A Multnomah County judge tossed a lawsuit against Mayor Charlie Hales' months-old camping policies this morning, but that doesn't mean the issue's resolved.
Instead, Judge Marilyn Litzenberger dismissed a case brought by the Portland Business Alliance (PBA), Central Eastside Industrial Council (CEIC), Overlook Neighborhood Association (OKNA), and other entities with an understanding another will be filed in its place—this time with more specifics.
At issue is a "safe-sleep policy" Hales' office introduced in February. It was a first-of-its-kind approach to homelessness in a city that's long swept campers, because it laid out ways people might be able to camp without fear of being pushed along. The policy included provisions for sleeping on sidewalks in small groups, and for setting up tents on "remnant" properties, so long as they're taken down by 7 am.
While advocates for the homeless cheered the move, some business and neighborhood groups in town were enraged. They filed suit a couple months after Hales unveiled the policy, alleging the mayor didn't have the authority to enact what they're calling a "zoning ordinance" without a city council vote, and that it runs afoul of state law. The plaintiffs—which include the PBA, CEIC, OKNA, Downtown Clean and Safe, the Oregon Restaurant and Lodging Association, the Building Owners and Managers Association of Oregon, and more—are asking a judge to rule Hales' policy is illegal.
"Were you to do that.. our lawsuit would disappear," Paul Conable, the attorney representing the plaintiffs group, said this morning.
But Conable had a problem. The suit he filed in April didn't state how any of his clients had been specifically harmed by Hales' camping ordinance.
"You've gotta have a present or real problem or injury," Chief Deputy City Attorney Harry Auerbach told Litzenberger. "You can't have something that’s hypothetical. What they’re asking you to do is simply say this policy is no good."
Litzenberger ultimately agreed, sustaining the city's motion to toss the case. But she did so with the explicit understanding that Conable would be filing another, amended suit within days. He suggested in court he'd have no problem showing his clients have been harmed.
"We made a choice because of the focus of this case not to wave the bloody shirt," Conable said. "The focus of this case is not on punishing people who, frequently through no fault of their own, are living on the street. Were we required… we would tomorrow submit an amended complaint that detailed with photographs the kind of details that anyone whose been living in Portland during the past six months have probably seen first-hand."
Here's the thing, though. That might not ultimately matter. The whole case could be a waste of time for a couple reasons.
First, Auerbach suggested that Conable and his clients would have no way to concretely tie Hales' policies to any negative outcomes. After all, homelessness has been an issue in the city for decades. Even with common agreement that the problem's grown worse recently, much of that was already happening prior to the mayor's policy.
Conable responded he'd happily give it a shot.
More basically though, Auerbach suggested that, even if a judge ruled Hales' policy was illegal today, it wouldn't necessarily lead to any changes on the part of the city. A big part of the city's argument in the case is that choices for dealing with homelessness are a political question, and shouldn't be up to a judge.
"We're talking about a problem that exists irrespective of what's done to fix it," Auerbach told the Mercury after the hearing. "We've got to give directions to police as to how to deal with that problem."
Those directions likely wouldn't suddenly switch, should the safe-sleep policy be ruled illegal, Auerbach said.
Conable conceded that that might be true, but noted that the city's actions "can't change as long as the policy is in effect."
But there's another aspect to all this: Hales' waning time in office.
Mayor-elect Ted Wheeler has made it pretty plain in recent weeks that he disagrees with the current mayor's approach to homeless camping. It would be less than surprising, then, if Wheeler snatches the strategy off the table come January.
Given that, we asked Conable if the whole legal fight was worth it.
"We'll see," he said.