High Court Showdown on Homeless Issue Nears : Shelter: State justices to hear arguments Thursday on a Santa Ana law that forbids camping on public property. The decision is likely to have an impact for cities across the U.S.

By LEE ROMNEY

Dec. 6, 1994 12 AM PT

TIMES STAFF WRITER

SANTA ANA — The U.S. attorney general, a trio of retired state Supreme Court justices and some of the country’s most prestigious constitutional law professors are throwing their weight behind the homeless here.

But more than 90 city attorneys from throughout California and several conservative legal foundations are standing behind the city of Santa Ana in a legal showdown scheduled for Thursday, when the state Supreme Court will begin its review of a city ordinance that prohibits camping or the storing of belongings on public property.

The law, which critics say effectively expels the homeless from Santa Ana, was enacted in 1992 but overturned by a state appellate court that derided it as an unconstitutional “punishment for poverty.”

Now, the attention of cities throughout California and the nation is riveted on the Santa Ana case, which legal experts say could eventually prompt the U.S. Supreme Court to help resolve the issue of anti-homeless ordinances.

“There’s no doubt that whether or not the regulations on the books in many cities will be allowed is going to depend on this case, and if this is allowed, there’s no doubt that many cities are going to adopt similar ones,” said Erwin Chemerinsky, a constitutional law professor at the USC School of Law.

Indeed, increasingly frustrated by growing homeless populations--and the crime, public health hazards and eyesores that can accompany life on the street--many cities have passed laws to push the homeless off public property.

Miami, Dallas, Baltimore, San Francisco and Seattle all have landed in the courts after adopting ordinances directed at the homeless in recent years.

But homeless advocates say Santa Ana’s case marks the first time the U.S. government has filed a brief on behalf of the homeless.

And with the state’s top court required to rule on the matter within 90 days of Thursday’s oral arguments, legal experts say the opinion will be the first in the country from a court of this level on the constitutional questions raised by anti-camping laws. In addition, the breadth of the Santa Ana law--which bans camping at all times on all public property--also lends significance to a ruling.

Proponents of the law say the appellate decision overturning Santa Ana’s ordinance tied cities’ hands in their efforts to govern and wrongly created a constitutional right to live on public property.

“If homeless people are given a constitutional right to camp, what does it do to the quality of life in our cities? What does it do to our liability?” asked Santa Ana Assistant City Atty. Robert Wheeler, who will argue the city’s case in front of the state’s highest court.

Orange County Deputy Dist. Atty. E. Thomas Dunn Jr., who also will ask the court to overturn the appellate ruling, said the city “ought to have a right to keep (public areas) clean for the rest of us. There’s no reason why there ought to be a Republic of the Homeless, like an abdication of a piece of territory to those who are above the law.”

But those arguing on behalf of the homeless say there are many ways cities can keep public areas clean, including passing less restrictive laws banning camping in parks or forbidding people to erect shelters or tents--both laws already on Santa Ana’s books.

“By making it a crime to use sleeping bags and blankets in every public area of the city at a time when the city has a substantial population of people who have no place to house themselves, Santa Ana is essentially making it a crime to be homeless in the city,” said Harry Simon, an attorney with the Legal Aid Society of Orange County, who will argue the case for the homeless with two other attorneys.

“We’re not claiming that the homeless are some sort of protected class. What we’re saying is that this is a pretty transparent attempt to drive the homeless from the city,” Simon said.

If the court upholds the law, homeless advocates warn, cities will scramble to enact similar ordinances for fear of becoming the enclave into which other cities force their poor.

Orange and Fullerton enacted similar laws after Santa Ana’s but have not enforced them, under threat of litigation. Five other Southern Californian cities--West Hollywood, Long Beach, Santa Monica, Beverly Hills and Santa Barbara--passed anti-homeless ordinances in the same 18-month period, said Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty in Washington.

Advocates for the homeless contend that Santa Ana’s law violates the state and federal constitutions by punishing people because of their “status” as homeless and restricts their right to travel.

Defenders of the ordinance say it legally punishes the conduct of living in public places, not the status of being homeless, and that many people choose to sleep outside.

The Santa Ana ordinance prohibits camping, use of camping equipment--including sleeping bags or blankets--or storage of any personal items on public property.

By the time the city adopted the sweeping ordinance in 1992, hundreds of people had set up camp in the Civic Center area, erecting tents and shelters.

According to the city’s own estimate, there are 3,000 homeless people in Santa Ana and only 330 shelter beds.

Ninety California city attorneys endorsing Santa Ana’s position joined a friend of the court brief drafted by San Francisco Deputy City Atty. Michael E. Olsen.

Several conservative legal groups also are siding with Santa Ana, including the Pacific Legal Foundation and Criminal Justice Legal Foundation, both based in Sacramento, and the Washington, D.C.-based American Alliance for Rights and Responsibilities.

“If you accept the basic premise from the court of appeal, then where do you draw the line? On a bad weather night, I suppose you’d have to make the argument that you have to open your public buildings to the homeless,” said Anthony Caso of the Pacific Legal Foundation, which predominantly defends the rights of property owners. “Simply because an individual has a need, that’s not converted into a right to be fulfilled at public expense.”

The stakes are high enough that the U.S. government argued in its 24-page brief, filed just last week, that the Santa Ana ordinance violates the 8th Amendment by “criminalizing homeless persons’ sleeping in public even when no shelter is available.”

The federal government has “a clear responsibility . . . to engender respect for the human dignity of the homeless,” said the brief.