District Attorney Thien Ho tested how much his office directly can affect homeless policy by suing the city for not doing its job to deal with its festering homelessness crisis. Sacramento County Superior Court Judge Jill H. Talley ruled on May 6 that Mayor Darrell Steinberg and the City Council are in charge of homeless policy, with possible exceptions for environmental concerns. It was a rebuff to Ho, but you can’t blame him for trying.
Ho’s complaint included three parts. First, the city refused “to maintain the public property under its control,” which “perpetuates a public nuisance.”
Second, the city violated the state water code by “allowing the continual disposal of waste onto and from city property to waters of the state.”
Third, the city violated the fish and game code by permitting to pass into state waters “waste matter, refuse, debris and other substances and materials deleterious to aquatic life.” The judge allowed only this complaint to go forward.
On the first two claims, Tally’s decision cited a case decided by the California Supreme Court in 2023, County of Santa Clara v. Superior Court. She quoted this part of the decision, with her emphasis on money: “[T]he Government Claims Act’s immunity and liability provisions are aimed at common law tort claims for money damages …. (O)ur case law and well-reasoned holdings from the Courts of Appeal confirm that the Government Claims Act is concerned with shielding public entities from tort claims seeking money damages, and not with every conceivable claim that might be pressed against a public entity.”
Talley wrote of the Sacramento homeless case, in which Ho represented the People of the State of California: “Here, the People seek only injunctive and equitable relief, not money damages.”
“What this case has proven beyond any shadow of a doubt is that playing politics with homelessness helps no one,” City Attorney Susana Alcala Wood responded in a statement. “The DA’s efforts have resulted in nothing more than a waste of taxpayer money and a drain on city, county and court resources.”
The court’s reasoning is all actors in the case – the DA’s office, the city and the court – are funded by Sacramento taxpayers.
Ho maintained that, although largely losing the case, he helped advance homeless solutions. “Since the District Attorney’s Office filed the lawsuit last year, the city has done more enforcement and compliance in the last seven months than they have done in the last 7 years,” he said. “The city’s data dashboard shows an increase in enforcement and clean up. The community has seen and felt the difference. We intend to amend the complaint and proceed forward. We will not give up on the city of Sacramento.”
“It’s quite plausible the city stepped up its game,” Erik Jaffe told me; he’s a constitutional lawyer and partner at Schaerr Jaffe and has been involved in more than 100 U.S. Supreme Court matters. “It is common for government entities who are sued for doing a crummy job (to) often start to do a better job in order to defang the complaint and perhaps moot the claims. That is especially true where claims seek an injunction regarding future conduct.”
“The case was decided correctly,” Adrian Moore told me; he’s vice president of policy at the Los Angeles-based Reason Foundation. “The DA is trying to force a change in policy, which is legislating, by applying a thin veneer of law enforcement over what he’s trying to accomplish. For one government to sue or enforce law against another, there needs to be a pretty clear breach of law. So the nuisance case doesn’t seem to hold water to me. That’s really about policy.”
Moore said the alleged violations of the California Fish and Game Code are more reasonable because they’re “potentially matters of fact.” If the city’s actions are causing the violations, they could be “actionable by the DA. He just needs to prove that in court. And certainly if the city is allowing homeless people to use some public property, at a minimum they should be ensuring sanitation and avoiding such violations.”
Jaffe agreed. “It just depends whether the statutes apply to failure to prevent such improper actions, or merely taking such actions,” he said. “I could see it either way as respects land under your control.”
This controversy brings up another problem: The city’s already overtaxed residents would either have to pay more for the cleaning, or have city resources reduced in other areas, such as less frequent maintenance in other parks.
However, in recent years Sacramento voters have turned down two tax increases. Measure A in 2022, a 0.5% sales tax increase, lost by 56% to 44%. And Measure C, an increase in business operation taxes, on March 5 lost by an even bigger margin, 62% to 38%.
Then there’s California Auditor Grant Parks’ April report, “Homelessness in California: The State Must Do More to Assess the Cost‑Effectiveness of Its Homelessness Programs.” It found it’s basically unknown how effective homeless programs are. Even though “nine state agencies have collectively spent billions of dollars in state funding over the past five years administering at least 30 programs dedicated to preventing and ending homelessness.”
This lack of accountability on programs dealing with the state’s most pressing problem plagues cities and counties as much as the state.
What’s emerging in Sacramento and across the state is a picture of local and state officials pursuing too many programs, unsure which work and which don’t. A sensible approach would be to sort through the programs, keeping only the best. They also ought to pursue broader housing solutions, such as reducing rent control and excessive regulation from such laws as the California Environmental Quality Act (CEQA).
The homeless crisis isn’t going away, but better government policies can help alleviate it. Ho’s lawsuit might not have been the best approach, but it may have helped move the needle.
John Seiler is on the Editorial Board of the Southern California News Group
