DA Thien Ho will face a rocky day in court over his homeless lawsuit against Sacramento | Opinion
Before the Sacramento County District Attorney can take the city of Sacramento to trial for its management of the local homeless crisis, he will have to transition from political posturing to legal persuading. Last September, Ho vowed to hold the mother of all homeless trials back when he filed his case, promising some 400 to 500 witnesses in all.
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But no district attorney has unfettered authority to hold such a trial. He has to be the proper author of a civil case. There has to be both wrongdoing and a court remedy. On all three counts, Ho is vulnerable.
As the city has filed in Sacramento County Superior Court, Ho’s case “is as surprising as it is novel. But those are not admirable qualities when they lead to a waste of government and judicial resources.”
The city has filed for a court motion known as a demurrer — a claim that a lawsuit has no legal basis. In this instance, the city stipulates that homelessness indeed exists in Sacramento. It simply isn’t the basis to sue Sacramento.
“The demurrer is necessary to stem further waste of those resources,” writes the city, “because underlying the Complaint’s novelty is its legal untenability.”
Sacramento County Superior Court Judge Jill Talley was poised to issue a tentative ruling on the city’s motion as early as Jan. 4. Such preliminary rulings are custom before holding a hearing on the matter, which was scheduled for Jan. 5. Ho’s day in the hot seat was fast approaching.
But on Dec. 5, Ho altered his case. He added a whole new allegation: that the city has created a public health nuisance along the American and Sacramento Rivers by allowing homeless encampments. It is possible that Ho may expand his case yet again, given how he has threatened that the city may face “criminal liability” for allowing a managed home encampment known as Camp Resolution in north Sacramento on city property he considers a “toxic dump site.”
A DA spokeswoman curiously spoke on behalf of Talley’s court on Dec. 11 by announcing that the court had “vacated” the Jan. 5 hearing on the demurrer because the case has expanded.
While no new date has been set, the city’s case against Ho still stands. And despite adding river pollution as another homeless nuisance, the city’s legal beef with what Ho is doing likely remains the same.
Here are three flaws with Ho’s case from the city’s perspective that await a day in court:
The city did not cause homelessness
Ho’s lawsuit cites the word “nuisance” a mere 63 times. It’s the heart of the case.
“Amid this spiraling descent into decay and this utter collapse into chaos,” says the lawsuit, “the City of Sacramento has consistently failed to abate the nuisance it caused.”
But for all the many reasons for homelessness in the U.S., California and Sacramento, can the city and only the city be tried for homelessness?
No, says the city. “It is undisputed that the city did not create the unhoused crisis that currently exists and will likely continue for an unknown period of time well into the future in the City (of) Sacramento,” Senior Deputy City Attorney Chance Trimm wrote to Ho on Sept. 26.
In other words, Ho is free to charge any Sacramentan, housed or not, for an alleged crime. But he can not charge the city for that crime being a civic nuisance. He is going after the wrong defendant.
Court powers are limited over the executive branch
Courts can tell governments if they are breaking some law and can prescribe how to cure the wrongdoing. Telling governments how to manage a complex issue like homelessness, is when a lawsuit can cross a legal line and is vulnerable to challenge.
“The homelessness crisis and its effects are not fit for judicial resolution through this lawsuit,” the city writes in its case for the demurrer. “This is practically and politically true. Indeed, despite the rhetoric in the complaint, the DA knows this.”
The city is referring to how, in federal court, Ho is looking for the courts to stay out of homeless management while he is doing precisely the opposite in Sacramento. At issue in federal court is how Ho and others are looking for the U.S. Supreme Court to reverse an appellate court ruling that limits a local government’s ability to move homeless residents when there is no alternate shelter for them. In his brief to the high court, Ho writes, “this court should ... return this great social challenge to the executive and legislative branches where it belongs.”
What is Judge Talley to do?
In Sacramento, Ho could trot out 400 witnesses to describe the desperate state of homelessness.
But after days upon days of testimony, what is the court’s solution? What, precisely, does Ho want Judge Talley to do?
“The complaint is so vague and ambiguous as to what laws or duties the DA claims the city must enforce, ... the allegations fail to state a cause of action,” writes the city. “The complaint is a constitutional overreach.”
Whenever Ho stops amending his lawsuit, the case will reach an important fork in the proverbial road. The court could agree with the city, forcing Ho to somehow amend his case to something on a more solid legal footing. Failing to draft a viable lawsuit, the court could later dismiss some or all of the case. Or the court could side with the legality of Ho’s claims, paving the way to trial.
The city’s case, which includes other arguments, is far from frivolous. There are reasons for Ho to keep this case in the court of public opinion, and out of Judge Talley’s Department 27.
