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Housing and Homelessness

In Appeal Hearing, A Judicial Panel Signals Sympathy For Judge Carter’s ‘Judicial Frustration’ Over LA Homelessness

A video still frame of the Ninth Circuit Court's hearing; at the top, three judges wear black robes and sit behind a long desk. Beneath them, four attorneys appear via video conference from their respective offices.
TOP: 9th Circuit Court of Appeals panel of judges, left to right: John B. Owens, Jacqueline Nguyen, and Michelle Friedland. BOTTOM: Attorneys clockwise from upper left: Shayla Myers, Matthew Umhofer, Michael Walsh, Mira Hashmall.
(Screenshot from the 9th Circuit Court of Appeals YouTube Channel.)
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Oral arguments clocked in at a little less than an hour on Wednesday in a case with the potential to freeze $1 billion in government spending and shake up homelessness policy across the region.

The 9th U.S. Circuit Court of Appeals heard a challenge from the city and county of Los Angeles, which are trying to overturn a sweeping injunction issued by U.S. District Judge David O. Carter that would compel the local governments to offer shelter to everyone on Skid Row by mid-October. Los Angeles Community Action Network (LA CAN) is a third party intervenor in the case, also asking the appeals court to vacate the order.

Carter is overseeing a lawsuit filed last year by a group of downtown L.A. business owners and residents, known as the L.A. Alliance For Human Rights, who argue local officials have mismanaged tax dollars meant to combat homelessness.

In his April order, Carter argued that a long history of racism and discrimination in government policy and the private sector has produced a status quo in which Black people are disproportionately afflicted by homelessness.

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Judicial Overreach or Judicial Frustration?

Speaking by videoconference, the three-judge panel pressed lawyers for the county and city about their argument that Carter had exceeded the constitutional role of the judiciary — and the judges wondered why settlement talks were not further along.

Michael Walsh, an attorney for the city, said Carter was not justified in taking over legislative functions and interfering with local governments’ ongoing efforts to address homelessness.

“This is just judicial overreach beyond support,” said Walsh, who was cut off by Judge John B. Owens.

“You could also, I think, call it judicial frustration,” Owens said. “In [Carter’s] opinion, there has been a dismal failure by elected officials ... What is he supposed to do … sit back and watch Los Angeles disintegrate in this matter, or should he take some action?”

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“The city isn’t neglecting the problem,” Walsh countered. “It’s just that the problem is vast and complex.”

In response, Owens said, “There’s a way you could take [the power] back — you could settle this."

At the same time, the judges were skeptical of Carter’s process — suggesting he erred in not holding evidentiary hearings, which may lead them to kick the matter back down to the district court. “Doesn’t that suggest that we have to, at minimum, send it back for a re-do?” Judge Jacqueline Nguyen asked. She noted that Judge Carter has held numerous hearings, "but no one was put on the stand, no one was under oath.”

Later, L.A. Alliance attorney Matthew Umhofer listed comments by elected leaders, including City Council President Nury Martinez and Supervisor Kathryn Barger, who have said publicly the system for combating homelessness is “broken” or “failing.”

“We’ve got concessions from local officials here … that the city and the county are broken on this issue. They are failing at an epic level,” Umhofer said. “That’s why we’ve brought these claims.”

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What Carter's Order Says

Carter’s order would force the city and county to offer “adequate” shelter to women and children on Skid Row within 90 days, and men within 120 days. It also asks for a detailed accounting of public funding sources and where the homelessness money is going, and temporarily places $1 billion in budgeted homelessness spending in escrow. Those demands have been on hold since the 9th Circuit issued a stay almost two months ago. Carter previously backed off another part of his order that put a hold on the sale or lease of city-owned land.

The stakes are high: By allowing the injunction to stand, the court would be stripping a chunk of power from elected officials, implicitly acknowledging local government’s inability to make a serious dent in homelessness and forcing judicial intervention.

Judge Michelle Friedland heard the appeal, along with Nguyen and Owens. All three are appointees of former President Barack Obama.

In her argument, L.A. CAN attorney Shayla Myers noted that it’s rare for street-level homeless advocates to be on the same side as the city and county when it comes to policy and spending decisions that affect unhoused people. But she said the potential disruption to services across the county in a rushed process focused on Skid Row, and the uncertainty the preliminary injunction has sown among the unhoused community and service providers, made the decision to oppose Carter’s order clear.

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“This injunction will actually exacerbate the homelessness crisis and re-inscribe inequality,” Myers said.

In her rebuttal, however, Myers left the door open for supporting future judicial remedies. “Under the right circumstances, there is no question that the court can and should protect the rights of the unhoused, she said. “But that is not this case.”

What's Next

If the judges strike down Carter’s order, the lawsuit will still be in his courtroom — seemingly back at square one, because settlement talks between the plaintiffs and attorneys for the city and county have reportedly stalled.

At a hearing in May, Carter addressed the role of the 9th Circuit and the city and county’s appeal. “Regardless of what you do, it’s coming back to my court eventually,” Carter said. “And the question is, in what form and in how long? You hold the future of this city in your hands … If not now, when, if not us, who?”

Local officials say the injunction is an overreach by a judge who’s known for unconventional hearings and bold, headline-grabbing orders. They argue the separation of powers in the constitution dictates that elected officials create policy, not the judicial system. Attorneys for the plaintiffs say the urgency to get people off the street should prevail, and the county and city miscalculated by pursuing the construction of long-term permanent housing to address homelessness through ballot measures, instead of more rapidly ramping up temporary shelter.

Municipal groups from California, Oregon and Washington sided with the city and county, filing briefs detailing concerns about the potential precedent set by letting Carter’s injunction go forward.

“The District Court’s preliminary injunction weighs competing public-policy goals, attacks the wisdom of political decisions, and exerts control over budgetary policies and priorities,” one brief argued. “Those are tasks for the local governments that amici represent — not tasks for federal judges.”

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