A ruling last September from the 9th U.S. Circuit Court of Appeals declared that Boise cannot prosecute people who are homeless for sleeping on the streets if they have nowhere else to go.
The ruling has been a problem for cities all over the West ever since. Now some of them are joining Boise’s fight to get the Supreme Court to overturn the ruling.
The 9th Circuit is the largest court of appeals, and the ruling it made for Boise directly affected all of Idaho, California, Oregon, Washington, Montana, Nevada, Alaska and Hawaii.
From Reno to Los Angeles to Anchorage, cities have been struggling to get their laws within the stipulations set by the Martin v. Boise ruling, which said that prosecuting people who are homeless people for “camping,” as a 1922 Boise ordinance allows, violates the U.S. Constitution.
Boise has already challenged the 9th Circuit decision. After the appeals court said in April that it would not reconsider its decision, Boise announced in June that it would ask the Supreme Court to hear its appeal.
The city faces an Aug. 29 deadine to file the initial documents in its appeal request. The high court is likely to decide by October whether to take the case.
Gibson Dunn, a Los Angeles-based law firm that is representing Boise in its appeal, has reached out to and heard from several cities interested in submitting briefs on Boise’s side, called amicus, or “friend-of-the-court,” briefs. In those briefs, parties not directly involved in a case weigh in on either side.
Theane Evangelis, a partner at Gibson Dunn and one of the lead lawyers on the case, told the Idaho Statesman in a phone interview Wednesday that her firm has heard from “dozen of cities across the 9th Circuit” concerned about the decision made in Martin v. Boise and “have expressed an interest to weigh in.”
The other lead lawyer is fellow Gibson Dunn partner Theodore B. “Ted” Olson. Olson persuaded the Supreme Court in 2000 not to require a recount of ballots in Florida, a ruling that sent George W. Bush to the White House. He later argued successfully for the court to legalize gay marriage.
Evangelis declined to say which cities Gibson Dunn reached out to or heard from, but at least one — San Clemente, in Orange County in Southern California — has already taken action to prepare a brief.
San Clemente’s City Council voted Tuesday night to spend $10,000 on a brief. A report from the city manager, James Makshanoff, and city attorney, Scott C. Smith, said the court ruling “leaves open several important questions that create legal and fiscal uncertainty for the City in its enforcement of its anti-camping ordinances.”
While one resident testified that he “couldn’t think of a worse expenditure,” the council voted to approve it 4-0.
San Clemente Mayor Pro Tem Dan Bane told attendees that Evangelis had approached the city and asked them to prepare a brief. Bane called the $10,000 fee a “deal of a lifetime,” saying it gave San Clemente a chance to tell its own story.
Boise is paying Gibson Dunn $75,000 for writing the argument plus $225,000 if the case is taken up by the Supreme Court and argued, spokesman Mike Journee said in June. Journee described it as a “great deal.”
Evangelis said it is early to say what other cities have committed to Boise’s side. Their briefs aren’t due to the Supreme Court until late September, she said.
Not many other cities have made support public. Karl Hall, city attorney in Reno, Nevada, requested a resolution in July from the City Council allowing him to write a brief similar to San Clemente’s before Reno Mayor Hillary Schieve pulled it from the agenda, ThisisReno reported.
Eric Tars, the legal director at the National Law Center on Homelessness & Poverty, said it is unfortunate that Gibson Dunn is soliciting potential briefs. “There are more constructive approaches than using the criminal justice system to push people out of the public view,” he told the Idaho Statesman by phone.
Tars was on the legal team that represented Robert Martin and five other people who were homeless when or soon before they sued Boise in 2009. Those six had been cited for violating the no-camping ordinance.
The D.C.-based legal center has not solicited any friend-of-court briefs, though Tars said he would welcome them if the high court takes the case.
“We got the decision we wanted from the 9th Circuit,” Tars said. “It’s the law of the land, and we’re not looking to make a big deal about it right now.”