Pimental v. Google, Inc. et al
Filing
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STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byGoogle, Inc., Slide, Inc.. (Related document(s) 29 ) (Wilson, Bobbie) (Filed on 2/10/2012)
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PERKINS COIE LLP
BOBBIE J. WILSON (Bar No. 148317)
JOSHUA A. REITEN (Bar No. 238985)
Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: (415) 344-7000
Facsimile: (415) 344-7050
E-mail:
bwilson@perkinscoie.com
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DEBRA R. BERNARD (Pro hac vice)
131 S. Dearborn St., Suite 1700
Chicago, IL 60603
Telephone: (312) 324-8559
Facsimile: (312) 324-9559
E-mail:
dbernard@perkinscoie.com
Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,
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Plaintiffs,
v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,
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Defendants.
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This Document Relates to All Actions.
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STATEMENT OF RECENT DECISION
Case No. 11-cv-02585-YGR
Case No. 11-cv-02585-YGR
STATEMENT OF RECENT DECISION
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Pursuant to Local Rule 7-3(d)(2), Defendants submit the attached recent decision in
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support of their argument in the pending motion to dismiss that the Court should construe the
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Telephone Consumer Protection Act in a manner that does not run afoul of First Amendment
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protections: Fair Housing Council v. Roommate.com, LLC, __ F.3d __, 2012 WL 310849 (9th
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Cir. Feb. 2, 2012) (interpreting housing statutes to avoid conflict with First Amendment).
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DATED: February 10, 2012
Respectfully,
PERKINS COIE LLP
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By: /s/ Bobbie J. Wilson
BOBBIE J. WILSON
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Attorneys for Defendants
GOOGLE INC. and SLIDE, INC.
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-1STATEMENT OF RECENT DECISION
Case No. 11-cv-02585-YGR
Page 1
--- F.3d ----, 2012 WL 310849 (C.A.9 (Cal.)), 12 Cal. Daily Op. Serv. 1328, 2012 Daily Journal D.A.R. 1408
(Cite as: 2012 WL 310849 (C.A.9 (Cal.)))
United States Court of Appeals,
Ninth Circuit.
FAIR HOUSING COUNCIL OF SAN FERNANDO
VALLEY; The Fair Housing Council of San Diego,
Plaintiffs–Appellees,
v.
ROOMMATE.COM, LLC, Defendant–Appellant.
Fair Housing Council of San Fernando Valley; The
Fair Housing Council of San Diego, Plaintiffs–
Appellees,
v.
Roommate.Com, LLC, Defendant–Appellant.
Fair Housing Council of San Fernando Valley; The
Fair Housing Council of San Diego, Plaintiffs–
Appellees–Cross–Appellants,
and
Fair Housing Council of San Gabriel Valley, Plaintiff,
v.
Roommate.Com, LLC, Defendant–Appellant–Cross–
Appellee.
Nos. 09–55272, 09–55875, 09–55969.
Argued and Submitted July 14, 2011.
Filed Feb. 2, 2012.
organizations $494,714.40 in attorney's fees. Operator appealed, and the non-profit organizations crossappealed the amount of attorney's fees.
Holdings: The Court of Appeals, Kozinski, Chief
Judge, held that:
(1) non-profit organizations had organizational standing to bring action;
(2) term “dwelling” meant an independent housing
unit under the FHA; and
(3) term “housing accommodation,” under the FEHA,
excluded the sharing of living units.
Vacated and remanded in part; dismissed in part.
Ikuta, Circuit Judge, filed an opinion concurring
in part and dissenting in part.
West Headnotes
[1] Associations 41
20(1)
41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In General. Most Cited Cases
Federal Civil Procedure 170A
Background: Non-profit organizations brought action against operator of online roommate-matching
website, alleging that the website's questions requiring disclosure of sex, sexual orientation, and familial
status, and its sorting, steering, and matching of users
based on those characteristics, violated the Fair
Housing Act (FHA), and the California Fair Employment and Housing Act (FEHA). The United
States District Court for the Central District of California, Percy Anderson, P.J., 2004 WL 3799488,
granted operator's motion for summary judgment as
to the FHA claim, and dismissed the state-law claims
with prejudice. On appeal, the Court of Appeals,
Kozinski, Chief Judge, 489 F.3d 921, initially reversed and remanded, and, on rehearing en banc,
Kozinski, Chief Judge, 521 F.3d 1157, affirmed in
part, reversed in part, vacated in part, and remanded.
On remand, the District Court granted summary
judgment and a preliminary injunction in favor of the
non-profit organizations, and awarded the non-profit
103.2
170A Federal Civil Procedure
170AII Parties
170AII(A) In General
170Ak103.1 Standing
170Ak103.2 k. In General; Injury or
Interest. Most Cited Cases
Standing must be established independent of the
lawsuit filed by the plaintiff; an organization cannot
manufacture an injury by incurring litigation costs or
simply choosing to spend money fixing a problem
that otherwise would not affect the organization at
all.
[2] Associations 41
20(1)
41 Associations
41k20 Actions by or Against Associations
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
--- F.3d ----, 2012 WL 310849 (C.A.9 (Cal.)), 12 Cal. Daily Op. Serv. 1328, 2012 Daily Journal D.A.R. 1408
(Cite as: 2012 WL 310849 (C.A.9 (Cal.)))
41k20(1) k. In General. Most Cited Cases
Non-profit organizations suffered an actual injury sufficient to establish organizational standing to
bring action against operator of online roommatematching website, alleging that the website's questions requiring disclosure of sex, sexual orientation,
and familial status, and its sorting, steering, and
matching of users based on those characteristics, violated the Fair Housing Act (FHA), and the California
Fair Employment and Housing Act (FEHA); prior to
commencing the litigation, the non-profit organizations investigated the operator's alleged violations
and, in response, started new education and outreach
campaigns targeted at discriminatory roommate advertising, and the resources spent on those campaigns
were not associated with litigation. 42 U.S.C.A. §
3601 et seq.; West's Ann.Cal.Gov.Code § 12955.
[3] Civil Rights 78
1087
78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1074 Housing
78k1087 k. Other Particular Cases and
Contexts. Most Cited Cases
Term “dwelling,” under FHA provision prohibiting discrimination in the sale or rental of a dwelling,
meant an independent housing unit; construction of
“dwelling” to include shared living units would have
raised substantial constitutional concerns relating to
privacy, autonomy, and security, and therefore the
narrower construction of “dwelling” that excluded
roommate selection from the reach of the FHA,
which was a fair interpretation of the text and consistent with congressional intent, was appropriate. Fair
Housing Act, § 804(c), 42 U.S.C.A. § 3604(c).
[4] Constitutional Law 92
1442
92 Constitutional Law
92XVI Freedom of Association
92k1442 k. Intimate Association; Dating Relationships in General. Most Cited Cases
Choices to enter into and maintain certain intimate human relationships must be secured against
undue intrusion by the State because of the role of
such relationships in safeguarding the individual
freedom that is central to the United States' constitutional scheme.
[5] Constitutional Law 92
1442
92 Constitutional Law
92XVI Freedom of Association
92k1442 k. Intimate Association; Dating Relationships in General. Most Cited Cases
The right of intimate association is not restricted
exclusively to family.
[6] Constitutional Law 92
1442
92 Constitutional Law
92XVI Freedom of Association
92k1442 k. Intimate Association; Dating Relationships in General. Most Cited Cases
The right to intimate association also implies a
right not to associate.
[7] Constitutional Law 92
1442
92 Constitutional Law
92XVI Freedom of Association
92k1442 k. Intimate Association; Dating Relationships in General. Most Cited Cases
To determine whether a particular relationship is
protected by the right to intimate association a court
looks to size, purpose, selectivity, and whether others
are excluded from critical aspects of the relationship.
[8] Constitutional Law 92
994
92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction
as to Constitutionality
92k994 k. Avoidance of Constitutional
Questions. Most Cited Cases
Where an otherwise acceptable construction of a
statute would raise serious constitutional problems, a
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(Cite as: 2012 WL 310849 (C.A.9 (Cal.)))
court will construe the statute to avoid such problems
unless such construction is plainly contrary to the
intent of Congress.
Under the canon of constitutional avoidance, the
interpretation of a statute need not be the best reading, so long as it is fairly possible.
[9] Constitutional Law 92
Elizabeth Brancart (argued), Christopher Brancart,
Brancart & Brancart, Pescadero, CA, for the plaintiffappellees and cross-appellants.
728
92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(A) Persons Entitled to Raise Constitutional Questions; Standing
92VI(A)4 Particular Constitutional Provisions in General
92k728 k. Freedom of Association.
Most Cited Cases
While operator of online roommate-matching
website itself had no intimate association right, it was
entitled to raise the constitutional claims of its users
to challenge injunction that precluded the users from
selecting roommates unfettered by government regulation.
[10] Civil Rights 78
1087
78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1074 Housing
78k1087 k. Other Particular Cases and
Contexts. Most Cited Cases
Term “housing accommodation,” under the California Fair Employment and Housing Act (FEHA),
excluded the sharing of living units; FEHA's ambiguous definition of “housing accommodation” allowed
the application of the canon of constitutional avoidance to find that FEHA did not reach the selection of
roommates. West's Ann.Cal.Gov.Code § 12955(c).
[11] Constitutional Law 92
994
92 Constitutional Law
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction
as to Constitutionality
92k994 k. Avoidance of Constitutional
Questions. Most Cited Cases
Timothy L. Alger (argued), Susan B. Estrich, Scott B.
Kidman, Christopher E. Price, Quinn Emanuel Urquhart & Hedges, LLP, Los Angeles, CA, for the defendant-appellant and cross-appellee.
Appeal from the United States District Court for the
Central District of California, Percy Anderson, District Judge, Presiding. D.C. No. 2:03–cv–09386–PA–
RZ.
Before ALEX KOZINSKI, Chief Judge, STEPHEN
REINHARDT and SANDRA S. IKUTA, Circuit
Judges.
OPINION
KOZINSKI, Chief Judge:
*1 There's no place like home. In the privacy of
your own home, you can take off your coat, kick off
your shoes, let your guard down and be completely
yourself. While we usually share our homes only
with friends and family, sometimes we need to take
in a stranger to help pay the rent. When that happens,
can the government limit whom we choose? Specifically, do the anti-discrimination provisions of the
Fair Housing Act (“FHA”) extend to the selection of
roommates?
FACTS
Roommate.com, LLC (“Roommate”) operates an
internet-based business that helps roommates find
each other. Roommate's website receives over 40,000
visits a day and roughly a million new postings for
roommates are created each year. When users sign
up, they must create a profile by answering a series of
questions about their sex, sexual orientation and
whether children will be living with them. An openended “Additional Comments” section lets users include information not prompted by the questionnaire.
Users are asked to list their preferences for roommate
characteristics, including sex, sexual orientation and
familial status. Based on the profiles and preferences,
Roommate matches users and provides them a list of
housing-seekers or available rooms meeting their
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criteria. Users can also search available listings based
on roommate characteristics, including sex, sexual
orientation and familial status.
The Fair Housing Councils of San Fernando Valley and San Diego (“FHCs”) sued Roommate in federal court, alleging that the website's questions requiring disclosure of sex, sexual orientation and familial status, and its sorting, steering and matching of
users based on those characteristics, violate the Fair
Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and
the California Fair Employment and Housing Act
(“FEHA”), Cal. Gov't Code § 12955.
The district court initially dismissed the claims,
holding that Roommate was immune under section
230 of the Communications Decency Act (“CDA”),
47 U.S.C. § 230. We reversed, holding that Roommate was protected by the CDA for publishing the
“Additional Comments” section, but not for (1) posting questionnaires that required disclosure of sex,
sexual orientation and familial status; (2) limiting the
scope of searches by users' preferences on a roommate's sex, sexual orientation and familial status; and
(3) a matching system that paired users based on
those preferences. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir.2008)
(en banc).
Our opinion was limited to CDA immunity and
didn't reach whether the activities, in fact, violated
the FHA. On remand, the district court held that
Roommate's prompting of discriminatory preferences
from users, matching users based on that information
and publishing these preferences violated the FHA
and FEHA, and enjoined Roommate from those activities. Roommate appeals the grant of summary
judgment and permanent injunction, and also the district court's order awarding the FHCs $494,714.40 in
attorney's fees. The FHCs cross-appeal the amount of
the attorney's fees.
STANDING
*2 [1] Roommate argues that the FHCs lack
standing because they didn't suffer actual injury.
We've held that an organization has “direct standing
to sue [when] it showed a drain on its resources from
both a diversion of its resources and frustration of its
mission.” Fair Hous. of Marin v. Combs, 285 F.3d
899, 905 (9th Cir.2002). However, “ ‘standing must
be established independent of the lawsuit filed by the
plaintiff.’ “ Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, No. 06–55750, 2011 WL
4336667, at *3 (9th Cir. Sept.16, 2011) (quoting
Walker v. City of Lakewood, 272 F.3d 1114, 1124 n.
3 (9th Cir.2001)). An organization “cannot manufacture [an] injury by incurring litigation costs or simply
choosing to spend money fixing a problem that otherwise would not affect the organization at all.” La
Asociacion de Trabajadores de Lake Forest v. City of
Lake Forest, 624 F.3d 1083, 1088 (9th Cir.2010); see
also Combs, 285 F.3d at 903 (“[A]n organization
cannot, of course, manufacture the injury necessary
to maintain a suit from its expenditure of resources
on that very suit ....“ (internal quotation marks omitted)).
[2] Prior to commencing litigation, the FHCs investigated Roommate's alleged violations and, in
response, started new education and outreach campaigns targeted at discriminatory roommate advertising. The resources spent on those campaigns were not
associated with litigation. Because Roommate's conduct caused the FHCs to divert resources independent
of litigation costs and frustrated their central mission,
we conclude that the FHCs have organizational
standing.
ANALYSIS
If the FHA extends to shared living situations,
it's quite clear that what Roommate does amounts to a
violation. The pivotal question is whether the FHA
applies to roommates.
I
The FHA prohibits discrimination on the basis of
“race, color, religion, sex, familial status, or national
origin” in the “sale or rental of a dwelling.” 42 U.S.C.
§ 3604(b) (emphasis added). The FHA also makes it
illegal to
make, print, or publish, or cause to be made,
printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation,
or discrimination based on race, color, religion,
sex, handicap, familial status, or national origin, or
an intention to make any such preference, limitation, or discrimination.
Id. § 3604(c) (emphasis added). The reach of the
statute turns on the meaning of “dwelling.”
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II
[3] The FHA defines “dwelling” as “any building, structure, or portion thereof which is occupied
as, or designed or intended for occupancy as, a residence by one or more families.” Id. § 3602(b). A
dwelling is thus a living unit designed or intended for
occupancy by a family, meaning that it ordinarily has
the elements generally associated with a family residence: sleeping spaces, bathroom and kitchen facilities, and common areas, such as living rooms, dens
and hallways.
*3 It would be difficult, though not impossible,
to divide a single-family house or apartment into
separate “dwellings” for purposes of the statute. Is a
“dwelling” a bedroom plus a right to access common
areas? What if roommates share a bedroom? Could a
“dwelling” be a bottom bunk and half an armoire? It
makes practical sense to interpret “dwelling” as an
independent living unit and stop the FHA at the front
door.
There's no indication that Congress intended to
interfere with personal relationships inside the home.
Congress wanted to address the problem of landlords
discriminating in the sale and rental of housing,
which deprived protected classes of housing opportunities. But a business transaction between a tenant
and landlord is quite different from an arrangement
between two people sharing the same living space.
We seriously doubt Congress meant the FHA to apply to the latter. Consider, for example, the FHA's
prohibition against sex discrimination. Could Congress, in the 1960s, really have meant that women
must accept men as roommates? Telling women they
may not lawfully exclude men from the list of acceptable roommates would be controversial today; it
would have been scandalous in the 1960s.
While it's possible to read dwelling to mean subparts of a home or an apartment, doing so leads to
awkward results. And applying the FHA to the selection of roommates almost certainly leads to results
that defy mores prevalent when the statute was
passed. Nonetheless, this interpretation is not wholly
implausible and we would normally consider adopting it, given that the FHA is a remedial statute that
we construe broadly. Therefore, we turn to constitutional concerns, which provide strong countervailing
considerations.
[4][5][6] The Supreme Court has recognized that
“the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights.” Bd.
of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481
U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474
(1987). “[C]hoices to enter into and maintain certain
intimate human relationships must be secured against
undue intrusion by the State because of the role of
such relationships in safeguarding the individual
freedom that is central to our constitutional scheme.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18, 104
S.Ct. 3244, 82 L.Ed.2d 462 (1984). Courts have extended the right of intimate association to marriage,
child bearing, child rearing and cohabitation with
relatives. Id. While the right protects only “highly
personal relationships,” IDK, Inc. v. Clark Cnty., 836
F.2d 1185, 1193 (9th Cir.1988) (quoting Roberts, 468
U.S. at 618), the right isn't restricted exclusively to
family, Bd. of Dirs. of Rotary Int'l, 481 U.S. at 545.
The right to association also implies a right not to
associate. Roberts, 428 U.S. at 623.
[7] To determine whether a particular relationship is protected by the right to intimate association
we look to “size, purpose, selectivity, and whether
others are excluded from critical aspects of the relationship.” Bd. of Dirs. of Rotary Int'l, 481 U.S. at
546. The roommate relationship easily qualifies:
People generally have very few roommates; they are
selective in choosing roommates; and non-roommates
are excluded from the critical aspects of the relationship, such as using the living spaces. Aside from immediate family or a romantic partner, it's hard to
imagine a relationship more intimate than that between roommates, who share living rooms, dining
rooms, kitchens, bathrooms, even bedrooms.
*4 Because of a roommate's unfettered access to
the home, choosing a roommate implicates significant privacy and safety considerations. The home is
the center of our private lives. Roommates note our
comings and goings, observe whom we bring back at
night, hear what songs we sing in the shower, see us
in various stages of undress and learn intimate details
most of us prefer to keep private. Roommates also
have access to our physical belongings and to our
person. As the Supreme Court recognized, “[w]e are
at our most vulnerable when we are asleep because
we cannot monitor our own safety or the security of
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our belongings.” Minnesota v. Olson, 495 U.S. 91,
99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Taking
on a roommate means giving him full access to the
space where we are most vulnerable.
Equally important, we are fully exposed to a
roommate's belongings, activities, habits, proclivities
and way of life. This could include matter we find
offensive (pornography, religious materials, political
propaganda); dangerous (tobacco, drugs, firearms);
annoying (jazz, perfume, frequent overnight visitors,
furry pets); habits that are incompatible with our lifestyle (early risers, messy cooks, bathroom hogs,
clothing borrowers). When you invite others to share
your living quarters, you risk becoming a suspect in
whatever illegal activities they engage in.
Government regulation of an individual's ability
to pick a roommate thus intrudes into the home,
which “is entitled to special protection as the center
of the private lives of our people.” Minnesota v.
Carter, 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d
373 (1998) (Kennedy, J., concurring). “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our
tradition the State is not omnipresent in the home.”
Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct.
2472, 156 L.Ed.2d 508 (2003). Holding that the FHA
applies inside a home or apartment would allow the
government to restrict our ability to choose roommates compatible with our lifestyles. This would be a
serious invasion of privacy, autonomy and security.
For example, women will often look for female
roommates because of modesty or security concerns.
As roommates often share bathrooms and common
areas, a girl may not want to walk around in her
towel in front of a boy. She might also worry about
unwanted sexual advances or becoming romantically
involved with someone she must count on to pay the
rent.
An orthodox Jew may want a roommate with
similar beliefs and dietary restrictions, so he won't
have to worry about finding honey-baked ham in the
refrigerator next to the potato latkes. Non–Jewish
roommates may not understand or faithfully follow
all of the culinary rules, like the use of different silverware for dairy and meat products, or the prohibition against warming non-kosher food in a kosher
microwave. Taking away the ability to choose
roommates with similar dietary restrictions and religious convictions will substantially burden the observant Jew's ability to live his life and practice his religion faithfully. The same is true of individuals of
other faiths that call for dietary restrictions or rituals
inside the home.
*5 The U.S. Department of Housing and Urban
Development recently dismissed a complaint against
a young woman for advertising, “I am looking for a
female christian roommate,” on her church bulletin
board. In its Determination of No Reasonable Cause,
HUD explained that “in light of the facts provided
and after assessing the unique context of the advertisement and the roommate relationship involved ...
the Department defers to Constitutional considerations in reaching its conclusions.” Fair Hous. Ctr. of
W. Mich. v. Tricia, No. 05–10–1738–8 (Oct. 28,
2010) (Determination of No Reasonable Cause).
[8] It's a “well-established principle that statutes
will be interpreted to avoid constitutional difficulties.” Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct.
2495, 101 L.Ed.2d 420 (1988). “[W]here an otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.” Pub. Citizen v. U.S. Dep't of Justice, 491 U.S.
440, 466, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)
(internal quotation marks omitted). Because the FHA
can reasonably be read either to include or exclude
shared living arrangements, we can and must choose
the construction that avoids raising constitutional
concerns. See INS v. St. Cyr, 533 U.S. 289, 299–300,
121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“[I]f an
otherwise acceptable construction of a statute would
raise serious constitutional problems, and where an
alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid
such problems.”) (internal citation and quotations
marks omitted). Reading “dwelling” to mean an independent housing unit is a fair interpretation of the
text and consistent with congressional intent. Because
the construction of “dwelling” to include shared living units raises substantial constitutional concerns,
we adopt the narrower construction that excludes
roommate selection from the reach of the FHA.
III
[9] Because we find that the FHA doesn't apply
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to the sharing of living units, it follows that it's not
unlawful to discriminate in selecting a roommate. As
the underlying conduct is not unlawful, Roommate's
facilitation of discriminatory roommate searches does
not violate the FHA. While Roommate itself has no
intimate association right, it is entitled to raise the
constitutional claims of its users. See Craig v. Boren,
429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397
(1976). The injunction entered by the district court
precludes Roommate's members from selecting
roommates unfettered by government regulation.
Roommate may therefore raise these claims on their
behalf.
IV
[10] The same constitutional concerns over the
right to intimate association would arise if the California Fair Employment and Housing Act (“FEHA”)
were applied to roommates. Accordingly, we interpret “housing accommodation” in section 12955(c) of
the FEHA to exclude the sharing of living units.
Similarly to how the FHA defines”dwelling,” the
FEHA defines “housing accommodation” as “any
building, structure, or portion thereof that is occupied
as, or intended for occupancy as, a residence by one
or more families.” Cal. Gov.Code § 12927(d). This
ambiguous definition allows us to apply the canon of
constitutional avoidance to find that the FEHA does
not reach the selection of roommates.
*6 In a 1995 amendment, the FEHA carved out
from the definition of discrimination “the use of
words stating or tending to imply that the housing
being advertised is available only to persons of one
sex,” “[w]here the sharing of living areas in a single
dwelling unit is involved.” Cal. Gov.Code §
12927(c)(2)(B). The concurrence infers from this
1995 exemption that the statute as passed in 1974
must have covered roommates. But the acts of a subsequent legislature tell us nothing definitive about the
meaning of laws adopted by an earlier legislature. See
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990)
(“[S]ubsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.”
(internal quotation marks omitted)); see also Sullivan
v. Finkelstein, 496 U.S. 617, 632, 110 S.Ct. 2658,
110 L.Ed.2d 563 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history ...
should not be taken seriously, not even in a footnote.”). The 1995 legislature may have been uncer-
tain about whether the statute, as passed decades earlier, covered roommates, and wanted to remove any
doubt that roommates could select each other by sex.
But the amendment can shed no light on the meaning
of “housing accommodation” in the FEHA, a statutory phrase it does not modify or reference.
[11] Nothing in the language of the statute provides that a “housing accommodation” includes
shared living quarters. Under the canon of constitutional avoidance, the interpretation of the statute need
not be the best reading, so long as it's “fairly possible.” St. Cyr, 533 U.S. at 299–300. It is “fairly possible” that the statute does not apply to roommates.
Interpreting it as excluding roommates avoids a ruling on a difficult and unexplored constitutional issue.
The concurrence also relies on a FEHC decision,
but the FEHC had no authority to address the underlying constitutional problems raised by the FEHA,
and thus had no reason to consider the constitutional
avoidance canon: “Whether it is sound policy to ban
discrimination in the selection of roommates, and
whether such a policy implicates constitutional rights
of privacy or association, are not questions for this
decision to resolve. Those are issues for the Legislature and the courts, respectively, to decide.” Dep't of
Fair Emp't & Hous. v. Larrick, FEHC Dec. No. 98–
12, 1998 WL 750901, at *5 n. 1 (July 22, 1998). We,
on the other hand, have a duty to consider constitutional concerns and to adopt an interpretation that
avoids ruling on the constitutionality of a statute, if
we can fairly do so. See St. Cyr, 533 U.S. at 299–300.
We are as capable as the district court in resolving
the issue, which we review de novo in any event.
Therefore, we see no need to remand this question to
the district court.
***
Because precluding individuals from selecting
roommates based on their sex, sexual orientation and
familial status raises substantial constitutional concerns, we interpret the FHA and FEHA as not applying to the sharing of living units. Therefore, we hold
that Roommate's prompting, sorting and publishing
of information to facilitate roommate selection is not
forbidden by the FHA or FEHA. Accordingly, we
vacate the district court's judgment and remand for
entry of judgment for defendant. Because the FHCs
are no longer prevailing, we vacate the district court's
order for attorney's fees and dismiss the cross-appeals
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(Cite as: 2012 WL 310849 (C.A.9 (Cal.)))
on attorney's fees as moot.
*7 VACATED AND REMANDED IN PART;
DISMISSED IN PART
IKUTA, Circuit Judge, concurring and dissenting:
I concur in the majority's holding that the Fair
Housing Act (FHA) does not apply to the sharing of
living units. I write separately, however, to express
my concern that our circuit's test for organizational
standing cannot be reconciled with Supreme Court
precedent. Further, I respectfully dissent from Part IV
of the majority decision, which applies its FHA
analysis to the California Fair Employment and
Housing Act (FEHA) claim of the two Fair Housing
Councils.
I
In order to assert standing as an organization,
rather than on behalf of their members,FN1 the Fair
Housing Councils must show they suffered an injury
in fact, just as if they were individuals. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79, 102
S.Ct. 1114, 71 L.Ed.2d 214 (1982). In other words,
each Fair Housing Council must show that Roommate's actions caused it to suffer “an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992) (citations and internal
quotation marks omitted).FN2 To meet this requirement, the Fair Housing Councils must show that
Roommate's conduct “perceptibly impair[s]” the organizations' interest in carrying out their core missions. Havens, 455 U.S. at 378–79.
Fair Housing Councils of San Fernando Valley
and San Diego are non-profit organizations with the
shared core mission of eliminating housing discrimination in their communities. They accomplish this
mission through, among other things, investigation,
education, and outreach regarding instances of housing discrimination. In response to their discovery of
Roommate's allegedly discriminatory housing advertisements, the Fair Housing Councils spent money on
investigation, education, and outreach regarding the
trend of housing discrimination on the Internet.
So far so good: two organizations dedicated to
combating housing discrimination have spent money
combating housing discrimination. But according to
the Fair Housing Councils and our precedent, these
organizations were “injured” for standing purposes
by the very expenses that advanced their mission.
This raises a question that threatens to bring us loggerheads with Lujan: How can an organization have
a legally protected interest in not spending money to
advance its core mission?
A
The answer to this question is embedded in an illogical and erroneous development in our case law.
We have correctly recognized that organizations have
standing to sue on their own behalf when a defendant's actions impair the organization's ability to
function as an organization. An action that invades an
organization's interest in recruiting members, obtaining funding, or collecting dues clearly hinders that
organization's ability to function, and is an injury for
purposes of standing. See, e.g., Am. Fed'n. of Gov't
Emps. Local 1 v. Stone, 502 F.3d 1027, 1033 (9th
Cir.2007) (“[A]n increased difficulty in recruiting
union members qualifies as a ‘concrete and demonstrable’ injury”); Walker v. City of Lakewood, 272
F.3d 1114, 1124–25 (9th Cir.2001) (holding that an
organization was injured by, among other things,
delayed contractual payments and government client's non-renewal of the contract); Constr. Indus.
Ass'n of Sonoma Cty. v. City of Petaluma, 522 F.2d
897, 903 (9th Cir.1975) (holding that a restrictive
building plan injured an association of builders “in a
very real sense” because it decreased construction
and consequently, membership dues for the association).
*8 The Supreme Court has also held that an organization's ability to function as an organization is
impaired if its purpose is to provide a specified type
of service and a defendant's actions hinder the organization from providing that core service. Havens,
455 U.S. at 378–79. In Havens, a fair housing organization alleged that its mission was to “assist equal
access to housing through counseling and other referral services.” Id. at 379. The organization asserted
that the defendant's discriminatory housing practices
frustrated the organization's ability to “provide counseling and referral services for low-and moderateincome homeseekers.” Id. The Court held that this
allegation was sufficient for standing because it represented a “concrete and demonstrable injury to the
organization's activities—with the consequent drain
on the organizations's resources—[that was] far more
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than simply a setback to the organization's abstract
social interests.” Id.
Based on this language in Havens, we developed
a two-prong test: an organization can establish an
injury if it can show “(1) frustration of its organizational mission; and (2) diversion of its resources to
combat the [challenged actions].” Smith v. Pac. Prop.
& Dev. Corp., 358 F.3d 1097, 1105 (9th Cir.2004).
While our articulation of the test is consistent with
Havens, our application of it has drifted away from
the requirement that an organization actually suffer
an injury.
In Smith, for example, we considered whether an
organization dedicated to “eliminat[ing] discrimination against individuals with disabilities by ensuring
compliance with [accessibility] laws” had standing to
sue a real estate developer who constructed properties
with alleged design and construction defects that violated those laws. Id. at 1105. We held that because
the organization's ultimate goal was to eliminate discrimination against individuals with disabilities,
“[a]ny violation” of the relevant accessibility law
constituted a frustration of the organization's mission.
Id.; see also Fair Hous. of Marin v. Combs, 285 F.3d
899, 905 (9th Cir.2002) (holding that an organization's mission of promoting equal housing opportunities, as required by the FHA, was frustrated by the
defendant's alleged FHA violations). We further held
that the organization met the “diversion of resources”
prong because the money it spent “in order to monitor the violations” diverted resources “from other
efforts to promote awareness of—and compliance
with—federal and state accessibility laws.” Smith,
358 F.3d at 1105. Yet no allegations were made that
this allocation of resources harmed the organization
in any way. Id. Rather, all that our precedent required
for diversion was that the organization spent resources that it “otherwise would spend in other
ways.” El Rescate Legal Servs., Inc. v. Exec. Office of
Immigration Review, 959 F.2d 742, 748 (9th
Cir.1991).
*9 Thus, we have held that an organization with
a social interest in advancing enforcement of a law
was injured when the organization spent money enforcing that law. This looks suspiciously like a harm
that is simply “a setback to the organization's abstract
social interests,” the very thing Havens indicated was
not a “concrete and demonstrable injury to the or-
ganization's activities.” Havens, 455 U.S. at 379; see
also Sierra Club v. Morton, 405 U.S. 727, 738–39, 92
S.Ct. 1361, 31 L.Ed.2d 636 (1972) (holding that an
organization's abstract interest in a problem, without
direct harm, is insufficient to establish standing).
After all, an organization created to advance enforcement of a law is not hampered in its mission
because the law is violated: absent violations, the
organization would have to find a new mission. Furthermore, the organization has no legally protected
interest in keeping its budget allocation constant,
especially in the face of new opportunities to advance
its mission. New organizational undertakings by
definition divert resources but, as shown below, nothing about such diversion is per se harmful. Smith's
ruling to the contrary is in tension with the Supreme
Court's requirement that an organization actually suffer a “concrete and particularized injury.” Lujan, 504
U.S. at 560.
B
This case brings the strain between our case law
and Supreme Court precedent close to a rupture.
As noted above, the Fair Housing Councils have
the mission of eliminating unlawful housing discrimination, in part through investigation, education
and outreach. Before bringing this litigation, the organizations purposely decided to advance their mission by focusing on discrimination in online housing
advertisements, such as those allegedly contained on
Roommate's site. Pursuant to this intentional allocation of resources, both Fair Housing Councils spent
time investigating Roommate's website to find specific instances of discrimination. Further, Fair Housing Council San Diego hosted a conference “on the
topic of the Internet and fair housing” and “conducted approximately 49 outreach presentations” on
the subject. Fair Housing Council of San Fernando
Valley “sent an education letter and fair housing
packet to sixty-four (64) media and advertising
sources with explicit mention of the fair housing concerns with advertising listings in the electronic form,”
along with “devot [ing] more time to the problem of
discriminatory rental listings” in its training seminars.
In short, the Fair Housing Councils spent money investigating and addressing the exact problem they
were established to address, housing discrimination,
in the exact way they planned to address such problems, education and outreach.
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If anything, their newfound topical focus on
Internet housing advertisements reflected the Fair
Housing Councils' considered judgments of how they
could best accomplish their goals in the face of
changing client needs created by new technology. As
they acknowledged, the Internet was a “new frontier”
of housing discrimination. In response to this “trend”
and the “sheer numbers” of housing discrimination
issues raised by websites like Roommate's, the Fair
Housing Councils made Internet advertising a “major
focus of[their] out-reach efforts.” Therefore, the alleged “diversion” here was a voluntary redirection of
more resources to areas where there were more housing problems and where the Fair Housing Councils
could make a bigger impact advancing their missions.
This represents adaptive and savvy organizational
management, not injury. See Fair Emp't Council of
Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d
1268, 1277 (D.C.Cir.1994) (“One can hardly say that
BMC [an allegedly discriminatory employer] has
injured the Council merely because the Council has
decided that its money would be better spent by testing BMC than by counseling or researching.”).
*10 Given this record, it is clear that Roommate's activities did not cause the Fair Housing
Councils to incur an injury-in-fact that meets the
Lujan standard. The Fair Housing Councils suffered
no invasion of their organizational interest in obtaining funding, collecting dues or recruiting members;
nor were they hampered from advancing their mission. In holding otherwise, we are faithful to our
precedent, but unfaithful to Lujan.
Where Supreme Court precedent is contrary to
our precedent, we are the ones that have to change.
Cf. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d
1477, 1478–79 (9th Cir.1987). I suggest that it is time
we revisited our circuit's test en banc.
II
In addition to my concern about our standing inquiry, I must respectfully dissent from the majority's
decision to “apply the canon of constitutional avoidance to find that FEHA does not reach the selection
of roommates.” Maj. Op. at 986. The interpretive
canon of constitutional avoidance directs that “where
an otherwise acceptable construction of a statute
would raise serious constitutional problems, the
Court will construe the statute to avoid such problems.” Edward J. DeBartolo Corp. v. Fl. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575,
108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). But this interpretive tool can be used only when a statute is ambiguous. It does not give federal courts the power to
“rewrite a state law to conform it to constitutional
requirements.” Virginia v. Am. Booksellers Ass'n,
Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d
782 (1988).
In this case, FEHA's language and its application
by the California agency tasked with interpreting it
suggest that FEHA is “unambiguous on the point
under consideration here.” See Salinas v. United
States, 522 U.S. 52, 60, 118 S.Ct. 469, 139 L.Ed.2d
352 (1997). FEHA expressly defines “discrimination” as not including “the use of words stating or
tending to imply that the housing being advertised is
available only to persons of one sex,” in a situation
“[w]here the sharing of living areas in a single dwelling unit is involved.” Cal. Gov.Code §
12927(c)(2)(B). This language is not in the FHA.
Because a statute's “mention of [one example] implies the exclusion of others not mentioned,” United
Dominion Indus., Inc. v. United States, 532 U.S. 822,
836, 121 S.Ct. 1934, 150 L.Ed.2d 45 (2001), FEHA's
definition of “discrimination” in § 12927(c)(2)(B)
expresses the state legislature's intent to exempt sexspecific advertisements for shared living units in a
single dwelling from the restrictions of FEHA, but
not exempt advertisements that discriminate on the
basis of other protected characteristics, such as race
or religion.FN3
This plain-language reading of § 12927(c)(2)(B)
is confirmed by the decision of the California Fair
Employment and Housing Commission FN4 in Dep't
of Fair Emp't and Housing v. Larrick, FEHC Dec.
No. 98–12, 1998 WL 750901 (July 22, 1998). Larrick involved two roommates who decided not to rent
to a potential third roommate because she was black.
Id. at *3. The Commission held that the “plain language” of FEHA applied to this shared living situation and prohibited the two roommates “from rejecting an applicant on the basis of race and color.” Id. at
*5. In arriving at this conclusion, the Commission
stated that none of FEHA's exceptions were applicable, specifically noting that § 12927(c)(2)(B) “allow[s] sex-specific (but not race-specific) advertisements for single dwellings with shared living areas.”
Id. at *6, n. 2.
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*11 Because FEHA (unlike the FHA) is unambiguous regarding its applicability to shared living arrangements, the majority cannot interpret FEHA in a
way to avoid the constitutional problems that may
arise if the act is applied to bar advertisements for
shared living arrangements that discriminate on the
basis of protected characteristics such as race or religion. The constitutionality of FEHA's applicability
to such shared living arrangements is both novel and
difficult. Given that neither the Fair Housing Councils nor Roommate addressed this issue in their
briefs, I would remand this issue to allow the district
court to hear from the parties and rule on this issue in
the first instance. Therefore, I respectfully dissent
from Part IV of the opinion.
FN1. If either of the Fair Housing Councils
had asserted standing on behalf of its members, it would need to show that its “[1]
members would otherwise have standing to
sue in their own right, [2] the interests at
stake are germane to the organization's purpose, and [3] neither the claim asserted nor
the relief requested requires the participation
of individual members in the lawsuit.”
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181, 120
S.Ct. 693, 145 L.Ed.2d 610 (2000). But
here, the Fair Housing Councils assert only
organizational standing.
such by pointing to its former ambiguity.
FN4. The Commission is the California
“agency charged with adjudicating FEHA
enforcement actions and interpreting FEHA
by regulation.” Green v. State, 42 Cal.4th
254, 64 Cal.Rptr.3d 390, 165 P.3d 118, 128
(Cal.2007); see also Cal. Gov.Code §
12935(a).
C.A.9 (Cal.),2012.
Fair Housing Council of San Fernando Valley v.
Roommate.com, LLC
--- F.3d ----, 2012 WL 310849 (C.A.9 (Cal.)), 12 Cal.
Daily Op. Serv. 1328, 2012 Daily Journal D.A.R.
1408
END OF DOCUMENT
FN2. There also must be a causal connection
between the injury and the defendant's conduct, and the injury must be redressable by a
favorable decision. Id. at 560–61.
FN3. The majority contends that we can ignore this amendment to FEHA because the
“acts of a subsequent legislature tell us nothing definitive about the meaning of laws
adopted by an earlier legislature.” Maj. Op.
at 986. But in determining whether a statute
is ambiguous, we must construe the current
version of the law, not what it used to be.
See Red Lion Broad. Co. v. FCC, 395 U.S.
367, 380–81, 89 S.Ct. 1794, 23 L.Ed.2d 371
(1969) (holding that a court must give “great
weight” to amendments to a statute that clarify its proper construction). Once a duly enacted amendment clarifies a statute, it is no
longer ambiguous, and we cannot treat it as
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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