Order on LA homeless problem raises questions

A federal judge's sweeping mandate for the city and county of Los Angeles to quickly solve its homeless problem presents a host of issues that could wind up before the U.S. Supreme Court.

"I can't imagine the 9th Circuit won't take this very seriously, and even possibly, the U.S. Supreme Court," said Derek P. Cole, managing partner of Cole Huber LLP, who specializes in municipal law and is city attorney for Oakley and Sutter Creek.

U.S. District Judge David O. Carter's 110-page ruling contained lofty and scathing prose about the responsibility of governments and quoted liberally from the Gettysburg Address. Carter, who railed against the elected officials for inaction that he said has caused racial disparities, gave them a week to deposit $1 billion into an escrow account to be used for permanent housing for homeless people, and ordered the city and county to offer housing to everyone on skid row within six months. LA Alliance for Human Rights v. City of Los Angeles et al., 2:20-CV-02291 (C.D. Cal., filed March 10, 2020)

"The judge speaks very eloquently about these issues, but the way he does it, sounds almost partisan," Cole said. "There are absolutely many reasons to support his assessment of the history and the causes of the problem, so I'm not disagreeing with anything he's saying, but just to see this written in a judicial opinion hits differently."

More than a dozen municipal lawyers and constitutional law experts contacted for this article either declined to comment or didn't respond.

Lawyers for the city and county of Los Angeles also were circumspect. They declined to discuss the case beyond saying they were evaluating the injunction and planning next steps. They wouldn't say if they would ask Carter or the 9th U.S. Circuit Court of Appeals for a stay of the order.

Los Angeles Mayor Eric Garcetti appeared frustrated. Garcetti said in a news conference Tuesday that while he enjoyed working with the judge and shared his sense of urgency to solve "an unprecedented crisis of homelessness," the timeframe to carry out Carter's orders is too short.

"Whether it is somebody saying, 'that's too much money in the budget Mr. Mayor, or somebody who says, 'slow down' or a court that decides to get in the way, I'd say: 'stay out of our way,'" Garcetti said. "I'd say roadblocks masquerading as progress is one of the last things we need. We have to make sure doing things that are legal and possible."

Cole said that the judge's directions on how to spend money could keep government resources from going to other underserved areas and disadvantaged populations. California law has serious limitations on the ability for municipalities to raise revenue, which was borne from Proposition 13, and various tax reform initiatives, he noted.

"The city will really not have the ability to tap into new resources. The city budget serves numerous constituencies and interests," Cole said. "The billion dollars it has to pay within the next week is going to take away money from other sources if that obligation is enforced."

Carter's injunction also raises issues of separation of powers, Cole said.

If the city were to be forced to comply with these obligations, it could resort to drastic measures like cutting staff, as a big part of any city budget is its payroll, and could affect union bargaining. There is also a bigger conversation to be had about judges who typically stay out of policy and social issues, and those who don't, Cole said.

While Carter, a Bill Clinton appointee, has issued a sweeping mandate, "what if the judge was a conservative judge, and had a very different opinion about the causes of homelessness?" Cole said.

"I think it's fair to say that there'd be so-called conservative judges who would radically differ in their assessment and best ways to address those problems," he said. "There's a reason judges don't get involved in policy and social issues because you're going to get a wide range of variance, depending on the philosophy or beliefs of that judge. These aren't elected officials."

A federal judge also is not trained to make budgetary decisions, Cole said.

"As a city attorney, I sat through many budget hearings, and have a better understanding of how these are created, but I even have difficulty at times," Cole said. "It's not an easy subject, particularly for large cities like Los Angeles, it's a highly specialized area. That becomes a real problem when the judiciary starts making decisions about these issues."

Cole predicted both defendants would immediately seek a stay of the order pending an appeal. He also predicted the 9th Circuit "will take a very serious look at this."

"Even if the 9th Circuit ultimately decides to uphold the judge's ruling, it has to recognize that this is a potentially ground-breaking case," Cole said.

The question higher courts would have to decide is whether the U.S. Constitution allows the federal judiciary to order the type of relief Carter ordered, and whether the doctrines of substantive due process and equal protection require such actions, Cole said.

"The interesting point here is that the court is forcing the city to spend a massive amount of money but it's not imposing a tax," Cole said. "But the court believes it has the power to compel the city to spend money. But what is the limitation?"

Richard Schulman, sole practitioner in San Diego who specializes in municipal law, said there has been a long history of tension between the fiscal limits cities and states face and the desire of some judges to commit large amounts of cash to fix certain problems. There have always been problems arising from expansive versus narrow views of the U.S. Constitution, he said.

"A classic example takes us back to the mid-1970s, where the state Supreme Court found that California's entire system for funding public schools was unconstitutional," Schulman said, referring to Serrano v. Priest, 5 Cal. 3d (1971). Serrano questioned the inequities created by the longstanding practice to fund public schools via property taxes, which the state high court held unconstitutional.

"Public finance isn't something that allows cities to come up with a billion dollars just like that," Schulman said.