acquired another property in a residential-zoned area of San Leandro that would have suited their purposes.  Former city manager Jermanis said in his deposition that it couldn’t.  In my opinion, it’s quite likely that the Church would win.

The question now is one of damages.  How much would the Church be awarded if it went to trial, and how much should the city offer to settle for so as to avoid going to trial.   Previous statements by the Church, suggest that they’ll be asking for as much as $3.7 million in damages, the $1.2 million they paid in mortgage payments while the owned, but could not occupy the Catalina St. property, and the $2 million they lost when they finally had to sell it.  To that we should add the Church’s attorney fees, which could be in the hundreds of thousands of dollars (the City of San Leandro itself has spent about $600,000 on this lawsuit).

The city has an ace up its sleeve, however.  Quoting from a previous post: “it is not clear that RLUIPA [the Religious Land Use and Institutionalized Persons Act, under which this case is being fought]  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 (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.”

This means that while the city has almost certainly lost the case, the matter of how much – if anything – it will have to pay Faith Fellowship is still in the air.  The city could chose to try its chances at a trial and, if it loses (as it’s likely), fight the question of monetary damages.  It once again can go up the appellate ladder all the way to the US Supreme Court.   This would certainly please Meyers Nave, the city’s law firm, which has raked in millions of dollars out of the bad advise it’s given the city.  Another series of trials and appeals could mean hundreds of thousands of dollars more in their pockets.

The realistic threat of further litigation, which would mean not getting a final settlement for several more years, if at all, might make Faith Fellowship more willing to settle for a reasonable sum.  Of course, pursuing settlement options would have been a better choice back in February before the 9th circuit and the Supreme Court said “no”  to the City, now Faith Fellowship has much less to lose.  But money with which they could buy a new property now is better than money a few years from now.

Whether the city decides to settle or go to trial, I can only hope they will finally do the smart thing and hire a /new/ law firm to represent them.  Meyers Nave terrible advise on this case will most likely end up costing the city millions of dollars, and truth be told, we cannot afford to keep taking their advise.

Previous Posts on this subject

San Leandro gears up for Constitutional fight (May 2011)

The Faith Fellowship lawsuit: it’s time for the city of San Leandro to settle (April 2011)

A primer on the Faith Fellowship v. San Leandro lawsuit (April 2011)

A look at San Leandro’s City Attorney: Time to fire Meyers Nave?

San Leandro gears up for Constitutional fight.

 San Leandro gears up for Constitutional fight.  Faith Fellowship v. SL case, Religion  2 Responses »
May 072011
 

Hires premier anti-RLUIPA advocate to argue for its unconstitutionality

I was sad, if not surprised, to read that the San Leandro City Council voted 5-2 (with Mayor Cassidy & Councilwoman Cutter in the minority) to appeal the 9th circuit Faith Fellowship decision to the US Supreme Court.   That’s exactly what I predicted Meyers Nave, the City’s law firm, would push the City Council to do.  I was tickled, however, to read that they’ve engaged Cardozo Law Professor Marci A. Hamilton to represent them on this appeal.  Hamilton is not only the country’s most prominent critic of RLUIPA,  and of government accommodation of religion in general, but she’s a woman with a mission:  get the Supreme Court to declare RLUIPA unconstitutional.   San Leandro may just help her accomplish that goal.

The Faith Fellowship case has so far involved rather technical matters: what is the proper standard for “substantial burden” under RLUIPA.  Circuits courts have come to different conclusions as to what this entails, which allows the Supreme Court to take on the case.  However, the US Supreme Court has so far denied all cert petitions on RLUIPA land issues, most recently in January.  This is not surprising, finding a “substantial burden” test that would make the law both meaningful without being abusive in all circumstances is quite difficult, courts have gone back and forth on definitions as new situations arise.  The Supreme Court may find it prudent to wait until the dust is a bit more settled at the circuit court  level before it intervenes.

But I don’t believe that Professor Hamilton has any plans to appeal this case, other than nominally, on the proper definition of “substantial burden”.  Hamilton, indeed, has repeatedly said that RLUIPA allows religious institutions to do anything they want.  She’s suggested the statute be subtitled “A Bill to Permit Religious Landowners to Do Whatever They Want in Residential Neighborhoods and to Subsidize Lawyers for Religious Landowners with an Attorney’s Fee Provision”.   A narrow “substantial burden” definition would not fit neatly with her description of RLUIPA as a “circus“.

Hamilton, I suspect, will use this opportunity to lounge a full front attack on the constitutionality of RLUIPA, most likely on federalist grounds (i.e. that the federal government doesn’t have the right to tell municipalities how to regulate land use).  She’s well suited for the task.  In 1997 she represented the City of Boerne in the landmark Supreme Court case that overturned the Religious Freedom Restoration Act vis a vis state and local governments.  While Congress created RLUIPA mindful of the Boerne case, and every single circuit court that has looked at the constitutionality question has upheld it, Hamilton is hopeful that the more conservative members of the court will side with her.  My guess is that if the Supreme Court does take this case it will do so to tackle the constitutional question.  The fact that Hamilton will be the one arguing the case, may indeed make it more likely that they’ll take it.  The odds are still quite slim, however.

If the Supreme Court does take the case, Hamilton won’t just be facing the able lawyers from the Pacific Justice Institute (PJI).  The US Justice Department will most likely intervene to defend the constitutionality of the law.

Even if the Supreme Court finds that the “strict scrutiny” provisions of RLUIPA are unconstitutional, the Supreme Court (or lower courts, if the Supreme Court remands the case) will still have to consider the question of whether the City of San Leandro violated Faith Fellowship’s constitutional rights to freedom expression and religious exercise and its constitutional and statutory right to equal protection of the laws.  The latter claims come about because San Leandro allows “commercial entertainment” uses in the industrial area but not “assembly” uses.  The 9th circuit didn’t address this issue, but left it open for future litigation.

Personally, I continue to believe that appealing this case to the Supreme Court is a costly mistake.  If the Supreme Court takes the case, it’s very unlikely that it will rule for the city on all grounds without remanding any to a lower court.  If it does remand the case, that would mean further litigation and much more money spent on attorneys’ fees.  We are a poor city that has had to cut libraries, recreational activities and most social services – we can’t afford to be handing money to lawyers for no good reason.

The prudent thing for San Leandro to do is to work to settle this case, preferably in the next 6 months before the Supreme Court either rejects it or takes it on.

Update 5/8/11

I e-mailed Prof. Hamilton and asked her why she took the case.  Here is her answer:

“I took this case, because it meets the typical criteria that interest the Supreme Court: the relevant issues have been percolating for a significant period of time, the courts are split on the proper interpretation of the key terms, and the issues were directly addressed by the appellate court.  It is time for the Court to take up one or more RLUIPA land use issues.

 Also–the Ninth Circuit’s interpretation in this case is an extreme interpretation that unfairly favors religious land owners and, therefore, is a good case to take up to the Supreme Court.”

Marci Hamilton on the Daily Show

Marci A. Hamilton on Flaws of Religious Land Use Law