Rushing to meet last week’s deadline for filing amicus briefs, dozens of local governments and other groups in California have jointly and separately beseeched the high court to uphold laws targeting sleeping in public. Such laws are seen as a key way to crack down homelessness.

The flood of legal filings came in support of an appeal to the U.S. Supreme Court filed by the city of Boise, Idaho. The city opposes a September 2018 ruling by a three-judge panel of the 9th U.S Circuit Court of Appeals that held that just as governments “may not criminalize the state of being ‘homeless in public places,’ [the city of Boise] may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying or sleeping on the streets.”

In July, Boise hired attorneys Ted Olson and Theane Evangelis of the Los Angeles-based law firm Gibson, Dunn & Crutcher for its appeal. The attorneys sought amicus briefs from affected local governments and stakeholders in the states bound by the 9th U.S. Circuit’s ruling: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Lawyers for Boise say court overreached

Olson’s and Evangelis’ argued that the Boise ruling could create never-ending legal fighting by taking away a tool communities need to deal with homelessness, as well as create massive new fiscal obligations.

As CalWatchdog reported last week, the L.A. County Board of Supervisors backed joining an amicus brief prepared by the California State Association of Counties. Among the other government bodies that decided to back Boise:

• The city of Los Angeles. City Attorney Mike Feuer said last week that the ruling “could place the city at risk of litigation as leaders strive to fashion the humane, practical solutions this crisis urgently demands.” Mayor Eric Garcetti, an outspoken advocate of what he sees as a humane approach to homelessness, did not support Feuer’s decision.

• Riverside, Orange and Fresno Counties.

• The cities of Sacramento, Fullerton, Torrance and Newport Beach.

The decisions reflect a rift between high-profile politicians like Garcetti, Gov. Gavin Newsom and Sacramento Mayor Darrell Steinberg who call for a compassion-first approach on homelessness and politicians who are responding to frustration and anger from their constituents over homeless encampments disrupting neighborhoods. Homelessness has gotten steadily worse in most California cities over the last dozen years, fueled initially by the Great Recession and then by the high cost of housing.

But the Boise ruling also is unpopular across the West. The Idaho Statesman reported that 20 amicus briefs supported by 81 different groups from a range of states had been filed with the U.S. Supreme Court.

Plaintiffs’ lawyers doubt high court will take case

The newspaper noted that one was filed by MaryRose Courtney, whose brother is homeless and mentally ill, and the Ketchum-Downtown YMCA in Los Angeles. Unlike many of the briefs, it didn’t focus on the fiscal and quality-of-life headaches that could result from the Boise ruling. Instead, Courtney challenged the notion that tolerating sleeping in public was humane.

This approach 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,” she wrote. “Court rulings like the 9th 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.”

But plaintiffs’ lawyers from Idaho Legal Aid Services and the National Law Center on Homelessness & Poverty told the Statesman that they were skeptical the Supreme Court would take up the case because the ruling by the panel of 9th Circuit judges was based on earlier court rulings on homeless ordinances that had not been overturned. 

Plaintiffs have four weeks to prepare a response to the amicus briefs.

If the high court decides to take up the case, a hearing is expected in the spring with a ruling by the end of the court’s term in June, the Statesman reported.

The turnaround arose from an unlikely place — the 9th Circuit Court of Appeals, itself overturned with such relative frequency that it has developed a reputation for adventuresome rulings. “In a unanimous decision, a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected the argument on a technicality that it did not address the question of whether life on death row in California constituted cruel and unusual punishment,” as the Los Angeles Times reported. “Lawyers who argued on both sides of the case said the appellate ruling was decided on largely technical grounds and leaves unanswered the larger question of whether lengthy delays are unconstitutional.”

In the details

The ruling hinged on a procedural matter and a theoretical one. “Citing Supreme Court precedent, the panel said that in a habeas corpus petition, as was filed on behalf of a condemned prisoner in this case, the federal courts may not retroactively apply ‘new rules of constitutional criminal procedure’ to overrule a state criminal court’s decision,” the New York Times observed.

Also at issue was whether the very long delays in execution that many faced on California’s death row amounted to a form of torture, running afoul of the constitutional protection against cruel and unusual punishment. “A lower court had determined that the system constituted cruel and unusual punishment because of delays and uncertainty with appeals,” Reason explained. “California has hundreds of prisoners on death row but hasn’t executed anybody in nearly a decade over challenges.” The panel’s ruling left open the question of whether the state’s death penalty regime could be effectively fought on other grounds.

Seizing the initiative

But the battle lines have already shifted from the courts to the ballot box. An initial hurdle has been cleared in the effort to turn policy over to the people themselves. “Death penalty opponents led by former ‘M-A-S-H’ star Mike Farrell can begin collecting signatures for their latest attempt to repeal the ultimate penalty, increasing the chances that California voters will be faced with a choice between competing initiatives next year,” the Associated Press reported. “The secretary of state’s office said Friday that backers have until May 17 to gather nearly 366,000 signatures if the measure is to appear on the November 2016 general election ballot.”

As a result of the litigation, advocates for continuing capital punishment have been put in the unorthodox position of agitating to speed up executions in the name of due process. Before the court, prosecutors had said “delays resulted from its unusually careful efforts to protect the rights of the condemned, and said there was no evidence that the outcomes were random,” as the New York Times noted.

Now, according to the AP, death penalty supporters “are attempting to gather enough signatures for their proposal to speed up executions by providing more appellate lawyers and speedier appeals. That campaign was announced earlier this month by several prosecutors, police officers and family members of victims.” The effort gained steam early with the support of district attorneys statewide, the wire noted separately, “including Orange County’s Tony Rackauckas and San Bernardino County’s Mike Ramos.”

“There are currently 18 inmates who’ve exhausted all appeals and are cleared for death once a suitable form of execution is approved. Ramos estimates there are another 140 who are awaiting their final appeal before the state Supreme Court. The proposed overhaul would get the inmates to this final-appeal stage more quickly, but would do nothing about the growing backlog of cases awaiting the seven justices on the state’s high court.”

“California must allow law-abiding citizens to carry concealed firearms in public, a federal appeals court ruled Thursday, striking down the core of the state’s permit system for handguns.

“In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said San Diego County violates the Constitution’s Second Amendment by requiring residents to show “good cause” — and not merely the desire to protect themselves — to obtain a concealed-weapons permit.”

Studies by John Lott and others gun scholars have shown that, when states adopt conceal-carry laws, crime drops. That’s because criminals don’t care about gun laws. And their criminal connections provide them with plentiful illegal guns.

All disarming citizens does is provide easy marks for criminals, because the chance of the victim defending himself is limited.

But with conceal carry, criminals don’t know who is armed, and who isn’t. Any potential victim, even a grandma with a purse, could be packing heat.

As we used to say in my U.S. Army days 35 years ago — outstanding!

The federal 9th Circuit Court is known for its tyrannical ways. Now it has upheld California’s tyrannical ban on so-called “gay-to-straight therapy” for children.

The law, passed last year, on its face violates the 1st Amendment right to freedom of speech and freedom of religion. Now this:

SAN FRANCISCO (AP) — A federal appeals court sided with California on Thursday and upheld the first law in the nation banning a psychological treatment that seeks to turn gay youth straight.

In a resounding, unanimous opinion, a three-judge panel of the 9th U.S. Circuit Court of Appeals found the state law barring the so-called gay aversion therapy legal in every respect.

The judges said trying to change a minor’s sexual orientation through intense therapy appeared dangerous, and that California lawmakers properly showed that the sexual orientation change efforts were outside the scientific mainstream and have been rejected for good reason.

“One could argue that children under the age of 18 are especially vulnerable with respect to sexual identity and that their parents’ judgment may be clouded by this emotionally charged issue as well,” Judge Susan Graber wrote for the court panel.

But who knows what’s best for a particular child:

A. Gov. Jerry Brown and the California legislature.

B. Judges on the 9th Circuit.

C. The kid’s parents.

Obvious answer: C.

Supposedly, some children given the therapy committed suicide. But how can a link be proven?

And while they’re at it, why don’t Gov. Brown, the Legislature and the 9th Circuit ban kids from using the Internet? I won’t link to them, but there obviously are a lot of pro-suicide sites out there. There’s also pro-Nazi stuff. Maybe some kid will read it and, imitating Hitler, blow his brains out, after doing the same thing to his own personal Eva Braun.

Ironically, and hypocritically, California also is making it easier to get an abortion here. And young girls can get abortions without parental consent.

So, a 12-year-old has a right to get an abortion, with who knows what kind of psychological consequences, especially without parental involvement. But the same 12-year-old can’t get “gay to straight therapy” from, say, a Christian-oriented psychologist?

I don’t have any kids. But if I did, my beloved and I would leave this state at the first blip of the ultrasound.

By Chris Reed

In 2004, in a case involving union pickets on the property of a California grocery state, the U.S. Circuit Court of Appeals for the District of Columbia explicitly ruled that they had no special protections:

“This petition for judicial review of an order of the National Labor Relations Board, and the Board’s cross-petition for enforcement, turn on whether California law gives labor organizers a right to hand out leaflets in the privately-owned parking lot of a stand-alone grocery store. Because it was not clear where the Supreme Court of California stood on the subject, we certified two questions to it. The California court refused to decide the questions. It has therefore fallen upon this court to determine the meaning of California law, in light of the First Amendment to the Constitution. We hold that under California law, union organizers have no right to distribute literature on a stand-alone grocery store’s private property.”

That’s the very first paragraph. The D.C. appeals court is widely considered the second-most powerful court in the land because of its responsibility for “directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government,” such as the NLRB.

But on Thursday, overturning a state appeals court ruling, the California Supreme Court found that state laws granting picket rights to union protesters in fact do give union protesters the right to rally on the property of California grocery stores. In her majority decision, Justice Joyce Kennard held the federal appeals court just didn’t understand that this wasn’t a First Amendment matter when it overturned the NLRB.

“In making that ruling, the [NLRB] had concluded that under California law the supermarket owner did not have a right to exclude union representatives from its property. (Waremart/N.L.R.B., at p. 872.) The board‘s conclusion was based in part on our state‘s Moscone Act, as construed by this court in Sears, supra, 25 Cal.3d 317. The federal appellate court disagreed with the board, holding that ―the union organizers had no right under California law to engage in handbilling on the privately-owned parking lot of WinCo‘s grocery store.‖ (Waremart/N.L.R.B., at p. 876.) Regarding the Moscone Act, the federal appellate court concluded, citing the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and in Carey, supra, 447 U.S. 455, that the act ―violates the First Amendment to the Constitution‖ insofar as it extends greater protection to speech regarding a labor dispute than to speech on other subjects. (Waremart/N.L.R.B., at pp. 874-875.)

“The analysis of the federal appellate decision in Waremart/N.L.R.B., supra, 354 F.3d 870, failed to recognize, however, that, as we explained earlier, neither the Moscone Act nor section 1138.1 of our state law restricts speech. Waremart/N.L.R.B.‘s analysis also failed to recognize that the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and Carey, supra, 447 U.S. 455, both involved laws restricting speech in a public forum, as opposed to the situation here, involving laws that do not restrict speech and are being applied on privately owned property that is not a public forum under the First Amendment. For these reasons, we do not consider Waremart/N.L.R.B. persuasive on the issues we address here.”

I am not a lawyer. And I understand that the California Supreme Court, while not considered hard left, has a long history of an expansive interpretation of union picket rights. But I bet plenty of people who read the passage above feel like this smacks of the 9th U.S. Circuit Court of Appeals, which has many judges who simply don’t care what the Constitution says, they know what they’re going to do.

Lawyer-blogger Glen Valenza of the Shaw Valenza law firm, which has offices in Sacramento and San Francisco, specializes in employment law, and has some high-profile clients, also struggles with Kennard’s opinion:

“The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property – a parking lot and entrance to a Ralphs store.  The picketing would be allowed even if non-labor picketing would constitute a trespass.  The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases. 

“That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.”

And the First Amendment, which is generally considered the most important part of the Bill of Rights, sure as hell trumps an odd interpretation of California’s collective-bargaining laws. This passage from the appellate ruling that the California Supreme Court overturned makes that point better than I ever could:

“Laws which prohibit speech based on its content — or, in this case, based on the failure of the speech to address a ‘labor dispute’ — are presumptively invalid. (Simon & Shuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116.) Such laws are permitted only if they serve a compelling state interest and are narrowly drawn to accomplish that interest. (Mosley, supra, 408 U.S. 92, 95.) The desire to provide the broadest forum for expression in labor disputes is not a compelling state interest. (Carey v. Brown, supra, 447 U.S. 455, 466.) 

“We conclude the state may not act to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest.”

So now even the California Supreme Court is firmly in labor’s camp. Great. Just great.

Things like this make me feel like buying Lotto tickets.