956 F.3d 1276
10th Cir.2020Background
- Cordillera community in Eagle County, CO includes a Lodge and Village governed by a 2009 PUD that enumerated permitted uses, including limited “Medical Offices/Facilities” described as outpatient/non-critical clinic use.
- In 2016 CSMN contracted to buy the Lodge and Village to operate a private, inpatient addiction-treatment center that would close those amenities to the public.
- Eagle County’s Planning Director issued an interpretation permitting CSMN’s clinical use; Cordillera Property Owners Association (CPOA) and Cordillera Metropolitan District (CMD) appealed to the Board, which modified the interpretation to permit only outpatient clinical treatment.
- State courts (CO district court and CO Court of Appeals) affirmed the Board; Colorado Supreme Court denied certiorari.
- CSMN then sued in federal court alleging ADA, FHA, and §1983 claims against CPOA, CMD, and individuals; defendants moved to dismiss claiming Petition Clause / Noerr-Pennington immunity.
- The district court dismissed (mostly) on immunity grounds; the Tenth Circuit affirmed, holding the petitioning was objectively reasonable and rejecting CSMN’s proposed unlawful-objective exception to Petition Clause immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petition Clause (Noerr-Pennington) immunity shields Appellees’ petitioning | CSMN: immunity should not apply because petitioning sought unlawful ends and was used to exclude disabled persons; sham exception applies | Appellees: Petition Clause immunizes their appeals and litigation challenging Director’s interpretation | Court: Immunity applies; petitioning is protected absent sham |
| Proper test for sham petitioning | CSMN: focus should be on subjective intent; Professional Real Estate’s two-step rule should not govern outside antitrust | Appellees: Professional Real Estate (objective then subjective) applies beyond antitrust | Held: Adopt Professional Real Estate two-step test for Petition Clause claims |
| Whether Appellees’ petitioning was a sham (objectively baseless) | CSMN: appeals and litigation were aimed to harass and deny housing/services to disabled persons; objectively unreasonable | Appellees: appeals raised plausible legal questions about PUD interpretation and preservation of public amenities | Held: Petitioning was objectively reasonable; sham exception does not apply |
| Whether to adopt a categorical unlawful-objective exception to immunity | CSMN: immunity should not protect petitions seeking unlawful objectives (e.g., discrimination) | Appellees: adopting such an exception would chill access and is inconsistent with precedent | Held: Court rejects broad unlawful-objective exception; objective reasonableness plus (if needed) subjective inquiry governs |
Key Cases Cited
- BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (endorses immunity for objectively reasonable petitioning and rejects treating Bill Johnson’s dicta as controlling)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) (formulates two-step sham-petitioning test: objective reasonableness first, then subjective intent)
- E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (establishes petitioning immunity)
- United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965) (applies Noerr doctrine to antitrust conspiracies)
- Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (recognizes sham when there is a pattern of baseless, repetitive petitions abusing process)
- Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983) (addresses NLRB’s power to enjoin suits; discussed for limits on enjoining objectively reasonable suits)
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885 (10th Cir. 2000) (discusses scope of Petition Clause immunity outside antitrust)
- White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (recognizes First Amendment protection for petitioning even when it advocates unlawful changes)