Courthouse Steps Preview: City of Grants Pass, Oregon v. Johnson

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Chayila Kleist:  Hello and welcome to this FedSoc Forum webinar call. Today, April 17, 2024, we’re delighted to host a Courthouse Steps Preview on City of Grants Pass, Oregon v. Johnson, a case at an interesting intersection between criminal law and procedure, federalism and separation of powers, and property rights. My name is Chayila Kleist, and I’m an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s program, as The Federalist Society takes no position on particular legal or public policy issues.

 

Now, in the interest of time, I will keep my introduction of our guest today incredibly brief, but if you’d like to know more, you can access his impressive full bio at fedsoc.org. Today we are fortunate to have with us Mark Miller, who is a senior attorney with the Pacific Legal Foundation. Mark joined PLF in 2014 and in the years since he has concentrated on property rights litigation and policy.

 

From 2020 to 2023, Mark temporarily left PLF to take on a role as the First General Counsel and then Chief of Staff of South Dakota Governor Kristi Noem. I’ll leave it there. One last note, as we go through the program, if you have questions, please submit them via the question and answer feature as we will have an extended time for questions in today’s program. With that, I’ll hand it over to Mark for a set of opinion comments.

 

Mark Miller:  Thank you, Chayila. Good afternoon to those of you like me on the East Coast, and good morning to the rest of y’all. I’m excited to lead this discussion on the Grants Pass v. Johnson case, which is set for oral argument next Monday at the Supreme Court. I did author an amicus brief, or friend of the court brief, in the case on behalf of Pacific Legal Foundation and the California Business Properties Association supporting the government side of the V. Although, our perspective at Pacific Legal is always informed by ordered liberty and what we think that means in any particular case.

 

So how is this case about ordered liberty? Well, that’s what we’ll be talking about for the next several minutes, 30 to 60 minutes, I guess, depending on how many questions we have. But to start out, I’ll give you a basic two sentence summary, and I think Chayila did a great job of sort of talking about how it intersects with a lot of different areas of the law: procedural law, criminal law, separation of powers. But sort of a two sentence summary, Grants Pass is a case about whether cities can use their powers to manage the health, safety, and welfare of the community to protect public property and address the homeless crisis with a relatively free hand, or if the federal courts of the Ninth Circuit are right that even fining someone for sleeping on public property is unconstitutional. With the homelessness crisis exploding, the Supreme Court is intervening now to bring some much needed direction to this public policy problem.

 

And note, as I go through this discussion of the case, this preview of the case, I will toggle between “camping” and “sleeping.” I realize that’s not as clear as maybe I should be, but it’s a problem inherent in the case as the lower courts’ opinions aren’t clear on it either. Another way to summarize this case or really any case pending at the Supreme Court is to read the question presented, and in this case it’s the way the petitioner framed it the Supreme Court has adopted that framing. And the way the petitioner framed the question is does the enforcement of generally applicable laws regulating camping on public property constitute cruel and unusual punishment prohibited by the Eighth Amendment?

 

And so I’d ask you to keep that in mind—does camping on public property violate -- a prohibition on it violate the Eighth Amendment cruel and unusual punishment clause?— because later I’ll talk about the way the respondents, the homeless advocates have reframed the question presented in their brief and also how the Solicitor General sort of framed where she’s going in their argument, in the Solicitor General’s and Department of Justice’s argument as amicus, as a friend to the Court. The case has drawn a lot of attention with more than 80 friend of the court briefs at the merits stage alone, and although the briefs are close to 50/50 in terms of the split, the homeless advocate side of the V did come in with a little bit more in terms of the number of briefs than the government side got.

 

So that’s the basics, and in my presentation, I’m going to walk you through what I think are the most salient facts headed into oral argument. And so what I mean by that, to make sort of an imperfect analogy, is really we’re not going to know how the meal turns out until after the oral argument and listening to the oral argument. And I think my good friend Tim Sandefur of the Goldwater Institute will be doing a sort of looking back on how the argument went next week for Federalist Society, and I would definitely encourage you to tune in. Tim not only is an excellent lawyer, but he wrote a fantastic amicus brief in the case on the merits. And so he has a really interesting perspective on the case.

 

But that will be after the argument. We’re now talking about what’s coming, so what I’m trying to get at here in terms of returning to my analogy is the ingredients that are going to go into where the chefs, the justices, are going to cook the meal. And yes, perhaps I should avoid analogies and metaphors, but that’s what we’re doing. We’re talking about the ingredients.

 

And so the ingredients, I think we need to start with how we got here and sort of the history, really thumbnail sketch on homelessness is our country has had homelessness off and on arguably since the mid-1800s. But generally homelessness ebbed and flowed with the economy. If the economy was good, we really didn’t have many people who are homeless. When the economy was bad, say, during the Depression when we had Hoovervilles as reflected in the Broadway musical Annie, or in Grapes of Wrath, Steinbeck with the Okies going to California and living in makeshift encampments.

 

So when the economy was bad, we saw homeless. But when the economy was good, we typically didn’t see many homeless until the 1970s. And then in the 1970s we started to see a permanent homeless class in the country and such that by 1984 the federal government started tracking generally the number of homeless. And in 1984 there is a federal report that pegs the number of homeless in our country at between 250 and 300,000 people.

 

And then you can fast forward, again, for this quick thumbnail sketch on homelessness, between 1984 and now. The most recent federal numbers are estimated at about 650,000, maybe a little bit more than that. That’s a report from HUDD last year that the Solicitor General relied upon in their amicus brief and Pacific Legal Foundation did rely upon as well. So in other words, we’ve seen a permanent sort of homeless class in the country double, or more than double if you say 250 or 300 to 650, a little more than double over the 40 years.

 

And so then we get to the argument about where the homeless are supposed to stay, and in this case we’re ultimately arguing about whether sleeping on public property—the key being that prepositional phrase “on public property”—is lawful because it’s cruel and unusual punishment to punish someone for sleeping under the Eighth Amendment or that it’s entirely reasonable for local governments to civilly fine or even criminally punish someone for sleeping on public property because they’re effectively trespassing, which they would be doing if it was private property no question. And so the way we got there is to look at -- we have to look at two different cases, the Robinson case and the Powell case.

 

In the Robinson case, which was 1962 -- these are two Supreme Court cases from the Warren Court that talked about whether you can be punished for -- not for action but rather just for your status. And so in Robinson, which was 1962, we’re dealing with a California law. A lot of the homeless issue and how we treat people for these status crimes does come out of California. And so in Robinson in 1962 we’re dealing with a California Health and Safety Code that says no person shall use or be under the influence of or addicted to the use of narcotics excepting when administered by a doctor. And so then it’s up to the defendant to prove that the exception applies and that they shouldn’t be guilty.

 

Put that aside about who has to prove what. It certainly gets into interesting issues of who has the proof in a criminal case. But the issue there that got to the Supreme Court was this question of not that you’re using the drugs—the government can’t prove that—and not even that you’re under the influence of the drugs but rather that you’re addicted. And so Robinson was convicted under the statute, and Robinson argued that he couldn’t be convicted for merely being addicted to the use of narcotics. And SCOTUS -- even though the lower courts disagreed, the Supreme Court agreed and said that being addicted to the use of narcotics is effectively punishing someone for being a narcotic addict, which is a status, an illness which may be contracted innocently or involuntarily, and that that would violate the cruel and unusual punishments clause. Whereas someone guilty of behavior such as using the drug or possessing the drug, that could be punished.

 

And so it’s important here to get into the language of the Eighth Amendment in terms of the punishments. So the language we’re talking about here is “Excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted.” So we’re talking about that last portion of the Eighth Amendment “nor cruel and unusual punishments inflicted,” although excessive fines comes up in Grants Pass. And I’ll get to that.

 

But cruel and unusual punishment, so generally it sounds like punishment -- it sounds like the government gets to pick the crimes at least under the Eighth Amendment. The Eighth Amendment was really supposed to be about punishments. But at least in Robinson, the Court is saying actually the Eighth Amendment can also regulate how the government charges or decides what is a crime and said here that being addicted to a drug cannot be a crime under the Eighth Amendment. Again, I’m going to jump around a little bit, but I will point out that there is an excellent amicus brief that makes the point that this should be more of a due process question, not in the Eighth Amendment, and I think that sort of explains in part why the Solicitor General chose to get involved in the case and filed the brief they did.

 

But ultimately, the Supreme Court decided in the Warren years that we would say that status crimes cannot be charged as crimes -- or status as an individual can’t be charged as a crime under the Eighth Amendment. So then SCOTUS was invited to expand upon that in a case called Powell, and in Powell, Powell is convicted for being intoxicated in public. So I would take the “in public,” that prepositional phrase, and compare it to what we’re dealing with here in Johnson and Grants Pass -- sleeping on public property versus sleeping, intoxicated in public versus being intoxicated.

 

So there the Texas law said that Powell, “Whoever shall get drunk or be found in a state of intoxication in any public place or in any private house except his own shall be fined $100.” Powell attempted to assert as a defense that he was a chronic alcoholic who had no control over his actions when he was intoxicated. Therefore, as in the Robinson case, he claimed he was convicted for his status as a chronic alcoholic.

 

The trial court refused to allow that defense in the criminal case, and again, I think that’s important: criminal versus the civil rights type of case we’re in now in Grants Pass. He appealed to the Supreme Court, Powell did, and the Court in a plurality decision—the plurality opinion I think it was by Justice Marshall—said that “The primary purpose of the cruel and unusual clause has always been considered to be directed at the method or kind of punishment imposed for the violation of criminal statute thus has little to do with the substantive area of criminal law,” which again, I would flag as arguably more of a Fourteenth Amendment due process issue. And he said “Robinson wasn’t controlling because the Texas defendant was convicted for being drunk in public, public behavior which may create some substantial health and safety hazards, not mere status.”

 

Speaking for himself, Justice White concluded that the defendant had showed nothing more than he was to some degree compelled to drink and that he was drunk at the time of his arrest. Because the defendant could not establish that his being drunk in public was involuntary, Justice White explained that he did not show his conviction offended the Constitution. He did also say in dicta, obviously it’s a one justice concurrence -- citing Robinson, he said “The chronic alcoholic with an irresistible urge to consume alcohol shouldn’t be punishable for drinking and for being drunk.” So again, think about the idea here. Are you being punished in the Grants Pass case and the line of cases that got us here for being homeless or for being homeless and choosing to sleep or camp in public?

 

White said you can’t just be punished for being drunk, but you can be punished for actions that flow from being the drunk that you should’ve been able to control. Justice Fortas, joined by three others, read Robinson broadly and concluded that “Criminal penalties may not be inflicted on a person for being in a condition he is powerless to change.” He said that being a chronic alcoholic was a condition that you have no capacity to change or avoid. Thus, the conviction for being drunk in public resulted from an uncontrollable compulsion to drink.

 

So regardless of that dissent and Justice White’s concurrence, the bottom line is this is a very limited exception to the idea that the Eighth Amendment is mostly about punishment, not about what can be a crime in the first instance. And I need to go back because I forgot to give credit that Ms. Israel, who is a California lawyer -- much of that summary that I just gave you came from Tiffany Israel, who’s an attorney in California who represented 13 cities and wrote an excellent amicus brief in the case that I adopted for that portion of my discussion. So hat tip to her.

 

So then how do we get from this status of alcoholism or status of being a drug addict to the status of being homeless and being in public and whether that can be a crime? The Ninth Circuit’s creation of a right to public camping under the cruel and unusual punishments clause began two decades ago in Los Angeles. In Jones, a case from 2006 at the Ninth Circuit, people living on Skid Row in LA brought an Eighth Amendment claim against an ordinance that prohibited sitting, lying, or sleeping on streets, sidewalks, and other public ways. The district court upheld the ordinance saying that it penalized conduct, not status.

 

A divided panel of the Ninth Circuit reversed holding that the Eighth Amendment protects involuntary conduct, such as sleeping on public property or being involuntarily homeless, that is inseparable from the status of homelessness. The majority got there by relying upon those two cases I just described. They combined Justice White’s concurrence in the Powell case and Fortas’ dissent. The Ninth Circuit back then brought -- Judge Rymer objected and said -- dissented and said that extending the Eighth Amendment this way to say that the homeless are like a drug addict, that they’re being penalized just for being homeless and not because they are as the statute provided sitting, lying, or sleeping on streets, sidewalks, and public ways takes the limits of criminality -- how the Eighth Amendment evaluates criminality further than Robinson or Powell supports.

 

The case did settle, though, and ultimately the Ninth Circuit vacated the opinion. So the case kind of went away, but it didn’t because the Ninth Circuit resurrects it about a decade later, a little over a decade later in a case called Martin v. City of Boise, which very much informs and has basically -- one amicus if I recall correctly called the bedrock of this Grants Pass case. In Martin v. City of Boise, people living on the streets of Boise, Idaho, claimed that punishing public camping under local ordinances in Boise with short jail stints violated the Eighth Amendment, so basically the same argument that we saw in the Jones case.

 

And the Ninth Circuit basically agreed and said that if the homeless don’t have access to alternative shelter, then the City of Boise cannot penalize them. Again, they combined White’s concurrence and Justice Fortas’ dissent in Powell to establish that the Eighth Amendment “prohibits the state from punishing an involuntary act or a condition if it is the unavoidable consequence of one’s status or being.” That meant that Boise could not enforce its public camping ordinance so long as there was a greater number of homeless individuals in Boise or any other city than the number of available beds in shelters. The court also said that if the shelter was religiously affiliated, then those beds don’t get counted in determining how many beds are available for the homeless.

 

But I should emphasize the -- two things I should emphasize here. We have an amicus brief from a religious institution, the Grants Pass Gospel Rescue Mission, arguing that since Martin came down -- so they support the government in this case, which is interesting because many of the religious groups support the homeless arguments. And I’ll mention that in a minute. But the Gospel Mission in Grants Pass said, look, we used to be helping a lot of homeless people because they would come to us to help them kick the drug habit or the alcohol habit or deal with the mental illness or find a job.

 

And we were able to help them, but after the Martin case came down and then after the Grants Pass came down, we saw the number of homeless people asking us for help severely drop. And so they say the city should have the authority to police homelessness on their city streets and if nothing else, certainly Gospel Rescue Mission’s beds should be counted. But the Court said in the Martin case that religious institutions that often provide the homeless shelters don’t get counted when you’re looking at how many beds there are for the homeless in deciding that someone is “involuntarily homeless.”

 

It wasn’t a class action, though, and there was a number of dissents. Rehearing en banc was unfortunately denied, and the Supreme Court denied cert. So this is back in 2019, and cases broke out all over the west, which is what Judge Smith, Milan Smith, had predicted would happen, that there would be just basically cities unable to figure out how to deal with the homeless. And the homeless would take advantage because of this case effectively preventing cities from in any sense penalizing homeless people who decide to live somewhere if they’re going to be on the public streets or public parks. And that’s what we saw all over the west: Phoenix, San Francisco, Grants Pass, Portland, Oregan, all over.

 

Which brings us to the instant case. Like many cities and towns across the country, Grants Pass protects public health and safety by regulating the public’s ability to camp or sleep overnight in its outdoor spaces, including parks, trails, and sidewalks. They adopted three ordinances, which are really what were at issue initially in the district court.

 

The first prohibited sleeping on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety. The second prohibited camping on any sidewalk, street, alley, lane, public right of way, park bench, or other publicly owned property or under a bridge with a campsite defined as any place where bedding, sleeping bag, or other material used for bedding purposes or a stove or fire is placed -- and the third prohibiting specifically camping in public parks. These ordinances were enforced through civil fines, not through criminal fines or jail terms. Although, the homeless advocates would argue that down the road if you were to be civilly fined, you would then ultimately get a trespass order and could be criminally charged. But ultimately, this case is about civil fines, not criminal from at least the city’s perspective.

 

The plaintiffs claimed in the case -- they sued Grants Pass and argued that these three laws violated the cruel and unusual punishments clause, and they asked to certify the class. The district court did certify the class because it said this was citywide practice and said that the homeless were involuntarily homeless if there were more homeless individuals than shelter beds in the city of Grants Pass. So importantly, there would be no need for an individualized determination as to how did someone get homeless. Are they choosing to live on the streets of Grants Pass?

 

There’s a good amicus brief from Manhattan Institute, Ilya Shapiro, who points out that polls and surveys of the homeless out west lead to a significant percentage of homeless people saying they’re choosing to live on the streets, that they’re not involuntarily homeless, and they’re choosing to live, say, in Oregon because of the lax drug laws. Again, that’s from the Manhattan Institute brief. So his brief argues this is not involuntary at all, at least for a number of people.

 

But yet the district court’s decision and the Ninth Circuit’s decision basically say if you don’t have enough beds for the homeless from a count of the homeless, then those homeless people are involuntarily homeless because the city is not providing them beds to sleep in regardless of whether they would sleep on those beds if they could and, again, regardless of whether there are religious beds, if you will, available because religious shelters, like a St. Francis House in Gainesville, Florida, for those of you in Florida who know the University of Florida, that wouldn’t count. The court understood Martin, the Boise case, to establish a mathematical ratio that prevented the city from enforcing its ordinances unless a shelter bed within its city’s borders was available for every homeless person. It then extended Martin in two ways.

 

First, it said that Martin protects not only sleeping but also camping with bedding and then second said that you couldn’t even civilly enforce these ordinances. So again, the difference between criminal and civil, that even though the Eighth Amendment talks about cruel and unusual punishment, the Supreme Court had said previously that -- I think it was Justice Gorsuch who was remarked in Timbs that the Eighth Amendment does not know the difference between criminal punishment and civil punishment. And so effectively, there’s no difference. So a civil fine, criminal punishment, either way, they can be cruel and unusual or in Timbs of course an excessive fine.

 

And again, that’s important I should note as I’m jumping around a little bit. The district court -- and this is very important for where the Supreme Court may go in the oral argument and ultimately its decision. The district court had two rationales for its decision. One, it said this was cruel and unusual punishment to punish or to even civilly fine the homeless for sleeping in public parks, what have you, camping in public parks because they had no choice. They’re involuntarily homeless. There’s not enough beds.

 

But the court also said that the excessive fines line of authority that Institute for Justice won in the Timbs v. Indiana case and is now being -- when the Supreme Court incorporated the excessive fines clause against the states and now is being fleshed out, the district court said that it’s an excessive fine to fine anyone for being homeless. Any fine at all for being homeless, which involuntarily homeless, is a violation of the Eighth Amendment. And that’s important because as the case goes up on appeal the city did not challenge that part of the district court’s ruling.

 

It only took up the cruel and unusual punishment’s clause. And that was one reason why some thought the Supreme Court wouldn’t grant the petition, but it’s still hanging out there as an issue that the Supreme Court will probably deal with when it gets to oral argument as to even if they were to agree with the city that this is not cruel and unusual punishment to civilly fine the homeless, what do they do with the fact that the district court said it also violates the Eighth Amendment’s excessive fines clause? I don’t know what they’ll do with that, but they’re definitely going to look at it. And it's definitely an ingredient in the case.

 

So the district court enters the judgment enjoining Grants Pass from enforcing its public camping ordinances without at least first giving a 24 hour warning, and then it can’t enforce them at nighttime hours entirely. The Ninth Circuit then affirms in a large part and remands for further proceedings. Again, they get into this mathematical formula in terms of if there’s more homeless in a city than there are beds publicly available that are not religious beds, then you’re involuntarily homeless.

 

They deal with the fact that what if you choose to be homeless and you’re not involuntarily homeless, and so it shouldn’t be a class action. They just say, well, those people don’t count within the class, which is very interesting in theory, but in the practical reality how does the city really deal with that? It basically means their hands are effectively tied because how are they going to know if somebody is involuntarily homeless or choosing to be homeless? They’re basically at the mercy of the individual.

 

So I’ll say according to the majority class definition eliminates such individualized issues because the class includes only involuntary homeless, meaning people with access to other housing don’t qualify in the class as I just said. They had no problem -- the Ninth Circuit had no problem -- the panel 2-1 had no problem with extending the criminal punishment is prohibited to civil fines. And you got a dissent from Judge Collins, and then you got a motion for rehearing en banc that was 14-13 denying rehearing, led to ultimately five separate opinions beyond the 13 active judges who dissented, which was obviously one judge short of getting us a rehearing. You also saw four senior judges writing statements as well or joining statements opposing the case.

 

So that’s a fairly in depth description of how we got to the Supreme Court and how we got to where we’re going to be on Monday. I’m just going to quickly summarize arguments because I think I’ve sort of fleshed them out here pretty well just by leading up to it. The petitioner, the city, is effectively saying that Robinson and Powell, the two precedents that the Ninth Circuit’s effectively relying upon to say this is involuntary -- this is punishment for involuntary status, not for conduct, says it doesn’t add up to a constitutional right to sleep on public property. I think the analogy -- if it was just sleeping, it would be one thing. But it’s sleeping on public property or camping on public property.

 

So for the Supreme Court to rely upon Powell and Robinson, what the petitioner says is it would effectively be extending those cases, which if I was a petitioner, I’d probably be making that argument too because it seems at least superficially unlikely that this Court would be looking to extend a Warren precedence like Robinson and Powell. Although, I don’t remember when the Court switched, but at least Robinson for sure is a Warren decision.

 

They emphasize the status is the act of needing to sleep, not the act of sleeping on public property. If you wanted to criticize the petitioner, you could say that if you’re homeless, you have to sleep somewhere. And if you sleep on private property that is not yours, you can be charged with trespass. And the petitioner would say in response exactly. There’s no requirement for the public to provide you with a place to sleep on public property.

 

In fact, Pacific Legal Foundation in its brief notes that requiring the city to provide an individual homeless person with a bed for sleeping would turn what we generally think of as our constitutional rights in the Bill of Rights, including the Eighth Amendment, into a positive right, that you have a right to a public place to sleep, as opposed to a negative right which is you have a right to the government not interfering with you exercising, say, your right to free speech or your right to own property without it being taken unless it’s for public use and just compensation. Because if you take the homeless argument further -- and again, I’m not making the argument, but this is just the logic of what the petitioner would say. And in fact, I heard this in a Federalist Society discussion of the case last fall -- is we also have a biological need to eat. And so if you don’t have a job, you’re unemployed, and you don’t have any money to buy food, does the government have to provide you food?

 

So that’s sort of the parade of horribles if you will if you’re the petitioner arguing against the homeless advocates. Moreover, the petitioner focuses on the bed formula. I should mention the panel when the rehearing en banc was denied attempted to sort of separate itself from the bed formula and said that that really was no longer applicable. You can read it for yourself and see whether you buy that. I expect the justices aren’t going to buy it. Certainly many of the amicus briefs and the authors of those briefs don’t buy it because that tended to be quite a bit of what the focus was in the friends of the court briefs on this mathematical formula that if a city doesn’t have enough publicly available beds for homeless people, then it cannot civilly fine or punish with a misdemeanor the homeless.

 

At bottom, the petitioner says this case is about general law that prohibits camping on public property, and since it’s a law of general applicability it in no way violates the Eighth Amendment. The respondent, they reframe the question. And so I’m just going to read to you their reframing because I think the way they reframe it sort of sets out the way they see this case.

 

So this is the question presented on behalf of the homeless. “In an effort to force its homeless residents into other jurisdictions, the City of Grants Pass, Oregon, decided to aggressively enforce a set of ordinances that nominally prohibit camping but in reality, punish homeless people for sleeping or resting anywhere on public property at any time with so much as a blanket to survive the cold, regardless of whether they have anywhere else to go. The ordinances make it physically impossible for a homeless person who does not have access to shelter to remain in Grants Pass without facing endless fines and jail time. The question presented, then, is whether the city’s punishment scheme transgresses the Eighth Amendment’s cruel and unusual punishment’s clause by inflicting punishment on the city’s homeless residents for simply existing in the community without access to shelter.”

 

So that’s the question presented. They’re effectively attempting to address sort of obliquely the on public property problem by sort of saying, well, but the community’s effectively trying to move them out of the community by just saying the crime or the civil wrongdoing is sleeping on public property. And their response is, well, no, you’re trying to get them out of the community, so it’s not that they’re sleeping on public property. It’s just they’re sleeping in your town. They’re sleeping in your city.

 

Respondent takes pains to elide the sleeping on public property problem by making this about sleeping. While sleeping if you’re homeless, you have no choice but to sleep on public property, and it’s cruel and unusual punishment to punish someone for engaging in a biological necessity. And then they say at bottom the courts should follow Robinson. It’s not conduct being punished; it’s status of being homeless in a community.

 

So the Solicitor General, who will also get to argue in the case, reframes the question presented as well very succinctly. And the reframing, which tailors where Ms. Prelogar is headed -- or General Prelogar is headed or her office is “Whether the Ninth Circuit erred in affirming a class-wide injunction against the enforcement of anticamping ordinances adopted by the city of Grants Pass.” And so I’m going to read it again. “Whether the Ninth Circuit erred in affirming a class-wide injunction against the enforcement of the anticamping ordinances adopted by the city of Grants Pass.”

 

So what you could argue the Solicitor General’s doing is recognizing that the Ninth Circuit decision is toast and the Solicitor General on behalf of the DOJ is trying to move the Court to say that there is a defense to being civilly fined or criminally charged for sleeping on public property if it’s impossible for you to sleep somewhere else. So effectively the Solicitor General is trying to give the Court an offramp between sort of the two sort of black and white sides of this coin or the city side and the homeless advocates’ side and trying to sort of in a sense split the difference whether the office is successful or not reading the brief. And we’ll see how the oral argument goes -- but trying to say that really the issue is that class-wide injunction.

 

If you look at Robinson and Powell, you’re talking about an individual person being criminally charged, not a class-wide everyone in this city is involuntarily homeless or everyone who lives on the street in the Robinson case was an addict, say, if you were to combine the two facts, the homeless issue and the drug issue, or an alcoholic in Powell. And so you would need an individualized determination. And in fact, there are two excellent amicus briefs that tease out what the Solicitor General is getting at. One was by the Sacramento District Attorney’s Office, and one was by a law professor named -- I’m going to botch the name but Mannheimer, both pointing out that really if a person is involuntarily homeless, this should not be a class action type of case but rather it should be that the individual homeless person gets to show as a defense to the crime or the civil charge that they have no choice but to be homeless.

 

And what we call that defense is interesting. Ms. Prelogar for the Solicitor General’s Office does not really say what you would call it. Perhaps you would call it impossibility. That’s what the law professor argues in his amicus brief that the Supreme Court should effectively create a constitutional common law defense of impossibility, or maybe you would call it necessity, that I had no choice but to sleep on public property because I’m homeless. And I have nowhere else to turn. And that that would be an affirmative defense to a criminal charge, but that would mean the criminal charge does not violate -- or the civil charge does not violate the Eighth Amendment.

 

So the difference between those amicus briefs and the Solicitor General’s Office, the Solicitor General is trying to say penalizing the homeless in this context can violate the Eighth Amendment. Well, I don’t know that you necessarily would say there’s a difference there. They’re both saying it is a defense that you’re involuntarily homeless, but it needs to be decided individually in a criminal case. The Solicitor General’s a little bit vague about that, but that would be sort of how I think that argument would go. Either way, the Solicitor General and these amici are effectively saying the Ninth Circuit decision should be vacated.

 

So potential outcomes here, there’s a lot of potential outcomes. One, obviously the Court could affirm. I don’t think you will see that. If the Court was going to affirm, I don’t think it would’ve taken the case in the first place. Remember the Martin case from five years ago was denied cert, and so now it’s five years later. Conditions have arguably gotten worse out west, especially in the Ninth Circuit with cities not knowing how to deal with the homeless problem. And so they granted cert. Chances are they want to give the Ninth Circuit direction and give the rest of the country direction.

 

Two, they could dig it. They could dismiss this as improvidently granted. So what do I mean when I say dig it? Well, they could say we never should have granted this case because even if we agree with the city about this not being a violation of the cruel and unusual punishment’s clause, the city did not appeal the excessive fines argument, and so that argument is still the law of the case. And if we were to remand it, what would the district court do with that ruling since it’s not really before them?

 

It seems unlikely. That seems like that would’ve been a better reason for them not to grant the case in the first place, but digging a case is an alternative they have. And you could see if --Chief Justice Roberts likes to bring in unanimous decisions. You could see if he has a split Court, that is an offramp he could decide he wants to take because he doesn’t want to see a 5-4 split or who knows. So it’s possible.

 

It could reverse, and as I mentioned at some point in the last half hour the Court could say this is a due process issue, not an Eighth Amendment issue, the idea being that what can be a criminal charge does seem more to be a due process Fourteenth Amendment problem, not a cruel and unusual punishments problem. That would allow the Court to leave Robinson in place but separate this from Robinson, and it wouldn’t have to say, well, Robinson was wrong, which you could see Chief Justice Roberts probably wouldn’t -- again, I’m predicting here. But he generally wouldn’t want to have to walk away from precedent that everyone relies upon. But if he says this is different, this is due process, then Robinson stays. It’s sort of this outlier, and the case then has to be evaluated under that context. I think that’s possible. As I said earlier, there’s an amicus brief that teases that out.

 

Or the Court could reverse—that’s another alternative—and say this is not a proper class action case at all. If they did, they could say either that an individual homeless person can sue, but just not in a class action in a civil rights type case or say that it’s really just best resolved in the criminal context like the Robinson and Powell cases were and like I alluded to that the Solicitor General kind of is getting at and certainly the Mannheimer amicus brief and the Sacramento DA’s amicus brief get at. So that’s a lot to digest. I know I’ve talked for quite a while, but, Chayila, I’ll turn it back to you if we want to take questions.

 

Chayila Kleist:  Sounds great. Thank you. That was a really helpful summary of how we got here, sort of the history of the cases that affect this current decision or litigation and some of the arguments that are being brought up on the various sides. Appreciate it. We do have several questions from our audience, so I’m happy to turn to those now. And for those who haven’t submitted questions but want to, I’ll direct you to the Q&A feature.

 

Our first question comes from an audience member who asks whether you’ve seen language from other cities’ laws that address this same general issue and if there’s a better phrasing that could’ve happened potentially relating to that affirmative defense of being involuntarily homeless and whether or not that might change the analysis.

 

Mark Miller:  I’m hard pressed to think that there’s -- these ordinances are all written effectively -- they either predate Martin or the ones that post-date Martin and Grants Pass being the two cases -- even though it’s Grants Pass that’s in front of the Court, I have a feeling in the oral argument Martin will come up a lot, the Martin v. City of Boise case. I’m hard pressed to think any city’s ordinance is going to be -- it’s tough to evaluate any of them until we know what the justices think, so we’re going to have to see what this opinion says. And then you’re going to see a lot of city attorneys having to rewrite their ordinances or perhaps somebody crowing if they got it right all along. But I cannot think of any -- I apologize, but I can’t think of any example that I think would’ve been a better vehicle for, say, the city, for a local government if you will.

 

Chayila Kleist:  Got it. Another questioner asks whether either the parties or an amicus brief has challenged the notion that beds provided by religious groups don’t count, so accepts the logic but wants to challenge that particular part of the math.

 

Mark Miller:  Yes. Thank you for that question and if I recall correctly, Beckett filed a friend of the court brief arguing that this idea that a religious bed shouldn’t count violates the establishment clause -- or no, doesn’t -- that the idea the Ninth Circuit said a religious bed, if you will, for the homeless shouldn’t be counted is inappropriate under current Supreme Court interpretation of the establishment clause. So yes, that is brought up, and absolutely, Ms. O’Conner (sp), I would think you would expect that some of the justices will want to get into that issue.

 

Just like I think that the Ninth Circuit -- I’ll put it this way. Just like the petitioners think the Ninth Circuit is playing fast and loose with the Eighth Amendment in the way it applied the Eighth Amendment to say that the homeless cannot be civilly fined in this context, I think that there’s an argument to be made and I think those who prefer the current Court’s interpretation of the establishment clause, they have the opportunity to say and they have the perspective that the Ninth Circuit played fast and loose with what the establishment clause means by saying that somehow a religious bed shouldn’t count. The idea being -- and to make the case for the Ninth Circuit, the idea being that in perhaps some of these homeless shelters that are provided by religious institutions they would make you say a prayer or in some way live up to rules that the homeless person would see as infringing on their religious beliefs.

 

I think that there’s an interesting counterargument to that, though, being that when you’re homeless and you need a place to stay, you have choices. And to say that simply the religious beds -- as I said, the Gospel Mission in Grants Pass specifically says, look, we’ve got beds, but homeless people are not coming here because these two precedents, Martin and Johnson -- Martin and Grants Pass, effectively encourage the homeless just to stay on the streets because the government can’t do anything about it. And so this idea that somehow the establishment clause prevents the beds from being counted I think will come up in the oral argument. I don’t know if it will make it into the opinion.

 

Chayila Kleist:  Got it. Thanks so much. Next questioner asks can a local government counter the Eighth Amendment objection arising out of the Martin line of cases but arguing that the local government can nevertheless satisfy strict scrutiny? They give an example of a public health crisis as a potential reason a local government might give.

 

Mark Miller:  So I don’t know that the way you framed it, questioner, exactly came up, but I mentioned earlier Tim Sandefur wrote an excellent amicus brief for Goldwater. And there’s a quote I think it’s in Robinson, but it could be Powell -- please, excuse me, that you couldn’t punish someone for catching a common cold. And Tim, Mr. Sandefur, makes the argument that in fact that’s debatable because of what you’re referring to in terms of typhoid or typhus or coming out of the pandemic. Obviously, cities did not have to engage in -- exercise their quarantine powers. But in fact, if it wasn’t “a common cold,” as in that dicta from that Supreme Court precedent but rather was a very communicable disease, then the city does have the police power, the health, safety, and welfare police powers to quarantine.

 

Again, it would have to be extreme. I don’t want to be misinterpreted here, but I did write an op ed at the time the pandemic just broke out describing how local governments do have quite a bit of quarantine power in the face of what could be an extreme illness. So I don’t think anyone tried to make the strict scrutiny argument per se, but it’s definitely out there that if the government has that power, then why wouldn’t it have this power on these facts. So it’s not exactly framed the way you framed it, questioner, but you’re getting at something that is real and that as I said Mr. Sandefur mentioned in his brief.

 

Chayila Kleist:  Got it. Thank you. Next question, and I’m going to do my best to paraphrase, and hopefully I don’t butcher it. Attendee asks about how -- whether or not any argumentation has been raised concerning zoning and whether or not if the city has property interests such as an easement in public property for travel utilities or the way parks are zoned, whether or not that has affected the argumentation here. And I potentially butchered the question. Hopefully, you can read it and give a better answer if that’s helpful.

 

Mark Miller:  So I’m going to combine these two questions, this question along with Ms. Cohen’s (sp) question. Ms. Cohen asks about mental institutions closing in the 70s and that that may be connected to the fact that we had a permanent underclass -- permanent homeless class I should say starting in the 70s and then this zoning issue. Pacific Legal Foundation connects in its amicus brief the zoning, heavily restrictive zoning and environmental restrictions that come out of the environmental laws passed in the 70s that heavily weigh on the ability of a developer to build and impose high costs that makes housing so expensive. I would think there’s an argument to be made that the housing crisis sort of parallels, which isn’t to say correlation equals causation.

 

But at least arguably these two things are occurring at the same time, that government’s got heavier and heavier into restricting property, local, state, and federal property use, and housing got more and more expensive and more and more people became homeless, which isn’t to downplay the problem of drugs and the problem of alcohol. But it is to say that nonpartisan research has reflected that the cost of housing is contributing to the homeless crisis. The argument that the government has an easement interest I think does speak to, in general, the government’s position here, that this is public property.

 

There were many briefs filed, and I’m going take up Ms. O’Conner’s question as well about the broken windows theory. There were many amicus briefs that got into the idea that, look -- it was more like examples. Look, we own businesses, or we have residences in cities. And homeless people are living on our stoops. They’re living in front of our businesses, and so we can’t find employees if we’re a business because they don’t want to come near these homeless encampments, what in Phoenix they call the Zone, if you will. And so we can’t find people to work, or we just can’t get to our homes. Our homes have become dangerous because of these homeless people living on the sidewalks or the public stoops or the public parks by our houses.

 

So whether you call that an easement or just simply the public have a right as I mentioned at the beginning -- ordered liberty. Yes, we have individual liberty, but it’s ordered individual liberty. And the government is in some sense charged with protecting order. And if you -- this rule arguably has swallowed the order part of it, at least in many of our cities.

 

Chayila Kleist:  Got it. Thank you. That nicely tied together a couple of the questions. Appreciate it. A question for you, is the way in which this class was certified unusual? You mentioned a little bit of the difference of how they came to have standing. And I’m interested to know was that normal, unusual? Is it of note in this case?

 

Mark Miller:  So yeah, the class aspect of this, I think, was very unusual, and it’s one of the more surprising aspects of the case. As anyone who’s done class action litigation knows, that’s usually a big fight, and someone’s individual facts, they all have to be basically the same to fit into a class. But here with the homeless and how somebody ends up on the streets, perhaps it’s somebody who lost their job and didn’t have savings. And they have no choice but to live on the streets for some period of time; whereas, somebody else -- as I mentioned to you earlier, that Manhattan Institute brief by Ilya Shapiro, maybe someone is just choosing to live on the streets.

 

Yet, by putting them both into the same class, although the Ninth Circuit would say that that latter person technically isn’t in the class because he’s choosing -- but if he says or she says, well, I have no choice; I want to be in this city, and there’s no job available, then there’s really not a lot you can do to pull them out of the class. So absolutely certifying this as a class is where I wouldn’t be surprised to see the Supreme Court focus. Many of the cities’ briefs, there’s any number of local government briefs in this case. Many of the bigger cities in California filed briefs. Also, just in the West, sometimes they combined forces, but others are just on behalf of individual cities.

 

But they say, look, we’re not just going to arrest the homeless in mass. We are going to inquire and find out why is someone homeless and get them the help they need. Now, to be sure, as a Pacific Legal lawyer who tends to look at the government skeptically—that’s sort of my job: to sue the government—you could say that, yeah, I’m dubious of that. But again, shouldn’t you allow the government to either prove you right, that you were right to be dubious, or prove you wrong and say, no, we are going to help.

 

Not only do I work at Pacific Legal, but I also worked for the state of South Dakota for Kristi Noem. And many of the government workers I worked with there did have good faith and good intentions. Basically all of them did. So the idea that we’re just going to assume the city would treat all these people poorly and arrest all of them and so we have to enjoin the city from arresting any of them or civilly fining any of them does seem arguably like an overreach. At least that’s what I think you’ll hear the petitioner argue next Monday.

 

Chayila Kleist:  Got it. Thank you. Next question from the audience is addressing who’s affected by these laws, and they asked would this apply to van camping or car camping? Or is it just to those who are sleeping directly on public property? I abridged it just a little.

 

Mark Miller:  Yeah, no. I’m reading the question, and, Jonathan, you’ve challenged me. I think if I dove better into the facts of these various cases out west, I would be able to get into that car camper question. But in a fit of humility I’m going to say I’m not quite sure how that would be analyzed. And again, I would use my sort of way of avoiding that earlier question by saying I think the Supreme Court’s decision will help us figure out how a car camper situation should be dealt with.

 

At a minimum, the person in the car camper is not infringing another member of the public’s rights as severely as a camper would be if the camper is on a public stoop or on a public sidewalk or in a public park -- infringing on someone who’s just trying to walk by. If you’re in the car, you’re effectively not as much interfering with someone else’s rights such that the city wants to prevent that from happening. So I do think it’s factually a little bit different, and I think the Supreme Court’s decision may tell us more.

 

Chayila Kleist:  Got it. Thank you. Well, obviously, this is a preview, so we don’t have oral argument or a decision yet. So I’d love to turn now to with oral argument coming up next week just a couple of questions on what we should be watching for. From your perspective—and you’ve touched on this a little bit in your really helpful summary—what questions are most pressing in this case? What should we hope it gets an answer?

 

Mark Miller:  So I think when you look at the Supreme Court -- and other people have noticed this and made this observation, I should say. And I think it’s a legitimate one that rather than seeing this Court as a 6-3 Court, I think it’s more of a 3-3-3 Court with Justice Kavanaugh, Justice Amy Coney Barrett, and Justice Roberts sort of in the middle three and then Alito, Thomas, and Gorsuch in one three and then Jackson, Sotomayor, and Kagan the other three. And so it’ll be interesting to see who leads the questioning from each of those groups.

 

For example, Justice Gorsuch sort of fits into the civil libertarian mode of that group of three the most among Alito, Thomas, and Gorsuch. So does Justice Gorsuch signal to us that he has a degree of sympathy for this idea of a status crime? Some of the amicus briefs that came in from religious groups very strongly -- and a number of Catholic groups I should emphasize, which you can’t ignore when you look at how many justices on the Court, I think seven if I’m remembering right, are Catholic. And almost all the Catholic arguments are in favor of treating the homeless, this issue as a status issue.

 

So does Justice Gorsuch find that in any way appealing? Does he appear to be interested in following what I’ll call civil libertarian instincts, or does he fall more into the conservative perspective that Justice Alito and Justice Thomas tend to follow more, which would be by conservative I mean law and order approach, broken windows to allude to Leigh O’Conner’s (sp) question? So where does Justice Gorsuch go?

 

Where does Justice Kagan go? I think Justice Kagan this term has signaled her opinion in a number of cases and also signaled by not talking. I would mention Sheetz, which was just decided last week. Pacific Legal won an interesting property rights case that was an extension of a case called Koontz. Both of those cases argued by former Pacific Legal lawyer Paul Beard. And in Koontz, Justice Kagan dissented and felt that Koontz had gone too far in terms of how we treat exactions in the land use context.

 

And now here we had an extension of Koontz, and Kagan who had dissented in Koontz didn’t ask many questions in the Sheetz oral argument and then didn’t dissent from the decision, which Sheetz was a logical consequence of Koontz and Nolan Dolan as well. But her decision to hold her fire, if you will, whereas in Koontz she was very assertive that she thought it was a bad -- it was going to be a bad outcome in the oral argument and then she dissented -- so where’s Justice Kagan go? I think that would be interesting.

 

And then that group of the three in the middle, those three in the middle often tell us how a case will turn out because -- again, I don’t like the red and blue analysis. 90 percent of our cases are unanimous or close to unanimous. But to the extent that that 3-3-3 rubric is helpful, the three in the middle, who leads the question there? Justice Kavanaugh, I think, particularly is somebody who likes to favor the institution, if you will, so in this case the city, the governments who are trying to deal with the public policy problem. And so his perspective informed by having worked for the government may lead him to -- look for his questioning to signal that perhaps he sides with the government. And if it doesn’t, then that may tell us a lot too.

 

Chayila Kleist:  Got it. Well, thank you. That was incredibly helpful sort of summary of what we can be looking for next week. We’re approaching the top of the hour, so I’ll give you a time for a final thoughts. Is there anything you’d like to leave us with?

 

Mark Miller:  Thank you, Chayila. I just would appreciate anyone who hung in there for the entire hour. The oral argument should be very interesting. It’s going to be Monday. I’ll mention -- I’ll through a shoutout to “Audio Arguendo.” It’s a great podcast that allows you to listen to the oral argument a few hours after it occurs live, and you can fast forward it, listen at 2.0 speed or not quite that fast, if you want to understand it. But it allows you to listen to oral arguments and get them done more quickly.

 

Otherwise, I would just say it’s going to be a very interesting case because of all the different issues that are in play that Chayila mentioned at the very beginning. It’s hard to know where the justices will come out, but I think because they granted it, I think that Ninth Circuit decision will be vacated. But how it gets vacated is where the interesting aspect of the case will lie. Thank you, Chayila, and thank you Federalist Society.

 

Chayila Kleist:  Well, thank you. Appreciate you carving out this section of your afternoon and thank you also to our audience for joining and participating. We welcome listener feedback by email at FedSoc Forums and fedsoc.org, and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events like the Courthouse Steps Oral Argument that’ll happen next week after we see how this case turns out. With that, however, this webinar can adjourn. Thank you so much for joining us today.