Boise & Garden City

Boise’s lawyers sought ‘friends’ for homeless camping case. 81 entities offered support

When the city of Boise asked the Supreme Court of the United States to hear its appeal in Martin v. Boise, the city’s homeless camping case, the firm representing the city began a search for “friends.”

Lawyers for Gibson Dunn, the Los Angeles-based firm representing the city, went to cities across the West Coast to ask them to consider submitting “amicus curiae” briefs, legal Latin for “friend-of-the-court” briefs. In those briefs, parties not directly involved in a case weigh in on either side.

They sought support from other cities affected by the decision of the 9th U.S. Circuit Court of Appeals, which ruled last September that Boise cannot prosecute people who are homeless for sleeping on the streets if there is no shelter available.

Friends they found — 81 individuals, organizations and government entities weighed in. Aberdeen, Washington, submitted a brief. The Boise Metro Chamber of Commerce sent one, as did the Downtown Denver Partnership. The state of Idaho submitted a brief, joined by fellow 9th Circuit state Alaska — as well as Indiana, Louisiana, Nebraska, South Dakota and Texas. Clusters of California cities teamed up to write their own briefs, and Los Angeles submitted one independently. The National League of Cities, which represents more than 19,000 cities and towns across the country, even weighed in.

In total, 20 briefs were submitted — all in favor of the city and its writ of certiorari, an order of a higher court to a lower court to send documents of a case so that the higher court may review a decision. For those on Boise’s legal team, that’s a sign that cities all over the country are worried about much the same thing Boise is.

The 1922 ordinance at the center of the case prohibits “camping” in public places in Boise. Mayor David Bieter says the ordinance gives the city a tool “to respond to the public health and safety dilemmas created by encampments.” The original lawsuit was filed in 2009 on behalf of Robert Martin and five other people who were then homeless or had been recently and who had been cited for violating the ordinance between 2007 and 2009.

Cities across the 9th Circuit — the largest court of appeals, which includes not only Idaho but also California, Oregon, Washington, Montana, Nevada, Alaska and Hawaii — have been struggling with the court’s ruling ever since. Many municipalities say it is difficult to resolve problems facing people who are homeless without the “camping” ordinance in place.

Theane Evangelis, a partner at Gibson Dunn and one of the lead lawyers on Boise’s team, said so many organizations signing on showed an “outpouring of support.”

“It reflects the importance and the urgency of the need for the Supreme Court to weigh in,” Evangelis said in a phone interview Thursday. “Diverse groups from all over the country and even some national groups are pointing to the problems in this ruling.”

Mike Journee, spokesman for Bieter, deferred to Evangelis for comment.

In their 20 filings, 81 different groups call on different reasons why they considered the 9th Circuit’s ruling to be problematic.

MaryRose Courtney, a woman who submitted her brief with Los Angeles’ Ketchum-Downtown YMCA, wrote about her brother who she says has experienced homelessness as a result of mental illness and substance abuse on and off for the past 20 years. She is against the ruling because she says it conflicts with other court decisions, is leading to dangerous encampments and is “leading to more aggressive policing, as police prohibited from enforcing anti-camping laws turn to arresting homeless people for more serious offenses like public urination, public defecation, and public nudity.”

“Court rulings like the Ninth Circuit’s in this case do far more harm than good because they lead to deregulation and generate apathy and inaction, as well as a sense of frustration that discourages further efforts to help the homeless,” she said.

The governments and coalitions that submitted briefs overwhelmingly agree. A brief jointly submitted by seven cities in Orange County poses several questions those cities want the Supreme Court to answer, including what it means for shelter to be “available,” how to measure that availability and what other laws are brought into question by the 9th Circuit’s decision.

The League of Oregon Cities writes that the “cost of complying” with the ruling “is simply too great.”

“Indeed, the very first requirement is a non-starter — cities must count homeless individuals and determine whether there are enough vacant shelter beds,” the brief says. “Counting homeless people is prohibitively expensive for large cities, and often cannot be done with any accuracy.”

It goes on to list that in many cities, shelter beds don’t qualify because “the majority of homeless shelters are sponsored by religious organizations which, according to the opinion, infringes upon the Establishment Clause,” that smaller cities often don’t have the resources for any shelters at all and that people who are homeless sometimes voluntarily choose to forego shelter space.

Howard Belodoff, associate director of Idaho Legal Aid Services and one of the lawyers representing the plaintiffs in the case, said those types of questions aren’t for the Supreme Court to answer. The number of additional briefs submitted to the court doesn’t mean much at all from his perspective, he said, because anyone is able to submit them.

“It’s not significant,” he said. “It’s routine to submit those.”

Eric Tars, the legal director for the National Law Center on Homelessness & Poverty and another member of the plaintiff’s legal team, said it’s not uncommon for the briefs to be one-sided at this point in the case.

“It’s our decision not to recruit these at this stage,” he said. “We feel that the 9th Circuit got it right, and this isn’t a case that warrants the Supreme Court’s attention.”

The legal team on the plaintiffs’ side now has until Oct. 25 to submit its response. The Supreme Court will likely decide before the end of the year whether or not it will take up the case. If the court does, the case would likely be heard in the spring with a decision coming in summer 2020.

The city of Boise is paying Gibson Dunn $75,000 for representation. It will pay $225,000 more if the case is taken up by the Supreme Court.

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Hayley covers local government for the Idaho Statesman with a primary focus on Boise. Previously, she worked for the Salisbury Daily Times, the Hartford Courant, the Denver Post and McClatchy’s D.C. bureau. Hayley graduated from Ohio University with degrees in journalism and political science.If you like seeing stories like this, please consider supporting our work with a digital subscription to the Idaho Statesman.