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San Francisco Accused of ‘Judge Shopping’ in Homelessness Lawsuit

Written by David Sjostedt and Annie GausPublished Oct. 10, 2023 • 4:36pm
Mayor London Breed watches as City Attorney David Chiu speaks at a press conference in San Francisco City Hall. | Camille Cohen/The Standard

In the latest salvo in a legal fight over homeless encampments, San Francisco is asking a federal court to consolidate two related cases under a single judge. The move prompted an outcry from opposing attorneys, who accused the city of “judge shopping.”

The two cases are a lawsuit filed by University of California College of the Law San Francisco, formerly called UC Hastings, which sued the city in 2020 over dense clusters of tents surrounding its Tenderloin campus. The other is a lawsuit by the Coalition on Homelessness and homeless plaintiffs accusing the city of unconstitutional enforcement of anti-camping laws. In a filing last week, City Attorney David Chiu argued that the two cases have become “substantively intertwined” and asked for a single judge to oversee both. 

As part of a June 2020 settlement with UC Law SF, the city agreed to remove tents from the Tenderloin. But in the Oct. 3 legal filing, Chiu wrote that UC Law SF accused the city of backsliding on the settlement after a separate federal injunction restricted the city from clearing encampments. The law school couldn’t immediately be reached for comment. 

The injunction, requested by the Coalition on Homelessness and granted by U.S. Magistrate Judge Donna Ryu in December 2022 blocked the city from enforcing specific laws against public lodging.

John Do, an attorney for the coalition from the ACLU of Northern California, accused the city of trying to “judge shop.” Do argued that under existing case law, the city can’t conjoin the cases this far along in the litigation.

“After a series of losses, it’s not surprising that the City is unhappy with the way its case has been going,” Do wrote in an email. “But that does not give the City the right to try to pick a different judge.” 

Donna M. Ryu, United States District Court Judge for the Northern District of California on June 29, 2020. | Source: Administrative Office of the United States Courts

In September, the city asked the Ninth Circuit Court of Appeals to overturn the injunction, arguing that the court order is unnecessarily broad and puts the city in an untenable position. Chiu has also argued that the injunction conflicts with the UC Law SF settlement, noting in the Oct. 3 filing that the Coalition on Homelessness also sought to intervene in that case. 

The Ninth Circuit declined the city’s request to modify the injunction, writing that the two parties agree that it shouldn’t apply to people who have access to shelter. The Ninth Circuit is still evaluating the broader appeal. 

In an emailed statement, City Attorney spokesperson Jen Kwart said the court and the Coalition on Homelessness had effectively acknowledged the two cases were joined because the court had already reassigned a judge in the UC Law SF case and the coalition tried to intervene in that litigation. 

“The city filed its motion to relate these two cases because of and in recognition that the judiciary has coordinated the cases before the same settlement judge,” Kwart said. “The accusations of judge shopping are strange because the ACLU and Coalition consented to both cases being related before a single judge.” 

David Sjostedt can be reached at david@sfstandard.com
Annie Gaus can be reached at annie@sfstandard.com


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