Henry v. City of Somerton

Stephen Henry, et al., Plaintiffs, v. City of Somerton, et al., Defendants.

No. CV-18-03058-PHX-DJH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 17, 2021

ORDER

Pending before the Court are two motions for summary judgment submitted by both Plaintiffs and Defendants. Plaintiffs seek partial summary judgment on one of their First Amendment claims (Doc. 83), and Defendants seek summary judgment on all of Plaintiffs' claims (Doc. 91). Each motion is fully briefed.¹ On May 27, 2021, the Court heard oral argument on the motions. The Court now issues its Order.

I. Background²

In the fall of 2016, Plaintiff Stephen Henry rented a space along West Main Street in the Defendant City of Somerton (the "City"), a small town in the southwestern corner of Arizona. (Doc. 56 at ¶ 35). In the rental space, Mr. Henry intended to start a church, the Iglesia Bautista de Somerton (the "Iglesia"). (Id. at ¶ 36). The Iglesia is also a Plaintiffin this action.

Because of its location along Main Street, the Iglesia was legally obligated by the City's zoning ordinance ("Ordinance") to obtain a Conditional Use Permit ("CUP") before opening. (Doc. 112-2 at 6). All entities classified by the Ordinance as "conditional use" were required to obtain a CUP. (Id.) This included religious assemblies, schools, and day cares, among others. (Id.) At least eleven entities along Main Street have obtained CUPs, three of which are churches. (Docs. 83 at 5; 102-2 at 11). Other uses, such as fraternal organizations and social clubs, were "permitted uses" and did not need a CUP under the Ordinance. (Doc. 112-2 at 6).

There was a time, before 2008, when the Ordinance prohibited "Churches and places of worship" on Main Street, along with gas stations, car dealerships, and manufactured homes. (Doc. 83-2 at 4). Religious assemblies were moved to the conditional use category in 2015, during what Defendants call an "overhaul" of the Ordinance. (Doc. 91 at 8). This overhauled Ordinance required users whose "traffic arrived or left at a predictable time" to apply for a CUP to operate along Main Street. (Docs. 91 at 6; 91-2 at 1).

Before he had leased it to Mr. Henry, the rental space's landlord, Ramon Arias, knew a church in his property would need a CUP. He asked Defendant Carmen Juarez, the City's Community Development Director, whether the City would approve a CUP application. (Doc. 112-3 at 81). Ms. Juarez, he says, thought the City would not want a church in that space because the City instead wanted to help open a sports bar in another nearby building. (Id.) In late 2016, the City was considering requests for a "restaurant/sports bar" on Main Street. (Doc. 112-3 at 12). But why a church's presence would preclude a sports bar from opening nearby, and where this notion originated, is not made clear in the record. In fact, at that time there was no legal obstacle to such an arrangement. See A.R.S. §§ 4-205.02; 4-207(A). Nevertheless, Mr. Arias says Ms. Juarez told him the City would use the CUP process to block Mr. Henry's from putting a church in the rental space. (Doc. 112-3 at 81).

Mr. Arias told Mr. Henry the City intended to deny him any CUP. (Id.) But when Mr. Henry asked the City's Manager, Bill Lee, whether the City would oppose the church, Mr. Lee said the City had no problem with Mr. Henry opening a church. (Doc. 56 at ¶ 33). And so, despite the apparent warnings from Ms. Juarez, Mr. Henry entered into a three-year lease of the space with Mr. Arias. (Id. at ¶ 35).

Mr. Henry did not apply for a CUP. Instead, he forged ahead with his plans to open the Iglesia, which included doing some work on the building's lights. This work's exact nature is disputed. Mr. Henry casts it as "minor electrical repair," the kind that anyone can do without a permit. (Id. at ¶ 42). But to Defendant Salvador Lopez, the City Building Inspector, the work was serious enough that it required a permit. (Id. at ¶ 39).

On October 27, 2016, Mr. Lopez went to inspect the building at Ms. Juarez's direction. (Doc. 112-4 at 59). According to Mr. Lopez, he walked into the building to find wires on the floor and Mr. Henry up on a ladder, rewiring a lamp. (Doc. 89-6 at 14). Despite Mr. Henry's protests, Mr. Lopez issued a Stop Work Order for performing unauthorized electrical repairs. (Doc. 56 at ¶ 44).

Soon after being told to stop work, Mr. Henry and Mr. Arias went to talk with Ms. Juarez. (Id. at ¶ 47). She told them that the Iglesia needed the electrical permits, and that these permits would not issue unless the Iglesia had obtained a CUP. (Id. at ¶¶ 47-48). She handed them the CUP application. (Id. at ¶¶ 47, 75).

The next day, October 28, 2016, Mr. Henry sent a letter to the city arguing "that his repair work in the building did not require a permit . . . and . . . he did not plan on completing the CUP application because the City Ordinance conflicted with Arizona and Federal laws protecting the free exercise of religion." (Id. at ¶ 51; Doc. 83-6 at 18-19). The City responded on October 31 and said Mr. Henry needed a permit to continue the electrical work and that he would be in violation of the City's Ordinance if he opened the Iglesia without a CUP. (Docs. 56 at ¶ 54; 83-6 at 24-25). Despite these admonitions, Mr. Henry opened the Iglesia on November 6 and held public services. (Doc. 56 at ¶ 56). He held services again on November 9. (Id.) Nothing in the record indicates that the Iglesia hasever been stopped from holding services, and all indications suggest it has been operating uninterrupted since that time.

What followed after the opening were several legal proceedings, including this one.

a. Registrar of Contractors Complaint

First, on November 12, 2016, the Arizona Registrar of Contractors notified Mr. Henry that Mr. Lopez had filed a complaint for the unpermitted electrical work he had done in the Iglesia. (Doc. 56 at ¶ 57). In December, the Registrar of Contractors sent Mr. Henry a letter demanding that he obtain an electrical permit and the CUP. (Id. at ¶ 68). The Registrar of Contractor's Administrative Law Judge ("ALJ") eventually found that the work did indeed require a permit, but the ALJ dismissed the case on jurisdictional grounds. (Doc. 89-10 at 7-8).

b. Criminal Prosecution

On November 21, 2016, the City sent Mr. Henry a letter stating that the City was preparing a criminal citation against him for violating the Ordinance unless he obtained a CUP and the appropriate work permits. (Doc. 56 at ¶ 61). Again, Mr. Henry declined to obtain the necessary permits. (Id. at ¶ 69). Then the Somerton Police Department called Mr. Henry saying they intended to issue a criminal citation for his failure to obtain the necessary permits. (Id. at ¶ 70).

Two separate criminal citations were then issued. First, on January 3, 2017, Mr. Henry was cited and released "for three class 1 misdemeanors, all pertaining to his work in the church building without the permit demanded from the City." (Id. at ¶ 71; see Doc. 83-6 at 40-42). Second, on January 23, 2017, Mr. Henry was criminally cited in for operating the Iglesia without a CUP. (Docs. 56 at ¶ 72; 100-27 at 2-3).

c. Department of Justice Involvement & Dismissal of Citation for Operating Without a CUP

As the legal proceedings against Mr. Henry carried on, the Department of Justice started to examine the Ordinance. (Doc. 56 at ¶¶ 84, 87). In February 2017, the Department of Justice notified the City that it had initiated an investigation into theOrdinance to determine whether it violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). (Doc. 112-5 at 2). In response, on July 28, 2017, the City dismissed the second misdemeanor citation against Mr. Henry for failing to obtain a CUP. (Doc. 56 at ¶ 84). However, the City continued to prosecute its class 1 misdemeanors related to Mr. Henry's unpermitted electrical work. (Id. at ¶ 85).

d. Arizona Attorney General Involvement & Amendment of the Ordinance

In August 2017, the Arizona Attorney General's office wrote a letter to Ms. Juarez, advising her that the Ordinance appeared to violate Arizona's Free Exercise of Religion Act ("FERA"). (Doc. 83-7 at 10). The Arizona Attorney General's office wanted to "encourage the City" to amend its Ordinance. (Id.) In September 2017, the City did just that. Specifically, it removed the requirement that religious assemblies obtain a CUP to operate along Main Street. (Doc. 56 at ¶ 89; 83-7 at 14-15). Once the amendment took effect, religious assemblies, including the Iglesia, no longer need a CUP. (Doc. 100 at 7).³

e. Dismissal of Remaining Criminal Charges Regarding Electrical Permitting

On November 7, 2017, the remaining criminal charges related to the electrical permitting were dismissed against Mr. Henry "because the City's actions and procedures in issuing the [Stop Work Order] provided no notice to Mr. Henry and the City failed to provide its own mandated appeal process . . . ." (Doc. 56 at ¶ 94).

f. The Present Action

Plaintiffs filed this action on September 27, 2018. (Doc. 1). The First Amended Complaint ("FAC") brings seven claims. The First Claim is a FERA claim against the City. (Doc. 56 at ¶¶ 104-17). The Second Claim, brought against all Defendants, is brought under 42 U.S.C. § 1983 for violating Plaintiffs' First Amendment right to free exercise of religion. (Id. at ¶¶ 118-34). The Third and Fourth Claims against all Defendants are for malicious prosecution, brought under federal and state law, respectively. (Id. at ¶¶ 135-61). The Fifth Claim is a § 1983 claim against all Defendants alleging that the City's Zoning Code constitutes a prior restraint on religious exercise inviolation of the First Amendment. (Id. at ¶¶ 162-69). The Sixth and Seventh Claims allege federal and state equal protection violations, respectively. (Id. at ¶¶ 170-87). The only explicit relief Plaintiffs seek is an award of damages, both compensatory and punitive, as well as an award of attorney fees and costs. (Id. at 30).

II. Summary...