Governor suggests less litigation against cities over housing laws

Breaking from tradition, Gov. Gavin Newsom gave a State of the State speech on Wednesday focused on just one topic.

"No amount of progress can camouflage the most pernicious crisis in our midst, the ultimate manifestation of poverty: homelessness," Newsom said. "That's why I'm devoting today's remarks to this crisis."

After briefly touting the state's accomplishments and throwing a few jabs at the President Donald Trump's administration, the governor detailed how homelessness intersects many of the state's other issues, most notably mental illness.

The mental illness crisis, in turn, exacerbates problems around criminal justice. For instance, a report issued earlier this month by the Legislative Analyst's Office cited the high number of mentally ill inmates as a key reason corrections department spending continues to rise even as the prison population falls.

Newsom repeatedly mentioned the state needs better "legal tools" to deal with homelessness and mental illness. But a series of court decisions both new and old have largely tied the state's hands in both arenas.

For instance, the governor referenced a now-obscure but important U.S. Supreme Court case on the rights of the mentally ill he said still plays a role in homelessness.

He also said he would seek to avoid future court battles with cities over housing, such as the one he initiated with Huntington Beach. But his alternate strategy, withholding state funds from local governments that don't comply with housing mandates, could itself lead to new court battles.

Newsom also traced the issues back to Ronald Reagan's time as governor, but he did so with a nuance that Democrats sometimes lack when discussing this period.

"Laws were changed that made it harder to compel mental health treatment," Newsom said. "Governor Ronald Reagan signed the Lanterman-Petris-Short Act in 1967, designed to end the inappropriate lifetime commitment of people with mental illness. And critically, in 1975, a U.S. Supreme Court decision, O'Connor v. Donaldson, ruled that 'mental illness alone cannot justify a state locking a person up against his will.'"

In O'Connor v. Donaldson (1975) 422 U.S. 563, the U.S. Supreme Court ruled a state could cannot lock up someone against their will if that person did not present an immediate danger to others and was capable of surviving outside of custody.

The ruling followed years of the mental health system being used to confine people on questionable grounds, according to critics. Newsom said some policies from that era designed to protect the rights of mentally ill people facing confinement were "ahead of their time" but now need reform.

"While we made progress on limited and general conservatorships last year, further improvements are warranted," Newsom said. "Clearly, it's time to respond to the concerns of experts who argue that thresholds for conservatorships are too high and should be revisited."

As an example, Newsom referenced Laura's Law, named for a woman shot to death by a mentally ill man. Passed in 2002 as AB 1421, this law allows family members or service providers to compel someone to outpatient mental health treatment. Newsom strengthened Laura's Law last year when he signed SB 40, allowing for involuntary confinement and a temporary conservatorship of up to 28 days if certain conditions are met.

"Governor Newsom's remarks today -- emphatically embracing a pro-housing agenda and a significant expansion in how we care for those suffering from mental illness and addiction, including via conservatorships -- give me hope that we will see real change this year," SB 40's author, Sen. Scott Wiener, D-San Francisco, said Wednesday in a press release.

Another Supreme Court decision in December further raised the stakes in dealing with homelessness. The court declined to review the 9th U.S. Circuit Court of Appeals decision in Martin v. City of Boise, 2018 DJDAR 8871, letting stand a ruling that prevents authorities from moving or arresting homeless people if they have nowhere to go.

Newsom also addressed housing supply. He tried an aggressive approach on that front last year, filing a pair of lawsuits against the City of Huntington Beach for failing to meet state housing mandates. The city counter-sued, challenging SB 35, a 2017 Sen. Wiener bill designed to streamline building permits.

The sides agreed to a settlement last month which included a pledge by the city to bring its housing plans into compliance with state law. California Department of Housing and Community Development v. City of Huntington Beach, 30-2019-01046493-CU-JR-CJC (O.C. Super. Ct., filed Jan. 25, 2019).

On Wednesday, Newsom said he hoped to avoid further litigation and instead use millions in state funding to give cities incentives to build housing.

"Our imperative must be bringing governments together as working partners, not sparring partners in a court of law," he said. "So instead we are proposing strict accountability, comprehensive audits and a 'do-it-or-lose-it' policy to hold local governments responsible for results. Take action or lose access to this new funding."

That strategy is hardly guaranteed to keep the state out of court, however. Cities regularly sue states -- and states sue the federal government -- over allegations of improperly withholding funding.