One of the leading causes of the recent homelessness crisis has been the refusal of city officials nationwide to enforce existing laws against camping in public parks or on sidewalks—a refusal partly motivated by the Ninth Circuit’s now-overruled Grants Pass decision, and partly by a progressive ideology that thinks it’s somehow more compassionate to leave people living on the streets than to get them the help they need. That’s led to scenes like Phoenix’s “Zone,” where over 1,000 people lived in hideous conditions for years, thanks to the city’s malfeasance. But the homeless aren’t the only victims: hardworking taxpayers have been forced to endure lawlessness, trespasses, arson, pollution, and the destruction of their businesses and homes—even though they’re not responsible for the homelessness crisis at all.
Now, in a follow-up to the Phoenix “Zone” lawsuit, property owners in Salt Lake City, Utah, have gone to court to challenge their local government’s breach of trust. And the Goldwater Institute filed a brief today supporting them in their appeal to the state’s highest court.
The case involves a group of property owners whose land lies adjacent to city-owned property where the government has allowed the homeless to live indefinitely, in violation of existing laws against public camping, loitering, and pollution. By effectively giving people permission to break the law, Salt Lake officials are engaging in a “nuisance,” no different than if an individual property owner let people onto his or her own land to do illegal activities. Neighboring landowners have the same right to sue the government for that kind of nuisance as they would if the land were privately owned.
A Utah trial judge rejected that argument, however, holding that the government actually owed “no duty” to follow its own rules regarding nuisances. “A duty to all is a duty to none,” the court declared, and since the government owes a duty to all citizens to enforce the law, it therefore owes no duty to any of them—and consequently can’t be sued for failing to enforce the law.
It’s true that courts have sometimes said that government’s obligation to enforce laws isn’t enforceable in court, because it owes a duty to the “general public” rather than to any particular person. But whatever the logic of that idea, it’s not relevant in this case, because Salt Lake City property owners aren’t saying the city owes them a duty to enforce the law—it’s saying the city has the same obligation to keep its property in good shape that every responsible landowner in the country has. And by refusing to comply with those rules on its own land—by allowing people to camp out on government-owned property and violate the law there—Salt Lake City is illegally harming them.
The case has now been appealed to the Utah Supreme Court, where we filed a friend-of-the-court brief with the help of American Freedom Network member John Mertens. We argue that the “duty to all is a duty to none” rule isn’t even the law in the Beehive State anymore—it was effectively overruled years ago—and that the trial judge should have held the City to the same standards as any other property owner.
“The idea that the government owes a ‘duty to none’ is literally false—and even offensive,” the brief adds. “On the contrary, the government in a constitutional democracy certainly owes a duty to taxpaying citizens, including Plaintiffs. The Utah Constitution declares that “all free governments are founded on their authority for their equal protection and benefit’ [and that] … everything in the Constitution is ‘mandatory’ unless otherwise provided. These commands should not be treated like empty words.”
You can learn more about the Institute’s work on the homelessness issue here, and read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
