Tentative ‘Settlement’ in Lawsuit Over Homelessness Leaves Many Questions

Los Angeles County opposes the deal, as does the Los Angeles Community Action Network and at least one city councilmember

A proposed settlement in a federal lawsuit over homelessness still has major work ahead before it’s finalized, with the city’s announcement including only vague plans met with immediate criticism by Skid Row advocates and at least one city councilmember.

A five-year term sheet filed with U.S. District Judge David O. Carter essentially acts as an agreement to come up with an agreement, with the city pledging to create “sufficient shelter and/or housing” to accommodate 60 percent of the city’s homeless population. But that promise alone contains a major caveat: The city won’t shelter homeless people if they’re seriously mentally ill, chronically homeless or diagnosed with a substance use disorder, or if they have a chronic physical illness or disability that requires professional medical care.

According to the city, any homeless people who meet one or more of those qualifications is the responsibility of the county. The court filing specifies the county isn’t part of the proposed deal, but it still devotes nearly 1 1/2 of its five pages to outlining the county’s obligations. That includes “funding and providing wrap-around and supportive services” for people in city housing and shelter, increasing outreach and engagement and “providing housing and treatment services” for all homeless people who the city has deemed not the city’s responsibility.

Mayor Eric Garcetti even said the proposal is “not just about what we’ll do, but what we’re doing, and we’ve done.” While it recognizes what the city has jurisdiction over and what it’s good at, Garcetti said during a press conference Friday that it “also recognizes what we aren’t good at, what we don’t have jurisdiction or funding over.”

City officials are pledging to open 14,000 new beds, but they say 13,000 of those beds were already planned before the deal was struck, though without secured funding. The term sheet states that no enforcement of “public regulation ordinances,” such as the anti-camping laws the city enacted last year, will be taken unless an unhoused person has first been offered shelter, which is the most fundamental legal holding of the 2018 9th Circuit case Boise v. Martin. Other terms of the proposed deal are vague, including, “The parties agree to cooperate to identify and reduce barriers to building more affordable housing” and to “consider expediting public/private partnerships that utilize private capital and which require no up-front costs to City.”

U.S. District Judge David O. Carter greets Mayor Eric Garcetti at the Los Angeles federal courthouse on March 1, 2022.

Announced on April Fool’s Day, the purported deal comes at a tumultuous and political time for the lawsuit, including a recent request by L.A. County lawyers that Carter transfer the case to another judge, which he declined to do. The case has undergone a wildly non-traditional judicial odyssey since it was filed right before the pandemic took hold in March 2020. There’s never been a formal evidence discovery process as is typical in civil procedure, and court hearings for about a year consisted of city and county officials sharing updates with Carter as he peppered them and lawyers with questions, comments and ideas while conducting his own after-court side tours and meetings.

Then came the county’s bid to dismiss the lawsuit, which Carter rejected before issuing a major injunction in April 2021 at the request of the plaintiff group L.A. Alliance for Human Rights that included radical requirements such as offering everyone on Skid Row housing within six months. After the 9th Circuit U.S. Court of Appeals vacated it, the plaintiff lawyers for LA Alliance file an amended lawsuit they said laid the foundation for another, similar order from Carter.

But the city and county filed new dismissal motions, and the judge’s interest in another shake-up injunction seems to have waned. At a hearing on the dismissal motions in January, the judge ordered the settlement negotiations that resulted in the proposed deal the city announced last week in conjunction with the L.A. Alliance.

Carter still has to approve the city’s final settlement, but the 60 percent threshold for shelter beds versus the total homeless population is a figure he’s floated from the beginning because it’s the threshold he enforces in a separate lawsuit about homeless services in Orange County, which includes the Los Angeles County cities of Whittier and Bellflower. The city settlement also appears to include a consent decree, an oft-misunderstood legal term that drew pushback from city officials early in the lawsuit and gives Carter enforcement power over the settlement for the next five years, should he approve it.

Still, the proposal so far lacks specifics, and it’s drawn opposition from key interests the judge could find persuasive: The Los Angeles Community Action Network, which is an official intervenor in the case, and City Councilman Mike Bonin, who has toured homeless encampments with Carter and criticized the settlement as perpetuating “the council district-by-council district approach, which is piecemeal, scattered, inefficient and unsuccessful.”

“This settlement is structured to allow the City to do the minimum necessary to step up the failed and expensive enforcement strategies it always uses,” Bonin wrote on Twitter. “And it’s clear that’s what the plaintiffs and a lot of others always wanted.”

LACAN’s statement puts quotes around settlement, calls it “collusive” and says it essentially amounts to the same political back deals the lawsuit is supposed to eliminate.

“The only difference was that this back room was at the Federal Courthouse, not City Hall,” the statement reads. “This settlement may be trumpeted as a win by Skid Row property owners and politicians who are looking no further than the next elections, but it’s the same failed approach the City has been investing in for decades, and it’s a real loss for everyone else, housed and unhoused, who trusted that this case was a chance to make a real difference in the City’s housing and homeless.”

County officials have taken a less direct approach, with county spokesman Michael Wilson emailing reporters a statement Friday morning that commended the “tentative settlement” and said the county remains “steadfast in our focus on addressing homelessness as a regional crisis affecting people and communities in all of our 88 cities as well as in the unincorporated areas.” It didn’t address the city’s contention that the county shoulders the responsibility for essentially the most problematic of the homeless population, but it said the county “will continue to use its resources to support people experiencing homelessness within the area of Los Angeles that is the subject of this lawsuit” as well as all other areas of the county, while observing the city’s settlement pertains only to “conditions on Skid Row downtown.”

About 30 minutes after Wilson’s statement, another statement came in to this reporter’s inbox from the county’s outside counsel Skip Miller that was less harmonious.

“This lawsuit has no merit with regard to the County. It is between the plaintiffs and the City, and we’re glad they settled. We intend to litigate and win this case,“ the statement said, adding: “The County is more than doing its job and doing everything possible to address homelessness without stigmatizing it as a crime.”

Then on Tuesday, Miller issued another statement saying while the county initially praised the city settlement, “we have now had an opportunity to study the terms in detail” and that appears to have “little to no value” by only spending already existing money.

“They are simply recommitting to what they had already committed to and relabeling existing programs as a “settlement,” according to the statement, which noted the settlement explicitly states the city won’t help “those who really need the help.”

“The settlement explicitly states that the city will not offer housing to them. As such, it ignores at least half or more of the homeless population. What kind of a settlement is that?” 

City officials and lawyers for the L.A. Alliance devoted much of Friday’s press conference at Los Angeles City Hall to talking about the county’s failures, with City Council President Nury Martinez said the city has “been doing our part all along.”

“Districts like mine have always been building housing and have never been given any credit for doing so,” Martinez said.

“What we need to do is call the county to step up and do their part. We came to the table looking for solutions and recognizing that the status quo simply isn’t working. And where is the county? They’re not looking for solutions. They’re looking to protect themselves.”

It was a markedly unharmonious tone to a press conference that was supposedly all about a groundbreaking agreement that will change the course of the city’s response to what Garcetti has repeatedly called “the biggest humanitarian crisis of our time.”

L.A. Alliance lawyer Elizabeth Mitchell didn’t comment on Martinez’s assertion that the city has always been doing enough, but she said ”the audacity of the county to say they’re doing enough when the streets clearly show otherwise is offensive.”

“The case against the county continues and we will not stop working tirelessly to hold them accountable,” Mitchell said. “We’ll take it the 9th we’ll take it to the Supreme Court if we have to, but we’re not going away and the county’s not getting our of their obligations.”

The 9 a.m. City Hall press conference was announced at 7:19 p.m. the night before, with no online stream available and no way for reporters to ask questions without being at City Hall in person, (with a mask and proof of vaccination). It followed a March 29 settlement conference at the federal courthouse in downtown Los Angeles which have been shrouded in mystery as Carter and lawyers for the city and county meet behind closed doors with no public explanation about what’s being discussed or why. U.S. District Judge Andre Birotte, who’s worked with Carter on the case since the beginning, has been involved, as has Carter’s special master Michele Martinez, a former Santa Ana city councilman who is not a lawyer but was enlisted by Carter because of her knowledge of municipal politics and bureaucracies.

LACAN raised concerns about the process in a March 28 filing, noting they’e been excluded from the negotiations and that public statements about what’s going on, as well as previously disclosed details about the deal, “raise questions about the legality of such an agreement.” LACAN’s lawyer Shayla Myers of the Legal Aid Foundation of Los Angeles also said they don’t object to the county’s request that Carter transfer the case to another judge.

That request, already rejected, is a lightning rod in traditional litigation. But it wasn’t made in the form of a full-fledged recusal motion. Instead, Miller, a partner with Miller Barondess LLP who’s known Carter for years, made the request in a motion withdrawing the county’s consent to ex parte communication, a legal term for a judge’s private, unauthorized communication with just one party to a case, or with uninvolved parties, even though the judge said nearly a year ago that he was no longer going to be doing that. Miller quoted Carter’s own words from the first hearing in the lawsuit on March 19, 2020, in which the judge said attorneys needed to “trust me in those ex parte conversations. Because they’re going to be more valuable, I hope, than litigation.”

“And if you get to litigation, I’ve got great judges who can litigate. And they can probably be much more collaborative than even I am,” Carter continued.

Los Angeles Mayor Eric Garcetti after a settlement conference in the L.A. Alliance on homelessness, outside the Los Angeles federal courthouse on March 28, 2022.

(Photo: Meghann M. Cuniff)

Miller said Carter’s observation is consistent with the federal law that, according to case law, requires judges to recuse themselves if their impartiality “might be reasonably questioned.” But Carter declined before last week’s settlement conference began in Los Angeles, which Garcetti attended. The mayor told LA Magazine then that a settlement was imminent, and he said he didn’t support the county’s request for Carter to transfer the case.

“We’re in direct contact with this judge and eager to bring this to a resolution,” Garcetti said.

Four days later, Garcetti was praising the agreement at the press conference alongside Mitchell, Martinez, City Councilman Kevin DeLeon and Daniel Conway, a communications consultant for the LA Alliance.

“This is a roadmap for us to continue our momentum,” Garcetti said. “We see this by the way as a basement, not as a ceiling.” 

Meanwhile, Mitchell, a former deputy city attorney who’s now with Spertus, Ladnes & Umhofer, and the L.A. City Attorney’s Office said they hope to have the full settlement approved by the City Council and finalized for the court by the end of April. As a co-defendant in the case, the county could file a motion that challenges the settlement as not in good faith, but it’s unclear if that will happen. A county spokesman said Tuesday they won’t comment on litigation strategy.

Meghann M. Cuniff is a legal affairs journalist in Southern California. Shes on Twitter @meghanncuniff.

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