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16 Jan 2020

Help or Else: A Governor's Task Force Suggests Forcing Cities to Take Action Regarding Homelessness—or Get Sued

Written by  Matt Levin and Jackie Botts, CalMatters
Sacramento Mayor Darrell Steinberg and Los Angeles County Supervisor Mark Ridley-Thomas, who are leading Gov. Gavin Newsom's task force, have been pushing for legal leverage to force action on homelessness. Sacramento Mayor Darrell Steinberg and Los Angeles County Supervisor Mark Ridley-Thomas, who are leading Gov. Gavin Newsom's task force, have been pushing for legal leverage to force action on homelessness. Anne Wernikoff/CalMatters

Declaring that moral persuasion and economic incentives aren’t working to bring in people from the sidewalks, Gov. Gavin Newsom’s task force on homelessness earlier this week called for a “legally enforceable mandate” that would force municipalities and the state to house the growing number of homeless Californians. 

The proposal, which came as Newsom kicked off a weeklong tour of the state aimed at drawing attention to the homelessness crisis, urged the Legislature to put a measure on the November ballot that would force California cities and counties to take steps to provide housing for the more than 150,000 Californians who lack it—or face legal action.

Such a measure would require a two-thirds vote of both legislative houses to be brought to voters. California law does not currently penalize the state or local governments for failing to reduce their homeless populations, nor does it force them to make housing sufficiently available to people without it.

But Los Angeles County Supervisor Mark Ridley-Thomas and Sacramento Mayor Darrell Steinberg, who co-chair the governor’s 13-member Council of Regional Homeless Advisors, have been advocating for some sort of enforceable “right” to sleep indoors since the U.S. Court of Appeals for the Ninth Circuit struck down laws against homeless camping. That ruling, which the U.S. Supreme Court let stand just last month, dramatically limited cities’ enforcement options, finding it to be cruel and unusual punishment to prosecute people for sleeping on the street if sufficient shelter isn’t available.

“California mandates free public education for all of its children and subsidized health insurance for its low-income residents. It requires its subdivisions to provide services to people with developmental disabilities and foster children,” the commission wrote in a letter signed by both elected officials. “Yet everything that state, county and city governments do to alleviate this crisis is voluntary. There is no mandate to ensure people can live indoors, no legal accountability for failing to do so, no enforceable housing production standard and no requirement to consolidate and coordinate funding streams across jurisdictions. The results speak for themselves.”

The council’s recommendation stops short of Steinberg’s and Ridley-Thomas’ initial call for a “right to shelter,” which would not only have required cities to provide immediate beds, but also obligated people experiencing homelessness to come inside. But it adds momentum to the strategy of elevating litigation as a tool to accomplish what compassion and money haven’t been able to do.

Newsom, visiting a homelessness program in Nevada County, said Monday he “would lean in the direction” of speedily deploying a legal “obligation” to supply sufficient services and housing, adding that “a number of cities and counties” have volunteered to do demonstration projects over the next several months, “not the next few years.” (Ridley-Thomas later said he would propose such a pilot in Los Angeles County this week.)

“I broadly have been encouraging this debate about obligations,” the governor said, adding that “there’s a distinction between rights and obligations.”

Without elaborating on that distinction, he seconded the task force’s point that many of the state’s responsibilities stem from legal mandates: “We do it in almost every other respect,” Newsom said. “On this issue, we don’t, and I think that’s missing. The question is how do you do it. … This is not black and white. This is tough stuff.”

Municipalities made it clear they would need more clarification.

“A legally enforceable mandate can only work with clarity of who’s obligated to do what, and what new sustainable resources will fund it; that’s the ticket for clear expectations and accountability,” said Graham Knaus, executive director of the California State Association of Counties, in a statement.

Steinberg, meanwhile, called Monday’s proposal an improvement on the original “right to shelter” concept, saying a mandate by any name would still have the force of law. The point, the mayor said, is to give the courts a legal “last resort” to address pleas to supersede political gridlock, just as federal laws have in the past armed judges to combat other social crises.

“It’s analogous to desegregation,” Steinberg said.

The task force’s proposal would let a “designated public official” sue the government for not doing enough to offer emergency and permanent housing to the homeless. A judge could then intervene to force a city to approve an emergency shelter, for example, or redirect budget funds to homelessness services.

The proposal, however, so far lacks specifics on how taxpayers would pay for such a mandate. The letter released by the task force, which includes local elected officials from large and small cities, states that “more state resources will undoubtedly be required,” but includes no estimate.

State and local governments in recent years have poured billions into combating homelessness, only to watch the problem worsen as ever-rising rents drive Californians to the streets faster than they can be re-housed. On Friday, for the second straight year, Newsom proposed more than $1 billion in new state funds to fight homelessness, calling it “the issue that defines our times” in California. But the state’s “point-in-time” homeless count jumped 17 percent between 2018 and last year.

San Diego County Supervisor Nathan Fletcher, a task force member, said leverage is needed.

“We do the things we are required to do first … then for everything else, we try very hard,” said Fletcher. “Absent a legally enforceable obligation, I believe people will continue to try very hard.”

But a legal mandate would arm jurisdictions to tackle “the underlying problem, which is poverty,” rather than appease communities with shelter beds, he said.


Putting the Onus on Government to Provide Housing

Steinberg and Ridley-Thomas floated the idea of a statewide “right to shelter” law last year. Spurred by decades-old litigation, New York state has a “right to shelter” policy that makes its state and local governments legally liable for having emergency shelter beds available for every unhoused person. 

While many credit “right to shelter” for New York’s success in reducing the number of people sleeping on the streets, Newsom and advocates for the homeless have balked at the idea. Some advocates fear it would divert finite funding from permanent supportive housing, which experts say is a more long-term, albeit expensive solution; others worry about cost and potential civil-liberties violations that might arise from requiring a homeless person to accept shelter if it’s available.

“The reason why right to shelter is a mistake is because it diverts resources from the solution, which is housing, not shelter,” said Sharon Rapport, California policy director for the Corporation for Supportive Housing and a member of the task force.

Under the policy proposed by the task force, a local government would be required to develop a plan to house the vast majority of its homeless people within “an aggressive but reasonable period of time.” “Reasonable” is not defined in the letter.

However, Steinberg said that, in the case of Sacramento, “aggressive but reasonable” might mean a 1,500-person annual reduction in the city’s 5,500-plus homeless population, and housing the “the vast majority” within five years.

Advocates on the homelessness issue said more specifics are needed, but applauded the task force’s recommendations as a philosophical pushback, at least, against efforts to criminalize living on the streets.

“Any kind of policies that are promoting locking up people or warehousing people or punishing people for being homeless, the council is saying those policies have been very ineffective in the past,” said Rapport.

The city of Bakersfield recently proposed ramping up enforcement of low-level drug offenses to get people off the streets there, and advocates have expressed concern that the Trump administration’s threats to do something about homelessness in California may involve heavier use of law enforcement.


A Homelessness Czar, but Little on Conservatorships

The task force also called for a single point person on homelessness, a Newsom campaign promise that devolved in his first year into confusion over who, at any given point, was his “homelessness czar.”

Various administration members, including Steinberg and Ridley-Thomas, state Secretary of Health and Human Services Mark Ghaly, and adviser Jason Elliott, have filled the role—so many that last week, Newsom headed off press questions by declaring tartly, “You want to know who’s the homeless czar? I’m the homeless czar in the state of California.”

But the issue of who is actually overseeing the state’s disparate homelessness initiatives—across multiple bureaucracies from prisons to health care—is still pressing, at least according to the homelessness task force. One of their key recommendations would “create a single point of authority of homelessness in state government,” suggesting a high-level official that reports directly to Newsom. Another calls for a comprehensive accounting of existing funding for homelessness, housing, mental health and substance-abuse treatment.

Still other recommendations have already been incorporated into Newsom’s proposed homelessness budget, including a “flexible fund” that service providers can tap for uses from emergency rental assistance to building shelters. The task force also proposed revamping the state’s health-insurance program to draw down more federal dollars for homelessness-related services, a key pillar of the strategy Newsom unveiled last week. Doing so would require a waiver from the federal government.

Oakland Mayor Libby Schaaf, a member of the task force, said that a Medi-Cal reform proposal is key to the the blueprint.

“Housing is health,” she said. “And to recognize that health dollars should appropriately be used to support housing is a very important part of our recommendations.”

More-controversial proposals included an executive order expanding the state’s new rent-gouging law to cover more households, and legislation exempting from environmental review any new housing project for people at risk of homelessness.

California has strict laws that make it difficult to detain mentally ill people against their will for a prolonged period of time. Families of homeless loved ones struggling with schizophrenia or other disorders often blame the Lanterman-Petris-Short Act, a late 1960’s law intended to curb the overuse of asylums, for precluding necessary care. New York’s commitment laws are less stringent.

While Newsom talked vaguely of reforming the law last week, such reforms are conspicuously absent from the task force’s report.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics. 

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