With Judge Carter out in key case, how will homeless lawsuits work in Orange County?

To his critics, U.S. District Judge David O. Carter has been too much of an activist in the way he has handled ongoing federal lawsuits that have affected the way homeless people are treated in Orange County.

But now that Carter has been disqualified in one of the two key cases, and replaced with U.S. District Court Judge Percy Anderson, critics and admirers alike are wondering what his ouster will mean for people in need of shelter and the various local efforts to fix the problem.

Admirers say Carter, a 75-year-old decorated Vietnam War veteran, stepped up to do what elected county and city officials had failed at for too long — address the growing numbers of homeless people on the streets with meaningful action.

A lawsuit filed in January 2018 thrust the energetic and often hands-on judge smack in the middle of the county’s effort to move about 1,000 people out of their tent encampments at the Santa Ana River Trail. The question, then and now, was, “To where?”

Carter’s judicial approach to answering that question for north and central Orange County included face-to-face meetings with homeless people at the river and at the Santa Ana Civic Center. It also meant steering the disputing parties — including the county and several cities, as well as homeless advocates — away from protracted litigation and toward shelter-providing solutions.

But Carter’s role changed with a June 14 ruling issued by Judge James V. Selna, a fellow jurist in the federal court’s Central District of California – Southern Division. Selna disqualified Carter from presiding over a February 2019 complaint on behalf of homeless people and advocacy groups against five south county cities, Aliso Viejo, Dana Point, Irvine, San Juan Capistrano and San Clemente, and, again, the county.

The problem, according to the winning argument, was that some of Carter’s fact-finding work and in-court statements hinted at bias against cities and the county.

Selna’s decision resulted in the rarely taken step to disqualify a judge.

Erwin Chemerinsky, an expert in constitutional law who heads UC Berkeley School of Law, described Selna’s decision as “very unusual.” But Chemerinsky, who previously was dean of the UC Irvine School of Law and is familiar with both Carter and with the complexity of homelessness in the county, also said the case itself is unusual, comparing it to civil rights actions that have shaped American society.

“It is much more analogous to school desegregation, or prison reform litigation,” Chemerinsky said. “It requires the on-going involvement of the judge.”

Here’s more background on what happened and what it might mean.

Q: Which homeless lawsuit are we talking about?

A: Filed on Feb. 27, the suit is known as Housing Is A Human Right, et al., v. The County of Orange, et al. Besides the grassroots group Housing Is a Human Right Orange County, the plaintiffs include three homeless men (two who stay in San Clemente and one in Irvine), and two other organizations, Orange County Catholic Worker and Emergency Shelter Coalition.

Catholic Worker also is the namesake plaintiff in the 2018 homeless lawsuit that involves the county, along with cities in north and central Orange County — initially Anaheim, Costa Mesa, and Orange but growing to include others that have reached settlement agreements to open homeless shelters. Carter will continue to oversee the Catholic Worker case, along with two other related complaints.

In both lawsuits, the plaintiffs challenge the enforcement of city ordinances that impose punitive measures — citations, arrests, confiscation of property — on people who sleep in public places. The lawsuits represent a clash between the civil rights of homeless people and the ability of local governments to assert control over quality of life in their communities.

Q: How did Carter’s removal from the 2019 lawsuit come about?

A: Three of the five defendant cities in south county — Aliso Viejo, San Clemente and San Juan Capistrano — filed a motion in May to remove Carter. Lawyers for the cities argued that some of the things Carter said and did in adjudicating the related Catholic Worker lawsuit could lead to questions about his impartiality.

Q: What exactly was the issue with Carter?

A: The motion to recuse Carter cites the judge’s “personal fact-gathering activities” in the ongoing 2018 lawsuit; the multiple instances of ex parte communications — mutually agreed-upon contact without all litigating parties represented; and his “deep involvement in county-wide settlement efforts.”

In his order recusing Carter, Judge Selna concluded that the information Carter has gleaned in the ex parte contacts would have a bearing on the more recent lawsuit, and that those contacts took place without the consent of the three south county cities.

“The unintended access to information from earlier ex parte contacts is at a minimum problematic,” Selna wrote in his ruling.

Selna also referenced statements Carter has made in past hearings, such as at an April 2018 status conference, when he “praised the ‘good mayors’ who attended and ‘shamed’ the ‘bad mayors’ who did not.” Mayors from the three south county cities were among those absent.

Selna noted that the steps Carter took in trying to reach a settlement in Catholic Worker were proper in that lawsuit’s “consensual framework,” but, because the south county cities want to litigate, “they are entitled to do that before a judicial officer whose impartiality neither the parties nor the public have a reasonable basis to question.”

Plaintiffs attorney Carol Sobel said Judge Selna’s ruling surprised her.

“I just didn’t think there was bias. I think there’s been interest and engagement in the issue, and in getting a broader solution.”

And, regarding Carter, she added: “He’s been tough on us, too.”

Q: With Carter out of the picture in south county, who will hear the case?

A: U.S. District Court Judge Percy Anderson, whose courtroom is in Los Angeles. A computer randomly assigned Anderson from among the judges in the Central District of California, which includes Los Angeles, Orange and Riverside counties.

Anderson, 70, is a Long Beach native whose legal career includes serving as an assistant U.S. attorney from 1979 to 1985. He was in private practice when President George W. Bush nominated him to the federal court in 2002.

Q: How might Judge Anderson handle the lawsuit?

A: Laurie Levenson, a professor at Loyola Law School in Los Angeles who was a federal prosecutor with Anderson, described him as “by the book.”

“I don’t think he has the same style as Judge Carter,” Levenson said. “But I don’t know that his ultimate resolution will be that different. It depends on where the facts go.”

Q: Will Carter’s recusal in the south county matter impact the progress of the Catholic Worker lawsuit?

A: It’s not expected to. Since last fall, settlements resulting from that lawsuit have led to new homeless shelters in Santa Ana, Anaheim, Tustin, and Costa Mesa. Other shelters are planned in Buena Park, Huntington Beach and Placentia.

Q. Are there any homeless shelters in south county?

A: Only one, the 45-bed Alternative Sleeping Location in Laguna Beach that opened in November 2009 and was itself the subject of a lawsuit settled just last year.

South county residents and city officials have shown the kind of resistance to homeless shelters that’s common in other parts of the county, and in California generally. Local advocates say south county has been the most inhospitable to homeless people.

Legal action in 2014 over state-required zoning for homeless shelters led to an Orange County Superior Court judge restricting San Clemente’s ability to issue building permits.

Last March, several thousand protesters, mostly from Irvine, mobilized against a county proposal to open temporary shelters on county-owned property at the Great Park in Irvine. Others protested against proposed shelters in Laguna Niguel and Huntington Beach. Hundreds showed up by the busload for an Orange County Board of Supervisors meeting, part of heavy backlash that prompted supervisors to rescind those shelter plans.

Q: So, is a settlement like those reached under Carter in the Catholic Worker lawsuit unlikely in south county?

A: Third District Supervisor Don Wagner, the mayor of Irvine at the time of last year’s mass anti-shelter protests, doesn’t rule it out.

“There is a deal to be had, I am sure,” he said. “What it looks like, I can’t tell you.”

But what has worked in north and central Orange County may not be feasible for south county because of the different dynamics and logistics, Wagner said.

“It’s a matter of doing it in a way that is best for their citizens, best for the homeless, and the best economically for everybody.”