Part I and Part II examined Martin v. Boise and Johnson v. Grants Pass. The Warren v. Chico case happened between those two and is the focus of Part III. Now there is also a Part IV because I want to discuss the Supreme Court.
Warren v. Chico
At the time of the Warren lawsuit, April of 2021, the Grants Pass case had not yet been decided. But Martin, and some of its predecessors (Jones v. Los Angeles, Lavan v. Los Angeles) were well established, though grossly misapplied.
Recall that the Brown New Deal, Alex Brown’s infamous suspension of enforcement of our anti-camping laws, preceded a mass occupation of nearly every park in Chico. In deference to Martin and its predecessors, the police were dealing with clandestine camping on a complaint basis, with 72 hours to notice to move their personal property.
Largely in response to both the Brown New Deal and the use of Windchime Park to dump thousands of needles into the community, a wholesale change in the makeup of the Council occurred in the 2020 election.
As soon as the new council was sworn in, in January Chico Police, under the leadership of Chief Matt Madden, and newly appointed TARGET Team Sergeant Paul Ratto, immediately began clearing the parks of encampments. Political battle lines were drawn, as supporters of the new council and usable parks cheered the efforts on without much thought about how it was done, or the legal constraints created by the Martin holding.
Unfortunately, neither had the City Attorney, who was advising the Chief, who then directed CPD Officers to respond to the question from campers, “Where can I go?” with “I can’t tell you where you can go, but you cannot stay here.” That set up the court challenge under Martin, since criminalizing “sleeping” everywhere outdoors was only possible if alternatives, either indoor or outdoor, were accessible. Enforcing “anti-camping” laws was never the central issue. The issue was removal from public land.
Political opponents of the new council majority, including Councilmember Scott Huber and a young activist named Addison Winslow, openly protested the actions. In one famous video episode, Scott personally assisted campers removed from one park area by using his pickup to relocate them and their “stuff” into other park areas, in direct defiance of the policies implemented by his colleagues on the Council.
By the time April came around, the last major encampment as yet untouched was in Comanche Creek, which was not only carrying the burden of former occupants. The population occupying Comanche Creek swelled as refugees from other parks relocated there.
Just hours before the clean-up was to begin, Legal Services of Northern California, led by former Torres Shelter board member Corey Turner, filed a lawsuit under the theories of Martin v. Boise, and secured a Temporary Restraining Order (TRO) on a Sunday, April 11, 2021, from U.S. District Judge England against the City of Chico, halting the planned enforcement action at Comanche Creek.
That shifted the responsibility from Chief Madden to City Attorney Vince Ewing, who personally took over the defense of the City against the Warren et al. plaintiffs.
A TRO is temporary and can be obtained “Ex Parte”, meaning the party restrained can be absent while the other party petitions the judge to issue a TRO. But because the party enjoined has not been heard, by law a hearing to show cause why a preliminary injunction should not be issued must take place no later than 15 days after a TRO is issued.
The preliminary injunction hearing was scheduled for April 23, 12 days later. On that day, the hearing was conducted by videoconference, but the public was allowed to listen to the audio, and the transcript was later published. The day before the hearing, Judge England issued an order, directed at Vince Ewing, to provide a list of properties in Chico where an individual could rest or sleep without fear of being arrested.
Vince famously appeared at the hearing having completely ignored the judge’s order and didn’t even bother to communicate that fact before the hearing. When asked rather pointedly why, Vince replied he couldn’t comply with the order because there just wasn’t anywhere (in the entire city of Chico, no place or time) where people could go. Judge England incredulously repeated his statement. “So you are saying there is nowhere they can go.” It wasn’t a question, and in light of my earlier description of Martin, this triggered the entire application of the Martin “either/or” standard. Either somewhere outside must be accessible, or shelter opportunities inside must be available.
Ironically, the day before the hearing, Walt and I forwarded 4 separate properties that Vince could have indicated as a response. I believe that had he done so, an injunction would not have been issued, Comanche would have been cleared in May of 2021, and small, highly regulated patches of city property would have replaced the need for the existing unregulated campground at Eaton and Cohasset. The BMX property would not have been converted to a Pallet Shelter operation. One of those we provided was the BMX property that is now the site of the Pallet shelter. By denying either, the City ended up providing both.
After that hearing, by stipulation of the parties (the City and LSNC mutually agreed), the Judge did not issue a Preliminary Injunction, or remove the TRO. Instead, he continued the TRO in force, and through a sequence of stipulations, the hearing was eventually delayed until July 2, 2021. I was in the courtroom the day of the hearing with co-counsel Walt McNeill.
In the weeks before the July hearing, a “resting facility” had magically appeared at the Chico airport. Vince Ewing believed that if he showed up in court with evidence that his earlier statements about “nowhere to go” were shown to now be moot because of the investment made in the airport facility, the judge would not issue an injunction. He was wrong.
The judge almost laughed Vince out of the courtroom. Vince’s earlier statement about there being nowhere where outside sleeping was allowed still stood. That meant that there must be inside shelter available. The Airport, even if was otherwise legal, which it wasn’t, was not “inside”, Judge England advised. He further observed that the city ordinances that were the subject of the lawsuit and that were restrained by the TRO all added up to the effect that no outside camping was allowed anywhere in the city, at any time, so if people did go to the City shelter at the airport, they would still be violating Chico’s anti-camping ordinance. The distinction between sleeping and camping was never argued or resolved.
In his July 7 Minute Order, rather than issuing a preliminary injunction, which would remain in force until the lawsuit was terminated, the parties stipulated to extend the TRO until the parties had a chance to try to settle the issue before trial. Magistrate Kendall Newman was appointed, with the consent of the parties, to serve as the mediator for future settlement conferences. The first conference was scheduled for July 13th.
On July 8, England imposed a Preliminary Injunction on future Chico enforcement.
“This injunction shall remain in effect until a judgment is entered in this case or it is lifted by order of this Court.”
On July 13, Magistrate Kendall made his first report in MINUTES of the “informal conference” held via videoconference. He scheduled a conference for August 10, with the following order:
“The parties are directed to exchange non−confidential settlement conference statements by 8/10/2021.”
He then directed they be sent to a special, private email address, and instructed that they not appear on the docket, meaning the public would not see what positions the parties were taking before the conference. The message to the rest of us was given in bold, red letters.
“The Settlement conference is confidential and not open for public attendance.”
From that moment forward, the public was excluded from all proceedings, and no one but the parties was allowed to confer with Newman. Even the Chief of Police was excluded, we later learned, on objection to his presence by Cory Turner. Why the City Attorney or City Manager would concede to such a demand, to exclude the chief enforcement officer from discussions about enforcement, is beyond comprehension.
To be fair, settlement conferences themselves being held in private is legitimate. Parties in dispute are encouraged to speak frankly and offers made in settlement cannot be used as leverage in later proceedings. But to beg the question, what are the limiting principles for confidentiality? Complete secrecy before and after the conference conflicts directly with statutory obligations in the Brown and Public Records Acts. It appears there are no informal means to resolve that conflict.
On October 29, 2021, Walt McNeill and I filed a Motion to Intervene on behalf of the unincorporated association, Chico Stewards for Parks and Waterways. A hearing on that motion was set for December 2, 2021. Both the City of Chico and LSNC opposed our motion. As it turned out, that hearing never happened.
On November 1, 2021, just two days after the motion was filed, Judge England vacated the hearing date and ordered that the motion be submitted without appearance or argument. That was the first clue that he was going to deny the motion unless settlement discussions fell apart. I believe Newman was giving him indications that the parties were motivated to settle in light of our pending motion to intervene. That would make us a party to the settlement negotiations, and neither party wanted that.
I now believe that our Motion to Intervene was used as leverage by Magistrate Newman to motivate the parties, and especially the City, to settle. Settlement conferences with Magistrate Newman continued, while Chico Stewards, their attorneys, and the general public sat on the sidelines completely in the dark.
On January 4th, 2022, the Chico City Council met in a closed session and voted 7-0 to settle the case. The next day, Mike Wolcott, Editor of the Enterprise-Record reported it this way:
“In an announcement late Tuesday night, Chico city attorney Vincent Ewing said the Chico City Council voted 7-0 to authorize Ewing and City Manager Mark Orme to enter into a settlement agreement with the plaintiffs.
The action was taken during closed session following the regular city council meeting.
According to the announcement, “The approval is not final until the presiding judge signs the settlement order which could take up to two weeks. At that time, the city can discuss and disclose the details of the settlement agreement.”
According to the the E-R’s reporting, Mark Orme, who was leading this entire settlement process for Chico, had this to say about the settlement:
“Orme said on Wednesday when contacted for comment that he couldn't;’t provide additional information unit the settlement is fully authorized by the court. More details are expected to be provided at a later date.”
City Manager Mark Orme and City Attorney Vince Ewing signed a settlement document the next day and submitted it to the Court. We later learned that the document they submitted was never seen by the entire council, and contained provisions that were not disclosed to all, perhaps any of them in advance. Even the Chief of Police had not seen the document that would mandate the extent and manner of his enforcement authority!
One must wonder how the city can bind itself to a 5-year contract, expending millions of dollars of public funds, all before giving the public, and even all of the council, the opportunity to respond. There is no precedent for that practice, even in highly confidential labor negotiations. A contract is always subject to “sun shining” before it is formally adopted. But not in Warren.
Through inadvertent and unavoidable disclosures, the public had hints that something was going to be done with the BMX site. Money was allocated to move the current tenants. Then we learned the County donated $1.7 million of its COVID grants to Chico to purchase 177 pallet shelters, each with two beds. Then an RFP for an operator was publicized. Anyone could see that 2+2=4.
On January 13, 2022, when the court docket posted a proposed order to dismiss the case, something that could only happen if the parties reached a settlement and submitted a settlement document for the Court to review, Kasey Reynolds was the only City Council member who raised the alarm, writing to Judge England that she had not seen the settlement document, and to hold off signing it until she could do so. That was the first day the settlement was available to the public. I know for a fact that some council members saw the document for the first time that day.
The very next day, on January 14th, 2022 Judge England issued two orders simultaneously. First, he denied our motion to intervene, citing arguments we never made, claiming we offered no evidence that environmental laws superseded Constitutional rights. That is true because our motion contained NO such preposterous arguments, so why would we provide evidence?
Second, he dismissed the entire action with prejudice and assigned Magistrate Newman, who was very active in negotiating the settlement agreement, as the sole and unappealable arbitrator of any future dispute arising under the settlement. As it turned out, Newman made himself a very busy man.
The public and certain Council members had one day to try to absorb the contents of the Settlement Agreement for the first time. Even citizens with no legal background could see that the agreement was extremely lopsided in favor of the Warren plaintiffs, full of areas that were bound to generate disputes, and commitments by the city for 5 full years of undisclosed expenditures. That turned out to be exactly the case.
From January 14, 2022, until today, January 18, 2024, we have been performing whack-a-mole enforcement actions, punctuated by secret conferences one after another, in which the city takes two steps forward and one back. All the public is allowed to know is provided through press releases when the city issues notices of proposed enforcement, or notices filed by the court of yet another “informal” dispute resolution hearing being scheduled. We don’t learn anything before or after and information is limited to seeing whether enforcement proceeds or not. This is no way to run a railroad.
How does this story fit in with the other cases under Boise and later, Grants Pass?
The process that concluded with what we now know as the Warren Settlement Agreement is not all that unusual in the wake of Martin, except for the extreme secrecy aspect that characterized Warren v. Chico. For example, in another case that followed Jones and Levan in Southern California, the judge there presided over numerous public meetings with city officials throughout the Counties of Los Angeles and Orange. He was also an activist judge, but he conducted his activism in public.
In all the cases I’ve reviewed, there is a common pattern that fits with the facts of Warren v. Chico. Legal advocates for the Homeless Industry take the opportunity presented by the ambiguous language in Martin and throw it against walls manned by incompetent and unprepared city attorneys and sympathetic city managers.
The case is presided over by courts run by activist judges. Together, they manage to offer poor advice to, and even manipulate uninformed elected officials into positions advocates needed to reach the desired outcomes. Often, and certainly in Warren, the only thing elected officials knew about the law and proceedings was what was reported to them by those in attendance, always headed by the city attorney and city manager. The opportunity for manipulation is obvious and blatant. But because of the cone of silence, there is no way for the public or anyone else to intervene in the process.
In Chico’s case, former City Manager Mark Orme had a long-standing and publicly stated desire for city-run shelters, stating that when the state and counties fail to do their jobs, it is up to cities to step up and fill in the gaps. The Council, in their defense, just wanted to liberate its parklands. City Attorney Vince Ewing just wanted to keep his job, and even in that endeavor, he eventually failed.
The net result, no matter how you conceptualize it happening, the City of Chico is now committed to a long-term, full-blown obligation to directly support the theories and practices of a completely ineffective and outrageously expensive homeless industry. While the current operator, The Jesus Center, is doing a surprisingly competent job of managing the Pallet Shelter, the rest of the industry is proceeding on its merry way, with ample funding from the State of California, in most cases, its only master, and are now relieved of using any of their grant money for more shelters, since the City is now picking up that tab.
True, Grants Pass made that entire situation worse, but remember, the Warren Settlement happened well before the Grants Pass decision. The net result of the Warren settlement is now visibly obvious. The city has devoted millions of dollars and untold staff hours to building and running California’s largest homeless shelter operation, for which the total cost is unknown, but easily reaches into the tens of millions.
No financial accounting exists, and the countless hours and resources that have been devoted to cleaning up the distributed waste dumps in every encampment in the city, and a “whack-a-mole” enforcement process characterized by unending calls for service to our police and fire resources is hard to account for. Add to this the incessant challenges to enforcement by the city-funded plaintiff’s law firm in those secret and unproductive string of hearings before the unchecked authority and dictatorial powers of a single Magistrate Judge, and the total costs can hardly even be estimated.
After two years of effort, homeless encampments still appear throughout the city, and gradually, squatters are re-occupying parks and other public lands, some of which have already been cleared and were presumably “safe” from re-occupation, we were told. That may well turn out not to be the case.
Once parks were cleared, other city property, notably parking strips, bike paths, and island city parcels began accumulating campers, many of whom had been subject to previous enforcement. In addition to the ongoing problems with illegal encampments before and after Warren, we also have the “sanctioned” (i.e. legal) campgrounds located in northern Chico that are unregulated public nuisances and health and safety hazards, occupied by both authorized and unauthorized squatters who themselves are now subject to whole new rounds of prescribed notices, inevitable court hearings, and ongoing free (to everyone but taxpayers) trash hauling and other services.
In addition to all of this, the Warren case ushered in a new development, the egregious abuse of “transparency in government” laws, such as the Brown Act and the Public Records Act. Since April of 2021, when the Warren case was first filed, and continuing right up to today, the city’s involvement in the Warren case, the establishment of the Warren Settlement, and the ongoing management of that agreement have been conducted almost entirely outside of public disclosure or scrutiny. No debate of these policies seems possible, short of yet another lawsuit.
The city is spending millions of dollars of public funds, allocating city staff and city property to social services, all without the slightest nod to its solemn obligations to inform and account to the people who live here and vote here, and to whom the city government is ostensibly obligated to serve. Most decisions reached in closed sessions are deceptively reported to the public as “No decision reached, direction given.” Yet there is a long history of actions that manifest in our city for which there have been no public deliberations. Something is rotten in Denmark.
Sadly, even if Martin and Grants Pass are undone, the Warren Settlement Agreement will continue unabated, since it is now a matter of contract law, not federal or constitutional law bound by either case. The Warren Settlement expires in January of 2026. There is no exit plan.
That’s Warren v. Chico.