In two days of hearings last week in Los Angeles, the judge at the epicenter of a historic lawsuit over homelessness made one thing clear: no matter what happens in appeals court, he’s still in charge.
“Take it up to the Ninth Circuit,” Judge David O. Carter told attorneys for both the city and county of Los Angeles. “But when you do that, regardless of what the Ninth Circuit does, it’s coming back to my court eventually. And the question is: In what form and then how long?”
It was a somewhat ominous warning from a jurist who often dares attorneys to appeal his orders and has traditionally shown no fear of his higher-ups on the Ninth Circuit Court of Appeals. It also could serve as a practical roadmap for the legions of Angelenos wondering about the future of a lawsuit that’s drawn heightened attention amid an unprecedented preliminary injunction that mandates everyone on Skid Row be offered housing by the fall.
Simply put: while the Ninth might overturn his order, Carter is likely to stay on the case, and he isn’t going to let up on the city and county officials he’s spent the last 14 months scrutinizing.
“The court’s going to stay diligent and involved,” Carter said. “I’m telling you that and I’m not budging on that. There’s too much death out there. And it’s women and families and eventually it’s Skid Row.”
It was the first time Carter has spoken publicly about the pending Ninth Circuit review since his 110-page injunction, issued April 20, shook Los Angeles politics and triggered backlash from Mayor Eric Garcetti and others who said it would hinder current efforts to combat homelessness. The Ninth Circuit has halted the injunction until June 15, and attorneys on Wednesday must brief the appellate court on how last week’s hearing affected Carter’s order. But as Los Angeles County’s outside counsel Skip Miller told Carter, no one is denying the judge’s fundamental legal finding that systematic racism is responsible for Los Angeles’ homeless crisis.
Despite fierce pushback in briefs to the Ninth Circuit, no one spoke against Carter in court. The judge noted Garcetti’s absence as well as the absence of Mark Ridley-Thomas, who is chair of L.A. City Council’s Homelessness and Poverty Committee.
Miller, however, said the issues before the Ninth aren’t so much about the racism findings but about a court’s role in municipal government.
“From a legal position, we don’t have a case or controversy. We have a political question,” Miller told Carter last week. “Speaker after speaker has acknowledged this is a political issue. It’s not something the courts get involved in typically or hardly ever. There’s ample precedence saying no. It’s not a court function, and that’s our position.”
Thursday’s hearing included detailed discussions of past audits, with Carter questioning the propriety and thoroughness and warning Miller he’ll stick with his order for new audits as soon as the Ninth’s temporary stay is lifted in two weeks.
“They’re going to have to stay it permanently, in other words. So I’m putting you on fair notice. I would be working on it now, hopefully,” Carter said.
While some judges are more focused on appellate scrutiny, Carter is not one to be intimated by even the kind of rare emergency stay implemented by the Ninth against his injunction, said Kate Corrigan, a longtime Orange County criminal defense attorney who knows the judge well.
“He’ll stay true to what he believes is the right thing to do here, and that’s what he guides him through everything. He’s consistent on that,” Corrigan said.
Last Wednesday, Carter held another hearing in which he threatened to reinstate an order directing the city and county to house people living on freeway underpasses and overpasses. The city and county struck their own agreement last April that thwarted the order, but Carter said he may reissue it if he doesn’t see more progress. He said last week he wasn’t ready to just yet, but the hearing served as a loud reminder of the power he still holds even as the Ninth reviews the injunction regarding audits and Skid Row housing offers. He spent a portion of it displaying photos of freeway overpasses that had been cleared for the Academy Awards while questioning Los Angeles Homeless Services Authority Executive Director Heidi Marston about the city’s priorities.
“Why did we cover up this humanity and inhumanity to the very people in Hollywood who have a heart who might, seeing this, be the most capable and able public figures?” Carter said. “If we can do this for Hollywood, why can’t we do this for Curren Price’s district or Kevin DeLeon’s district?”
Carter’s mentor on the federal bench was the late Senior U.S. District Judge Manuel Real, who was notorious for the frequency with which the Ninth Circuit overturned him.
Carter so reveres Real that he cut short an overseas trip and went straight from the Los Angeles International Airport to the First Street federal courthouse for a judges’ memorial event for Real in September 2019. He eulogized him by quoting Lil Nas X’s “Old Town Road”: “I’m going to take my horse to the old town road. I’m gonna ride till I can’t ride no more.”
Still, Carter isn’t overturned nearly as frequently as his mentor, Corrigan said.
“Not even close,” she said.
Meghann M. Cuniff is a freelance reporter focused on legal affairs. She’s on Twitter at @meghanncuniff.
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