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Prohibition on Living in Parks Is Upheld : Homeless: Three-judge panel finds the law constitutional, possibly setting a precedent for other communities. Advocates plan further appeals.

September 09, 1993|NANCY HILL-HOLTZMAN | TIMES STAFF WRITER

WEST HOLLYWOOD — A West Hollywood law banning the homeless from living in the city's parks has been ruled constitutional by a three-judge appellate panel of the Los Angeles County Superior Court.

Although the ruling only applies to the West Hollywood law, it is being hailed as boding well for the future of a similar law in Santa Monica, which is also being challenged in the courts.

"This court has reaffirmed what we've said all along--that you can use context to set (constitutional) restrictions" on the use of the parks, said Christi Hogin, an attorney for a private law firm that represented both cities in writing their laws against encampment.

Hogin's law firm, Richards, Watson & Gershon, was hired to offer legal advice to Santa Monica, after its then-city attorney, Robert M. Myers, refused to write an encampment law, saying such a law was illegal and immoral.

Myers was fired a year ago Wednesday for refusing to draft a separate park regulation that a federal judge has since rejected as being unconstitutional. His dismissal set off a series of lawsuits as his legal kindred spirits sought to block efforts by local cities to manage their problems with the homeless by limiting access to parks and other public places.

Hogin said she would seek to have the West Hollywood decision published so that it would have precedent value for Santa Monica and other cities grappling with the legality of their efforts to control the use of their public spaces.

Even if it does not set a precedent, however, the ruling is "useful in that it shows what some appellate judges are thinking about this kind of law,' said Acting Santa Monica City Atty. Joseph Lawrence, who opposed the law when it was proposed. "It gives some guidance, but is not quite the final word."

Attorneys fighting the law as a thinly veiled attempt to roust the homeless, criticized the decision and vowed to seek a review from a higher state court--and perhaps pursue the matter in federal court as well.

"It remains to us clear (that) the purpose of the West Hollywood ordinance is to deprive people who have no roof over their heads from sleeping under the stars," said James Lafferty, executive director of the National Lawyers Guild, one of the public interest groups opposing the law.

The West Hollywood case arose from the arrests of several men in Plummer Park. All of them had been previously warned of West Hollywood's ban on living in the parks, which is defined as "remaining for prolonged or repetitious periods of time not associated with ordinary recreational use of a park with one's personal possessions" such as sleeping bags, bedrolls, luggage and cookware.

It further requires a determination that a person is not just toting gear through the parks but actually using them as living accommodations.

Beverly Hills Municipal Judge Charles G. Rubin dismissed the charges against the men before trial, saying that the law was not constitutional. His decision was appealed by the district attorney's office to the appellate department of the Superior Court, which is authorized to rule on appeals to municipal court cases.

Attorneys for West Hollywood joined the district attorney's office appeal. Public interest lawyers weighed in on the side of the public defender's office, which had persuaded the Beverly Hills judge to dismiss the criminal charges.

The vote to uphold the West Hollywood law was 3-0, with Robert L. Roberson Jr., the presiding judge, writing the decision.

If the court agrees to publish the opinion, it could be used to justify the use of the Santa Monica encampment law, which has been held in abeyance awaiting the outcome of a separate legal challenge to a similar Santa Ana encampment law. That case is under consideration by the state Court of Appeal.

The West Hollywood case could also wind up in the state Court of Appeal.

"All of this is going to come to a head in the Supreme Court," said Richard Novak, who filed the case against Santa Monica and is involved in the West Hollywood case as well.

In the meantime, Santa Monica City Councilwoman Asha Greenberg called upon the city to start enforcing its encampment law. "I don't see any reason why we don't go forward in enforcing it, " Greenberg said. "Although the case is not published yet, I think we can use their reasoning in considering what a court might think about our law."

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