Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 1 of 73 NO. 18-35053 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 EPISCOPAL DIOCESE OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE, Plaintiffs-Appellants, v. CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity, Defendants-Appellees. On Appeal from the United States District Court For the Western District of Washington The Honorable Ricardo S. Martinez Cause No. 2:17-cv-00077-RSM APPELLEES WASHINGTON STATE DEPARTMENT OF TRANSPORTATION AND ROGER MILLAR’S ANSWERING BRIEF ROBERT W. FERGUSON Attorney General ALICIA O. YOUNG, WSBA #35553 MATTHEW D. HUOT, WSBA #40606 Assistant Attorneys General Attorneys for WSDOT Appellees P.O. Box 40111 Olympia, WA 98504-0111 (360) 709-6470 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 2 of 73 TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 1 II. ISSUE PRESENTED.......................................................................... 3 III. STATEMENT OF JURISDICTION .................................................. 4 IV. STATEMENT OF FACTS ................................................................. 4 A. Homeless Encampments on State Right of Way.......................... 4 1. State Right of Way May Only Be Used and Accessed for Highway Purposes ............................................................ 4 2. Homeless Encampments on State Right of Way Pose a Threat To Campers, the Traveling Public, and State Employees and Contractors Performing Construction and Maintenance Work .......................................................... 7 3. WSDOT Homeless Encampment Guidelines and City Rules Govern Cleanup Activities on State Right of Way Within the City of Seattle.............................. 13 B. Proceedings Below ..................................................................... 15 V. SUMMARY OF ARGUMENT ........................................................ 22 VI. STANDARD OF REVIEW .............................................................. 24 VII. ARGUMENT ....................................................................................25 A. Plaintiffs Failed To Make Contentions Common To the Class Which Would Resolve an Issue Central to the Validity of All Class Members’ Claims “In One Stroke” .......... 26 1. There Was No Basis To Find Commonality Based on Plaintiffs’ Facial Attacks, Because Plaintiffs Failed To Mount a Credible Facial Invalidity Challenge ............... 28 i Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 3 of 73 2. Under Either the “Significant Proof” or “Substantial Evidence” Standard, Plaintiffs Did Not Establish Commonality in Their As-Applied Challenges ................... 29 3. The Court Need Not Consider Plaintiffs’ New Commonality Arguments on Appeal ................................... 43 4. Plaintiffs Did Not Oppose Application of the Significant Proof Standard Below, Nor Do they Offer an Alternative Standard .............................................. 48 5. Dukes Requires “Significant Proof” .................................... 49 B. Plaintiffs Did Not Establish Their Claims Are Typical of the Class They Seek To Represent......................................... 52 C. Plaintiffs Did Not Establish they Are Adequate Representatives of the Class They Seek To Represent .............. 54 D. Plaintiffs Failed To Satisfy Rule 23(b)(2) Because One Injunction Could Not Address Reasonableness and Fairness with Respect To All Removals or Disposals of Unauthorized Property on State Right of Way .......................... 56 VIII. CONCLUSION .................................................................................60 ii Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 4 of 73 TABLE OF AUTHORITIES Cases Acosta v. City of Salinas No. 15-cv-05415, 2016 WL 1446781 (N.D. Cal. Apr. 13, 2016) ................. 33 Amador v. Baca 299 F.R.D. 618 (C.D. Cal. 2014), on reconsideration, No. CV-10-1649-SVW, 2014 WL 10044904 (C.D. Cal. Dec. 18, 2014) ........................................................................ 40, 51 Armstrong v. Davis 275 F.3d 849 (9th Cir. 2001) ......................................................................... 24 Barber v. State of Hawai’i 42 F.3d 1185 (9th Cir. 1994) ......................................................................... 24 Berglund v. Spokane Cty. 4 Wn.2d 309, 103 P.2d 355 (1940) ................................................................. 6 Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist. 149 F.3d 971 (9th Cir. 1998) ......................................................................... 35 Burnell v. Swift Transp. Co. of Ariz., LLC No. EDCV 10-809-VAP, 2016 WL 2621616 (C.D. Cal. May 4, 2016) .......................................................................... 50, 51 Cobine v. City of Eureka No. C 16-02239, 2016 WL 1730084 (N.D. Cal. May 2, 2016) .................... 33 Comcast Corp. v. Behrend 133 S. Ct. 1426 (2013) .................................................................................. 25 Conservation Nw. v. Sherman 715 F.3d 1181 (9th Cir. 2013) ....................................................................... 48 Corbin v. Time Warner Entm’t-Adv./Newhouse P’ship 821 F.3d 1069 (9th Cir. 2016) ................................................................. 28, 29 iii Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 5 of 73 Ellis v. Costco Wholesale Corp. 657 F.3d 970 (9th Cir. 2011) ......................................................................... 50 Ex parte Young 209 U.S. 123 (1908) ........................................................................................ 4 General Telephone Co. of Sw. v. Falcon 457 U.S. 147 (1982) ................................................................................ 52, 54 Hanon v. Dataproducts Corp. 976 F.2d 497 (9th Cir. 1992) ............................................................. 24, 52, 56 Holmes v. Godinez 311 F.R.D. 177 (N.D. Ill. 2015) .................................................................... 51 Hoyte v. Dist. of Columbia __ F.R.D.__, No. 13-CV-00569, 2017 WL 3208456 (D. D.C. July 27, 2017) ........................................................................... 50, 51 In re Wells Fargo Home Mortg. Overtime Pay Litig. 571 F.3d 953 (2009) ...................................................................................... 24 Jamie S. v. Milwaukee Pub. Schs. 668 F.3d 481 (7th Cir. 2012) ................................................................... 50, 51 Jennings v. Rodriguez 138 S. Ct. 830 (2018) .............................................................................. 36, 57 Joyce v. City and Cty. of S.F. No. C-93-4149 DLJ, 1994 WL 443464 (N.D. Cal. Aug. 4, 1994) ......... 42, 43 Justin v. City of Los Angeles No. CV0012352LBGAIJK, 2000 WL 1808426 (C.D. Cal. Dec. 5, 2000) ................................................................................ 42 Keller v. City of Spokane 146 Wn.2d 237, 44 P.3d 845 (2002) ........................................................... 6, 7 iv Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 6 of 73 Kincaid v. City of Fresno 244 F.R.D. 597 (E.D. Cal. 2007)............................................................. 41, 42 Lavan v. City of Los Angeles 693 F.3d 1022 (9th Cir. 2012) ..................................................... 33, 35, 41, 59 Lehr v. City of Sacramento 259 F.R.D. 479 (E.D. Cal. 2009)............................................................. 41, 42 Lyall v. City of Denver 319 F.R.D. 558 (D. Colo. 2017) .................................................................... 43 Martin v. City & Cty. of Honolulu No. 15-00363, 2015 WL 5826822 (D. Haw. Oct. 1, 2015) .......................... 33 Mathews v. Eldridge 424 U.S. 319 (1976) ...................................................................................... 35 McGann v. Ne. Illinois Reg’l Commuter R.R. Corp. 8 F.3d 1174 (7th Cir. 1993) ........................................................................... 34 Mothersell v. City of Syracuse 289 F.R.D. 389 (N.D. N.Y. 2013) ................................................................. 41 Moussouris v. Microsoft Corp. No. C15-1486, 2018 WL 3328418 (W.D. Wash. Jun. 5, 2018)................... 50 Murphy v. Piper No. CV 16-2623, 2017 WL 4355970 (D. Minn. Sept. 29, 2017) ..... 36, 37, 38 Norwood v. Bain 166 F.3d 243 (4th Cir. 1999) ......................................................................... 34 Parker v. Bank of Am., N.A. 99 F. Supp. 3d 69 (D.D.C. 2015) .................................................................. 51 Parsons v. Ryan 754 F.3d 657 (9th Cir. 2014) .................................................................. passim v Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 7 of 73 Pennhurst State Sch. & Hosp. v. Halderman 465 U.S. 89 (1984) .......................................................................................... 4 Portis v. City of Chicago, III. 613 F.3d 702 (7th Cir. 2010) ......................................................................... 33 Pottinger v. City of Miami 720 F. Supp. 955 (S.D. Fla. 1989)................................................................. 42 Ramos v. SimplexGrinnell LP 796 F. Supp. 2d 346 (E.D.N.Y. 2011), rev’d on other grounds, 773 F.3d 394 (2d Cir. 2014) ................................... 51 Raygor v. Regents of Univ. of Minnesota 534 U.S. 533 (2002) ........................................................................................ 4 Roy v. Cty. of Los Angeles Nos. CV 12-09012, 13-04416, 2016 WL 5219468 (C.D. Cal. 2016) ............................................................................................ 34 Stockwell v. City and Cty. of San Francisco 749 F.3d 1101 (9th Cir. 2014) ....................................................................... 27 Thomasson v. GC Servs. Ltd. P’ship 539 Fed. App’x 809 (9th Cir. 2013) ........................................................ 50, 51 Tibble v. Edison Int’l 729 F.3d 1110 (9th Cir. 2013), vacated on other grounds, 135 S. Ct. 1823 (2015) ................................ 46, 48 United States v. Mercado-Moreno 869 F.3d 942 (9th Cir. 2017) ............................................................. 25, 38, 56 United States v. Salerno 481 U.S. 739 (1987) ...................................................................................... 28 Veterans for Peace Greater Seattle, Chapter 92 v. City of Seattle No. C09-1032 RSM, 2009 WL 223796 (W.D. Wash. July 24, 2009) ...... 5, 13 vi Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 8 of 73 Vinole v. Countrywide Home Loans, Inc. 571 F.3d 935 (9th Cir. 2009) ......................................................................... 24 Wal-Mart v. Dukes 564 U.S. 338 (2011) ............................................................................... passim Wang v. Chinese Daily News, Inc. 737 F.3d (9th Cir. 2013) ................................................................................ 26 Will v. Michigan Dep’t of State Police 491 U.S. 58 (1989) .......................................................................................... 4 Constitutional Provisions Wash. Const. art. II, § 40 .................................................................................... 5 Wash. Const. art. VIII, § 5 .................................................................................. 5 Statutes Wash. Admin. Code § 468-30-060 ..................................................................... 5 Wash. Rev. Code § .120 ..................................................................................... 5 Wash. Rev. Code § 9A.52.080............................................................................ 7 Wash. Rev. Code § 28A.635.020...................................................................... 39 Wash. Rev. Code § 46.55.010(14) .................................................................... 39 Wash. Rev. Code § 46.55.085 .......................................................................... 39 Wash. Rev. Code § 46.55.113 .......................................................................... 39 Wash. Rev. Code § 46.55.910 .......................................................................... 39 Wash. Rev. Code § 46.61.160 ........................................................................ 6, 7 Wash. Rev. Code § 46.68.070 ............................................................................ 5 vii Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 9 of 73 Wash. Rev. Code § 47.01.031 ............................................................................ 4 Wash. Rev. Code § 47.01.260 ............................................................................ 5 Wash. Rev. Code § 47.12.063 ............................................................................ 5 Federal Regulations 23 C.F.R. § 1.23 .................................................................................................. 6 23 C.F.R. § 650 ................................................................................................. 11 Federal Rules Rule 23 .............................................................................................................. 24 Rule 23(a)................................................................................................... passim Rule 23(a)(2) ..................................................................................................... 26 Rule 23(a)(3) ..................................................................................................... 52 Rule 23(a)(4) ..................................................................................................... 54 Rule 23(b)(2) .............................................................................................. passim Other Authorities Arken, Daniel, “Atlanta Bridge Collapse: Three Arrested in Connection with Blaze,” NBC News (Mar. 31, 2017)................................... 10 Clean Water Act. 33 U.S.C. § 1342 .................................................................. 12 viii Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 10 of 73 I. INTRODUCTION The Plaintiffs’ request for class certification was properly denied, because they did not demonstrate a “well-defined” allegedly illegal policy or practice, or set of policies or practices, the constitutionality of which “can be answered in a single stroke.” As the United States Supreme Court held in Wal-Mart v. Dukes, class certification is proper only when plaintiffs show factual or legal issues that are central to all of the class claims and can be decided “in one stroke.” 564 U.S. 338, 350 (2011). In this case, Plaintiffs allege that the City of Seattle and the Washington State Department of Transportation (WSDOT) employ policies and practices to systemically and summarily destroy the property that Plaintiffs store on public property, without notice or an opportunity to avoid the destruction. But, as the district court concluded, neither the City nor WSDOT’s undisputed, written polices authorize any such thing. Rather, both policies indisputably require at least 72 hours’ notice before removal of personal property stored on public property, and storage of property that is removed for at least 70 days. These written policies do, however, authorize WSDOT and City employees to apply expedited proceedings when needed to address more emergent situations. Plaintiffs also failed to prove the existence of any “particular and sufficiently 1 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 11 of 73 well-defined” unwritten systemic practices to summarily destroy property without notice and an opportunity to avoid the destruction. See Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014) (requiring plaintiffs to show that “the class members are one in their exposure to a particular and sufficiently well-defined set of allegedly illegal policies and practices”). Thus, the district court correctly concluded that Plaintiffs did not establish commonality. They also failed to show that they had typical claims, or could serve as adequate representatives of the proposed class. Moreover, Rule 23(b)(2) allows class treatment only when “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.” In other words, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360. Here, to the extent Plaintiffs challenge Defendants’ policies and practices (whether written or unwritten) as they may be applied to any future property removal, the circumstances justifying the notice provided before the cleanup, and the disposition of the property at the cleanup, will necessarily vary according to each unique set of facts. In other words, it may be reasonable and fair to immediately 2 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 12 of 73 remove a tent that is blocking merging motorists’ ability to see the traffic they are merging onto, but such exigencies may not apply to more typical cleanup scenarios. Thus, Plaintiffs’ as-applied challenges are not amenable to class wide adjudication, because a “single injunction or declaratory judgment” could not provide constitutionally-appropriate relief to each member of the class, based on the claims alleged in this case. II. ISSUE PRESENTED Parties seeking class certification under Rule 23(a) must prove that the class members all have suffered the same injury, as a result of a violation of the same provision of law, and raise common contentions such that a single ruling will provide relief to every class member “in one stroke.” Dukes, 564 U.S. at 350. Did the district court properly deny class certification where the Plaintiffs did not offer evidence to prove they lost their property as a result of allegedly unconstitutional policies or practices to deprive them of notice or other means of preserving their property, the class members they sought to represent were moved from dissimilar locations under different circumstances, and the applicable law varies depending on the location and circumstances under which moves occurred? 3 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 13 of 73 III. STATEMENT OF JURISDICTION WSDOT 1 agrees with Plaintiffs’ statement of jurisdiction. IV. A. STATEMENT OF FACTS Homeless Encampments on State Right of Way 1. State Right of Way May Only Be Used and Accessed for Highway Purposes WSDOT is an agency of the State of Washington, and its authority is limited to “those powers either expressly granted or necessarily implied from statutory grants of authority.” Wash. Rev. Code § 47.01.031. WSDOT has the statutory responsibility to build, operate, and maintain state highways, including 1 Because Plaintiffs are suing Secretary Roger Millar in his official capacity, alleging his agency’s policies and practices are unconstitutional, Mr. Millar will be subsumed within the term “WSDOT” for ease of reading. However, as WSDOT has consistently maintained throughout these proceedings, only Mr. Millar is a proper State Defendant in this lawsuit, and then only as to the federal constitutional claims, as the State of Washington has Eleventh Amendment immunity from being sued in federal court. Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533, 541-42 (2002); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 121 (1984). Also, the State, including its agencies, is not a “person” subject to liability under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989). The Ex Parte Young exception to Eleventh Amendment immunity allows a state official to be sued for injunctive relief for violations of federal law. Ex parte Young, 209 U.S. 123, 159-60 (1908). See also Pennhurst, 465 U.S. at 105 (Ex parte Young “created the ‘well-recognized irony’ that an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment”) (quoting Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982)). 4 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 14 of 73 bridges and other structures that support state highways. Wash. Rev. Code § 47.01.260. Real property acquired by WSDOT for these purposes is referred to as “right of way.” SER 0839, ¶ 7. Within City limits, WSDOT owns a substantial amount of real property that constitutes the right of way for Interstates 5 (I-5) and 90 (I-90). SER 1799, ¶ 2. Right of way is generally purchased and funded by fuel tax proceeds, which the Washington Constitution requires be spent exclusively on “highway purposes,” such as the “construction, reconstruction, maintenance, repair, and betterment of public highways.” Wash. Const. art. II, § 40; Wash. Rev. Code § 46.68.070; SER 0840, ¶ 16. The State Constitution’s prohibition on the gift of public funds also limits what WSDOT can do with publically owned resources. Wash. Const. art. VIII, § 5; Veterans for Peace Greater Seattle, Chapter 92 v. City of Seattle, No. C09-1032 RSM, 2009 WL 223796, at * 5 (W.D. Wash. July 24, 2009). See also Wash. Rev. Code §§ 47.12.063, .120 (authorizing WSDOT to sell, lease, or exchange property only for fair market value); Wash. Admin. Code § 468-30-060. While state right of way is owned by a public agency, it is not open to the public like a park or a sidewalk. The traveled areas of I-5 and I-90 are limited 5 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 15 of 73 access highways accessible only by motorized traffic. Wash. Rev. Code § 46.61.160; SER 0839, ¶ 9. The non-traveled areas are usually completely closed to the public; they are to be accessed only by authorized WSDOT personnel and contractors performing construction and maintenance work. SER 0839, ¶ 12.2 WSDOT is responsible to the federal government for preserving the right of way free of installations or facilities that are not a part of the highway facility and are not consistent with its safe operation, maintenance, and use. 23 C.F.R. § 1.23 (requiring right of way to be “devoted exclusively to public highway purposes,” and charging state highway department with responsibility “for preserving such right of way free of all public and private installations, facilities, or encroachments . . . .”). SER 0840, ¶ 17. WSDOT also has a duty to maintain highways in a condition reasonably safe for ordinary travel. Keller v. City of Spokane, 146 Wn.2d 237, 254, 44 P.3d 845 (2002); Berglund v. Spokane Cty., 4 Wn.2d 309, 314, 103 P.2d 355 (1940). 2 There are limited exceptions, not applicable in this case, where WSDOT has arranged with local jurisdictions for pedestrian travel over WSDOT right of way. SER 0839, ¶ 13. In such situations, the area has been specifically designed and engineered to allow for safe pedestrian travel. Id. 6 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 16 of 73 Individuals occupying state right of way beyond the above-stated limited access purposes are trespassing in violation of state law. Wash. Rev. Code §§ 9A.52.080, 46.61.160; SER 0840, ¶ 15. 2. Homeless Encampments on State Right of Way Pose a Threat To Campers, the Traveling Public, and State Employees and Contractors Performing Construction and Maintenance Work WSDOT is required to maintain right of way for the benefit and safety of the traveling public. SER 1800, ¶ 3; Keller, 146 Wn.2d at 254. The presence of encampments directly on, next to, above, or below state highways pose a clear threat to the campers, traveling motorists, the employees who work on that property, and to the infrastructure itself. Right of way along the roadside of a highway is designed to permit vehicles safe travel and egress from the roadway in emergencies as well as to protect vehicles from non-highway features (e.g., guardrails to protect vehicles from steep slopes). SER 0841, ¶ 22. Individuals who camp near the travelled way are at risk of being struck by motorists who leave the highway for any reason, predictable or not. For example, on September 12, 2016, a motorist drifted off a highway off ramp and drove up onto the median into a homeless encampment, killing one of the individuals sleeping there. SER 0844-45, ¶ 39. WSDOT is also required to keep certain areas alongside state highways clear, 7 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 17 of 73 and vegetation managed, to ensure adequate line of sight for motorists. SER 0844, ¶ 37. Someone performing maintenance work in such areas would not expect to encounter a camper, and thus could inadvertently endanger that camper or themselves when mowing or otherwise clearing brush. Id. In 2008, a brush-clearing machine ran over and killed a homeless man sleeping among the vegetation on WSDOT property, because the operator did not see the camper among the dense vegetation. SER 0844, ¶ 383; see also ER 1120, ¶ 5.12; ER 1157, ¶ 97. Camping underneath highways is just as dangerous. For example, on February 27, 2017, a tanker truck crashed on I-5 just above the encampment known as “the Field,” which was scheduled for a cleanup on March 7, 2017. Campers were asked to evacuate over concerns that the truck would leak flammable liquid petroleum, which, if combined with the fires and combustible fuels in the camp below, could have led to substantial fires, property loss, and personal injury. SER 0845, ¶ 42. By way of another example, on February 9, 2017, an unanticipated landslide occurred in an area where an encampment had been located until it was recently removed, (known as part of 3 This particular incident involved a WSDOT contractor performing construction activities, but it demonstrates the danger of unexpected encounters with individuals residing on state right of way. 8 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 18 of 73 “the jungle”). SER 0845, ¶ 41; SER 1532, ¶ 5. The landslide deposited a debris field of uprooted trees, branches, and rocks over the prior encampment location that could have caused widespread personal and property loss, if the encampment was still there. SER 0845, ¶ 41. Much of WSDOT right of way used for encampments are not accessible other than by illegally crossing multiple lanes of traffic on state highways. SER 0846-408, ¶¶ 46, 49; SER 1800, ¶ 4. See also ER 1398, ¶ 10 (describing an encampment only accessible by crossing I-90). This also raises substantial safety concerns not only for those campers who are putting themselves in danger, but also those of motorists who can hit the campers, other motorists, or infrastructure trying to avoid the campers. SER 0846-48, ¶¶ 46, 49; SER 0908, ¶ 4. For example, on June 8, 2017, an individual was killed while he was crossing the I-5 ramp to I-90 on a bicycle, coming to or from an encampment. SER 0846, ¶ 44. There have been many other pedestrian-related accidents on state highways, and a number of those were likely related to individuals leaving or accessing their encampments. SER 0840-41, ¶ 20; SER 0846, ¶ 46. Additionally, homeless encampments often attract social services providers to visit, thereby also endangering their safety when visiting an encampment that cannot be safely accessed. SER 0847-48, ¶ 49. 9 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 19 of 73 People who camp at the top of ledges or slopes overlooking highways also pose dangers to themselves and the traveling public if they or their possessions were to slide, fall, or be thrown onto the state highways. SER 0841, ¶¶ 24-25. People residing alongside or above state right of way frequently cause debris and personal property items to fall or be pushed onto, or otherwise end up on the traveled portion of right of way. Id. This poses an obvious threat to the traveling public when debris falls in front of or on top of vehicles traveling at often high rates of speed. Id. Additionally, fires started in encampments can not only destroy or damage bridges and other infrastructure,4 but they also obstruct traffic. For example, on March 8, July 23, and August 3, 2017, lanes of traffic through the City had to be shut down due to poor visibility caused by encampment-lit fires. SER 0845-47, ¶¶ 43, 45, 48. Campers also damage other public resources, such as fences, locks, and parts of the overpasses. SER 0839-41, ¶¶ 14, 19-20, 25. Illegal encampments often also threaten critical infrastructure in number of less immediate, but equally potentially damaging, ways. For example, 4 See, e.g., Arken, Daniel, “Atlanta Bridge Collapse: Three Arrested in Connection with Blaze,” NBC News (Mar. 31, 2017), available at https://www.nbcnews.com/news/us-news/atlanta-bridge-collapse-threearrested-connection-blaze-n741476 (last visited July 23, 2018). 10 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 20 of 73 campers have dug into slopes underneath highways, causing cave-ins necessitating emergency repairs and repaving. SER 0840, ¶ 18. WSDOT must ensure the right of way’s slope maintains its designed grade for erosion control and engineering purposes. SER 1780, ¶ 2. Campers have also clogged critical drainage necessary to avoid wash-outs and to comply with environmental regulations. SER 1783-84, ¶ 11. Encampments have also interfered with WSDOT employees and contractors needing to access right of way to perform maintenance and construction. See generally SER 0838-40, ¶¶ 3, 4, 8-15; SER 0842-44, ¶¶ 29, 33-34; SER 1780-88; SER 1800, ¶¶ 3-5. First, individuals occupying right of way have accosted and even assaulted WSDOT personnel. SER 0843, ¶ 31; SER 0912, ¶ 21. Second, the presence of encampment structures or other items, and the campers themselves, can block or otherwise interfere with WSDOT personnel trying to perform critical inspections and maintenance, including bridge inspections and repair,5 and drainage inspections and repair designed to 5 WSDOT is required to inspect bridges biannually to comply with federal regulations. See 23 C.F.R. § 650, subchapter C (National Bridge Inspection Standards); SER 1785, ¶ 18. Critical components of each bridge must be carefully examined, including its support columns, pedestrian rails and sidewalks (if any), and expansion joints. Id. 11 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 21 of 73 avoid pollution 6 and the loss of life or infrastructure. SER 0843-44, ¶ 34; SER 1785, ¶¶ 19-20. Even where personnel can get to the drainage systems to inspect and maintain them, the drainage systems have been plugged by campers disposing of waste (human, animal, and artificial), including hypodermic needles, which create a health hazard for WSDOT employees clearing them, sometimes necessarily by hand. SER 0911, ¶ 16. The presence of debris consisting of human or animal waste, chemicals, rotting food, or drugs, needles, and other paraphernalia also poses a health hazard to personnel performing maintenance or construction, or any members of the public who find themselves on right of way. SER 0843, ¶ 32; SER 1780, ¶ 2; SER 1782, ¶ 7. Homeless encampments also obstruct WSDOT’s construction activities, including building and improving state highways, seismic retrofits and replacement of aging expansion joints. See generally SER 0754-58. Construction sites also pose numerous hazards to campers in the form of noise, heavy machinery, and fall risks, among other concerns. Id. at ¶ 2. Not being able 6 Specifically, WSDOT is required to comply with a stormwater permit issued by the Washington Department of Ecology pursuant to section 402 of the Clean Water Act. 33 U.S.C. § 1342; SER 1785 ¶ 20. 12 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 22 of 73 to remove encampments from active construction sites would prevent the development and preservation of critical infrastructure. Id. at ¶ 3. In sum, encampments on state right of way endanger occupants, motorists, WSDOT employees, and contractors, and impede WSDOT’s ability to build, inspect, and maintain important state and interstate infrastructure. 3. WSDOT Homeless Encampment Guidelines and City Rules Govern Cleanup Activities on State Right of Way Within the City of Seattle To address the damage and safety concerns posed by encampments, and to comply with its obligation to protect state highway property from installations and encroachments, WSDOT has had to remove encampments unlawfully erected on state right of way. See Veterans for Peace, 2009 WL 2243796, at *5-*6 (recognizing WSDOT’s legitimate and substantial interests in protecting its public spaces and minimizing liability). Since 2008, WSDOT has done so consistent with guidelines it developed with input from relevant stakeholders, including advocates for the homeless setting forth timing, notice, and other procedures which balance individual campers’ interests with WSDOT’s need to build, maintain, and protect critical state infrastructure. SER 0755-56, ¶¶ 4-8; SER 0844, ¶ 36; SER 0907-09, ¶¶ 2, 4; SER 1786, ¶ 5. Those guidelines generally require WSDOT to provide at least 72 hours’ notice 13 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 23 of 73 before encampment items may be removed, but recognizes that certain safety and maintenance instances warrant less notice, such as the need to address flooding or the need to remove an obstacle preventing motorists from safely merging onto the freeway. SER 0755-56, ¶¶ 4-8; SER 0908-09, ¶¶ 4-7; SER 1800, ¶ 5. The guidelines require personal property removed from WSDOT property to be stored for a minimum of 70 days, if it can be safely stored. Id. They also encourage cooperation with other governmental entities. SER 1800-01. Pertinent to this case, since 2016 and for the foreseeable future, WSDOT has largely ceased its own maintenance-related cleanup efforts in favor of providing support to the City’s coordinated response to encampments throughout the City, including on WSDOT right of way. SER 0760-61, ¶ 4; SER 0907-08, ¶ 2; SER 1801, ¶ 7. The City has promulgated comprehensive rules governing cleanups that afford equal or greater notice, outreach, and property storage measures. SER 1200-15. With respect to cleanups performed under City leadership on WSDOT property, WSDOT’s role is to dispose of the refuse left on WSDOT property after the City has provided notice, outreach, property sorting, and property storage functions. SER 0760-61, ¶ 4; SER 090708, ¶ 2. This means that the only items WSDOT disposes of have already been 14 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 24 of 73 deemed abandoned or unstorable by the City. SER 0760-61, ¶ 4. However, WSDOT maintenance continues to address encampments implicating WSDOT-specific emergent safety or maintenance issues without City involvement. SER 0908-09, ¶¶ 3-7.7 B. Proceedings Below Plaintiffs are four individuals who have lived and kept their personal belongings outside on City or WSDOT property without authorization. ER 1135; ER 1141-47, ¶¶ 34-60. They initially filed suit on January 19, 2017, challenging the City and WSDOT’s policies and practices for removing unauthorized encampments from public property under the Fourth and Fourteenth Amendments. ER 1497-1535. They immediately moved for and were denied a temporary restraining order, and have since amended their complaint twice and engaged in extensive discovery. SER 1134-1236. Following that, Plaintiffs’ motions for class certification and for a preliminary injunction were heard and denied together. ER 0002-35. Of the numerous declarations filed by Plaintiffs in support of their motions, they potentially described 32 cleanups they claimed to have violated 7 WSDOT construction contractors also continue to perform cleanups without City involvement and consistent with the WSDOT guidelines. SER 0755-56, ¶¶ 4-8. Plaintiffs have not challenged those activities in this case. 15 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 25 of 73 the Fourth and Fourteenth Amendment personal property rights of the putative class, most of which were vaguely identified and supported only by one declaration describing the cleanup. See ER 0552-969, 1240-50, 1393-1406, 1409-426; SER 1491-1505, 1527-30, 1538-42, 1799-1809. WSDOT was involved in only potentially 10 of those cleanups. SER 0765-67, ¶¶ 19-26. Of the 10 cleanups identified by Plaintiffs in which WSDOT was involved, WSDOT maintenance participated in nine of the cleanups following the City’s lead, disposing of items only after campers received notice and had an opportunity to store their belongings with the City, and the City removed any non-hazardous personal property items from unattended camp sites for storage. Id. As will be reflected in detail in the City’s materials, the City has developed thoughtful and detailed procedures for humanely dealing with unauthorized encampments on public property, including providing substantial notice whenever practicable, social services outreach, alternative housing, and storage of property. Those procedures are applied in full on all scheduled WSDOT maintenance-related cleanups, which are coordinated and led by the City. SER 0760-61, ¶ 4; SER 0907-08, ¶ 2; SER 1787, ¶ 7. When individual deficiencies have been identified, they have been addressed and improved upon. SER 0522. As described in City testimony, notices designed to provide sufficient 16 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 26 of 73 warning of a cleanup are prominently posted around an encampment and on each tent at least 72 hours (and often more) before a scheduled cleanup. SER 1145, ¶¶ 17-18. Plaintiffs submitted evidence regarding only one cleanup that was performed by WSDOT without the City’s involvement. SER 0759-83. That event was necessitated by an emergent maintenance issue caused by flooding. SER 0761, ¶ 7; SER 0921-24, ¶¶ 8, 17-21; SER 1801-02, ¶¶ 7-9. There were only two individuals, Plaintiff Osborne and her partner, illegally residing on the WSDOT property at issue, in an area where they had previously lived and left in response to a scheduled cleanup, then later returned. ER 1424; SER 0673-75, 32:16-34:15; SER 0677, 36:10-22; SER 0681, 56:7-11; SER 0921-22, ¶¶ 7-9; SER 1801-02, ¶ 9. They were asked to leave so that WSDOT could address the flooding, which had the potential to cause a washout on I-5 below. SER 0921-22. Plaintiff Osborne and her partner were afforded hours to remove their property, and only had to move their items over a fence and off of WSDOT property to avoid any disposal by WSDOT. They also had a friend come pick up what they deemed to be their most essential possessions and move them to a shelter for them. SER 0922-24. WSDOT disposed of the remaining items only after confirming with Ms. Osborne and her partner that they did not wish to keep what 17 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 27 of 73 was left on WSDOT property, several hours after they were first asked to leave. SER 0761, ¶ 7; SER 0921-24, ¶¶ 8, 17-21; SER 1791-92, ¶¶ 7-9. As this unique circumstance demonstrates, although some cleanups have had to be performed on a shorter timeframe without prior written notice, there are still measures taken to avoid loss of property, such as ensuring the individuals impacted by the cleanup have the time they need to remove their property. And storage of property is not necessary when property owners choose to take what they wish to keep, and choose to relinquish what they leave behind. After reviewing all of the evidence submitted, the trial court denied Plaintiffs’ motions for preliminary injunction and for class certification. ER 0002. While Plaintiffs made conclusory allegations of practices to summarily destroy property without notice similar to those made in their motion for temporary restraining order, the trial court concluded the evidence did not support their allegations. ER 0022-25, 0029-31. At best, Plaintiffs had identified “isolated and sporadic instances” of arguable deficiencies, not a “pattern” of unlawful conduct sufficient to impose constitutional class wide liability. See ER 0022-23, 0030-31. The court identified a number of deficiencies in 18 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 28 of 73 Plaintiffs’ evidence, including “mischaracterizations” by Plaintiffs which “troubled” the court. See ER 0023-25, 0030-31. Specifically, Plaintiffs offered several videos and photographs to support their contention that the City and WSDOT summarily destroy property. ER 0024. See, e.g., ER 0576, 0578-608, 0826, 0960. But while their videos and images may have shown tents being taken down, or items even being thrown away, they did not show that such actions were taken without prior: (1) notice, (2) outreach, (3) property sorting, and (4) storage of unabandoned, storable items. ER 0024. Noticeably absent from the declarations authenticating these materials are the time of day they were taken, and how far into the cleanup they represented. Id. See, e.g., ER 0576, 0578-608, 0826, 0960. The individual working with Plaintiffs’ counsel who recorded much of this video admitted that he often arrived later in the cleanup process to document the events, and that he did not know what kind of notice or discussions with the campers might have occurred prior to his arrival. SER 0247-49. And, when asked directly by the trial court, Plaintiffs’ counsel admitted that he could not say at what point in the cleanup process these videos and photographs were taken. ER 0048. On the question of class certification, the trial court concluded Plaintiffs failed to establish the elements of commonality, typicality, or adequacy of 19 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 29 of 73 representation as required under Rule 23(a). Recognizing that commonality turns on determining whether common questions exist that will “ ‘resolve an issue that is central to the validity of each one of the [individual class members’] claims in one stroke,’ ” the trial court found Plaintiffs failed to meet their evidentiary burden in at least two ways. ER 0010-11 (quoting Dukes, 564 U.S. at 350). First, although Plaintiffs alleged in their complaint “several notice, storage, and storage-retrieval practices Defendants allegedly engaged in, Plaintiffs’ class certification motion [did] not try to demonstrate the existence of the practices alleged.” ER 0011. The trial court found Plaintiffs’ “conclusory statement[s]” of “Defendants’ alleged unlawful practices” to be “not supported by the evidence cited.” ER 0011. Thus, unlike Parsons, Plaintiffs failed to submit sufficient proof of the existence of the systemic policies and practices alleged. 754 F.3d at 675 . Second, the five questions Plaintiffs claimed in their class certification motion to be “common to the entire proposed class also fail[ed] to satisfy commonality.” ER 0011. Those questions identified by Plaintiffs were: (1) whether Defendants have a practice and policy of seizing and destroying the personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or post-deprivation hearing, or an opportunity to retrieve vital personal property before its seizure or destruction; 20 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 30 of 73 (2) whether Defendants’ policy and practice violates Plaintiffs’ constitutional rights against unreasonable search and seizures under the U.S. Constitution; (3) whether Defendants’ custom, policy, or practice violates class members’ right to privacy under Article I, Section 7 of the Washington State Constitution; (4) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under the U.S. Constitution; and (5) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under Article I, Section 3 of the Washington State Constitution. ER 0012. See also ER 1466. The trial court found these questions not only failed to satisfy commonality “because Plaintiffs fail to present sufficient evidence of the existence of the practices alleged—which prevents the Court from determining whether the question posed will resolve issues ‘central to the validity of each one of the claims in one stroke,’ ” but also because, “at their core, all five questions merely ask whether Defendants’ conduct violates the law.” ER 0012 (citing Dukes, 564 U.S. at 349 (recitation of questions is not 21 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 31 of 73 enough to obtain class certification); M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 844 (5th Cir. 2012) (“mere allegations of systemic violations of the law . . . will not automatically satisfy Rule 23(a)’s commonality requirement”)). The trial court found typicality was lacking primarily because Plaintiffs had failed to establish any typical classwide injury—but also because they admitted to personally receiving but disregarding notices, which could become a unique focus of the litigation. ER 0013-14. The court further found Plaintiffs were not adequate representatives, primarily because of their failure to establish their claims. ER 0015. Finding Plaintiffs failed to satisfy Rule 23(a)’s requirements, the Court did not need to assess whether Plaintiffs satisfied Rule 23(b)(2), but opined that it was “likely not met,” due to Plaintiffs’ having failed to establish the existence of allegedly unlawful systemic practices. ER 0017 n.6. Plaintiffs petitioned this Court for permission to appeal solely the portion of the trial court’s order denying class certification. This Court granted Plaintiffs permission to appeal. V. SUMMARY OF ARGUMENT The district court did not abuse its discretion in denying Plaintiffs’ Motion for Class Certification. Plaintiffs belatedly identify alleged policies and practices 22 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 32 of 73 that they claim are systemic and raise common constitutionality questions sufficient to warrant certification of a Rule 23(b)(2) class. But Plaintiffs did not identify those policies and practices in the class certification proceedings below, and the Court should not address them on appeal for the first time. Plaintiffs also argue the district court erred in requiring them to provide “significant proof” of a common practice, but Plaintiffs did not oppose application of that standard below, and offer no alternative to that standard now. As to the arguments that were made below, and even considering Plaintiffs’ new arguments, the trial court acted well within its discretion to deny certification. Plaintiffs failed to demonstrate that the isolated acts they complain of, even if they happened as Plaintiffs claim, are policies or practices generally applicable to the class which raise common questions that would drive the resolution of the litigation as to the class as a whole. Moreover, Plaintiffs’ Fourth and Fourteenth Amendment claims, which are based on the standards of reasonableness and fairness, are generally case specific inquiries that depend on the circumstances of any given property seizure. Thus, final injunctive relief of the type requested by Plaintiffs should not be addressed to the class as a whole. This Court should affirm the trial court’s discretionary decision. 23 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 33 of 73 VI. STANDARD OF REVIEW Rule 23 provides district courts with broad discretion to determine whether a class should be certified and to revisit that certification throughout the legal proceedings before the court. See Armstrong v. Davis, 275 F.3d 849, 872 n. 28 (9th Cir. 2001). Accordingly, this Court reviews a district court’s order denying class certification for abuse of discretion. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009). That review is limited to determining “whether the district court correctly selected and applied Rule 23(a)’s criteria.” Id. “A court abuses its discretion if it applies impermissible legal criteria.” Barber v. State of Hawai’i, 42 F.3d 1185, 1197 (9th Cir. 1994)). See also In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953, 956-57 (2009) (“In a Rule 23(f) appeal, an appellate court must ‘limit [its] review to whether the district court correctly selected and applied Rule 23’s criteria.’ ”) (quoting Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir. 2008)). An appellate court may also sustain the court’s ruling denying class certification “on any grounds supported by the record,” as long as that basis appears “with clarity.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Inda v. United Air Lines, Inc., 565 F.2d 554, 562-63 24 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 34 of 73 (9th Cir. 1977), cert. denied, 435 U.S. 1007 (1978)); United States v. Mercado-Moreno, 869 F.3d 942, 953 (9th Cir. 2017) (“In reviewing for abuse of discretion, we may affirm the ‘district court on any ground supported by the record, even if the district court’s reasoning differs from our own.’ ”) (quoting Preminger v. Principi, 422 F.3d 815, 820 (9th Cir. 2005)). VII. ARGUMENT “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Dukes, 564 U.S. at 349 (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). “To come within the exception,” parties seeking to maintain a class action must affirmatively demonstrate” through “evidentiary proof” their “compliance with Rule 23.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (internal citation and quotation omitted). Here, because Plaintiffs were seeking certification under Rule 23(b)(2), they were required to “affirmatively demonstrate” numerosity, commonality, typicality, adequacy of representation, and that the City and WSDOT “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.” Rule 23(a) and (b)(2). Dukes, 564 U.S. at 345-46; Wang v. Chinese 25 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 35 of 73 Daily News, Inc., 737 F.3d 538 (9th Cir. 2013). The requisite “rigorous analysis” often “entail[s] some overlap with the merits of plaintiff’s underlying claim” because “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Dukes, 564 U.S. at 351 (punctuation and citations omitted). As set forth below, Plaintiffs failed to establish commonality, typicality, adequacy, and the suitability of class wide injunctive relief. A. Plaintiffs Failed To Make Contentions Common To the Class Which Would Resolve an Issue Central to the Validity of All Class Members’ Claims “In One Stroke” To meet the commonality requirement in Rule 23(a)(2), “plaintiffs’ claims ‘must depend upon a common contention’ such that ‘determination of [their] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Parsons, 754 F.3d at 675 (quoting Dukes, 564 U.S. at 350). The language of Rule 23(a)(2) is “easy to misread, since any competently crafted complaint literally raises common questions.” Dukes, 564 U.S. at 349 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009) (internal quotation marks and brackets omitted)). As explained by the Supreme Court in Dukes: Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely 26 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 36 of 73 that they have all suffered a violation of the same provision of law. . . . Their claims must depend upon a common contention— for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. (citation and internal quotation marks omitted). The decision continues: “What matters to class certification ... is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Id. (quoting Nagareda, supra, at 132). The Court must look to the elements of the class members’ claims in order to assess whether they share a common question sufficient to comply with Dukes. Stockwell v. City and Cty. of San Francisco, 749 F.3d 1101, 1114 (9th Cir. 2014). A finding of commonality “must be supported by reasoning based on the elements for establishing the proposed class’s various constitutional claims on a classwide basis.” M.D. ex. rel. Stukenberg, 675 F.3d at 844. To satisfy commonality here, Plaintiffs had to either raise a legitimate facial challenge to a formal policy or show the existence of an arguably unlawful common practice. As explained below, they did neither. 27 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 37 of 73 1. There Was No Basis To Find Commonality Based on Plaintiffs’ Facial Attacks, Because Plaintiffs Failed To Mount a Credible Facial Invalidity Challenge Plaintiffs argue that the trial court should have at least certified their facial challenges to the Defendants’ written, undisputed policies governing homeless encampment cleanups. See, e.g., Br. of Plaintiffs-Appellants at 35. Class certification strictly on the facial constitutionality of an undisputed policy or procedure may be appropriate, because the relevant inquiry would be whether the law, regulation, or policy could ever be applied consistent with the constitution. United States v. Salerno, 481 U.S. 739, 745 (1987) (requiring a showing of “no set of circumstances” under which act would be valid to sustain facial attack). However, “the district court need not inquire as to whether [a] meritless claim should form the basis of a class action.” Corbin v. Time Warner Entm’t-Adv./Newhouse P’ship, 821 F.3d 1069, 1084-85 (9th Cir. 2016). Here, the trial court rejected Plaintiffs’ facial challenges, noting that Plaintiffs failed to provide any argument as to WSDOT’s written guidelines, and concluding the City’s written rules were reasonable and lawful on their face, as they generally provided for 72 hours’ notice and storage of property for 70 days, with limited exceptions to be applied when warranted. ER 0018 n.8, 0020-21, 28 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 38 of 73 0026-28.8 Plaintiffs did not even try to show how either the City or WSDOT’s policies were invalid under “no set of circumstances” such that they stated a claim for facial invalidity. ER 0020-21 (“[C]iting to evidence that purportedly demonstrates the definitions of ‘personal property’ and ‘hazardous items’ allows Defendants a degree of discretion, does not by itself demonstrate that the exercise of that discretion is unreasonable.”), ER 0026-28. Because Plaintiffs’ facial attacks on the City and WSDOT’s written policies were without merit, they were not a valid basis for certification. Corbin, 821 F.3d at 1084-85. See also, e.g., Dukes, 564 U.S. at 353, 355. 2. Under Either the “Significant Proof” or “Substantial Evidence” Standard, Plaintiffs Did Not Establish Commonality in Their As-Applied Challenges With respect to their as-applied challenge, Plaintiffs argue that the district court subjected them to a higher standard of proof on commonality than should be required, implying a “substantial evidence” standard rather than a “significant proof” standard. See, e.g., Br. of Plaintiffs-Appellants at 4. Ultimately, the difference between “significant” and “substantial,” if any, is immaterial in this 8 Although WSDOT’s written policy was not challenged by Plaintiffs below, WSDOT’s policy similarly requires 72 hours’ notice unless case-specific circumstances require otherwise, and storage of property for 70 days. ER 1341-46. 29 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 39 of 73 case, as the trial court correctly determined that Plaintiffs failed to satisfy even a lesser standard of commonality through their amorphous commonality contentions. ER 0011-12 (finding “Plaintiffs’ class certification motion does not try to demonstrate the existence of the practices alleged,” and “Plaintiffs’ conclusory statement is not supported by the evidence cited”). For example, in their pleadings, Plaintiffs complained that notice was lacking, but when they were examined in live testimony, and even in some of their declarations, they acknowledged receipt of notice. See, e.g., ER 0014-15; ER 0558-60, ¶¶ 7-8, 13; ER 0610-12; ER 0614, ¶¶ 5, 9, 16, 23; ER 0699, ¶ 21; ER 0736, ¶¶ 6, 8; ER 0775, ¶ 5; ER 0786, ¶ 7.a; ER 0788, ¶ 8.b; ER 0791-92, ¶¶ 13 15; ER 1240-44, ¶ 7; ER 1246-47, ¶¶ 5, 7, 9; ER 1395-96, ¶¶ 3, 7-8; SER 1413-17, 1419 43:21-44:8, 50:18-51:24, 55:8-18, 179:1-8; SER 1425-26; SER 1441; SER 1450-51, 1453, 1455, 1458. Moreover, Plaintiffs’ evidence failed to provide key information needed to determine whether there was evidence of the practices they alleged. ER 0011. While Plaintiffs submitted photographic and video evidence claiming that unabandoned property was being summarily destroyed without notice or an opportunity to avoid the destruction, Plaintiffs could not even answer at what stage in the cleanup proceeding their evidence reflected. ER 0011. That is, they 30 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 40 of 73 could not deny that notice, discussions with the unhoused inhabitants, and offers of storage of storable items had already occurred before the footage they submitted purported to show workers taking down tents and disposing of them. Id.; see also ER 0048 (“And I cannot tell you specifically that one video or another encapsulates X, Y and Z time of a sweep.”); SER 0247-56. Thus, Plaintiffs’ evidence did not show the practices they alleged. In Parsons, this Court found the “breadth and consistency of class counsel’s initial evidence,” combined with the “defendants’ near-utter failure to respond to it with evidence of their own,” to be relevant factors in determining whether the evidentiary threshold for commonality was met. 754 F.3d at n.29. Here, the trial court determined that Plaintiffs’ class certification motion did not even try to “demonstrate the existence of the practices alleged,” and their “conclusory statement[s]” were inconsistent and not supported by the evidence they cited in their reply. ER 0011-12. Moreover, where Plaintiffs’ allegations were specific enough to enable a response, Defendants’ evidence undermined their allegations. See, e.g., ER 1051-52, 1054, 1057, 1059-60, 1065; SER 043840, ¶ 11-13; SER 0459-60, ¶¶ 5-7, 9-10; SER 0465, 469, 471 473, 475, ¶¶ 6-8, 26-31, 36-39; SER 0477-78, ¶¶ 40-41; SER 0491-513, 0516-20, ¶¶ 22 55, 6668, 70-72, 74-75, 80, 85, 88; SER 0761, ¶ 7; SER 0920-26; SER 1139-40, 1144 31 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 41 of 73 ¶¶ 12-14, 16; SER 1791-92, ¶¶ 7-9; SER 1801-02, ¶ 9. Considering all of the evidence, the trial court determined Plaintiffs’ evidence failed to demonstrate the existence of the widespread practices they alleged. ER 0012. The trial court’s factual findings should not be disturbed unless they are clearly erroneous. Parsons, 754 F.3d at 673. Additionally, as this Court noted in Parsons, “in all class actions, commonality cannot be determined without a precise understanding of the nature of the underlying claims.” Id. at 676. “To assess whether the putative class members share a common question, the answer to which ‘will resolve an issue that is central to the validity of each one of the [class members’s] claims,’ we must identify the elements of the class members’s case-in-chief.” Id. (quoting Stockwell, 740 F.3d at 1114 (quoting Dukes, 564 U.S. at 350)). The key questions in the Fourth and Fourteenth Amendment claims 9 in the context of homeless encampment cleanups are: (1) whether property is 9 WSDOT and Mr. Millar have consistently maintained their Eleventh Amendment immunity from having state constitutional claims heard against them in federal court. See SER 0007-15 and note 1, supra. Additionally, Plaintiffs made no arguments on their state constitutional claims, including how they might differ from their federal constitutional claims, in either their Motion for Class Certification or their Motion for Preliminary Injunction. Accordingly, WSDOT’s brief focuses only on the federal constitutional claims, but joins the City’s arguments if the Court entertains Plaintiffs’ belated attempt to argue why their state constitutional claims warranted class certification. 32 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 42 of 73 abandoned (which is necessary to determine if there is a property interest), and (2) whether the seizure of the property is reasonable, in light of all of the individual circumstances surrounding that seizure, including the government’s needs in removing the property, the amount of notice provided before the seizure, the opportunity to avoid the seizure, and the opportunity to retrieve one’s belongings even after the seizure. Lavan v. City of Los Angeles, 693 F.3d 1022, 1030 (9th Cir. 2012). Consistent with Lavan, several lower courts have found that encampment removals are constitutional so long as the government provides reasonable notice ahead of time, and a reasonable opportunity for retrieval of property that is removed. See Martin v. City & Cty. of Honolulu, No. 15-00363, 2015 WL 5826822, at *4 (D. Haw. Oct. 1, 2015); Cobine v. City of Eureka, No. C 16-02239, 2016 WL 1730084, at *4 (N.D. Cal. May 2, 2016); Acosta v. City of Salinas, No. 15-cv-05415, 2016 WL 1446781 (N.D. Cal. Apr. 13, 2016). Reasonableness is an individualized inquiry that often depends on a number of dynamic factors. “Because reasonableness is a standard rather than a rule,” and because one unhoused individual’s circumstances differ from another’s, class certification of a Fourth Amendment claim for unreasonable seizure is often inappropriate. See Portis v. City of Chicago, III., 613 F.3d 702, 705 (7th Cir. 2010). 33 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 43 of 73 See also Roy v. Cty. of Los Angeles, Nos. CV 12-09012, 13-04416, 2016 WL 5219468, at *12 (C.D. Cal. 2016) (finding commonality absent on Fourth Amendment claim challenging timing of probable cause hearing, because “an individualized inquiry dependent on the facts of the case” would be required to determine if probable cause hearing provided within 48 hours was “reasonable”). Amici Civil Procedure Professors cite to a number roadblock checkpoint cases for the proposition that “[i]n the Fourth Amendment context, courts have long recognized the propriety of class certification where the government has conducted searches or seizures based on impersonal, blanket rules rather than individualized suspicion.” Br. of Civil Procedure Professors as Amici Curiae in Support of Plaintiffs-Appellants (Reversal) (hereinafter Br. of Civil Procedure Professors), Dkt. 19-2, at 8 n.4 (citing City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Norwood v. Bain, 166 F.3d 243 (4th Cir. 1999); McGann v. Ne. Illinois Reg’l Commuter R.R. Corp., 8 F.3d 1174 (7th Cir. 1993). That is exactly WSDOT’s point. The seizures of persons in those cases were based on “impersonal, blanket rules,” not on individualized circumstances, and thus the constitutionality of generalized roadblock checkpoint policy would decide all of the class’s claims. 34 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 44 of 73 Here, each alleged property disposition is based on the character, location, and dangerousness of the item. ER 1320-39, 1341-46. The reasonableness of any given seizure cannot be determined based on looking at WSDOT or the City’s policies alone, because neither command that an item be summarily destroyed. There is no “impersonal, blanket rule” to automatically remove and dispose of items, but rather policies aimed at preserving personal property when possible through prior notice and an opportunity for the owners to remove it prior to the cleanup, property sorting and storage at the time of the cleanup, and even delivery of the property to a location requested by the owner following a cleanup. The individuals performing the cleanup are required to exercise judgment in what can be safely stored, and what cannot. SER 0129-30. See Lavan, 693 F.3d at 1030 (requiring balancing of City’s reasons for taking the property against owner’s possessory interest to determine reasonableness). This is not an “impersonal, blanket rule” like the cases cited by amici. Similar to the Fourth Amendment reasonableness standard, “[p]recisely what procedures the Due Process Clause requires in any given case is a function of context.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998); Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (“[D]ue process, unlike some legal rules, is not a technical conception with a fixed 35 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 45 of 73 content unrelated to time, place and circumstances . . . [it] is flexible and calls for such procedural protections as the particular situation demands.”) (internal quotations omitted). In a different case, the Supreme Court recently directed this Court on remand to reconsider whether certification was appropriate on a procedural due process claim, because “ ‘[d]ue process is flexible’ and it ‘calls for such procedural protections as the particular situation demands.’ ” Jennings v. Rodriguez, 138 S. Ct. 830, 851-52 (2018) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Again, the cases cited by the Amici in support of certification on the procedural due process claim are inapposite. Br. of Civil Procedure Professors at 8 n.5 (citing Murphy v. Piper, No. CV 16-2623, 2017 WL 4355970, at *10 (D. Minn. Sept. 29, 2017); Sourovelis v. City of Philadelphia, 320 F.R.D. 12, 22 (E.D. Pa. 2017); K.W. ex rel. D.W. v. Armstrong, 298 F.R.D. 479, 486 (D. Idaho 2014), aff’d, 789 F.3d 962 (9th Cir. 2015); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1203 (N.D. Cal. 2017)). In each of those cases, the district court had found that plaintiffs had met their burden to establish “systemic issues” with notice and opportunity to challenge the deprivation. In Murphy, however, the court also recognized that “questions regarding the adequacy of particular individual notices that may have been received are not the types of questions capable of 36 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 46 of 73 classwide resolution given the fact-specific inquiry needed to evaluate such questions and claims.” Murphy v. Piper, No. CV 16-2623, 2017 WL 4355970, at *10 (D. Minn. Sept. 29, 2017). There, because the claim was that the defendant’s undisputed policies and practices failed to even require sufficient notice, certification was appropriate. Id. In Sourrovelis, commonality was easily satisfied where the critical issue in the case was whether civil forfeiture procedures on their face provided sufficient due process protections, and the only argument opposing commonality was that individual class members may not have taken advantage of “patently inadequate” procedural protections available to them. 320 F.R.D. at 22. Similarly, the court in K.W. ex rel. D.W. found commonality satisfied where the plaintiffs made system wide challenges to “generic” methods and forms. 298 F.R.D. at 486. Finally, in Saravia, the court found that plaintiffs met their burden to show a “common policy or practice,” unlike the case at hand. 280 F. Supp. 3d at 1203-04. In this case, the district court determined that Plaintiffs failed to establish the policy or practice they were claiming: denial of notice and an opportunity to avoid a seizure. Plaintiffs’ challenges amounted to individual instances in which 37 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 47 of 73 they felt the notice was inadequately executed. But as the court noted in Murphy, challenges to individual notices “are not the types of questions capable of classwide resolution.” 2017 WL 4355970, at *10 n.7. Additionally, the process due before or following any particular property deprivation in the context of removing unauthorized homeless encampments will be driven by the specific factors surrounding it, negating the appropriateness of class wide relief. 10 The wide variety of locations at which these cleanups may occur, the reason for the seizure, and other circumstances may yield material differences in determining the reasonableness of the seizure, or the processes needed before or following any such cleanup. WSDOT properties are state highways. State highways are not safe or otherwise suitable places for people to live and store property, and such properties are marked accordingly with “no trespassing” signs, fencing, and other deterrents. SER 1781-82, ¶ 5. The need of WSDOT to continue operation of critical state infrastructure and ensure the safety of the public may bring different factors to be considered and weighed than on other “public” properties. 10 The trial court did not specifically address this argument, but it was made in the Defendants’ briefing. See, e.g., SER 1484-85 (arguing Plaintiffs’ claims require individualized inquiries). Thus, the Court can affirm on this ground. Mercado-Moreno, 869 F.3d at 953. 38 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 48 of 73 The presence of personal property stored illegally on public property may also implicate different laws based on the character and location of the property, and, accordingly, the legality of its removal or destruction is not susceptible to classwide determination or resolution. For example, Plaintiffs’ class, as written, would include persons living outside who store their vehicles outside on publically-owned property. ER 1478-79. Vehicles are subject to vehicle impoundment laws governing notice, removal, retrieval, and destruction. See Wash. Rev. Code §§ 46.55.010(14), .085, .113, .910.11 Plaintiffs’ proposed class would also include individuals who have taken up residence on public school property or WSDOT property designated for highway construction projects, although Plaintiffs provided no evidence with respect to cleanups occurring in any of those scenarios. See also Wash. Rev. Code § 28A.635.020 (law governing unauthorized presence on school district property). There are 11 Plaintiffs misunderstood WSDOT’s concern when they responded that “individuals living in vehicles” are not members of the proposed class. ER 0544 (citing ER 1456-60). First, Plaintiffs’ proposed class definition do not clearly exclude even those individuals living in vehicles, if they are also living outside. ER 1456-57. As written, the class definition could encompass persons living outside on public property in their vehicles, just as they encompass persons living outside on public property in their tents. Even if Plaintiffs intended to exclude such individuals by clarification in their Reply, ER 0544, they do not suggest persons with vehicles kept on public property who otherwise meet the class definition would not be covered by this putative class. 39 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 49 of 73 likely numerous other laws that one blanket injunction could not fully anticipate and take into account. Seeking to liken their case to Parsons—and in an effort to distance themselves from their own evidentiary deficiencies—Plaintiffs try to characterize their claims as ones based on the general “substantial risk of harm,” rather than showing that Defendants’ policies result in unreasonable property seizures. But unlike the “substantial risk of serious harm” claim grounded in the “deliberate indifference standard” set forth in the Eighth Amendment and at issue in Parsons, there is no analogue as to Fourth Amendment unreasonable seizure and Fourteenth Amendment procedural due process claims at issue in this case. See, e.g., Amador v. Baca, 299 F.R.D. 618 (C.D. Cal. 2014), on reconsideration, No. CV-10-1649-SVW, 2014 WL 10044904 (C.D. Cal. Dec. 18, 2014), at *4-*5 (rejecting class certification and holding “the Fourth Amendment admits no analogous considerations” to the Eighth Amendment claim at issue in Parsons). In the Fourth and Fourteenth Amendment claims for injunctive relief, Plaintiffs still have to show policies and practices that will likely subject them to unreasonable property deprivation, or a property loss without sufficient notice and an opportunity to avoid the deprivation. It is not enough to show that class 40 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 50 of 73 members are likely to be subjected to cleanups, or even property deprivations, generally. The crucial question to evaluate the constitutionality of any given property seizure is whether that particular seizure was reasonable in light of the need for the seizure, the notice provided before the seizure, and the opportunity to avoid destruction of the property. Lavan, 693 F.3d at 1030, 1032. At least some of those factors will be different with respect to each alleged property deprivation. To paraphrase Dukes, “it cannot be said that examination of all of the class members’ claims for relief will produce a common answer to the crucial question, ‘Why [was my property destroyed]?’ ” See Mothersell v. City of Syracuse, 289 F.R.D. 389, 396 (N.D. N.Y. 2013) (rejecting commonality for Fourth Amendment illegal search claims where there was no overarching policy to conduct criminal strip searches without probable cause). The answer to that question, and whether that answer is constitutionally sufficient, will necessarily differ based on the location, condition, and status of the property. This case also differs from the non-binding district court decisions Plaintiffs assert the trial court ignored, only one of which was issued after the Dukes decision. Br. of Plaintiffs-Appellants at 30-31 (citing Lyall v. City of Denver, 319 F.R.D. 558, 564 (D. Colo. 2017); Lehr v. City of Sacramento, 259 F.R.D. 479, 483 (E.D. Cal. 2009); Kincaid v. City of Fresno, 244 F.R.D. 41 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 51 of 73 597, 603 (E.D. Cal. 2007); Justin v. City of Los Angeles, No. CV0012352LBGAIJK, 2000 WL 1808426, at *3 (C.D. Cal. Dec. 5, 2000) (finding it “likely that a class can be properly certified” in granting a TRO); Pottinger v. City of Miami, 720 F. Supp. 955, 960 (S.D. Fla. 1989); Joyce v. City and Cty. of S.F., No. C-93-4149 DLJ, 1994 WL 443464, at *9 (N.D. Cal. Aug. 4, 1994)). The defendants in Lehr only challenged numerosity, not commonality. 259 F.R.D. at 481. In any event, the common legal issue found was retrospective only: “whether the City has taken and destroyed the property of homeless individuals.” Id. at 483. In Kincaid, the plaintiffs “alleged[d] that the policy treats all homeless persons and their property the same, and each raid is conducted in a nearly identical fashion.” 244 F.R.D. at 602. Justin was not a class certification decision, but an order granting a temporary restraining order, and defendants did not dispute plaintiffs’ evidence that their property was immediately seized and destroyed when they left momentarily. 2000 WL 1808426, at *3, *10. In Pottinger, the common course of conduct alleged was not providing for the homeless and arresting people simply for being homeless in a narrowly defined geographic area. 720 F. Supp. at 956-57. Finally, in Joyce, the common course of conduct was being arrested or cited for conditions related to homelessness, and the challenge was specifically to a 42 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 52 of 73 defined program (the “Matrix Program”) employed by the City. 1994 WL 443464, at *1. These pre-Dukes decisions are of little help in evaluating whether the trial court here correctly exercised its discretion to find significant proof of a common practice or policy lacking. The plaintiffs in Lyall, the only post-Dukes case, provided evidence regarding five specific cleanup events, supported by detailed declarations that described a consistent practice of summary destruction upon arrival to the site at each cleanup, without warning. Lyall v. City of Denver, 319 F.R.D. 558, 561, 564 (D. Colo. 2017). Here, Plaintiffs claim varying practices. The district court had good reason not to adopt the outcomes of those non-binding decisions. Because Plaintiffs’ claims were not likely to yield common answers applicable to an entire class of homeless individuals living in the City, and every cleanup that may affect them, the trial court properly found commonality lacking. 3. The Court Need Not Consider Plaintiffs’ New Commonality Arguments on Appeal Additionally, Plaintiffs have completely changed the questions they contend have common answers apt to drive the resolution of their lawsuit. Because those arguments were not made to the district court in favor of class certification, they should not be considered here. 43 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 53 of 73 At the trial court, they identified the so-called common questions amorphously as follows: (1) whether Defendants have a practice and policy of seizing and destroying the personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or post-deprivation hearing, or an opportunity to retrieve vital personal property before its seizure or destruction; (2) whether Defendants’ policy and practice violates Plaintiffs’ constitutional rights against unreasonable search and seizures under the U.S. Constitution; (3) whether Defendants’ custom, policy, or practice violates class members’ right to privacy under Article I, Section 7 of the Washington State Constitution; (4) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under the U.S. Constitution; and (5) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under Article I, Section 3 of the Washington State Constitution. ER 0012 (quoting ER 1466). See also ER 0082-89, 0539-51, 1478-96. The trial court found these nebulous questions and contentions “fail to satisfy commonality.” ER 0012. As the Supreme Court held in Dukes, commonality is not satisfied simply by determining whether all members of the putative class have suffered a violation of the same provision of law. ER 12 (citing Dukes, 564 U.S. at 349-350). Such a contention 44 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 54 of 73 gives no cause to believe that all their claims can be productively litigated at once. Their claims must depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Dukes, 564 U.S. at 350. Likewise, the assertion of those potential common questions is not enough—Dukes requires Plaintiffs to prove the existence of the common practices alleged to be unconstitutional that impact all members of the class. Dukes, 564 U.S. at 350; Parsons, 754 F.3d at 674, 683. Here, the trial court found Plaintiffs failed to present competent evidence of the existence of the broad, generalized practices they alleged. ER 0012. On appeal, Plaintiffs abandon the five questions raised below as the basis for commonality, instead arguing for the first time that they have identified four more specific City practices and policies that are allegedly unconstitutional and apply to all members of the putative class, including the supposed: (1) “official policy authorizing destruction of wet property;” (2) “official policy authorizing seizure or destruction of property without notice when the site is deemed a ‘hazard’ or ‘obstruction;’ ” (3) “practice of destroying property without a warrant or adequate opportunity to argue against the destruction, and having a storage system that is so inadequate it amounts to a complete deprivation of property;” and 45 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 55 of 73 (4) “practice of providing inadequate, misleading and confusing notice of sweeps, if notice is provided at all.” Br. of Plaintiffs-Appellees at 28. But these alleged practices were not identified in Plaintiffs’ Motion for Class Certification. See ER 1478-1496. In fact, the words “wet,” “hazard,” and “obstruction” appear nowhere in that Motion, or even in Plaintiffs’ Reply. See ER 0539-51, 1478-1496 (reply identifying alleged common questions as “whether Defendants have taken and destroyed [putative class members’] property and whether this conduct violates the federal and state constitutions”), ER 0082-89 (oral argument transcript regarding class certification). And, although Plaintiffs initially maintained a warrant was required before unauthorized encampments could be removed from public property, they abandoned that position in their later class certification and preliminary injunction briefing, and at oral argument. ER 0036-106, 0401-20, 0539-51, 1038-74. To the extent these arguments are properly before this Court, Plaintiffs misrepresent the undisputed language of the policies they describe, as more fully explained in the City’s briefing. 12 12 Since these are alleged City policies, WSDOT does not attempt to separately describe or defend them here, but joins the City’s arguments in full. 46 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 56 of 73 “[A]rguments not raised in the district court ordinarily will not be considered on appeal.” Tibble v. Edison Int’l, 729 F.3d 1110, 1126 (9th Cir. 2013) (citing Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004), to decline to address class certification arguments not made in the first instance to the trial court), vacated on other grounds, 135 S. Ct. 1823 (2015). “ ‘This rule serves to ensure that legal arguments are considered with the benefit of a fully developed factual record, offers appellate courts the benefit of the district court’s prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal.’ ” Id. (quoting Dream Palace, 384 F.3d at 1005). The “narrow” exception to waiver is when “ ‘the issue is purely one of law, does not affect or rely upon the factual record developed by the parties, and will not prejudice the party against whom it is raised.’ ” Id. But here, the existence and extent of Plaintiffs’ newly-identified “policies” are questions of fact, and highly prejudice the Defendants, who would have offered evidence and made arguments in response. Since it was their burden to demonstrate to the trial court how all of the factors of Rule 23(a) were met, and Plaintiffs did not mention—let alone prove— the alleged common contentions they now raise, they should not be permitted to do so for the first time on appeal. 47 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 57 of 73 4. Plaintiffs Did Not Oppose Application of the Significant Proof Standard Below, Nor Do they Offer an Alternative Standard Plaintiffs devote a substantial portion of their appellate brief arguing that the trial court improperly applied the “significant proof” standard to their commonality contentions. Br. of Plaintiffs-Appellants at 2, 4, 24-36. But, despite the fact that the Defendants argued for a significant proof standard below, Plaintiffs did not address that standard in their motion, reply, or in oral argument. SER 1393, 1472, 1488; ER 80-105, 539-51. Instead, Plaintiffs cited the case applying the significant proof standard, Dukes, throughout their briefing, and argued their evidence was “extensive.” ER 0539-51, 1478-96. Thus, Plaintiffs’ argument, raised for the first time appeal, should not be considered. Conservation Nw. v. Sherman, 715 F.3d 1181, 1188 (9th Cir. 2013) (holding Court will generally not consider “arguments on appeal that were not presented or developed before the district court”); Tibble, 729 F.3d at 1126. Further, although Plaintiffs argue against application of the “significant proof” standard now, they do not explicitly state what standard should apply. Plaintiffs do acknowledge that “threadbare allegations” are not enough, and seem to imply that “substantial evidence” should govern. Br. of Plaintiffs-Appellants at 1-2, 4, 29, 35. However, Plaintiffs do not explain the difference between “significant proof” and “substantial evidence.” 48 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 58 of 73 5. Dukes Requires “Significant Proof” Even if the argument is properly before this Court, the significant proof standard was properly applied in this case. In Dukes, the Court required significant proof of the existence and applicability of a common policy or practice in order for a class to be certified on that basis. 564 U.S. at 353, 355. The Court’s reasoning, which was not limited to discrimination or damages claims, is equally applicable here. See id. at 342, 360. At issue in Dukes was whether the plaintiffs had established a common practice or policy they alleged to be discriminatory—that is, whether they established that the practice they complained of existed and applied to the entire class they sought to represent. Id. at 353-59. After first determining that Wal-Mart’s undisputed written employment policy was not facially discriminatory, the Court went on to decide whether the plaintiffs had established proof of any other policies or practices they claimed to be discriminatory that applied on a classwide basis. Id. at 353-59. On that issue, the Court required plaintiffs to bring “significant” or “convincing” proof that the disputed practices plaintiffs challenged actually existed, and were actually being applied on a classwide basis (i.e., that they were common to the class). Id. The Court reasoned that class certification requirements are more than “mere 49 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 59 of 73 pleading standard[s],” that a “party seeking class certification must affirmatively demonstrate” and “prove” that all the certification elements have been met, and that “rigorous analysis” of the issues and evidence is required. Id. at 350 (emphasis added). The Court found certification improper because the plaintiffs’ evidence regarding commonality was flawed and unreliable. Id. at 353-59. Plaintiffs allege the significant proof standard should be limited to employment discrimination cases challenging discretionary practices, but nowhere in Dukes does the Supreme Court suggest the standard only applies in that context. Additionally, after Dukes, numerous courts have applied the significant proof standard to cases challenging a policy or practice. See, e.g., Thomasson v. GC Servs. Ltd. P’ship, 539 Fed. App’x 809, 810 (9th Cir. 2013) (unpublished); Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 497-98 (7th Cir. 2012); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011); Moussouris v. Microsoft Corp., No. C15-1486, 2018 WL 3328418 at *23-*25 (W.D. Wash. Jun. 5, 2018) (equating “significant” and “substantial” proof); Hoyte v. Dist. of Columbia, __ F.R.D.__, No. 13-CV-00569, 2017 WL 3208456, at *6 (D. D.C. July 27, 2017); Burnell v. Swift Transp. Co. of Ariz., LLC, No. EDCV 10-809-VAP, 2016 WL 2621616, at *2 (C.D. Cal. May 4, 2016); 50 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 60 of 73 Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 81 (D.D.C. 2015); Holmes v. Godinez, 311 F.R.D. 177, 217 (N.D. Ill. 2015); Amador, 299 F.R.D. at 624, on reconsideration, No. CV-10-1649-SVW, 2014 WL 10044904 (C.D. Cal. Dec. 18, 2014) (denying renewed motion to expand scope of injunctive class); Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, 356 (E.D.N.Y. 2011), rev’d on other grounds, 773 F.3d 394 (2d Cir. 2014). These are not just employment discrimination claims. See, e.g., Hoyte, __F.R.D. __, No. 13-CV-00569, 2017 WL 3208456, at *6 (due process with respect to property seizure); Holmes, 311 F.R.D. at 217 (disability accommodation); Amador, 299 F.R.D. at 624 (searches); Thomasson, 539 Fed. App’x at 810 (call monitoring); Jamie S., 668 F.3d at 498 (IDEA education plan); Burnell, 2016 WL 2621616, at *2 (wage and hour); Parker, 99 F. Supp. 3d at 81 (breach of contract); Ramos, 796 F. Supp. 2d at 356 (prevailing wage). The significant proof standard was properly applied here, where Plaintiffs claim the City and WSDOT’s practices and applications of their policies result in constitutional deprivations. Having rejected Plaintiffs’ facial challenges, ER 0020-21, 0026-28, the trial court determined the relevant question as to commonality was whether Plaintiffs could establish a widespread practice of summarily destroying property and failing to give notice (the practices they 51 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 61 of 73 alleged to be common in their motion for class certification). ER 0010-11. Since Plaintiffs’ class certification motion did “not try to demonstrate the existence of the practices alleged,” instead offering only “conclusory statement[s]” “not supported by the evidence cited,” ER 0011, the trial court found Plaintiffs failed to provide sufficient proof, noting its far inferiority to the “significant proof” submitted in Parsons, 754 F.3d at 681-84. ER 0011. Thus, under the significant proof or any other standard, the trial court properly determined commonality was not met in this case. B. Plaintiffs Did Not Establish Their Claims Are Typical of the Class They Seek To Represent Just as they failed to establish common questions that could be answered as to the entire class and drive the resolution of the class claims, Plaintiffs also failed to show that their claimed injuries are similar to those of the class, and result from the same, allegedly injurious course of conduct. Rule 23(a)(3) requires that “the claims of the representative parties are typical of the claims or defenses of the class.” Parsons, 754 F.3d at 685. Part of typicality is “whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon, 976 F.2d at 508. Commonality and typicality “tend to merge,” and both are intended to help determine whether “maintenance 52 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 62 of 73 of a class action is economical,” and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” General Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Here, having failed to establish a systemic policy to destroy property without notice to the property owners or a chance for them to avoid the destruction, Plaintiffs also failed to establish that their injuries represent classwide injuries. The trial concluded “Plaintiffs have failed to demonstrate their risk of injury and the proposed class’s risk of injury derives from the same, injurious course of conduct.” ER 0014. Contrary to Plaintiffs’ broad allegations of a systemic notice failures causing property loss, the Plaintiffs’ own accounts of property loss were not due to lack of notice, but due to choices they made to not read or heed the notices, and actions to intentionally or inadvertently leave items behind. See, e.g., ER 0558-60, ¶¶ 7-8, 13; ER 1241, ¶ 7; ER 1395-1396, ¶¶ 3, 7-8; SER 1413-17, 1419 43:21-44:8, 50:18-51:24, 55:8-18, 179:1-8; SER 1425-26, 23:7-16, 24:1-8; SER 1437-38 22:5-23, 24:18-22; SER 1461-62, 1464-66, 1469 13:18-14:6, 14:10-16, 44:21-45:6, 50:4-14, 96:1-20. Plaintiff Lisa Hooper admitted to receiving and disregarding notices of planned cleanups. SER 1454 72:11-25, 83:17-83, 1472. Plaintiffs Hooper, 53 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 63 of 73 Willis, and Washington testified to effectively ignoring provided notices, and instead waiting to even start removing their items until after expiration of the notice period when cleanup actions began. SER 0735-36, 72:24-73:4; SER 142829, 53:2-54:18; SER 1452, 72:11-25; ER 0558-60, ¶¶ 7-8, 13. Plaintiff Hooper also testified that she intentionally leaves items behind to be disposed of by the City or WSDOT. SER 1448, 1455, 43:18-24, 86:13-21. These sorts of admissions severely undermine Plaintiffs’ contention that they have suffered and will suffer the same injury (property destruction without notice and an opportunity to avoid the destruction) as the class they seek to represent. The trial court was justifiably concerned that these sorts of admissions would become the focus of the litigation. ER 0014-15. These facts also suggest prosecuting this case as a class action would not be an economical or efficient means of adjudicating the claims. See Falcon, 457 U.S. at 157 n.13. In sum, the trial court also acted within its discretion to find typicality lacking. C. Plaintiffs Did Not Establish they Are Adequate Representatives of the Class They Seek To Represent Plaintiffs were also required, and failed, to establish that they would be adequate representatives of the class they seek to represent. Rule 23(a)(4). The trial court found this basis lacking primarily because Plaintiffs failed to 54 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 64 of 73 establish commonality and typicality. ER 16 (citing Amchen Products, Inc. v. Windsor, 521 U.S. 591, 625-26 n.20 (1997) (“The adequacy-of-representation requirement ‘tend[s] to merge’ with the commonality and typicality criteria of Rule 23(a) . . . .”) (quoting Falcon, 457 U.S. at 157 n.13)). The trial court reasoned: [H]aving failed to provide significant proof of the practices Plaintiffs allege they are exposed to, Plaintiffs cannot rightfully seek to represent a proposed class that it has not demonstrated it shares common questions with. Put another way, having chosen to ignore or not follow notices provided at all, Plaintiffs are not adequate representatives of a class claiming notices are inadequate. Nor can Plaintiffs serve as adequate representatives considering they fail to establish their claims are typical of the proposed class’s claims. ER 0016. In their brief on appeal, Plaintiffs do not even acknowledge these reasons stated by the trial court as the court’s rationale for finding adequacy of representation lacking, instead focusing on only secondary factors examined by the court. Br. of Plaintiffs-Appellants at 48-55. But even as to those secondary reasons, the trial court legitimately noted questions about some of the Plaintiffs’ abilities to represent a class where their goals for this lawsuit (i.e., to “stop the sweeps” entirely) might diverge with those actually identified in the lawsuit (i.e., to acknowledge that property may be removed, and sometimes even disposed of, 55 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 65 of 73 but to ensure appropriate notice is provided prior to property removal and disposal). ER 0016-17. D. Plaintiffs Failed To Satisfy Rule 23(b)(2) Because One Injunction Could Not Address Reasonableness and Fairness with Respect To All Removals or Disposals of Unauthorized Property on State Right of Way This Court should also affirm the class certification decision because Plaintiffs failed to show the appropriateness of one injunction that would address the alleged notice and property storage deficiencies, even if proven, on a class wide basis. The Court may affirm on any ground argued below, even if the trial court did not decide it. Hanon, 976 F.2d at 508; Mercado-Moreno, 869 F.3d at 953. See also SER 1486-87. Because Plaintiffs failed to establish a specific potentially unconstitutional practice that affects all putative class members which could be remedied by an injunction, certification pursuant to Rule 23(b)(2) was correctly denied. A class may be certified under Rule 23(b)(2) only if: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Rule 23(b)(2) (emphasis added).“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the 56 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 66 of 73 class.” Dukes, 564 U.S. at 360. To warrant certification under (b)(2), the conduct must be “such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. at 360. Here, the same fact-specific nature of Plaintiffs’ claims that defeats commonality also defeats the appropriateness of a classwide injunction. See Jennings, 138 S. Ct. at 851-52 (remanding to Court of Appeals to reconsider whether certification under Rule 23(b)(2)was proper for a Due Process claim, because “ ‘[d]ue process is flexible’ and it ‘calls for such procedural protections as the particular situation demands’ ”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Plaintiffs did not establish a policy or practice that WSDOT or the City employed to systemically dispose of items stored on WSDOT or City property without notice, an opportunity to remove the property, or the ability to retrieve unabandoned, unhazardous property that the owners were unable to move themselves during the notice period. To the contrary, WSDOT and the City have policies that require notice and property storage, and Plaintiffs acknowledged receiving notice, though they raised objections with the content or implementation of specific notices. In other words, Plaintiffs complained about individual instances where they believed WSDOT or the City did not correctly follow their policies. Plaintiffs did not establish that the City and 57 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 67 of 73 WSDOT have “acted or refused to act on grounds generally applicable to the class,” or that “final injunctive relief” would be appropriate. There is no common course of conduct that could be addressed by a classwide injunction. Even considering Plaintiffs’ more specific challenges newly raised on appeal, none of them are susceptible to a blanket, classwide injunction. The reasons why certain cleanups may be performed with less notice than others, or why some items are disposed, and others may be stored, is dependent on facts that often differ with each cleanup activity. For example, an encampment that is blocking merging motorists’ ability to see the highway they are merging onto may be considered emergent and removed immediately. See, e.g., SER 0762-63, ¶¶ 8-12. Likewise, a need to address flooding that, left unchecked, could washout the highway below necessitates immediate action. SER 0761, ¶ 7; SER 0842, ¶ 29; SER 0908-09, ¶ 4. Even when no prior notice is provided at all, there is no property deprivation, and thus no constitutional concern, when the occupants are given as much time as they need to remove their items. See, e.g., SER 0921-22, ¶ 8; SER 0924, ¶ 21. Additionally, while non-hazardous property is stored, the City is not able to store property that may pose a health and safety risk to its employees or would damage the other property the City is safeguarding on behalf of campers. SER 0489-90, ¶¶ 13-17. Making this determination 58 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 68 of 73 necessarily requires some exercise of discretion on the part of the worker who is charged with sorting and storing property. Evaluating the reasonableness of a seizure or fairness of a taking should take into account those numerous varying factors, including the reason for the cleanup, other laws governing the properties at issue (such as vehicle impoundment laws), the notice given (and needed by the particular recipient), the personal property owner’s actions in response to the notice, the relative safety concerns involved with sorting and storing property, and more. It is impracticable to assume that one injunction would sufficiently contemplate all of the circumstances which may govern the reasonableness of a removal of unauthorized property off of state right of way. The overly broad injunction proposed by Plaintiffs in this case only reinforces why this case does not meet the criteria for class certification. SER 1506-08. Rather than specify the amount of notice Plaintiffs advocate should be given before cleanup operations, or propose specific improvements to the forms of the notices, Plaintiffs seek an injunction that altogether precludes WSDOT and the City from removing property illegally stored on property, no matter how much notice is given, unless the property poses an “immediate threat to public health or safety” (or the property is abandoned, evidence of a crime, or contraband). SER 1506-08. Neither the Fourth nor Fourteenth Amendments 59 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 69 of 73 require that. Lavan, 693 F.3d at 1032 (“Because homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment the City must comport with the requirements of the Fourteenth Amendment’s due process clause if it wishes to take and destroy them.”), 1030 (prohibiting seizure and destruction “with impunity”). Plaintiffs’ failure to even speak to an adequate amount of notice required before a cleanup in their proposed injunction may be the best indication of their ultimate goal of this lawsuit. See also, e.g., SER 1424, 1427, 15:14-18, 28:12-15, (named Plaintiff repeatedly asserting that her goal of this lawsuit is to “stop the sweeps”); SER 0263-64, 29:9-30:16. VIII. CONCLUSION The trial court was well within its discretion to decide that class is not the most efficient means for adjudicating Plaintiffs’ claims. This Court should affirm the district court’s decision denying class certification so that the case may proceed on the merits. 60 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 70 of 73 RESPECTFULLY SUBMITTED this 3rd day of August, 2018. ROBERT W. FERGUSON Attorney General /s/ Alicia O. Young ALICIA O. YOUNG, WSBA #35553 MATTHEW D. HUOT, WSBA #40606 Assistant Attorneys General Attorneys for WSDOT Appellees 61 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 71 of 73 STATEMENT OF RELATED CASES There are no known related cases pending in this Court. 62 Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 72 of 73 Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-35053 Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option): This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. The brief is 13,179 words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the longer length limit authorized by court order dated The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2 (a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32 (f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6). This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2 (c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). Signature of Attorney or s/ Alicia O. Young Unrepresented Litigant Date Aug 3, 2018 ("s/" plus typed name is acceptable for electronically-filed documents) (Rev.12/1/16) Case: 18-35053, 08/03/2018, ID: 10966325, DktEntry: 35, Page 73 of 73 9th Circuit Case Number(s) 18-35053 NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator). ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Aug 3, 2018 I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) s/ Alicia O. 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