The odds are increasing that the U.S. Supreme Court could step in to undo a controversial appeals court decision blocking cities in California, Oregon and Washington, and elsewhere, from enforcing rules that otherwise prohibit homeless encampments in parks and on streets, after California's Democratic governor sided with conservatives in urging the high court to hear an appeal of the earlier decision from the U.S. Ninth Circuit Court of Appeals.
Amid litigation over the government’s ability to clear homeless camps in San Francisco, Berkeley, and elsewhere, Gov. Gavin Newsom and dozens more officials have filed legal briefs with the U.S. Supreme Court, asking the court to overturn the Ninth Circuit’s recent decision in Johnson v. City of Grants Pass.
Specifically, the SCOTUS is being asked to review whether the practice of clearing homeless camps violates the Eighth Amendment protection against cruel and unusual punishment, as the Ninth Circuit's left-wing majority ruled.
Brendan Begley
| Weintraub Tobin
Citing the 2018 Martin v City of Boise ruling, Newsom emphasized the importance of a "modest check" on government's use of criminal prohibitions against homeless individuals.
“I will refer you to our amicus brief posted online. In particular, pages 5 and 6,” Daniel Lopez, Deputy Communications Director in the Office of Governor Gavin Newsom, told the Northern California Record.
The pages Lopez directed the Northern California Record refer to the 2018 Martin v City of Boise ruling.
While acknowledging that Martin did not prohibit all efforts to manage homelessness, Newsom expresses concern over the broad interpretation of the ruling, suggesting it has resulted in federal judges making crucial decisions on homelessness management rather than elected officials.
“Martin offered a ‘narrow’ holding: ‘as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property.’ In other words, if the government cannot offer an unhoused person indoor shelter, it cannot enforce an all-places or all-times criminal prohibition on sleeping outdoors,” Newsom’s appeal reads.
The filing references San Francisco's collaborative policy, implemented post-Martin, which involves a notice system and outreach efforts before clearing dangerous encampments. The case is poised to impact the broader debate on the rights of homeless individuals – noting that individuals lacking lawful shelter should not face criminal prosecution for the basic human need for sleep – and the ability of local governments to address homelessness effectively.
The Martin ruling noted that public officials must ensure the homeless population is offered adequate housing options before being removed from public encampments.
“These courts have stretched Martin's reasonable limit into an insurmountable roadblock, preventing cities and towns from imposing common-sense time and place restrictions to keep streets safe and to move those experiencing homelessness into shelter,” Newsom’s brief reads.
“California's elected officials who seek in good faith to improve what often appears to be an intractable crisis have found themselves without options, forced to abandon efforts to make the spaces occupied by unhoused people safer for those within and near them.”
Newsom's brief is just one of several friend-of-the-court, or amicus briefs, filed in the Grant's Pass appeal.
Numerous amicus being filed in any one case does not guarantee that the high court will grant review, but it certainly improves the odds, said Brendan J. Begley, a certified appellate law specialist with the firm of Weintraub Tobin, in an email interview with the Northern California Record.
“To me, the most striking thing about Gov. Newsom’s amicus brief is that it aligns him on one key level with at least fifteen conservative judges on the Ninth Circuit who also disagree with the majority opinion in Johnson v. City of Grants Pass -- including four judges appointed by President George W. Bush, a Nixon appointee, a Reagan appointee, and nine of Trump’s ten appointees. A governor from any state filing an amicus brief probably increases the chances of review being granted by some measure, but that increase might be slight if nobody other than that governor files an amicus brief (which is not the situation here, since many local governmental agencies and other amici also filed such briefs).
The range of amicus curiae, after a narrow majority Ninth Circuit decision to not rehear Johnson v. Grants Pass, may increase the chance of SCOTUS review, Begley said.
“Having many amicus briefs urging review filed by folks with diverse perspectives surely increases the chances even more,” Begley said. “Another thing about this case that suggests to me that the odds of review are even greater is that Judge Callahan and Judge O'Scannlain both share Gov. Newsom’s view that the Ninth Circuit’s decision is flawed. It is my impression that the Supreme Court has a greater tendency to grant review when those two judges opine that there is some problem with one of their court’s decisions.”
Callahan was appointed to the Ninth Circuit by former President George W. Bush, and O'Scannlain by former President Ronald Reagan.
Other government officials filing amicus briefs include: 20 state attorneys general, the city of Los Angeles, the city of Phoenix, and the Sacramento County District Attorney’s office, which is also suing the city for alleged failure to enforce homeless policies.
“I cannot predict for sure how Gov. Newsom might view the district attorney’s lawsuit against the city, especially since the governor’s positions on a number of issues lately have seemed to become more centrist than some observers might have anticipated,” Begley said. “However, his amicus brief challenging the Ninth Circuit’s ruling in Johnson v. City of Grants Pass strongly suggests that the city of Sacramento might not find as much support from the governor as it might have counted upon a year ago.”
The Supreme Court decision on whether to hear Johnson v. Grants Pass could be issued by early next year.
Kyle Barnett contributed to this report.