Judge Carter Removed From South OC Homelessness Case

SPENCER CUSTODIO, Voice of OC

U.S. District Judge David O. Carter picks up trash out of the Santa Ana River during his Feb. 14, 2018 walk through the homeless encampments.

U.S. District Judge David O. Carter was removed Friday from a closely-watched lawsuit seeking to restrict anti-camping enforcement against homeless people in south Orange County cities.

The ruling was made by Judge James V. Selna at the request of south Orange County cities that oppose the ongoing suit, which seeks more shelter space in south county.

The case was reassigned late Friday to a Los Angeles-based federal judge, Percy Anderson, for all future proceedings. Carter continues to have jurisdiction over the north and central OC cases.

In his ruling, Selna said Carter’s goal has been “to broker a collaborative, county-wide solution to the homeless problem.” But, he said, Carter created problems for himself to later preside over the south county case when he warned all regions of the county last year to “step up” with more shelter or face consequences.

“The Court finds that in view of the combination of circumstances, a reasonable observer would conclude based on appearances that the District Judge is not unbiased,” Selna wrote in his decision.

Among the comments Selna referenced was Carter warning city officials across OC last year, “[E]verybody needs to step up coequally…If you don’t step up, then you put the Court in writing a position, and I can solve that very easily for you. You don’t want me to do that.”

Selna wrote: “The District Judge’s comment about the enforceability of anti-camping [statutes], while likely reflective of current law, would again sway a reasonable average person to question on the basis of appearances whether the final result in the present action is foreordained.”

“In the consensual framework of [the earlier] Catholic Worker [lawsuit], it was proper for the District Judge to take the steps he did,” Selna added.

“In attempting to achieve a county-wide resolution, he cannot be faulted for using direct language apprising the parties in that case of realities of the situation and the need to come together. That’s what settlement judges do. It is the unintended and unanticipated juxtaposition of this [south county] case with Catholic Worker that compels much of the result here,” the ruling continues.

“The [south county cities] wish to litigate the current dispute. They are entitled to do that before a judicial officer whose impartiality neither the parties nor the public have a reasonable basis to question.”

[Click here to read the court order removing Carter from the lawsuit.]

Since early last year, Carter has been presiding over lawsuits alleging OC cities violate the constitution’s ban on cruel and unusual punishment by criminalizing sleeping in public if homeless people don’t have an alternative place to sleep.

In a ruling last year that’s binding on federal judges in California, the U.S. 9th Circuit Court of Appeals found it’s unconstitutional to punish homeless people for camping outside unless adequate shelter is available as an alternative.

“As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the 9th Circuit ruling states.

Cities in north and central Orange County have added hundreds more shelter beds as a result of the lawsuits, while south county cities have rejected calls to add more beds and sought to have Carter removed from the case.

After the south county suit was filed in February, officials in the defendant cities debated how to respond. Some City Council members supported having cities build more shelter, while others wanted to fight the lawsuit and have Carter removed from the case, according to a person familiar with the cities’ discussions.

Ultimately, three of the cities opted to seek Carter’s removal from the case. Lawyers for the cities of Aliso Viejo, San Juan Capistrano, and San Clemente filed a motion on May 24 asking the court to remove Carter from the case.

The decision was handed to Selna, another federal judge in Orange County. And on Friday, he granted their request.

In his decision, Selna also found that while Carter had permission in earlier homeless lawsuits to have side conversations with the parties – known as “ex parte” communications – he “likely gained access to information and had contacts” that would be problematic in the ongoing lawsuit because the south county cities did not give permission.

Under normal court procedures, Carter is removed from the south county case unless plaintiffs attorneys Brooke Weitzman and Carol Sobel appeal the decision and win at the U.S. 9th Circuit Court of Appeals.

Weitzman said she was not prepared Friday to say if she and Sobel will appeal, but that the lawsuit will move forward.

“The decision doesn’t change the outcome. Until the political leaders step up to protect the rights of their most vulnerable residents on their own, our clients will be left to pursue remedies through the court,” Weitzman said in a statement.

In a May 24 court motion, Weitzman and Sobel sought to have the south county cities’ law firm, Jones Day, removed from the case. The firm previously represented the plaintiffs now suing the south county cities during a different lawsuit over homeless people, and Weitzman and Sobel argued the plaintiffs should not be “prejudiced by [Jones Day’s] knowledge of its strategy and other confidential information.”

Selna rejected that request Thursday, saying, among other reasons, that the group Jones Day represented in the earlier case is different from the one it’s defending against in the south county case.

Carter’s recusal from the case comes shortly after San Clemente began enforcing its anti-camping ordinances May 24, when County healthcare workers and Sheriff’s deputies began moving homeless people from North Beach to a city-owned dirt lot.

There are roughly 6,900 homeless people in OC, according to 2019’s federally mandated Point in Time Count, a biennial headcount of the homeless population. The January count is for both sheltered and unsheltered homeless people.

CalOptima, the public health insurance agency for low-income people in Orange County, says at least 10,000 of its members are homeless.

Contact Nick Gerda at ngerda@voiceofoc.org and follow him on Twitter @nicholasgerda.