9th Circuit gets an earful about judge’s LA homeless ruling

A federal judge in Santa Ana came under verbal siege Wednesday as a 9th U.S. Circuit Court of Appeals panel considered whether to allow his injunction ordering officials to take immediate and broad action to reduce the number of homeless people in Los Angeles County.

In April, U.S. District Judge David O. Carter ordered the city and county of Los Angeles to immediately deposit $1 billion into an escrow account to provide shelter for homeless people and to clean out the homeless population living on skid row by this fall. Carter found that homelessness was caused in large part by systematic racism, something plaintiffs never claimed in their court papers.

Attorneys for the city and county of Los Angeles, as well as a group that advocates for housing, blasted Carter's injunction as a violation of the separation of powers that he wrote without an adequate evidentiary record.

"This is about an evidentiary record that does not exist," said Shayla R. Myers, an attorney with the Legal Aid Foundation of Los Angeles who represented the Los Angeles Community Action Network.

Lawyers for the city and county accused Carter of legislating a solution to Los Angeles' homelessness problem from the bench and taking over from elected municipal officials.

"There's no basis for the order in the first place," said Deputy City Attorney Michael M. Walsh. "No amount of evidentiary hearings is going to fix it."

Matthew D. Umhofer, a partner with Spertus, Landes & Umhofer LLP, represents the LA Alliance for Human Rights, a coalition of business owners, residents and some homeless people who sued the city and county. Umhofer told the circuit panel that elected leaders' strategy for dealing with homeless residents was a failure.

"People are dying at a rate of five a day," he said. "Judge Carter's engagement is not unprecedented. It may be inconvenient for the city, but it's also just what is needed."

The 9th Circuit panel, all of whom are appointees of President Barack Obama, peppered attorneys on both sides with questions.

Judge Jacqueline Nguyen balked at the repeated assertions by J. Mira Hashmall, a partner with Miller Barondess LLP who represents the county, that Carter "cannot legislate through the courts."

"But the court's equitable powers are quite broad," Nguyen said.

9th Circuit Judge John B. Owens suggested Carter's order was driven by "judicial frustration" due to "dismal, dismal failure by city officials in Los Angeles."

Walsh said there are limits to a judge's authority, and "not necessarily a constitutional solution to every social problem."

"He's essentially taken over control of municipal government," Walsh said of Carter.

Owens said the city could get control back by settling the case. Umhofer said his clients filed the case to settle it. LA Alliance for Human Rights et al. v. County of Los Angeles et al., 21-55395 (9th Cir., filed April 22, 2021).

Nguyen said Carter "didn't resolve" objections to the evidence presented before he issued his preliminary injunction. "Don't we have to send it back for remand?"

Umhofer defended Carter's conclusions in his order, and said "this court needs to defer to the district court's inferences based on those facts."

Myers, representing the intervenor known as Cangress, said the plaintiffs were a small group of property owners whose interests in clearing skid row of homeless people drove Carter's conclusions. "LA Alliance failed to put forth any evidence," she said.

Carter's order focuses on equal protection claims, citing Los Angeles' history of discriminatory laws and practices that has led to a higher percentage of Black residents being homeless.

The city and county say such a claim cannot justify the injunction because it was never alleged in the original lawsuit, even if some members of the LA Alliance are Black homeless residents.

9th Circuit Judge Michelle T. Friedland, the third member of the panel, peppered attorneys on both sides with a number of questions.