Ninth Circuit Denies En Banc Review in Newport Beach Case

The Ninth Circuit has denied the sua sponte call for en banc review in Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460, a case that we have written about previously hereNinthCircuitJudge O’Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, a dissent from the denial of en banc review. It appears to be telegraphing that the Supreme Court should consider the case:

The panel’s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion of “disparate treatment” doctrine, moreover, recognizes no principled limit. A single member of any protected class will now be able to challenge a facially neutral—and evenly applied—municipal ordinance without having suffered any actual discrimination. Our Court, alone among the nation’s appellate tribunals, has embarked on an uncharted and highly dubious course.

[Disclosure: Kira Klatchko authored an amicus brief on behalf of the League of California Cities supporting Newport Beach in this case.]

[Image courtesy of Flickr by Ken Lund (creative-commons license, no changes made).]