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HomeMy WebLinkAboutAgenda Report - July 6, 1994 (45)o. P'. % CITY OF LODI. COUNCIL COMMUNICATION AGENDA TITLE: Request for Council Authorization to Join Amicus Curiae Brief (Tobe, et al. v, City of Santa Ana) MEETING DATE: July 6, 1994 PREPARED BY: City Attorney RECOMMENDED ACTION: Council authorization to join Amicus Curiae brief in the above captioned case, which relates to cities authority to regulate camping by the homeless on Public property. BACKGROUND INFORMATION: For several years the City of Santa Ana has had a significant problem with large numbers of homeless persons congregating in encampments at the Civic Center Plaza. In response to this problem, the city enacted an anti -camping ordinance which restricted the ability of homeless persons to encamp on public property. In Tobe v. City of Santa Ana the Court of Appeal struck down the ordinance as unconstitutional. The case is currently on appeal to the Supreme Court of California. At stake in this case is the power of cities to regulate problems associated with homelessness. While Lodi Municipal Code Chapter 15.52 et seq. is dissimilar to the ordinance at issue in Tobe the broad scope of the Court of Appeal ruling could render Chapter 15.52 et seq. largely unenforceable as applied to homeless individuals on public property. The Tobe court implied that homeless individuals have a constitutional right to encamp on public property and to perform their day-to-day activities there. The importance of this case cannot be overstated as it may greatly limit the ability of the City to deal responsibly with the issue of homelessness and its secondary effects on the quality of life in this community. FUNDING: There will be no cost to the City to join in this Amicus Curiae brief. Respectfully submitted, -& Q Bob McNatt City Attorney BM:pn APPR("VED THOMAS A. PETERSON @cycled peoe, City Manager i CC -1 City and County of San Fr,-Icisco: �O COU*,. Louise K Renne. City Attorney Mice of City Attorne, JUN 1 S 1994 Michael E. OlsenC!tk Attomy 3 omli; DEPUTY CITY ATTORNEY (415) 554-4257 June 10, 1994 Re: Tobe, et al. v. City of Santa Ana, Supreme Court of the State of California, No. S-038530; Appeal from Fourth District, Division 3, Nos. G-014257 and G-014536 TO ALL CALIFORNIA CITY ATTORNEYS: The League of California Cities, legal advocacy committee has passed a resolution urging all California cities to join in an amicus curiae brief seeking reversal of the decision of the Court of Appeal in the above -captioned case. The City Attorney for the City and County of San Francisco has volunteered to prepare the brief. As set forth on the attached "Application for Permission to File Amicus Curiae Brief, etc.," we expect the brief to be due on July 31, 1994. The decision in Tobe, et al. v. City of Santa Ana, 22 Cal.App.4th 228 (1994), is a sweeping decision by the Fourth District Court of Appeal striking Santa Ana's laws against public camping and public storage of personal goods. The Court held that -- so long as other housing alternatives were unavailable -- a city's homeless population has the right to camp, live, and conduct "life-sustaining" activities in public places. See also Pottinger v. Miami, 810 F.Supp. 1551 (S.D. Fla. 1992) (holhing similarly). The Tobe ruling is not merely "as applied" to Santa Ana, but enunciates an implied general constitutional right to public housing, a right expressly rejected by the United States Supreme Court. Further, by constitutionalizing the right to live, sleep, and conduct personal activities in public places, the Tobe decision removes from municipal government the freedom to strike its own balance between the needs of individuals and the needs of the community. Regardle• of the particular policy of any community, the freedom.' pursue that policy at a municipal level must be preserved. The attached "Application for Permission to File Amicus Curiae Brief, etc." more fully sets forth the position that we intend to take in our brief. (4 15) 554-4283 Room 206 City Ha!! San Francisco 94102-46f June 10, 1994 page 2 of 2 We request of Amicus Curiae Should you elect add your name t Cities that joi nthat you agree to join�you that seek reversal of the to join, please authorize o the members oA the League this amicus brief. r name to the -list decision in Tobe. us in writing to of California Further, it will be extremely useful to provide to the Court a compendium of the myriad statutes, regulations, and ordinances that California cities use to maintain public areas. If your jurisdiction enforces laws against camping, public lodging, sleeping in parks, obstructing sidewalks, or conduct of that kin, please provide along with your authorization a copy of the relevant statutes, ordinances or regulations.. Because we will request Judicial Notice, please include with the copy the cover page of the volume in which the law appears (indicating the jurisdiction, year, and title of the law) as well as the specific section and language of the law. We request that you respond by July 10, 1994, in order that we may incorporate fully all submissions. Thank you. Please do not hesitate to contact me if you have any questions. Very truly yours, LOUISE H. RENNE City Attorney MICHAEL E. OLSEN Deputy City Attorney Enclosure (415) 554-4283 Room 206 City Hall San Francisco 94102-4682 City and County of San :'ncisco: roCoft •' �; Louise R Renne. City Attorney r � ffice of City Attorne Michael E.•Olsen DEPUTY CITY ATTORNEY (415) 554-4257 June 9, 1994 BY HAND Civil Clerk Supreme Court of the State of California 303 Second Street, South Tower San Francisco, California 94107 Re: Tobe. et al. v. City of Santa Ana, Supreme Court of the St, -.e of California, No. S-038530; Appeal from Fourth District, Division 3, Nos. G-014257 and G-014536 Application for Permission to File Amicus Curiae Brief on Behalf of League of California Cities and City and County of San Francisco To The Honorable Chief Justice of' the Supreme Court of the State of California and the Associate Justices of the Supreme Court of the State of California: By this letter, amicus curiae the City and County of San Francisco applies for permission to file an amicus curiae brief in connection with this Court's review of the decision in Tobe v. City of Santa Ana, 22 Cal.App.4th 228, 232 (Ct. App. 4th Dist., Div. 3, February 2, 1994). The Court of Appeal decision in Tobe struck Santa Ana's anti - camping ordinance with a broadly articulated constitutional ruling. The scope of that ruling threatens efforts of cities of this State to regulate the use of public spaces, including enforcement of laws against public camping, lodging, sleeping, public urination and defecation, public intoxication, and other conduct in public spaces. The efforts of San Francisco and other California cities to preserve urban public spaces such as parks and sidewalks are severely constrained by the prohibitions in Court of Appeal's Tobe ruling. That decision held that Santa Ana's anti -camping ordinance violated three constitutionally protected rights: the right to travel, the right to be free from cruel and unusual punishment, and the (4 15) 554-4283 Room 206 City Hall San Francisco 94102-4682 Supreme Court of ! State of California` June 9, 1994 page 2 of 4 due process protection against vague or overly broad laws. The expansive articulation of these rights by the Court of Appeal in Tobe is without precedent. Were it to stand, the Tobe ruling might reverberate to topple any law that restricts the use of public property for private conduct and rob California cities' of their freedom to address community concerns in manners appropriate to their community. The City and County of San Francisco is familiar with the issues raised in Tobe as well as in Joyce v. City and County of San Francisco, 846 F.Supp. 843 (N.D.Cal. 1994), a pending case in which San Francisco has successfully defended its public camping, lodging, sleeping and obtruction ordinances against attempts to enjoin their enforcement on the same constititutional grounds. Applicant the City and County of San Francisco notes that "all of the evidence in the superior court [that formed the basis of the Tobe decision) was presented by petitioners without legal objection or factual challenge from the city." Tobe, 22 Cal.App.4th at 232. Accordingly, San Francisco believes further presentation is needed on the following issues: 1. The holdings in Tobe regarding the right to travel, the Eighth Amendment ban on cruel and unusual punishment, and vagueness and overbreadth are legally unsound. The Court of Appeal in Tobe overstated the scope of these rights in striking the laws at issue in Tobe. 2. The holding in Tobe, even if warranted on the record before the court in this case, sweeps too broadly. The broad articulation of the right to travel and Eighth Amendment rights, for example, will upend municipal efforts to strike a balance between individual and community needs when addressing homelessness. These community efforts, including enforcement of applicable statutes, ordinances or regulations, were not before the Tobe court and should not be felled by sustaining its holding. 3. The Tobe court's declaration that homeless have "no choices" is not warranted by either the record before it or the broader reality. Indeed, the Tobe court's quick conclusion regarding the nature and causes of homelessness defies decades of evolving sociological studies, which demonstrate no consensus about homelessness. Furthermore, amicus curiae San Francisco has discovered in the course of its own contemporaneous federal litigation on these issues that the involuntary lawbreaking assumption is unsound. The reasons why persons sleep on the streets differ and include, in some cases, personal unwillingness to use public assistance grants to pay for available housing or (415) 554-4283 Room 206 City Hall San Francisco 94102-468' Supreme Court of. �e State of California June 9, 1994 page 3 of 4 reluctance to..subscribe to community programs to'' aid or . ensure permanent housing. Many homeless have indicated that enforcement of laws against camping and sleeping in public spurs them to seek permanent housing, helping the homeless and the community both. By constitutionalizing its own assumptions about the homeless, Tobe has trumped the evolving political dialogue in favor of a judicial decree. 4. In holding that the homeless are immune to the law absent alternative housing, Tobe suggested an implied right to public housing. This implied constitutional right to housing in Tobe would impose substantial and unanticipated obligations on communities as preconditions to enforcement of laws regulating the use of public areas. Such an implied constitutional right is not supported by the federal or California Constitution, statutes, or decisional law and should be rejected by the Supreme Court of this State. 5. The "constitutionalization" of the right to encamp in public areas, the right to adequate shelter, or the right to perform human activities in public spaces would usurp the democratic process. It is essential that communities retain the freedom to experiment in their attempts to reach harmony between the competing interests of compassion and justice for the individual and the preservation of public spaces and resources for the maximum utility of the many. The cities of this state employ various statutes to enforce their public priorities, but the ruling in Tobe would imperil them all, without regard to fine distinctions. For example, the anti -camping ordinance in effect in Santa Ana differs markedly from the camping ordinance in San Francisco. The Tobe decision would potentially reache them both. San Francisco believes that it is necessary and constitutionally appropriate that municipal efforts, including law enforcement, be provided the Constitutional latitude in the wake of the Tobe ruling to flourish, nothwithstanding the court's assessment of the Santa Ana ordinance. Applicant City and County of San Francisco respectfully requests, pursuant to Rules 14(b) and 43 of the California Rules of Court, an opportunity to submit a brief amicus curiae -to the Court to address the issues of especial significance to the City and County of San Francisco and to the other cities that will be joining in the brief. Because San Francisco is in process of obtaining information from other members of the League of California Cities regarding the impact of the Tobe decision on their own local efforts, amicus curiae requests that this Court allow San Francisco to submit its amicus curiae brief on or about July 31, 1994, (415) 554-4283 Room 206 City Hall San Francisco 94102-4682 Supreme Court of t , .,,State of California June 10, 1994 page 4 of 4 with an appropriate schedule for reply, if any, to be determined by this Court. Respectfully Submitted, LOUISE H. RENNE City Attorney LINDA M. ROSS MICHAEL E. OLSEN Deputy City Attorneys By: MICHAEL E. OLSEN Deputy City Attorney Attorneys for Amicus Curiae City and County of San Francisco cc: All Counsel on Attached Service List (by mail) (415) 554-4283 Room 206 City Nall San Francisco 94102-4682 Archie Tobe, et al. vs. City of Santa Ana, et al. Supreme Court of the State of California No. S038530 MAILING LIST EDWARD J. COOPER City Attorney (SB#059253) ROBERT J. WHEELER (SB#048863) Assistant City Attorney 20 Civic Center Plaza Santa Ana, CA .92701 (714) 647-5201 RICHARD A. ROTHSCHILD, ESQ. JOHN E. HUERTA, ESQ. Westerr Center On Law and Poverty, Inc. 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010-2809 LLOYD A. CHARTON, ESQ. 17821 East 17th Street, Suite 240 Tustin, CA 92718 ROBIN S. TDMA, ESQ. PAUL L. HOFFMAN, ESQ. ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 CATHY L. JENSEN, ESQ. 9778 Katella Avenue, Suite 104 Anaheim, CA 92804 IVETTE PENA, ESQ. Public Law Center 600 West Santa Ana Blvd. Suite 202 Santa Ana, CA 92701 2957r ROBERT J. COHEN, ESQ. HARRY SIMON, ESQ. Legal Aid Society of Orange County 902 N. Main Street Santa Ana, CA 92701 THE HONORABLE JAMES L. SMITH Presiding Judge of the Superior Court County of Orange 700 Civic Center Drive West Santa Ana, CA 92701 COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE P. O. Box 1378 Santa Ana, CA 92701-3700 E. THOMAS DUNN, ESQ. Dc,)uty District Attorney County of Orange P. O. Box 808 Santa Ana, CA 92702 CLERK OF THE SUPERIOR COURT County of Orange 700 Civic Center Drive West Santa Ana, CA 92701 DEPARTMENT OF JUSTICE OFFICE OF THE ATTORNEY GENERAL STATE CF CALIFORNIA 110 West "A" Street, Suite 700 P. O. Box 85266 San Diego, CA 92186-5266 KIM SAVAGE, ESQ. National Senior Citizens Law Center 777 South Figueroa Street, Suite 4230 Los Angeles, CA 90017 DAVID N. REAM, City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 BRETT WILLIAMSON, ESQ. O-MELVENEY & 14YERS 610 Newport Center Drive, Suite 170U Newport Beach, CA 92660 KEVIN J. PHILLIPS, ESQ. Deputy Public Defender Orange County Public Defender 901 Civic Center Drive West, Suite 200 Santa Ana, CA 92703-2352 MICHAEL J. SCHROEDER, ESQ. HART, KING & COLDREN P. O. Box 2507 Santa Ana, CA 92707 CHRISTI HOGIN, ESQ. RICHARDS, WATSON & GERSHON 333 South Hope Street, 38th Floor Lo: Angeles, CA 90071-1469 JOHN G. SCHMIDT, ESQ. Pacific Legal Foundation 2151 River Plaza Drive, Suite 305 Sacramento, CA 95833-3881 ROBERT TEIR, ESQ. American Alliance for Rights and Responsibilities 1725 K Street N.W., Suite 1112 Washington, D.C. 20006 2957r ;Z': THE HONORABLE GREGORY H. LEWIS Presiding Judge of the Municipal Court Central Orange County Judicial Dist. 700 Civic Center Drive West Santa Ana, CA 92701 OFFICE OF THE COUNTY COUNSEL County of Orange 10 Civic Center Plaza Santa Ana, CA 92702 CHRISTOPHER B. MEARS, ESQ. 14988 Sand Canyon Avenue, k 1-8 Irvine, CA 92718