It's 1 p.m. in California, which means it's 10 a.m. in Hawaii and time for oral arguments in the 9th Circuit appeal of Judge Carter's injunction in the Los Angeles homeless case! (Well, almost. Case is #3 on the calendar.) You can tune in here:
The panel is notably different than the panel that granted Los Angeles city and county's emergency stay request (
https://twitter.com/meghanncuniff/status/1392899273700765697). Instead of two Clinton appointees and a Trump appointee, we've got three Obama appointees.
Current scene. First up is a case brought by the Hawaii Innocence Project, challenging an order that denied DNA testing of evidence in a 1982 murder conviction because of the defendant’s military status. LA Alliance injunction case will be argued next.
Fascinating issue - "This case is a matter of first impression, as it is believed that Hubbard is the first military prisoner to seek DNA testing under this Act." Did Congress really want to exclude military from DNA exoneration? Here's an opening brief: drive.google.com/file/d/1lanrrL…
Not that these personal connections matter, but Judge Nguyen undoubtedly knows Judge Carter from her days as an AUSA then district judge in LA. She also was close with Carter's friend Judge Manny Real, as my Daily Journal story from 2019 explains: dailyjournal.com/articles/354435
OK, LA Alliance case is up now. Attorneys are splitting argument time. LA County's attorney (bottom left corner) is up now.
"Federal judges are not supposed to wade into political waters such as these...The district judge rewrote the case to be about racial discrimination," county lawyer says. (LA Alliance plaintiffs can't even deny that; they just say he recognized issues they didn't.)
Judge Friedland questions county lawyer about an issue they've been beating for a while: the argument that LA Alliance plaintiffs don't have legal standing to bring their claims. Friedland skeptical, focuses on one plaintiff she says is at imminent risk of becoming homeless again
Whoa. Here's Judge Nguyen, hitting the exact legal issue driving the injunction: "You can say that it's legislating through the court, but if the court can identify a constitutional violation" then the court's powers to remedy that are quite broad.
Nguyen also noted the huge size of the record, which is a good sign for anyone supporting the injunction. Now arguing for the city, Michael Walsh says Judge Carter (aka the District Court) committed "judicial overreach of the worst sort."
Whoa again! This is not going well for city and county! Judge Owens says injunction is "judicial frustration." "We have a judge who really wants to figure out a situation here and in his opinion" there's been a huge failure by LA officials.
Owens: If there's been a "dismal failure by elected officials in Los Angeles" what is Judge Carter "supposed to do if he sees" constitutional violations? Is he just supposed to sit back and watch Los Angeles disintegrate?
Owens tells the city there's an easy way to end this: Settle the lawsuit with LA Alliance! Take the power away from Carter by ending the case. He asks about possibility of further mediation. Nguyen asks if they have another court date. Walsh doesn't know.
(The next scheduled court date is Aug. 19, a hearing for LA's motion to dismiss.)
Shayla Myers of @LegalAidLA up now. She starts off by acknowledging how extraordinary it is for @LACANetwork to agree with city and county, but here they are pursuing the same appeal.
Myers says the case has already brought so much uncertainty to providers, homeless people, everyone. Judge Owens asks her about settlement "as opposed to this kind of death match that we're on now." Myers says Carter issued injunction to try to force settlement, but it won't work
Myers questions propriety of a settlement being overseen by a judge "who has distinct priority goals will actually take away" the ability of other people to participate. Friedland says she was allowed to intervene in the case, so hasn't she been able to have her issues heard?
Myers says they've been ignored, and she recounts the super fast timeline where Carter issued the injunction just hours after the opposition was filed. Judge Friedland asks who's really representing homeless here, LA Alliance or intervenors?
Now arguing is Matthew Umhofer on behalf of the LA Alliance plaintiffs. Says the attorneys before are trying to re-litigate the case. But he's met with a pretty tough question from Judge Nguyen about the lack of a factual record to support Carter's findings.
"The factual findings have to be grounded in an evidentiary record. That's a pretty big missing piece," Judge Nguyen says. "What do we do about this?" Tables turning, as happens in oral argument as the different sides air their ideas.
"There's no question that the district court is deeply invested in these issues...and has put in a lot of effort doing the ground work," Nguyen says. Problem is court didn't resolve objections, and findings aren't tethered to LA Alliance's evidence.
Judge Nguyen says the situation suggest, "at a minimum" the 9th needs to send this injunction back to Judge Carter for a re-do.
Umhofer says deadly circumstances of Los Angeles's homeless crisis tip the balance in favor of LA Alliance regarding drastic action. Judge Friedland asks about the lack of racial identifying information for LA Alliance plaintiffs. (3 are Black, but complaint doesn't say that.)
Umhofer says they need to get a consent decree, but that city and county leaders are failing so badly they're actually asking for the court's intervention. That right there is support for Carter's injunction, he says.
"I can think of no more irreparable harm than people dying and people suffering in the streets," Umhofer said. Says court was deeply engaged for a full year, and intervenors presented their evidence about negative impacts.
Judge Friedland says Umhofer seems to be relying on the briefings regarding the stay when he says everyone had a chance to record their arguments. Friedland says don't they usually get a chance BEFORE injunction is issued, not after?
Back to the lack of standing issue. Did LA Alliance not utilize their membership as best they could for the legal filings? Friedland why the guy she was talking about earlier, who's at risk of losing shelter again, didn't submit a declaration
Judge Friedland again: "It seems like the District Court made some kind of error" during the discussion about standing, because he calls some LA Alliance members "plaintiffs" when they weren't individual plaintiffs.
Umhofer pushes back against idea that Judge Carter's involvement here is unprecedented. He cites 9th Circuit Judge Harry Pregerson's work on freeways. (latimes.com/archives/la-xp…)
Umhofer says Judge Carter's involvement is NOT unprecedented. "It may be inconvenient to the city and county, but that may be precisely what this case needs."
Michael Walsh is up again for the city, says the judges have correctly identified the complete lack of an evidentiary record to support the injunction. But he says no amount of evidentiary hearings can solve that problem.
Walsh obviously has on his mind Nguyen's comment about sending the injunction back to Carter for a re-do, and he's trying to show why that's not the solution.
Now @shaylarmyers has a minute for her rebuttal. "All of the evidence in the record evidences that homelessness is a crisis in Los Angeles" because there is too little housing and too many people unhoused. Carter's injunction won't solve that.
Myers says unlike other drastic court actions, "this case does not have a record on which to draw from that."
Judge Nguyen thanks everyone for their arguments in this "difficult" case. And that's it for the day! I'll have a story up later. Stay tuned.
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