Cities prepare to challenge 9th Circuit case on homeless

SANTA ANA -- A federal judge's decision to remove his colleague from an Orange County homeless civil rights lawsuit comes amid an intersecting debate over law and policy that's being amplified in municipalities across the nation.

The aggressive stance that drove the recusal of U.S. District Judge David O. Carter is part of a coordinated defense by several cities against efforts to build a homeless shelter in affluent south Orange County. It rides in part on a belief that the 9th U.S. Circuit Court of Appeals wrongly decided a controlling case about an anti-homeless camping ordinance in Boise, Idaho, and that the ruling itself is not as expansive as some attorneys say.

It also comes as Gibson, Dunn & Crutcher LLP attorneys in Los Angeles are preparing to petition the U.S. Supreme Court to consider the ruling, which they warn hamstrings cities trying to solve a burgeoning humanitarian and public health crisis. And it comes amid growing litigation nationwide related to homelessness, including a federal judge's recent rejection of a request to halt the closure of a camp in Santa Cruz and an ongoing federal lawsuit in Oakland over lack of shelter and the seizure of homeless people's property.

Gibson Dunn partner Theane D. Evangelis said the 9th Circuit's restrictions on anti-camping ordinances "will tie the hands of local governments in their efforts to devise solutions to the complex problem of homelessness." The 9th Circuit denied rehearing en banc on April 1, with six of 23 justices joining two dissents. Evangelis is preparing a petition for a writ of certiorari to the high court that's due Aug. 29. She obtained an extension from July 1 after noting the case's "important, far-reaching implications."

"The tragedy is that this decision harms the very people it purports to protect," Evangelis said in an email. "If local governments cannot limit public camping, they will be unable to stop the proliferation of dangerous encampments that trap the most vulnerable individuals and prevent them from seeking proper shelter and services."

District Attorney Todd A. Spitzer said Orange County faces similar litigation now that Carter was removed from the south county cities' lawsuit.

"There is not a single judge that could have made as much progress or improved the quality of life for the homeless than Judge Carter," Spitzer said in a text message to the Daily Journal, referencing Carter's "incessant pounding on the parties" and "unique, carrot-and-stick approach to problem solving."

"Expect everyone to go into a pure litigation mode now; employing hundreds of thousands of dollars in lawyers to fight," Spitzer continued.

Spitzer was on the Board of Supervisors when the county moved to dismantle a 1,000-person homeless camp in Anaheim in February 2018, triggering a lawsuit that sought an injunction. Carter issued a temporary restraining order, but a scheduled hearing transformed into a marathon settlement conference. Carter lifted his order and worked with attorneys, law enforcement and elected officials to move people from the camp to motels, then into new social services programs and shelters. While the defendant cities welcomed the help, Carter made it clear he believed the law was on his side. He often cited a non-binding 2006 9th Circuit decision in a Los Angeles homeless case and, then, after it was issued in September 2018, the published decision in the Boise case.

Mike Lyster, spokesman for the City of Anaheim, said Carter "brought north Orange County cities together, leading productive discussions and work sessions, all grounded in the current state of the law."

"We could have gone down a traditional litigation route, and we likely still would be working through that process today," Lyster said.

A new shelter in Santa Ana includes a wall-sized mural of Carter's face in its dining room, along with the phrase "the harder the battle." Jones Day attorneys referenced the mural in their recusal motion, arguing it was evidence that Carter was an advocate for parities in the case and could not neutrally adjudicate the new lawsuit.

U.S. District Judge James V. Selna's June 14 order did not mention the mural, but it did mention statements from Carter, including comments about "good mayors" and "bad mayors," that Selna said could make a regular person believe he isn't impartial in the new case. Selna also said the presence of the county as a defendant in both cases makes it "inevitable" Carter obtained information in the first case that could taint the second, to no fault of Carter.

The new judge, U.S. District Judge Percy Anderson in Los Angeles, is like Carter a UCLA graduate and former criminal prosecutor, with Anderson having been an assistant U.S. attorney and Carter a senior Orange County district attorney. Anderson also has been recused from a case: The 9th Circuit removed him from a wrongful conviction case in 2006 after ruling his impartiality toward the plaintiff could reasonably be questioned. Atkins v. Miller, CV01-01574 (C.D. Cal., filed Feb. 16, 2017).

But their similarities as jurists are limited. Carter, who earned two Purple Hearts and a Bronze Star as a Marine in the Vietnam War, was an Orange County Superior Court judge for 18 years, and was appointed to the federal bench by President Bill Clinton in 1998.

After seven years as a federal prosecutor in Los Angeles, Anderson was a commercial business litigator at two firms for 17 years before President George W. Bush appointed him in 2002. They've shown stark differences in their approach to the homeless issue. While Carter said at the first hearing in the north Orange County cities' case that his court would be in near-continuous session until the matter was resolved, Anderson on Friday filed a list of court rules in the south county cities' case that specifies he only hears civil motions Mondays at 1:30 p.m.

The looming litigation is expected to focus on the 9th Circuit's Boise decision, which held that the Eighth Amendment against cruel and unusual punishment forbids the enforcement of anti-camping ordinances if no indoor shelter space is available. Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).

Pro se plaintiffs working with a homeless advocate cited the decision when litigating against the dismantling of a camp in Santa Cruz in April. U.S. District Judge Edward J. Davila issued a temporary restraining order, then dissolved it six days later after the city offered alternative housing options to each encampment resident. Davila said the situation was distinguishable from Martin because of the housing options and because the city wasn't prosecuting anyone from the encampment. Quintero et al. v. City of Santa Cruz et al., CV19-01898 (N.D. Cal., filed April 9, 2019).

U.S. District Judge Haywood S. Gilliam Jr., offered a similar analysis in November 2018 when he lifted a temporary restraining order that had halted the closure of a camp in Oakland. Noting "there is no easy solution to this extraordinarily complex challenge," Gilliam said the city offering alternative housing to the camp residents and not seeking to criminally punish them doesn't fit Martin's "narrow" focus. Miralle et al. v. The City of Oakland et al., CV18-06823 (N.D. Cal., filed Nov. 9, 2018).

The Santa Cruz and Oakland cases are ongoing, but the cities' early victories reflect growing backlash against Martin that's repeated in south Orange County, where officials in San Clemente recently swept a beach-side parking lot of homeless campers after establishing a nearby city-sanctioned campsite. Jones Day attorneys said the move "plainly complies" with Martin in a letter to plaintiff's attorney Carol A. Sobel, a sole practitioner who's working the Orange County homeless cases with Brooke A. Weitzman.

Sobel and Weitzman believe the camp is illegal because it doesn't provide indoor shelter as Martin requires. Housing is a Human Right Orange County v. The County of Orange, 19-CV00388 (C.D. Cal., led Feb. 27, 2019).

The city is prepared for a long fight: San Clemente city attorney Scott C. Smith, a partner with the municipal firm Best Best & Krieger LLP told the City Council on Tuesday that the Jones Day team includes "a nationally acclaimed First Amendment appellate expert, referring to Yaakov M. Roth. Irvine partners Robert A. Naeve, Richard J. Grabowski and John A. Vogt are also on the case. Five other south Orange County cities have joined San Clemente in hiring Jones Day, including three not named as defendants in the lawsuit.