Charter city Huntington Beach seeks to fight state housing law in federal court

Huntington Beach City Attorney Michael E. Gates, fighting against state demands to allow construction of multiple-family dwellings in single-family neighborhoods, ran into a skeptical 9th U.S. Circuit Court of Appeals panel that questioned Monday whether his case belonged in federal court.

The Orange County beach town is opposing Gov. Gavin Newsom and Attorney General Rob Bonta both in federal and state court over demands that the city build more high-density housing. But the question before the 9th Circuit panel was whether the city and its elected representatives had standing to sue the state there.

While Gates argued that Huntington Beach, as a charter city, was a creation of the state Constitution and therefore able to sue over the state's housing requirements in federal court, the panel - dominated by Republican appointees along with one Republican picked by President Bill Clinton as part of a compromise - was dubious.

"The city of Huntington Beach is not some free-floating entity that gets to do whatever it wants and call itself whatever it wants and is not a city of the state of California," 9th Circuit Judge Daniel A. Bress told Gates. "I just don't understand your argument." City of Huntington Beach et al. v. Newsom et al., 23-3694 (9th Circ., filed Nov. 22, 2023).

Circuit Judge Ryan D. Nelson told Gates that he was "sympathetic" to the city's argument, noting a concurrence he wrote in a 2019 case, which dismissed a due process challenge by the city of San Juan Capistrano on standing grounds.

"But our current per se standing rule, while providing the benefit of a clear bright line, does not permit full consideration of important constitutional questions in future cases," he wrote in the concurrence. "Therefore, in the appropriate case, we should revisit en banc whether our per se standing bar is correct."

But Nelson voiced frustration Monday that Gates could not cite a single case, in the 9th Circuit or any other circuit, that supported his argument about charter cities. He told Gates the panel should probably defer to ongoing state court proceedings, which were filed first, under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971).

Gates replied that the question was "a case of first impression" and said afterward that he would seek en banc review if the three-judge panel ruled against him, as appeared likely.

Senior 9th Circuit Judge Richard C. Tallman told Gates, "You don't need a federal answer. You need a state answer whether or not charter cities are immune as it were, or separate sovereigns created by the state Constitution and not by state statute."

Deputy Attorney General Thomas P. Kinzinger appeared to have an easier time than Gates. He relied on a 44-year-old 9th Circuit decision that was cited by U.S. District Judge Fred W. Slaughter to argue that neither the Huntington Beach nor its elected officials had standing to pursue a constitutional challenge. City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Circ., 1980).

"The court's South Lake City decision controls the outcome of this case," Kinzinger said, adding that a city charter "did not turn [the Huntington Beach plaintiffs] into the 51st state."

In state court, San Diego County Superior Court Judge Katherine Bacal ruled in May that the city violated the state's housing element law. Huntington Beach filed a notice of appeal with the 4th District Court of Appeal last month. People v. City of Huntington Beach et al., D084749 (4th District Court of Appeal, filed Sept. 4, 2024).

Gates said the writ of mandate would not be issued until next year, adding, "There is merit to the appeal." Briefs have not been filed yet.

Attorney General Rob Bonta's office said it would win on its two legal fronts.

"In both state and federal court, we are confident in the strength of our position that every California city must do its part and comply with state housing law," an email from Bonta's office stated. "We look forward to expeditious resolutions in both forums and encourage the city of Huntington Beach to adopt a legally compliant housing plan without further delay."