South Orange County cities win request to remove Judge David O. Carter from hearing homeless lawsuit

A federal judge has granted the request to remove U.S. District Judge David O. Carter from presiding over a lawsuit concerning anti-camping ordinances in five south Orange County cities and the rights of homeless people.

In a ruling issued Friday, June 14, fellow District Court Judge James V. Selna granted a motion sought by three of the defendant cities — Aliso Viejo, San Clemente and San Juan Capistrano — to recuse Carter, known for his unorthodox proceedings, from a lawsuit filed in February that also names the cities of Dana Point and Irvine, along with Orange County.

Carter will be replaced by Judge Percy Anderson.

The issues raised in the south county complaint — lack of shelter and the criminalization of homeless people who sleep in public — are the same as those involved in a related civil rights suit from 2018, known as the Catholic Worker case, in which settlement agreements hammered out under Carter’s supervision led to the opening of homeless shelters in north and central Orange County.

Selna noted in his ruling that the cities of Aliso Viejo, San Clemente and San Juan Capistrano intend to litigate the dispute and “they are entitled to do that before a judicial officer whose impartiality neither the parties nor the public have a reasonable basis to question.”

Read the order to remove Judge Carter

Selna’s decision to remove Carter acknowledged the defendant cities’ concerns about the extensive use of ex parte communications, meetings held by Carter in the 2018 lawsuit without all litigating parties but mutually agreed to, and how those communications could impact the south county lawsuit.

Selna also said statements made by Carter at past court hearings and published in news accounts — including remarks about south county cities — could lead to questions about his objectivity.

“The Court finds that in view of the combination of circumstances, a reasonable observer would conclude based on appearances that the District Judge is not unbiased,” Selna wrote.

In a separate ruling, also issued in writing, and filed on Thursday, Selna denied a request by lawyers for the homeless plaintiffs in the south county lawsuit to disqualify the law firm of Jones Day LLP from representing Aliso Viejo, San Clemente and San Juan Capistrano over an alleged conflict of interest.

Selna ruled that lawyers from the firm could not be disqualified simply because they had previously represented the interests of homeless people, as the plaintiffs’ lawyers argued, on behalf of the advocacy organization People’s Homeless Task Force.

Orange County District Attorney Todd Spitzer, who was the county’s Third District supervisor at the time of the Catholic Worker lawsuit, called the decision to remove Judge Carter a “devastating, but not unexpected decision,” in a written statement on Friday.

“Expect everyone to go into a pure litigation mode now; employing hundreds of thousands of dollars in lawyers to fight (monies that should be used to help the homeless and provide much needed services); stalling and delay tactics and parties no longer working cooperatively, but combatively to stake out positions that do not advance solutions,” Spitzer wrote.

“Truly a sad day.”