No. IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Case: -0, 0//0, ID: 00, DktEntry: -, Page of No. IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LISA HOOPER, BRANDIE OSBORNE, KAYLA WILLIS, REAVY WASHINGTON, individually and on behalf of a class of similarly situated individuals; THE EPISOCPAL DIOCESE OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE, Plaintiffs-Petitioners, v. CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity Defendants-Respondents. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON CASE NO. C-00RSM The Honorable Ricardo S. Martinez, United States District Court Judge PETITION FOR PERMISSION TO APPEAL FROM ORDER DENYING CLASS CERTIFICATION Emily Chiang, WSBA No. 0 Nancy Talner, WSBA No. Breanne Schuster, WSBA No. ACLU of Washington Foundation 0 th Avenue, Suite 0 Seattle, WA -00 (0) - echiang@aclu-wa.org talner@aclu-wa.org bschuster@aclu-wa.org Attorneys for Plaintiffs-Petitioners Eric A. Lindberg Todd T. Williams Corr Cronin Michelson Baumgardner Fogg & Moore LLP 00 Fourth Avenue, Suite 00 Seattle, WA -0 ELindberg@corrcronin.com TWilliams@corrcronin.com LBeers@corrcronin.com TLapke@corrcronin.com Cooperating Attorneys for ACLU-WA

2 Case: -0, 0//0, ID: 00, DktEntry: -, Page of CORPORATE DISCLOSURE STATEMENT Plaintiff-Petitioner Real Change is a non-profit entity with no entity owning ten percent (0%) or more of its stock. Plaintiff-Petitioner the Episcopal Diocese of Olympia is nonprofit unincorporated association, has no shares, and no entity has any ownership in it. Plaintiff-Petitioner Trinity Parish of Seattle is Washington nonprofit corporation, has no shares, and no entity has any ownership in it. i

3 Case: -0, 0//0, ID: 00, DktEntry: -, Page of TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii-iii TABLE OF AUTHORITIES... iv-v INTRODUCTION... RELIEF REQUESTED... STATEMENT OF FACTS... THE PROCEEDINGS AND DECISION BELOW... QUESTIONS PRESENTED... ARGUMENT... A. It is an unsettled question of law whether the significant proof standard applies to cases seeking solely prospective equitable relief to address a constitutional violation... B. The District Court s decision as to commonality is manifestly erroneous.... The District Court s application of a more stringent commonality standard than required by this Court was manifest error... i. The district court s application of a significant proof evidentiary standard is manifest error... ii. The district court s application of an unduly stringent commonality standard is manifest error.... The District Court erred by applying a more stringent typicality and adequacy of representation standard than required by the Ninth Circuit... ii

4 Case: -0, 0//0, ID: 00, DktEntry: -, Page of i. The district court erred in applying a typicality standard more stringent than required by this Court... ii. The district court erred in applying a more stringent standard for adequacy of representation than this Court ever has... 0 CONCLUSION... CERTIFICATE OF COMPLIANCE... iii

5 Case: -0, 0//0, ID: 00, DktEntry: -, Page of TABLE OF AUTHORITIES Cases A & W Smelter and Refiners, Inc. v. Clinton, F.d 0 (th Cir. )... Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, U.S. (0)... Armstrong v. Davis, F.d (th Cir. 00)..., Bucha v. Illinois High Sch. Ass'n, F. Supp. (N.D. Ill. )... Chamberlan v. Ford Motor Co., 0 F.d (th Cir. 00)...,, Cummings v. Connell, F.d (th Cir. 00)... 0 Evon v. Law Offices of Sidney Mickell, F.d 0 (th Cir. 0)... In re Pet Food Products Liab. Litig., F.d (d Cir. 00)... Jamie S. v. Milwaukee Pub. Sch., F.d (th Cir. 0)... Jermyn v. Best Buy Stores, L.P., F.R.D. (D. S.D.N.Y. 0)... Jimenez v. Allstate Ins. Co., F.d (th Cir. 0)... Joyce v. City and County of San Francisco, No. C-- DLJ, WL... Just Film, Inc. v. Buono, F.d 0 (th Cir. 0)... Justin v. City of Los Angeles, No. CV00LGBAIJX, 000 WL 0 (C.D. Cal. Dec., 000)... Kavu, Inc. v. Omnipak Corp., F.R.D. (W.D. Wash. 00)... Kincaid v. Fresno, F.R.D. (E.D. Cal. 00)... Lavan v. City of Los Angeles, F.d 0 ( th Cir. 0)... Lehr v. City of Sacramento, F.R.D. (E.D. Cal. 00)..., Leyva v. Medline Indus. Inc., F.d 0 (th Cir. 0)... iv

6 Case: -0, 0//0, ID: 00, DktEntry: -, Page of Lyall v. City of Denver, F.R.D. (D. Colo. 0)..., Parsons v. Ryan, F.R.D. (D. Ariz. 0)... Parsons v. Ryan, F.d (th Cir. 0)... passim Pottinger v. City of Miami, 0 F. Supp., 0 (S.D. Fla. )... Prado-Steiman ex rel. Prado v. Bush, F.d (th Cir. 000)... Pulaski & Middleman, LLC v. Google, Inc., 0 F.d (th Cir. 0)... Ramirez v. NutraSweet Co., No. -C-0, WL (N.D. Ill. Sept., )... Rodriguez v. Hayes, F.d 0 (th Cir. 00)..., Rodriguez v. West Publ g Corp., F.d (th Cir. 00)... 0 San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 0 F.d (th Cir. 00)... Wal-Mart Stores, Inc. v. Dukes, U.S. (0)...,,, Wang v. Chinese Daily News, Inc., F.d (th Cir. 0)... Yokoyama v. Midland Nat l Life Ins. Co., F.d 0 (th Cir. 00)... Statutes Fed. R. App. P. (a)... Fed. R. Civ. Pr.... passim Other Authorities Wright & Miller, AA Fed. Prac. & Proc. Civ. (d ed.)... 0 v

7 Case: -0, 0//0, ID: 00, DktEntry: -, Page of INTRODUCTION Plaintiffs-Petitioners hereby seek interlocutory review of the District Court s denial of certification for a proposed class of homeless people living outside in Seattle. Plaintiffs seek solely prospective equitable relief to address () the facial constitutionality of Defendants-Respondents ( Defendants ) official written policies that authorize the seizure and destruction of property in violation of the Fourth and Fourteenth Amendments; and () Defendants widespread practice of engaging in property seizure and destruction in violation of the Fourth and Fourteenth Amendments. The District Court denied class certification because it found Plaintiffs failed to provide significant proof of Defendants policy or practice. Dkt. 0 at. Although the court found that the class was sufficiently numerous, it held that Plaintiffs failed to satisfy the other Rule (a) factors commonality, typicality, and adequacy. Dkt. 0. The District Court s application of the significant proof standard to traditional civil rights claims seeking only prospective relief to address constitutional violations wrought by state policy and practice raises an unsettled issue of law requiring resolution by this Court and warranting review under Rule The Plaintiffs-Petitioners [hereinafter Plaintiffs ] are four unhoused individuals, Lisa Hooper, Brandie Osbornie, Kayla Willis, and Reavy Washington; and organizational Plaintiffs Real Change, the Episcopal Diocese, and Trinity Parish of Seattle.

8 Case: -0, 0//0, ID: 00, DktEntry: -, Page of (f). Plaintiffs urge this Court to grant review to resolve this unsettled issue of law in Plaintiffs favor and to find that application of the significant proof standard to this case constitutes manifest error. This manifest error was compounded by the District Court s failure to recognize the common questions of fact and law presented in this case and permeates the rest of the District Court s analysis of Rule. The District Court additionally erred in applying more stringent commonality, typicality, and adequacy of representation standards than required by this Court and improperly focused on individual circumstances and injuries rather than the policy and practice Plaintiffs challenge and present a great deal of evidence thereof. The denial of class certification here exemplifies the type of unsettled area of law and manifest error for which Rule (f) review was intended, warranting a grant of review. RELIEF REQUESTED Pursuant to Fed. R. Civ. Pr. (f) and Fed. R. App. P. (a), Plaintiffs respectfully seek permission to appeal an order denying class certification that the U.S. District Court for the Western District of Washington entered on October, 0, which is attached as Ex. A. STATEMENT OF FACTS

9 Case: -0, 0//0, ID: 00, DktEntry: -, Page of Plaintiffs challenge Defendants policy and practice of sweeping areas where Plaintiffs and proposed class members live. During these sweeps, Defendants demand that residents of the area leave, and seize and/or destroy any property present. Defendants rely on official written policies for this removal of persons and their property: the Multi-Departmental Administrative Rules ( MDAR -0 ) and Finance and Administrative Services Encampment Rules ( FAS - 0 ). Plaintiffs suit challenged these written policies as facially unconstitutional. The overbroad exceptions of immediate hazards and obstructions to the notice requirements authorize the removal of virtually any unauthorized encampment without due process. Dkt. at -; Dkt. at -. Furthermore, the provisions that permit the destruction of nearly all Seattle homeless peoples belongings merely because they are wet and therefore reasonably expected to become a hazard are impermissibly vague. Dkt at -; Dkt. at -. Plaintiffs also submitted numerous declarations and exhibits challenging Defendants practices in carrying out sweeps as unconstitutional; the evidence showed Defendants routinely provide inadequate notice including misleading, confusing, or otherwise ineffective postings, or no notice at all. And numerous witnesses observed Defendants destroying class members homes and property during sweeps. E.g. Dkt. at -, -; Dkt. at -. The class

10 Case: -0, 0//0, ID: 00, DktEntry: -, Page 0 of certification motion thus listed as common questions of fact and law: the unconstitutionality of Defendants routinely destroying the Plaintiffs and class members property, and the unconstitutionality of Defendants failure to provide adequate notice. Dkt. - at 0-. Finally, Plaintiffs presented evidence demonstrating that Defendants unconstitutional common course of conduct subjected the approximately,000 proposed class members to significant risk of harm, including physical injury and mental stress. E.g. Dkt. at -; Dkt. at -. Plaintiffs and numerous class members described being permanently deprived of essential and irreplaceable property as a result of Defendants destroying it without the constitutional safeguards Plaintiffs claim are required. And Plaintiffs and all proposed class members remain at substantial risk of similar injuries because Defendants plan to continue to execute these sweeps on a regular basis. THE PROCEEDINGS AND DECISION BELOW Two individual and two organizational Plaintiffs filed a class action complaint on January, 0, seeking declaratory and injunctive relief. Plaintiffs simultaneously filed their motion for class certification seeking certification of a class of all unhoused people who live outside within the City of Seattle, Washington and who keep their personal possessions on public property.

11 Case: -0, 0//0, ID: 00, DktEntry: -, Page of Additional Plaintiffs were added with Plaintiffs Amended and Second Amended Complaints. The District Court heard oral argument on Plaintiffs motion for class certification and for preliminary injunction on September, 0. It denied those motions on October, 0, ruling that Plaintiffs had failed to provide significant proof of Defendants unlawful policies and practices and thus did not meet the requirements for establishing commonality, typicality and adequacy of representation. Dkt. 0 at -0. QUESTIONS PRESENTED Whether this Court should grant permission to appeal the District Court s order denying class certification to a class of approximately,000 unhoused individuals living outside within the City of Seattle, Washington pursuant to Rule (f) where: (a) The District Court applied a significant proof standard that this Court has not previously applied in the context of challenges to allegedly unconstitutional government policies and practices; and (b) The District Court applied manifestly erroneous legal standards to the Rule (a) elements of commonality, typicality, and adequacy of representation to this Rule (b)() proposed class against government agencies.

12 Case: -0, 0//0, ID: 00, DktEntry: -, Page of ARGUMENT The lower court s decision presents multiple grounds for (f) review, which is most appropriate when () the certification decision presents an unsettled and fundamental issue of law relating to class actions... that is likely to evade end-ofthe-case review ; () the district court s class certification decision is manifestly erroneous ; or () when a denial of certification effectively ends the litigation for the plaintiff and the district court s decision is questionable. Chamberlan v. Ford Motor Co., 0 F.d,, (th Cir. 00) (citation omitted). These three categories are not a rigid test and this Court has unfettered discretion to grant an appeal from a class certification order based on any consideration that it finds persuasive. Id. at, 0 (citation omitted). The fact that the lawsuit involves a governmental entity, or has a strong public interest component, may also lend the issue particular importance and urgency. Prado-Steiman ex rel. Prado v. Bush, F.d, (th Cir. 000). The standard of appellate review of an order denying class certification is abuse of discretion. Leyva v. Medline Indus. Inc., F.d 0, (th Cir. 0). [A]n error of law is an abuse of discretion. Yokoyama v. Midland Nat l Life Ins. Co., F.d 0, 0(th Cir. 00). A district court s decision to deny class certification is accorded noticeably less deference than a decision to

13 Case: -0, 0//0, ID: 00, DktEntry: -, Page of authorize a class. Parsons v. Ryan, F.d, (th Cir. 0) (citations omitted). Review is appropriate here because the District Court s application of the significant proof standard to a case seeking purely injunctive relief to remedy allegedly unconstitutional government policies and practices presents an unsettled question of law. Plaintiffs urge this Court to resolve the issue in their favor, and to find that the District Court manifestly erred in relying on the significant proof standard to find commonality, typicality, and adequacy of representation were not satisfied, and applied a more stringent legal standard to those requirements than required by Rules (a)(), (a)(), and (a)(). A. It is an unsettled question of law whether the significant proof standard applies to cases seeking solely prospective equitable relief to address a constitutional violation This Court has not yet ruled on when significant proof of a policy or practice is required to satisfy commonality outside of the discrimination context, nor what evidence is required to meet this burden. The District Court here relied on the District Court ruling in Parsons v. Ryan, F.R.D., (D. Ariz. 0) to support application of a significant proof standard. Dkt. 0 at. But in Parsons this Court expressly declined to address whether that standard applies outside the systemic discrimination context. Parsons, F.d at n.. In so doing, this Court expressly noted that courts have differed on the matter. Id.;

14 Case: -0, 0//0, ID: 00, DktEntry: -, Page of Compare, Jamie S. v. Milwaukee Pub. Sch., F.d, (th Cir. 0) (applying significant proof requirement to claim involving the IDEA), with Jermyn v. Best Buy Stores, L.P., F.R.D., (D. S.D.N.Y. 0) (holding that these additional requirements are designed for and unique to the context of employment discrimination ). This Court has yet to resolve this dispute. The Court should end the ambiguity in this Circuit by granting review to resolve the evidentiary standard for (b)() cases in which plaintiffs seek solely prospective equitable relief for constitutional violations pursuant to government policy and practice. As in Chamberlan, this case presents an unsettled and fundamental issue of law relating to class actions... that is likely to evade end-of-the-case review, rendering it most appropriate for review. Chamberlan, 0 F.d at 0. B. The District Court s decision as to commonality is manifestly erroneous In addition to presenting an unsettled question of law, the District Court s manifest error in denying class certification warrants immediate review. Chamberlan, 0 F.d at. The manifestly erroneous standard is met if the District Court based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence. Pulaski & Middleman, LLC v. Google, Inc., 0 F.d, (th Cir. 0) (citation omitted). The standard is also met if the District Court applie[d] an incorrect Rule standard or ignore[d] a directly

15 Case: -0, 0//0, ID: 00, DktEntry: -, Page of controlling case. Chamberlan, 0 F.d at. Here, the District Court relied upon an improper evidentiary standard and applied incorrect Rule standards.. The District Court s application of a more stringent commonality standard than required by this Court was manifest error The District Court manifestly erred by applying a more stringent commonality standard than that required by this Court. First, the District Court erred in applying a significant proof evidentiary standard from the lower court in Parsons, when this Court in Parsons did not require adherence to that standard and further said it was unsettled whether that standard applied in this context. Second, the District Court erred in failing to recognize the common questions of fact and law presented including Plaintiffs facial challenges to Defendants policies, and the evidence showing disputed facts regarding Defendants practices, each of which presented not only issues common to the class but a common answer: that Defendants should be enjoined from continuing their unconstitutional policies and practices. i. The district court s application of a significant proof evidentiary standard is manifest error Although the district court s application of a significant proof standard presents an unsettled question, neither this Court nor any other Circuit Court has demanded significant proof of an alleged policy or practice when plaintiffs bring a civil rights lawsuit that seeks solely prospective equitable relief against written

16 Case: -0, 0//0, ID: 00, DktEntry: -, Page of government policies and their application. This manifest error was compounded by using this heightened standard to conclude that Plaintiffs failed to satisfy the other Rule elements. Dkt. 0 at -. The heightened standard is especially erroneous in the context of this suit, in which legally unsophisticated and resource-less Plaintiffs seek only declaratory and injunctive relief to prevent irreparable harms resulting from Defendants policies and practices; this is precisely the type of case for which Rule (b)() was intended. Parsons, F.d at ( The writers of Rule intended that subsection (b)() foster institutional reform by facilitating suits that challenge widespread rights violations of people who are individually unable to vindicate their own rights. ) (citations omitted); Wright & Miller, AA Fed. Prac. & Proc. Civ. (d ed.) ( [S]ubdivision (b)() was added... in part to make it clear that civil-rights suits for injunctive or declaratory relief can be brought as class actions... By their very nature, civil-rights class actions almost invariably involve a plaintiff class.... ). This Court has recently and repeatedly ruled that at the class certification stage in suits alleging constitutional violations by the government on behalf of a Rule (b)() class, plaintiffs need produce only sufficient evidence of systemic The District Court did not reach the issue of whether Plaintiffs satisfied the requisites for Rule (b)(), but implied that the failure to provide significant proof of Defendants practice or policy made it likely Plaintiffs would fail to satisfy Rule (b)(). Dkt. 0 at. 0

17 Case: -0, 0//0, ID: 00, DktEntry: -, Page of and centralized policies or practices... that allegedly expose all [members of the putative class] to a substantial risk of serious future harm. Parsons F.d at. Requiring significant proof at the class certification stage for such a civil rights case is antithetical to the core intention of Rule (b)(). Supreme Court authority does not differ. Although we have cautioned that a court s class-certification analysis must be rigorous and may entail some overlap with the merits of the plaintiff s underlying claim..., Rule grants courts no license to engage in free-ranging merits inquiries at the certification stage. Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, U.S., - (0) (quoting Wal-Mart Stores, Inc. v. Dukes, U.S., (0)). It totally misapprehend[s] the essential point of this case law to suggest that certification is improper unless Plaintiffs are able to prove that the common question will be answered in their favor. See id. at. Rather, any allegation of a failure of proof as to an element of the plaintiffs cause of action is properly addressed at trial but should not be resolved in deciding whether to certify a proposed class. Amgen, U.S. at 0. The District Court s reliance on the significant proof standard discussed in Wal-Mart, was additionally manifest error because Plaintiffs claims differ from those in Wal-Mart in every way that matters. Wal-Mart, U.S. at. The Wal-Mart plaintiffs sought approval of a (b)() and (b)() class of approximately

18 Case: -0, 0//0, ID: 00, DktEntry: -, Page of. million employees in scores of offices across the nation, alleging that the discretion exercised by their local supervisors over pay and promotion matters violated Title VII by discriminating against women. Id. at. The Supreme Court held that because Wal-Mart s official policy explicitly forbade sex discrimination and there was no evidence of a biased testing procedure, plaintiffs needed to offer significant proof that Wal-Mart operated under a general policy of discrimination to bridge the gap between their individual claims and the existence of a class of persons who suffered the same injury. Id. at -. The Court found the lack of evidence of such a policy fatal because plaintiffs were suing about literally millions of employment decisions at once and the crux of their claims depended on why these decisions were made. Wal-Mart, U.S. at. The nature of Plaintiffs claims is fundamentally different. Unlike in Wal- Mart, the glue holding Plaintiffs claims together is they seek common answers to the common questions of law and fact they raised about specific government policies and practices. Rather than solely basing their claims on a series of subjective or discretionary decisions, Plaintiffs bring facial challenges to official written policies regarding notice and property destruction that indisputably apply to them and proposed class members. Indisputably, the policies discuss those topics and are of constitutional significance, distinguishing this case from Wal-

19 Case: -0, 0//0, ID: 00, DktEntry: -, Page of Mart. If the significant proof standard is allowed to stand here, it not only constitutes manifest error but also eviscerates the traditional role of (b)() class actions to protect the ability of marginalized and vulnerable people to challenge their unconstitutional treatment. ii. The district court s application of an unduly stringent commonality standard is manifest error The District Court not only erred in applying a significant proof, standard for commonality, but also erred in failing to recognize the common questions of fact and law presented in this case. And even if this Court finds the significant proof standard applies to cases such as this one, Plaintiffs have met that evidentiary burden. Plaintiffs need not show that every question in the case, or even a preponderance of questions, is capable of classwide resolution. Wang v. Chinese Daily News, Inc., F.d, (th Cir. 0). Where the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of class, commonality exists. Evon v. Law Offices of Sidney Mickell, F.d 0, 0 (th Cir. 0) (internal citation omitted). Members of the proposed class need not share every single fact in common: common questions may center on shared legal issues with divergent factual predicates [or] a common core of salient facts coupled with disparate legal remedies. Jimenez v. Allstate Ins. Co., F.d, (th Cir. 0)

20 Case: -0, 0//0, ID: 00, DktEntry: -, Page 0 of (internal citation omitted). To assess whether the putative class members share a common question,... we must identify the elements of the class members [] casein-chief. Parsons, F.d at (internal citation omitted). This Court has repeatedly held that [a]ll questions of fact and law need not be common to satisfy the rule. Rodriguez v. Hayes, F.d 0, (th Cir. 00) (emphasis added) (citation omitted). Rather, for purposes of Rule (a)() [e]ven a single [common] question will do. Wal-Mart, U.S. at. Plaintiffs have met this burden, as have scores of similarly situated homeless people across the country seeking to challenge similar government policies and practices. See Dkt. at - (listing similar cases). The district court dismissed five of those cases as being decided pre-wal-mart, but it was wrong to do so because Wal-Mart neither changed nor rejected all prior jurisprudence on the standard for commonality. The District Court also rejected Lyall v. City of Denver, F.R.D. (D. Colo. 0), on the basis that it presented a different common question. Dkt. 0 at. However, Lyall involved common questions nearly identical to those here and the court there found that Plaintiffs had established that common questions existed classwide, most notably, whether Denver is engaging Lehr v. Sacramento, F.R.D. (E.D. Cal. 00), Kincaid v. Fresno, F.R.D. (E.D. Cal. 00), Justin v. City of Los Angeles, No. CV00LGBAIJX, 000 WL 0 (C.D. Cal. Dec., 000), Pottinger v. City of Miami, 0 F. Supp., 0 (S.D. Fla. ), or Joyce v. City and County of San Francisco, No. C-- DLJ, WL.

21 Case: -0, 0//0, ID: 00, DktEntry: -, Page of in the homeless sweeps in the manner alleged. Lyall, F.R.D. at (emphasis added). The District Court in Lyall cited a pre-wal-mart decision in reaching this conclusion. Id. at (citing cf Lehr v. City of Sacramento, F.R.D., (E.D. Cal. 00)), further demonstrating that Wal-Mart did not erase all prior commonality jurisprudence. The District Court erroneously rejected Lyall, failing to recognize the common questions posed here and improperly focusing on minute factual differences rather than Plaintiffs overarching common contentions. For example, in contrast to the commonality standard applied in other sweeps cases, the District Court required the declarations, photographs, and videos [Plaintiffs] cited to prove at which point in the City s multi-stage cleanup process the declarants observed the alleged destruction of property. Dkt. 0 at 0. But commonality requires common questions that will generate common answers apt to drive the resolution of litigation. Wal-Mart, U.S. at 0 (citations omitted). And in a (b)() case, commonality is focused on whether Defendants policies or practices put Plaintiffs at substantial risk of harm not on the prior injuries or harms suffered by Plaintiffs nor whether Plaintiffs have proven that the City and

22 Case: -0, 0//0, ID: 00, DktEntry: -, Page of WSDOT are in violation of the Fourth or Fourteenth Amendment. Parsons, F.d at. This was manifest error. Plaintiffs have presented common issues of both fact and law that will generate common answers apt to resolve the litigation. Defendants have a written policy that authorizes the categorical destruction of certain types of property; and unlike Wal-Mart, Plaintiffs have provided a wealth of evidence that in practice, Defendants do in fact regularly destroy property. Further, proposed class members are at substantial risk of having their property destroyed because Defendants policies apply to all Plaintiffs and proposed class members. Answers to the common questions Plaintiffs pose will drive the resolution of this litigation, as evidenced by the relief Plaintiffs request: a declaration that Defendants policies and practices are unconstitutional and an injunction The District Court even imposed a higher standard than prevailing on the merits of a Fourth Amendment claim requires. See e.g. A & W Smelter and Refiners, Inc. v. Clinton, F.d 0, (th Cir. ) (making clear that the government cannot treat property as garbage just because an individual has not moved it within the allotted time); Lavan v. City of Los Angeles, F.d 0, 0 ( th Cir. 0) ( The City does not and almost certainly could not argue that its summary destruction of Appellees family photographs, identification papers, portable electronics, and other property was reasonable under the Fourth Amendment. ); San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 0 F.d, (th Cir. 00) ( [T]he Fourth Amendment forbids... the destruction of a person s property, when that destruction is unnecessary i.e., when less intrusive, or less destructive, alternatives exist. ). In fact, Plaintiffs have presented extensive evidence in the form of more than 0 declarations and 0 exhibits, including photos and videos; a declaration from a social worker and occupational and health hazard expert; and testimony from both Defendants and Plaintiffs supporting Plaintiffs allegations. These exhibits and declarations confirmed sweeps without adequate or consistent notice. They described Defendants destruction of putative class members property. And they detailed Defendants treatment of homes and essential items for survival as garbage.

23 Case: -0, 0//0, ID: 00, DktEntry: -, Page of preventing future irreparable injury. Dkt. -. Plaintiffs allegations of unconstitutional government conducted pursuant to official policy and request for relief to stop that government conduct present the prototypical case for commonality. See also Armstrong v. Davis, F.d,, (th Cir. 00) (commonality satisfied where plaintiffs challenged written policy that failed to provide for adequate ADA requirements at parole hearings); Rodriguez v. Hayes, F.d 0, (th Cir. 00) (commonality satisfied where plaintiffs challenged practice of holding detainees for longer than six months); Parsons, F.d at (commonality satisfied where plaintiffs made detailed factual allegations concerning the existence of uniform, statewide policies and practices in all [Arizona Department of Corrections] facilities... [that] expose all... inmates to a substantial risk of harm ).. The District Court erred by applying a more stringent typicality and adequacy of representation standard than required by the Ninth Circuit The District Court further committed manifest error in its assessment of typicality and adequacy of representation by focusing on the individual circumstances of each Plaintiff s losses rather than the common aspects of Defendants conduct that precipitated those losses. The District Court additionally erred in finding that two of the Plaintiffs are inadequate class representatives merely because they expressed personal wishes (that Defendants would stop the sweeps entirely) that exceed the relief requested in the lawsuit. If

24 Case: -0, 0//0, ID: 00, DktEntry: -, Page of every plaintiff who expressed a desire outside the bounds of the litigation were deemed unfit to represent a class, it is difficult to imagine the viability of future class actions brought on behalf of legally unsophisticated clients to bring class actions to vindicate their rights. i. The district court erred in applying a typicality standard more stringent than required by this Court This Court has ruled that typicality is determined based on the nature of the named plaintiffs claims. Parsons, F.d at. ( Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought. ) (citations omitted). Typicality does not require identical facts, claims, or damages; the claims need only arise from a similar course of conduct and share the same legal theory. Just Film, Inc. v. Buono, F.d 0, - (th Cir. 0). This is particularly true when plaintiffs are seeking injunctive relief. In such cases, the focus is on whether named plaintiffs and class members are affected by defendants systemic-wide practices and policies and not on the nature of their specific injuries. See Armstrong, F.d at -. Here, Plaintiffs and proposed class members are all subject to Defendants policies the encampment removal rules. They allege that Defendants policies and practices violate the Constitution and seek prospective injunctive relief. Identical facts regarding the injuries Plaintiffs suffered as a result of Defendants

25 Case: -0, 0//0, ID: 00, DktEntry: -, Page of policies and practices are not required; instead, the facts demonstrate the risk to which Plaintiffs are exposed is typical of the proposed class. As this Court recognized, typicality depends on whether plaintiffs and unnamed class members are similarly affected by defendants systemic practices and policies not on the nature of their specific injuries. See Parsons, F.d at ( It does not matter that the named plaintiffs may have in the past suffered varying injuries or that they may currently have different health care needs; Rule (a)() requires only that their claims be typical of the class... ). It was manifest error for the district court to require more factual similarity to establish typicality. The District Court also committed error by misinterpreting the doctrine of unique defenses when it found three Plaintiffs alleged refusal to store their belongings with the City defeated typicality. Dkt. 0 at. It is only when a unique defense will consume the merits of a case that a class should not be certified. Ramirez v. NutraSweet Co., No. -C-0, WL, at * (N.D. Ill. Sept., ). Where a defendant will no doubt assert the same defense[s] for most if not all of the class members claims... the assertion of [those] defense[s] does not render plaintiff s claims atypical. Kavu, Inc. v. Omnipak Corp., F.R.D., (W.D. Wash. 00). Here, there is no evidence supporting a unique defense; Defendants defenses are the same and have been the same for all of the class members claims. Namely, Defendants

26 Case: -0, 0//0, ID: 00, DktEntry: -, Page of maintain that their policies are facially lawful and that the sweeps are conducted in a constitutionally appropriate manner. ii. The district court erred in applying a more stringent standard for adequacy of representation than this Court ever has Rule (a)() is satisfied as long as one of the class representatives is an adequate class representative. Rodriguez v. West Publ g Corp., F.d, (th Cir. 00) (citation and internal quotation marks omitted). Thus, it was error for the District Court to find adequacy was not satisfied even though Plaintiff Lisa Hooper remained an adequate representative. The District Court also erred in finding that two of the Plaintiffs are inadequate class representatives merely because they expressed personal goals that exceed the confines of the litigation. Here too, the District Court applied a heightened standard that simply does not exist in the Ninth Circuit. This Court has never held that individual named Plaintiffs are precluded from expressing personal opinions or political goals or beliefs not identical to the relief sought by the lawsuit in order to be adequate class representatives, particularly where the statements are neither antithetical to the lawsuit nor contradictory to ensuring sweeps comply with the constitution. See Cummings v. Connell, F.d, (th Cir. 00) ( Furthermore, this circuit does not favor denial of class certification on the basis of speculative conflicts ). See also Bucha v. Illinois High Sch. Ass'n, F. Supp., (N.D. Ill. ) ( the fact that the named plaintiffs have interests which 0

27 Case: -0, 0//0, ID: 00, DktEntry: -, Page of exceed those of some class members will not defeat the class action, so long as they possess interests which are coextensive with those of the class.") (citation omitted); In re Pet Food Products Liab. Litig., F.d, (d Cir. 00) (holding that named class representatives who pursued individualized injury claims in addition to class-wide reimbursement claims did not have conflict of interest with members of the larger class). If this standard is allowed to stand, it would have a disastrous impact on the ability of legally unsophisticated clients to bring class actions to challenge the violation of their constitutional rights, because their unsophisticated wording would be used to defeat class certification, contrary to any legal requirement of Rule. CONCLUSION For the foregoing reasons, the Petition for Review should be granted. Respectfully submitted this th day of October, 0. /s/breanne Schuster Breanne Schuster, WSBA No. ACLU of Washington Foundation 0 th Avenue, Suite 0 Seattle, WA -00 (0) - bschuster@aclu-wa.org Counsel for Plaintiffs-Petitioners

28 Case: -0, 0//0, ID: 00, DktEntry: -, Page of CERTIFICATE OF COMPLIANCE I hereby certify that:. This brief complies with the type-volume limitation of Fed. R. App. P. (a)()(b) because this brief contains words, excluding the portions of the brief exempted by Fed. R. App. P. (a)()(b)(iii); and. This brief complies with the typeface requirements of Fed. R. App. P. (a)() and the type style requirements of Fed. R. App. P. (a)() because this brief has been prepared in a proportionally spaced typeface (Times New Roman, size font) using Microsoft Word 0. Dated this th day of October, 0. /s/breanne Schuster Breanne Schuster, WSBA No. Counsel for Plaintiffs-Petitioners

29 Case: -0, 0//0, ID: 00, DktEntry: -, Page of EXHIBIT A

30 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page 0 of 0 0 LISA HOOPER, et al., Plaintiffs, v. CITY OF SEATTLE, et al., Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE I. INTRODUCTION Case No. C-RSM ORDER DENYING PLAINTIFFS MOTION FOR CLASS CERTIFICATION AND DENYING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION This matter is before the Court on Plaintiffs Motion for Class Certification (Dkt. #) and Plaintiffs Motion for Preliminary Injunction (Dkt. #). Oral argument on this matter was heard on September, 0. Having considered the parties oral and written arguments, along with the remainder of the record, the Court, for the reasons stated herein, DENIES Plaintiffs motions. II. BACKGROUND Plaintiffs suit stems from Defendant City of Seattle s (the City ), Defendant Washington State Department of Transportation s ( WSDOT ), and Defendant Roger Millar s (collectively Defendants ) enforcement of rules and guidelines that authorize the removal of ORDER -

31 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 unauthorized encampments from City-owned and Washington State-owned property. See Dkt. #,,, 0. In 00, the City enacted rules, the Multi-Departmental Administrative Rules 0-0 ( MDAR 0-0 ), to establish, in part, standard procedures for the removal of unauthorized encampments, camping equipment, and personal property left on Cityowned property. See id. ; also Dkt. #, Ex. A at. That same year, WSDOT also adopted guidelines, entitled WSDOT s Guidelines to Address Illegal Encampments within State Right of Way ( WSDOT Guidelines ), establishing similar removal procedures for unauthorized encampments. See Dkts. # and #, Ex. B. When this suit was filed on January, 0, the MDAR 0-0 were still in effect. See Dkt. #, Ex. A. At the time, Plaintiffs putative class action alleged the MDAR 0-0 and WSDOT Guidelines were unconstitutional on their face, and as applied, because exceptions and exclusions within both policies rendered their notice and storage provisions meaningless. Dkt. # 0. Specifically, the named individual plaintiffs alleged they were victims of Defendants ongoing policy and practice of seizing and destroying the property of unhoused people living outside without adequate notice, an opportunity to be heard, or a meaningful way for them to reclaim any of their undestroyed property. Id.,. Plaintiffs alleged Defendants policies, and actual encampment removal practices, violated Plaintiffs federal and state constitutional rights. Id.,. On January, 0, the City proposed two new rules to modify the MDAR 0-0. Dkt. # ; also Dkt. #, Exs. C and D. The Finance and Administrative Services Encampment Rule -0 ( Proposed FAS -0 ) proposed a uniform set of rules and procedures for removing encampments on City property, while the Multi-Departmental Administrative Rules ( Proposed Defendant Roger Millar is WSDOT s Secretary of Transportation; Plaintiffs bring suit against Mr. Millar in his official capacity. Dkt. #. WSDOT and Mr. Millar are referred to, collectively, as State Defendants. ORDER -

32 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 MDAR -0 ) proposed a uniform set of rules and procedures for addressing encampments on City property. See id. On February, 0, Plaintiffs moved for a temporary restraining order ( TRO ). Dkt. #. A TRO hearing was scheduled on February, 0; Plaintiffs TRO motion was subsequently denied because Plaintiffs did not demonstrate a likelihood of success on the merits or irreparable harm. Dkt. # at. Following this denial, Plaintiffs amended their initial Complaint. See Dkt. #. Subsequently, after a public comment period and revisions, the City s MDAR 0-0 was superseded by the final versions of the Proposed FAS -0 and the Proposed MDAR -0. See Dkt. #, Ex. C at and Ex. D at. On April, 0, the FAS -0 and MDAR -0 (collectively the Updated Encampment Rules ) went into effect. Plaintiffs filed a Second Amended Complaint on May, 0. Dkt. #. See id. Plaintiffs Second Amended Complaint raises facial and as-applied challenges to the City s Updated Encampment Rules and the WSDOT Guidelines. Id. 0, 0 0,,. Plaintiffs claim Updated Encampment Rule exceptions governing obstructions and immediate hazards allow the City to remove any unauthorized encampment without notice. Id. 0. Plaintiffs also claim the City s creation of Emphasis Areas force unhoused persons to live in dangerous areas or leave them subject to immediate removal. Id.. Plaintiffs also assert the Updated Encampment Rules do not contain a prior MDAR 0-0 requirement that allowed unhoused persons to return to an encampment location to pack up their belongings, and thus fail to provide an opportunity for unhoused persons to contest the seizure and destruction of their property. Id.. Finally, Plaintiffs contend the Updated Encampment Plaintiffs Second Amended Complaint erroneously asserts the MDAR 0-0 is still in effect and constitutes the City s only known official published policies pertaining directly to sweeps. See Dkt. #. In reality, the MDAR 0-0 was superseded by the MDAR -0. See Dkt. #, Ex. D at. With this in mind, the Court will not set forth Plaintiffs facial challenges to the MDAR 0-0. ORDER -

33 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 Rules do not require training for City personnel, and they claim the enforcement of the rules remains discretionary. See id.. Plaintiffs likewise claim that exceptions and exclusions to the WSDOT Guidelines exempt many, if not most, people living outside from even the most minimal of notice protections, and they claim the WSDOT Guidelines lack provisions to ensure pre- and post-deprivation due process. Id. 0, 0,. Aside from their facial challenges, Plaintiffs also claim Defendants actual cleanup practices are unconstitutional. Dkt. #. Plaintiffs Second Amended Complaint identifies eight practices that allegedly result in the inadequate, inconsistent, inaccurate, inaccessible, and/or misleading provision of notice. Id.. These practices include Defendants alleged provision of notice less than -hours before a cleanup, posting notice in inconspicuous areas, notices that fail to specify where a cleanup will occur, notices that do not reflect the date a cleanup actually occurs, and notices that are inaccessible to unhoused persons who cannot read written English. Regarding the seizure of property, Plaintiffs Second Amended Complaint identifies six practices they claim are unconstitutional. See id.. These practices include Defendants alleged use of heavy equipment machinery to summarily seize and destroy the property of unhoused persons, Defendants physical seizure and destruction of property on site, the off-site disposal of items unilaterally determined to be garbage or of insufficient value, Defendants practice of piling up all items at an encampment site (including garbage), Defendants seizure and destruction of property without an owner s permission (notwithstanding that the owner is present), and the seizure and destruction of unabandoned property left momentarily unattended. Id. Plaintiffs also identify several storage and storage-retrieval practices they claim are unconstitutional. See Dkt. #,. These practices include: () Defendants ORDER -

34 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 alleged official sanctioned practice of ignoring policies that govern whether an item should be stored; () Defendants ignore policies that require them to notify unhoused persons of whether their property will be stored, where it will be stored, for how long it will be stored, and how it may be retrieved; () when Defendants provide storage information, they only provide a phone number, thus leaving people without phone access or money for phone access without recourse; () Defendants do not inventory or keep track of destroyed or confiscated items, thus preventing unhoused persons from knowing whether their property was stored; and () Defendants impose additional barriers including the location of Defendants storage facilities and the facilities limited operating hours that burden an unhoused person s ability to retrieve their personal property. Id. The individual named Plaintiffs, Lisa Hooper, Brandi Osborne, Kayla Willis, and Reavy Washington (collectively the Individual Plaintiffs ), live outside, on public property, in the City of Seattle. Dkt. #,, 0,. They allege they are victims of Defendants ongoing policy and practice of seizing and destroying the property of unhoused people living outside without adequate and effective notice, an opportunity to be heard, or a meaningful way for them to reclaim any of their undestroyed property. Id.. Plaintiffs further allege they have had critical personal belongings taken and destroyed during cleanups conducted by the City and WSDOT, and were not given an opportunity to contest the confiscation and destruction of their property. Id.,,,,. They further assert they were not given notice or reason to believe their property would be stored and could later be retrieved. See id.. Three organizational plaintiffs, the Diocese of Olympia, Trinity Parish of Seattle, and Real Change, also join the Individual Plaintiffs suit. Id.. Through this suit, Plaintiffs seek a declaratory judgment that Defendants alleged policy and practice of confiscating and/or destroying the personal property of unhoused persons without ORDER -

35 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 a warrant, probable cause, and the requisite due process safeguards is unlawful under federal and state law. Id. at. Plaintiffs also seek injunctive relief. Id. III. LEGAL STANDARDS A. Class Certification. Federal Rule of Civil Procedure governs class certification. Wal-Mart Stores, Inc. v. Dukes, U.S., (0). Under Rule (a), the party seeking certification must demonstrate () the class is so numerous that joinder of all members is impracticable; () there are questions of law or fact common to the class; () the claims or defenses of the representative parties are typical of the claims or defenses of the class; and () the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. (a). After satisfying the Rule (a) requirements, the proposed class must also satisfy at least one of the three requirements listed in Rule (b). Dukes, U.S. at ; also Leyva v. Medline Indus. Inc., F.d 0, (th Cir. 0). In this case, Plaintiffs seek to certify a class under Rule (b)(). Dkt. # at. Rule (b)() requires Plaintiffs to demonstrate the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. FED. R. CIV. P. (b)(). Rule (b)() applies only when a single injunction or declaratory judgment would provide relief to each member of the class. Dukes, U.S. at 0. Notably, Rule does not set forth a mere pleading standard. Id. at 0. Instead, the party seeking certification must affirmatively demonstrate his compliance with the Rule that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. Id. Certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule (a) have been satisfied. Id. at 0 (internal quotation omitted). [I]t may be necessary for the court to probe behind the pleadings ORDER -

36 Case: :-cv-000-rsm -0, 0//0, Document ID: 00, 0 Filed DktEntry: 0/0/ -, Page of 0 0 before coming to rest on the certification question. Gen. Tel. Co. of Sw. v. Falcon, U.S., 0 (). This is because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff s cause of action. Id. (internal quotation omitted). Nonetheless, the ultimate decision regarding class certification involve[s] a significant element of discretion. Yokoyama v. Midland Nat'l Life Ins. Co., F.d 0, 00 (th Cir. 00). B. Preliminary Injunction. To obtain a preliminary injunction, Plaintiffs must establish the following: () their likelihood to succeed on the merits; () that it is likely they will suffer irreparable harm in the absence of preliminary relief; () that the balance of equities tips in their favor; and () that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., U.S., 0 (00). Where a moving party s assertions are substantially controverted by counter-affidavits, relief should not be granted unless that party makes a further showing that it will probably succeed on the merits. K- Ski Co. v. Head Ski Co., F.d 0, 0 (th Cir. ). A. Class Certification Motion. IV. DISCUSSION The Individual Plaintiffs seek certification of a class comprised of all unhoused people who live outside within the City of Seattle and who keep their personal possessions on public property. Dkt. # at,. They assert certification is proper because they satisfy the requirements of Rule. Defendants do not dispute that Plaintiffs have established Rule (a)() s numerosity requirement, but disagree that Plaintiffs demonstrate the remaining requirements needed for class certification. The Court addresses each requirement in turn. Plaintiffs use the term unhoused to refer to individuals who lack fixed, stable, or adequate shelter or housing. Plaintiffs indicate the phrase people who live outside includes Seattle residents who, for at least part of the year, sleep and keep their belongings outdoors. ORDER -