[00:00:00] Speaker 01: Morning, Your Honors, and may it please the Court. [00:00:02] Speaker 01: My name is Angelo Calfo, and I represent the appellants, the plaintiffs below in this case. [00:00:09] Speaker 01: Your Honors, it was in June of 2020 that the city of Seattle exceeded control of a portion of the Capitol Hill neighborhood. [00:00:19] Speaker 01: Police officers were not allowed to go into that portion of the neighborhood. [00:00:22] Speaker 01: It was about a 12-block portion of the neighborhood. [00:00:26] Speaker 01: and it was referred to as the chop zone. [00:00:29] Speaker 01: Police were not permitted to go in there except in very unusual circumstances. [00:00:33] Speaker 01: Firefighters had the same kinds of restrictions even as fires were burning in Cal Anderson Park. [00:00:41] Speaker 01: And essentially the public safety function of government was removed from this area. [00:00:49] Speaker 01: After the city essentially created this zone because it was cordoned off by the barriers that it provided on multiple occasions, [00:00:57] Speaker 01: The city took several actions that fueled a dangerous and lawful environment that had a serious and devastating impact on the plaintiffs. [00:01:06] Speaker 03: That's why they filed the... Can economic harm be the type of serious and dangerous harm? [00:01:14] Speaker 03: I can't find a case in our circuit that talks about serious harm as being merely economic harm. [00:01:23] Speaker 01: Yes, Your Honor. [00:01:25] Speaker 01: I think the first starting point from my perspective is that corporations do have due process rights, so regardless of what harm follows... That's not really my question. [00:01:34] Speaker 03: My question is whether or not mere economic harm can rise to the level of the type of serious harm that we've talked about in some of our other cases. [00:01:42] Speaker 01: The answer is yes, Your Honor. [00:01:43] Speaker 01: There is one case that did find that, and it was... [00:01:48] Speaker 01: Interestingly, the city cited a earlier case that was provided by this district court. [00:01:53] Speaker 01: It was LLC Railroad in the Sacramento. [00:01:56] Speaker 01: I think it was in federal court in Sacramento. [00:01:58] Speaker 04: And I can find a site for your honor. [00:02:03] Speaker 04: state-created danger can apply solely to economic harm? [00:02:07] Speaker 01: I have no appellate authority on that, Your Honor. [00:02:09] Speaker 01: There is none in the Ninth Circuit. [00:02:10] Speaker 01: There is one district court opinion that did find that economic harm qualifies. [00:02:14] Speaker 04: Did you find any outside of the Ninth Circuit? [00:02:17] Speaker 01: I did not, Your Honor. [00:02:18] Speaker 04: So you are basically asking us to decide for the first time that economic harm alone [00:02:27] Speaker 04: could trigger a state-created danger, correct? [00:02:30] Speaker 01: I guess I am an essential owner. [00:02:31] Speaker 01: But on the other hand, it does follow from the fact that corporations do have due process rights. [00:02:37] Speaker 01: And then the question becomes, why would we distinguish between citizens and businesses? [00:02:42] Speaker 01: Citizens can be harmed violently. [00:02:45] Speaker 01: Corporations can't. [00:02:47] Speaker 03: But what we had here was very serious harm, which was the potential... I think that there is a scenario in which a business, a corporation, and I think there's a difference between saying that the corporation could never bring this claim. [00:03:00] Speaker 03: My question, and if I understand Judge McKeown's question, it's not one about whether you can bring this claim in the first instance. [00:03:05] Speaker 03: It's not a standing question. [00:03:07] Speaker 03: It's whether or not under what you have to prove as an element of your claim, it rises to the level of seriousness. [00:03:15] Speaker 03: So there could be a scenario in which a business suffers serious physical harm such as damage to its property or something that is more than sort of the loss of business. [00:03:28] Speaker 03: sort of the economic harm that I think you're alleging in this case. [00:03:31] Speaker 01: Yes, Your Honor. [00:03:32] Speaker 01: So I guess I'm wondering what would be the policy reason why we'd want to disregard government action that causes serious harm to a business as opposed to an individual, which seems to me that we should be protecting both businesses and individuals. [00:03:44] Speaker 03: Maybe if you could talk a little bit about what the policy reasons are behind this doctrine in the first place, because [00:03:49] Speaker 03: sort of the state created danger doctrine as I understand it and from remembering my days in law school which was a long time ago admittedly sort of these cases arose under this notion of physical danger that is presented to say a child who you know falls into a ditch and is severely injured or somebody who's shot so Maybe you can talk about the public policy behind why we would extend the doctrine to a merely [00:04:16] Speaker 01: I think because we should protect businesses who are subjected to being placed in a more dangerous position than others. [00:04:23] Speaker 05: So did the City actually place them in a more, affirmatively place them in a more dangerous situation? [00:04:30] Speaker 05: Affirmatively. [00:04:31] Speaker 05: Affirmatively. [00:04:31] Speaker 05: What did the City do affirmatively? [00:04:33] Speaker 04: As opposed to omissions. [00:04:35] Speaker 01: Well Your Honor, I think there's a wide variety of affirmative actions and I'll start with [00:04:40] Speaker 01: providing barriers. [00:04:42] Speaker 01: They not only left behind the barriers that were, you know, when they abandoned the police precinct, but then several days later they provided bigger concrete barriers that had plywood sheaths on them so that the chop protesters could put graffiti on them. [00:05:00] Speaker 04: And was that for all the businesses? [00:05:02] Speaker 04: Was that a damage to your client that they had graffiti on barriers? [00:05:05] Speaker 01: Well, Your Honor, it created a lawless environment that encouraged vandalism. [00:05:09] Speaker 01: Our clients' tables outside the restaurant were turned over. [00:05:12] Speaker 01: The windows were broken. [00:05:14] Speaker 01: There were threats to the residents of the Hugo properties. [00:05:17] Speaker 01: They blocked access to the parking lot. [00:05:20] Speaker 01: They blocked access to the streets. [00:05:22] Speaker 05: Did they put these barriers around the park or just in front of your clients? [00:05:28] Speaker 01: Well, Your Honor, that, I think, goes to whether there were particularized danger to them. [00:05:33] Speaker 01: And I think in the, and I'm sort of jumping around here and I think a lot of these concepts involve the same facts. [00:05:40] Speaker 01: But let's talk about that. [00:05:42] Speaker 01: It seems to us that you could look at the particularized danger issue on a number of different levels. [00:05:48] Speaker 01: One level would be that what the city did was targeted to the folks who lived in the 1111 East Olive building, including Omobop. [00:05:59] Speaker 01: The city placed dumpsters right outside their door in large dumpsters that blocked the street that went into their property, blocked their parking garage. [00:06:08] Speaker 01: They were adjacent to the Cal Anderson Park where the city encouraged a massive tent encampment. [00:06:19] Speaker 04: go to the dumpsters, I guess, or the toilets. [00:06:23] Speaker 04: I mean, was there deliberate indifference vis-a-vis your client, or was this a reasoned decision that we have a situation up here in the chop zone and we've got to have some trash and toilet options? [00:06:37] Speaker 04: I mean, where is the deliberate indifference in that? [00:06:41] Speaker 01: Well, Your Honor, I think the deliberate indifference is that when you're [00:06:44] Speaker 01: When the city officials went onto the property, they knew that there were businesses and individuals in the apartment building on 11th and Olive. [00:06:53] Speaker 01: And they said, well, we're going to create an epicenter of this occupation on 11th and Olive. [00:07:00] Speaker 01: We're going to put large dumpsters down. [00:07:02] Speaker 01: We're going to put sanitary services there. [00:07:04] Speaker 04: I understand all that, but, you know, there's some obviously there were public safety concerns and there was public health concerns as a result of this. [00:07:13] Speaker 04: gathering or, you know, conflagration up at the Cal Anderson Park, but when the city decides they're gonna, they have to go somewhere. [00:07:22] Speaker 04: You're not saying that the city should have just disregarded the health concerns, right? [00:07:27] Speaker 01: Your Honor, I think this is a theory that is not in our complaint, that they were doing this for some other reasons, and I'll [00:07:33] Speaker 04: I'll note that when they show some delivered indifference, I mean, they put it next door, then you'd say, well, maybe those people can complain, but we can't. [00:07:42] Speaker 01: Well, your honor, how about the fact that the city, the mayor went to the Hugo properties manager and the Hugo properties manager said, this is what's happening to my property. [00:07:52] Speaker 01: Okay. [00:07:53] Speaker 01: I can't get into the parking garage. [00:07:55] Speaker 01: Our residents are being threatened. [00:07:58] Speaker 01: People are walking around with guns because no police officers are around. [00:08:02] Speaker 04: Isn't that indifferent? [00:08:05] Speaker 04: There are so many potential theories here. [00:08:08] Speaker 04: Let me go to that police theory. [00:08:10] Speaker 04: So in a way, [00:08:14] Speaker 04: You're saying that there's an abdication of policing, and I read that not directly. [00:08:20] Speaker 01: I don't actually say that, Your Honor. [00:08:21] Speaker 01: I think what I'm saying is there was a decision made by the police to remove public safety from that particular area, which different- Well, I mean, okay, abdication maybe too. [00:08:34] Speaker 04: but they made a decision to go from a more aggressive policing to a more passive one to a degree. [00:08:42] Speaker 01: That's not our theory in the complaint, Your Honor. [00:08:44] Speaker 04: No, what's your theory? [00:08:45] Speaker 01: The theory in the complaint is they made an affirmative decision to remove all public safety function except in the most egregious circumstances like a mass casualty. [00:08:53] Speaker 01: We're not going to go in. [00:08:54] Speaker 03: So I read in your complaint at ER 50 to 52, your allegation is that the city knew about the danger, [00:09:01] Speaker 03: kept its own employees out of chop for their own safety, and ignored plaintiffs' pleas for help. [00:09:06] Speaker 01: Yes, Your Honor. [00:09:07] Speaker 01: They did all that and everything else we put in the complaint. [00:09:10] Speaker 04: Yes. [00:09:11] Speaker 04: So there's a couple cases come to mind. [00:09:13] Speaker 04: One, Supreme Court in Descheney talks about you have kind of a non-policing policy here if we're going to do what you say in your complaint. [00:09:26] Speaker 04: But this sort of guarantee of minimal security and safety was rejected in DeShaney. [00:09:32] Speaker 04: What is your response to that? [00:09:34] Speaker 01: Well, in DeShaney, what the court said is the state did nothing to create the danger. [00:09:38] Speaker 04: Right. [00:09:39] Speaker 01: We have an opposite situation here. [00:09:40] Speaker 04: Well, they said there's no affirmative right to governmental aid. [00:09:43] Speaker 01: Right. [00:09:43] Speaker 01: And there's not. [00:09:44] Speaker 01: We've got to look at it. [00:09:45] Speaker 04: There's not. [00:09:45] Speaker 04: So you're then saying, oh, but there's no right, but then they added these barriers and toilets and things. [00:09:57] Speaker 04: then created a danger? [00:10:00] Speaker 04: Well, Your Honor, again, I think it's... You're mixing and matching the state-created danger with your problem of, I can't get in because you put these dumpsters and toilets nearby my front door. [00:10:13] Speaker 01: I mean... Well, I think maybe... I don't know quite... You know, Your Honor, I think we are jumping around from different theories, but these facts all relate to deliberate indifference. [00:10:22] Speaker 01: state-created danger and particularized danger. [00:10:25] Speaker 04: Well, but I think we have to analyze each of those claims separately. [00:10:28] Speaker 04: So we've established that no one has ever, at least no circuit court nationwide has ever said economic damage alone would give you a state-created danger. [00:10:42] Speaker 04: But if you didn't have the state-created danger theory, you have other theories. [00:10:48] Speaker 01: Yes, well, I do have a nuisance theory, yes, Your Honor, and we do have the takings theory. [00:10:53] Speaker 01: And I, you know, I have not, I did not, well, on the nuisance theory, Your Honor, I'm going to argue an en banc decision of this court that found that the statute in question, nuisance, was a three-year statute. [00:11:06] Speaker 01: I don't know what more strongly... The state courts seem to have a different view. [00:11:11] Speaker 01: Right. [00:11:11] Speaker 01: Well, I don't know that they did, Your Honor, because the only case that they're arguing is this Lewis versus [00:11:16] Speaker 01: I think it was County of Lewis, County of Lewis case. [00:11:19] Speaker 01: And I read that case this morning and it's a negligence. [00:11:23] Speaker 01: based theory. [00:11:24] Speaker 01: And the other cases that they cite are all negligence-based theory. [00:11:27] Speaker 01: Any time where the facts relate to an intentional nuisance, the courts call for a three-year statute. [00:11:34] Speaker 03: I don't need to hang your hat on that. [00:11:36] Speaker 03: I mean, there's also, in my view, the equitable tolling, the American pipe tolling, I think, also is a good argument. [00:11:44] Speaker 03: And I read Campo as convincing evidence that the court would adopt American pipe tolling. [00:11:50] Speaker 01: I agree, Your Honor. [00:11:50] Speaker 01: I mean, the reasoning behind Campo applies 100% to the American Empire. [00:11:54] Speaker 03: So is there a reason why we should decide it one way or the other? [00:11:57] Speaker 03: I mean, maybe tell us what your preference is if we were to decide this issue, with the result being that... That's a hard one, Your Honor. [00:12:04] Speaker 04: I win either way, so... What about certifying to the Washington Supreme Court? [00:12:10] Speaker 01: We could do that, but Your Honor, again, I don't know why we need to do that because Skokomish already decided the issue and it was an en banc decision. [00:12:18] Speaker 01: But yes, the other option which I'd be happy to accept would be to have the Supreme Court... What's the theory of your nuisance claim? [00:12:27] Speaker 01: The theory of the nuisance claim is everything that we've said the state did that created the danger that we think is a subset of... Public nuisance? [00:12:35] Speaker 01: Yes. [00:12:36] Speaker 05: Or a private nuisance. [00:12:37] Speaker 01: Well, Your Honor, that wasn't actually something that was dealt with below. [00:12:42] Speaker 01: But I think it could be characterized as either. [00:12:44] Speaker 01: Is that an honest question? [00:12:46] Speaker 01: Yes, it is. [00:12:46] Speaker 01: I think it was a private nuisance in the sense that if they targeted that particular building by creating the dangers around it and resulting in vandalism. [00:12:55] Speaker 05: What they did was for the whole area, correct? [00:12:58] Speaker 05: I mean, they just put potty toilets or whatever in front of your client's business. [00:13:05] Speaker 05: They put them around the park. [00:13:08] Speaker 05: Well, that's true, Your Honor, but they put those borders, the concrete border rails throughout the park. [00:13:15] Speaker 01: Well, again, you know, again, I think we're bouncing around. [00:13:18] Speaker 05: No, no, no, I'm talking about, you know, but here's the thing. [00:13:21] Speaker 05: You said it could be a private nuisance. [00:13:23] Speaker 03: Counsel, I'm going to put some time on your clock so that you can actually get your full sentence out and we can give you enough time. [00:13:30] Speaker 03: Yes, Your Honor. [00:13:30] Speaker 01: Thank you. [00:13:31] Speaker 03: Go ahead and try to answer Judge Pais' question. [00:13:36] Speaker 01: Your Honor, when it comes to whether it's a private or public nuisance, I think it was both. [00:13:41] Speaker 01: I think it's probably the best answer because it was private in the sense it was directed toward that building. [00:13:46] Speaker 01: It was public in the sense that the city blocked off that 12-block area. [00:13:51] Speaker 01: I'm sorry, Your Honor. [00:13:52] Speaker 05: No, I was just going to say, if it was directed at that building, how did this nuisance, whether it's private or public, damage the building? [00:14:00] Speaker 01: It damaged the, it was a nuisance in the sense that it blocked the residents access to the building. [00:14:08] Speaker 01: It created a threatening environment, a lawless environment in which, you know, the residents were scared and needed to leave or shorten their lease. [00:14:16] Speaker 01: For Omobop, the deliveries couldn't come into the building. [00:14:22] Speaker 01: I mean, they basically had to close. [00:14:23] Speaker 01: The windows were broken. [00:14:26] Speaker 01: Customers were threatened. [00:14:27] Speaker 01: I mean, it's a pretty serious You know, let's just why is it such I don't believe that it's fair to say that where the city has cordoned off a 12-block area and did all the things that we've alleged in the First Amendment complaint that that is not a discrete and identifiable group of people and [00:14:49] Speaker 01: that were subjected to the wrongful conduct of the city. [00:14:53] Speaker 01: Thousands of people in the Hernandez versus City of San Jose case were shuffled into a group of protesters that hurt 20 of them. [00:15:03] Speaker 01: In this case, essentially what the city did is endorse, authorize, support, help thousands of protesters and shove them in Cal Anderson Park right to our clients. [00:15:16] Speaker 01: So it's the same concept. [00:15:18] Speaker 03: Okay, Council, we're gonna hear from your friend on the other side, but I'll put four minutes on the clock. [00:15:23] Speaker 01: Yes, Your Honor, thank you. [00:15:24] Speaker 03: Thank you. [00:15:36] Speaker 00: Excuse me. [00:15:38] Speaker 00: Good morning, Your Honors. [00:15:39] Speaker 00: May it please the Court. [00:15:41] Speaker 00: Shane Kramer, Brian K. Blaten-Pasner on behalf of the City of Seattle. [00:15:45] Speaker 00: I'd like to address the issues that you spoke to my colleague about in order. [00:15:50] Speaker 00: First, the Court's correct that no one has identified any state-created danger case that recognizes purely economic harms. [00:15:58] Speaker 00: And I think that you can trace that back to the entire purpose behind the state-created danger doctrine, as Your Honors recognized. [00:16:07] Speaker 00: It starts with DeShaney, recognizing that the liberty interest that is at issue in this narrow, narrow exception from substantive due process is, quote, the freedom from unjustified intrusions into personal security, a personal liberty interest, and Wood, the First Ninth Circuit case, to adopt it here. [00:16:25] Speaker 00: Again, recognizing the deliberate indifference to a passenger's, quote, interest in personal security. [00:16:32] Speaker 00: Kennedy, too, individual's liberty interest in personal security. [00:16:36] Speaker 00: Patel changes it slightly. [00:16:38] Speaker 00: Patel recognizes that it's the due process right to bodily integrity. [00:16:42] Speaker 00: And in Palook, another Ninth Circuit case, recognizing that it's the person's interest in personal security and bodily integrity, liberty rights that belong to individuals. [00:16:53] Speaker 00: Plaintiffs have not, or appellants have not, cited any authority that would call for the expansion of that. [00:17:00] Speaker 00: And in fact, their substantive due process claims that they did cite it, including specifically the San Bernardino case, makes clear that [00:17:08] Speaker 00: individuals can have different substantive due process rights than corporations who would broadly have the same type of rights, but some only apply to individuals, not corporations. [00:17:19] Speaker 00: And that's the same thing. [00:17:21] Speaker 05: Do we need to decide that issue in order to? [00:17:24] Speaker 03: In order to... What's your best case that you can cite us to for the proposition that there should be a distinction made between the due process rights that corporations enjoy versus the rights of individuals for purposes of this doctrine? [00:17:41] Speaker 00: I think it's any of these, and I don't know if that's an acceptable answer, but in DeShaney. [00:17:47] Speaker 00: I mean, DeShaney makes clear that it is carving out something very precise. [00:17:51] Speaker 00: And even in the 1900 railroad case, [00:17:54] Speaker 00: There, the court says, okay, we'll accept this. [00:17:58] Speaker 00: But then goes on to say, you don't have a state created danger case because what was an issue there was clearing out a homeless encampment. [00:18:06] Speaker 00: And the state created dangers that were alleged were giving them trash receptacles, giving them water, giving them supplies. [00:18:12] Speaker 00: The same exact type of things that are being alleged here to create a state created danger. [00:18:17] Speaker 00: And I think the conclusion of that, Your Honor, is with Polanco. [00:18:22] Speaker 00: Polanco recognizing that this string of Ninth Circuit cases implicitly require a bodily, a harm to bodily integrity, personal security that rises to a very severe level, one that property damage, lost profits just don't mean. [00:18:40] Speaker 00: In terms of the nuisance, where I'd like to turn next because you're, oh, go ahead, Your Honor, because Your Honors were interested in that. [00:18:47] Speaker 03: Before you turn to the next issue, what do you make of the dicta in Sinclair that indicates [00:18:55] Speaker 03: that Capitol Hill business owners were appreciably closer to meeting the particularly standard that our precedent required? [00:19:02] Speaker 00: I think the most important part of that dicta is that they make no holding with respect to Hunter's Capitol, that they are not taking a position one way or the other as to whether or not Judge Zilli got it right in that case. [00:19:17] Speaker 00: In light of Sinclair, there are a couple of statements in Sinclair that are really important and that we really think are determinative here. [00:19:26] Speaker 00: One of them is the statement at page 684 in describing the types of dangers, the generalized dangers that CHOP presented. [00:19:36] Speaker 00: The court says, quote, the alleged dangers in CHOP were of unchecked lawlessness and rampant crime affecting everyone. [00:19:44] Speaker 00: There's nothing unique to the types of harms that were alleged in the complaint here that didn't affect the public generally. [00:19:53] Speaker 03: And then... Yeah, but I think what this language is really talking about is for the particularized issue, not so much the issue about whether or not business owners would be able to... I read that dicta to imply that perhaps that panel of the court, had they been presented with an issue of a business owner, might have actually found that their [00:20:14] Speaker 03: but for the particularized nature of the harm they could bring economic harm claims under this doctrine. [00:20:22] Speaker 00: But the harms that were alleged in Sinclair [00:20:25] Speaker 00: are the same harms that are alleged here. [00:20:27] Speaker 00: They are harms that affected allegedly businesses, visitors, workers, employees, without any particularity whatsoever. [00:20:38] Speaker 00: Anybody who came in contact with CHOP was exposed to danger. [00:20:43] Speaker 00: That's the bottom line of the complaint here and the complaint in Sinclair. [00:20:48] Speaker 00: The other piece though that [00:20:50] Speaker 00: The initial hunters capital court didn't have in front of it because it's in Claire clarified this is that unlike the traditional Ninth Circuit state created danger cases. [00:21:02] Speaker 00: Chop was, quote, neither specific nor immediate nor of limited range or duration. [00:21:08] Speaker 00: It's not the type of harm that you endanger that your typical state created danger cases in this circuit have recognized. [00:21:17] Speaker 00: And here, Judge Zilley was, again, correct because [00:21:22] Speaker 00: the duration that plaintiffs are alleging is even broader than in Sinclair. [00:21:26] Speaker 00: They not only say that for the three weeks the chop existed, we were harmed. [00:21:31] Speaker 00: They say, actually, you cleared chop, an encampment started, and so our harms lasted all the way through December of 2020. [00:21:39] Speaker 00: So it's even broader and more amorphous than the Ninth Circuit was presented with in Sinclair. [00:21:46] Speaker 00: And so that'd be another way to distinguish that dicta. [00:21:49] Speaker 00: In terms of the nuisance issue, with all due respect, the panel or the en banc got it wrong on Skokomish. [00:21:58] Speaker 00: It was not a well-reasoned dicta. [00:22:02] Speaker 04: It was... Well, it didn't relate to anything in that case, right? [00:22:05] Speaker 04: Right. [00:22:06] Speaker 04: So then we go and we take a look at the Washington Court of Appeal cases. [00:22:11] Speaker 04: And I think there's three or four of those. [00:22:13] Speaker 04: We've got two out of Division II, Lang and Wallace. [00:22:20] Speaker 04: One out of Division One, Mayor, and then there's Burlington Northern. [00:22:24] Speaker 00: So how do you square all those? [00:22:30] Speaker 00: They all go back and say, even in Bradley. [00:22:32] Speaker 00: I mean, it's an older decision, but it's a Supreme Court decision. [00:22:36] Speaker 00: And all of the courts that have interpreted it, including several of the district court cases that we cite too, they rely on Bradley to say, Bradley maintains a two-year statute of limitations for nuisance. [00:22:47] Speaker 00: And the notion that there's a difference between intentional nuisance and negligent nuisance, that is not a distinction that is recognized in the case law. [00:22:58] Speaker 00: My colleague cites, too. [00:23:00] Speaker 00: cases that are asserting a separate claim for negligence to real property and Wallace deals with this specifically and says, you know, that's it. [00:23:10] Speaker 03: Why can't we look at Campo as convincing evidence that the court would adopt American pipe and tolling? [00:23:16] Speaker 00: I think there are lots of reasons. [00:23:20] Speaker 00: One is, as Judge Julie correctly noted, the Supreme Court did explicitly decline to adopt it. [00:23:28] Speaker 05: Well, it didn't say that. [00:23:30] Speaker 05: Yeah. [00:23:31] Speaker 00: OK. [00:23:31] Speaker 00: That it didn't apply. [00:23:32] Speaker 05: It didn't say that. [00:23:33] Speaker 05: It couldn't have applied it. [00:23:34] Speaker 05: There's no need for us. [00:23:35] Speaker 05: Right. [00:23:35] Speaker 00: No need to address that. [00:23:36] Speaker 00: Because it's an associational standing case. [00:23:38] Speaker 03: And then it went on to equitably toll the statute of limitations for reasons consistent with American pipe. [00:23:47] Speaker 00: It went on to develop its own test. [00:23:50] Speaker 03: And I think- That looks just like American pipe tolling. [00:23:54] Speaker 00: With all due respect, it doesn't at all. [00:23:56] Speaker 00: And that was going to be my next point. [00:23:58] Speaker 00: The court very easily could have said, we're going to adopt American pipe style tolling for associational standing cases, which would have meant that for the entire period of time that the associational standing case was going on, [00:24:16] Speaker 00: Statute limitations doesn't run for that entire period of time because that's what American pipe is American pipe is you just don't count the time until between it's just told it's told for that entire period but the Washington Supreme Court didn't want to do that because there are several Washington State Supreme Court cases that say Washington's tolling rules are stricter than federal [00:24:39] Speaker 00: That's the Fowler case and the Inray Fowler case, which are two different Fowlers. [00:24:46] Speaker 00: And so that's why in Camp O, or it's one of the reasons, or it's indicated why in Camp O, they don't just do that. [00:24:56] Speaker 00: Instead, they latch it onto and create a very precise, nuanced, and narrow [00:25:05] Speaker 00: tolling exception for the circumstances only in Campo. [00:25:08] Speaker 03: My difficulty is that if we go back and look at the Court of Appeals decision in Campo that adopts Fowler and then the Supreme Court rejects that and applies equitable tolling, how can we say that the Court of Appeals decision is what we ought to be looking at for purposes of knowing that tolling doesn't apply? [00:25:28] Speaker 00: because I mean, I think Judge Dilley's point was well reasoned that it didn't reverse and it is the only court of intermediate level that weighs in on this at all. [00:25:42] Speaker 03: And if you say that we're... Even if its decision is undermined by the Supreme Court's decision. [00:25:47] Speaker 04: I mean, that's the question, isn't it? [00:25:49] Speaker 04: We have the Court of Appeal flat out where they declined to apply American pipe. [00:25:55] Speaker 04: Now we come up to the Washington Supreme Court [00:25:59] Speaker 04: And it doesn't apply American pipe and then the question is, well, why not? [00:26:04] Speaker 04: But what does it do? [00:26:05] Speaker 04: That's what we're left with, right? [00:26:07] Speaker 00: And it does something different. [00:26:08] Speaker 00: And I take this from a different angle, which is the Ninth Circuit's precedent on these tolling doctrines. [00:26:14] Speaker 00: And I pointed to the Clemens case. [00:26:17] Speaker 00: And I have a pin site in some place. [00:26:20] Speaker 00: It's dealing with cross-jurisdictional tolling, another equitable tolling doctrine. [00:26:25] Speaker 00: And they say, [00:26:26] Speaker 00: For statutes of limitation, those are important issues of state policy. [00:26:33] Speaker 00: We're not going to predict what a state would do. [00:26:37] Speaker 05: That just counsels that we ought to certify it to the Washington Supreme Court. [00:26:41] Speaker 00: I think the question that you would certify would be a complicated one. [00:26:45] Speaker 00: I actually think that it counsels in favor of affirmance. [00:26:50] Speaker 05: You could write it pretty easy. [00:26:53] Speaker 05: Question? [00:26:54] Speaker 05: You could, but I'm going to complicate it. [00:26:56] Speaker 04: Can we let him answer the why? [00:26:59] Speaker 00: Yeah. [00:27:00] Speaker 04: Why you think it would be complicated to certify because of the nature of the question? [00:27:05] Speaker 00: Sure. [00:27:06] Speaker 00: And this was an issue that was not raised in the appellant's opening brief. [00:27:09] Speaker 00: We addressed it in our response. [00:27:10] Speaker 00: They touched on it in reply. [00:27:12] Speaker 00: Cross-jurisdictional tolling. [00:27:14] Speaker 00: So you actually have three levels of tolling here. [00:27:17] Speaker 00: You have American Pipe, which is federal claims, federal court. [00:27:22] Speaker 00: You have what they're asking to be done, which is for the Washington State Court to adopt an American pipe style tolling for state class actions in state court. [00:27:34] Speaker 00: That is the only thing that would have been even addressed at all in Campo. [00:27:38] Speaker 00: It was a state law claim in state court. [00:27:41] Speaker 00: What we have here is would Washington State accept tolling in a federal [00:27:52] Speaker 00: in a federal class action and that is called cross-jurisdictional tolling. [00:27:57] Speaker 00: That's not cross-jurisdictional tolling. [00:28:01] Speaker 00: According to Clemens it is. [00:28:02] Speaker 05: So here we have in the federal court, we have a prior class action that was not certified. [00:28:08] Speaker 05: The absent class members come over and they file another case and that's what we have here. [00:28:14] Speaker 05: So we have two federal class actions. [00:28:18] Speaker 05: in play. [00:28:19] Speaker 05: Our second one is not a class action. [00:28:23] Speaker 03: Simply to ask, what would the Washington Supreme Court do with respect to tolling? [00:28:28] Speaker 00: And that is the precise question in Clemens and there are three district court cases that I would point you to because they explain this far better than I just did. [00:28:37] Speaker 00: The Centaur convertible case that we cited, the Ford case that we cited, and the Martin case. [00:28:43] Speaker 00: The cross-jurisdictional element is applying state law statute of limitations to class actions in federal court that were dismissed in what you do with the follow-on case. [00:28:59] Speaker 00: And all of those cases go through the [00:29:01] Speaker 00: detailed lengthy policy reasons why you don't adopt cross-jurisdiction? [00:29:08] Speaker 05: My understanding is that our general rule is that if the Washington Supreme Court has not decided the issue or clearly indicated what it would do if the issue were before it, we can look to state to the intermediate court of appeal decisions. [00:29:23] Speaker 05: Okay, fine. [00:29:25] Speaker 05: Here, the one that really seems to apply is Campo by the State Court of Appeal. [00:29:29] Speaker 05: You look at that and you look at their reasoning on this where they say, you know, American pipe doesn't apply because this was a representative action. [00:29:41] Speaker 05: And then they go on and say, well, even if it did apply, the key differences, the key thing is that under traditional tolling in Washington law, there has to be bad faith by the defendants, right? [00:29:54] Speaker 05: That's key. [00:29:56] Speaker 05: to tolling, equitable tolling in Washington, so one of the criteria. [00:30:00] Speaker 05: Okay, so then it goes, that case, Campo goes to the Washington Supreme Court, and they say, okay, we don't have to decide equitable tolling, but what they do adopt this unique tolling situation for this representational action, and it looked like they really wanted to give these plaintiffs a chance to pursue their claims, which they had won on [00:30:23] Speaker 05: in the state trial court. [00:30:25] Speaker 05: And they came up with this unique tolling situation or rule to deal with that case. [00:30:35] Speaker 05: And the reasons that they give are the same reasons that the US Supreme Court gave for adopting American pipe tolling. [00:30:46] Speaker 05: And the other thing is what's significant is there's no need for bad faith. [00:30:53] Speaker 00: Can I take a couple of seconds to respond? [00:30:58] Speaker 00: Bad faith does remain a very important element. [00:31:01] Speaker 05: Element of equitable tolling in Washington. [00:31:03] Speaker 00: But what you also had in Campo and what was extremely present in the court went out of its way to note it was diligence. [00:31:12] Speaker 00: Before the Supreme Court had even issued its mandate from the case getting rid of associational standing, the plaintiffs had already filed their class action here [00:31:25] Speaker 00: The plaintiffs have known about this case. [00:31:28] Speaker 00: They're represented by the same council. [00:31:30] Speaker 00: They had the entire loss, the Hunter's capital lawsuit to join. [00:31:35] Speaker 00: They could have intervened. [00:31:36] Speaker 00: They didn't. [00:31:37] Speaker 00: They sat for 11 months after the party settled that lawsuit and then finally too late. [00:31:43] Speaker 00: brought this claim after the statute of limitations had to hold. [00:31:47] Speaker 00: And so there's no diligence. [00:31:49] Speaker 00: And that is certainly a factor in any test that the Washington Supreme Court would adopt. [00:31:56] Speaker 03: Thank you, Your Honor. [00:32:05] Speaker 01: Your Honor, I wanted to start with the Campo decision. [00:32:10] Speaker 01: The policy considerations that led the Washington Supreme Court to find that tolling existed in that case, which wasn't a class action, apply to class actions. [00:32:23] Speaker 01: And I think when you read the Campo decision, the policy issues, they translate identically. [00:32:30] Speaker 04: And the word left with, they didn't apply. [00:32:33] Speaker 04: They had the opportunity to apply. [00:32:35] Speaker 04: American Pipe, the Court of Appeal, explicitly declined to do that and they didn't do it here. [00:32:44] Speaker 04: So what you're asking us really to say is, but we should apply American Pipe, right? [00:32:52] Speaker 04: And I'm kind of hard pressed to figure out how to do that in light of the wording of the Washington Supreme Court. [00:33:00] Speaker 01: Yes, Your Honor. [00:33:01] Speaker 01: The reason, when I read the Campo decision, what I hear them say is that this isn't a class action, so we don't need to decide American Pipe. [00:33:09] Speaker 01: It's the wrong kind of case. [00:33:11] Speaker 03: And the reasoning that they provide are consistent with American Pipe, but not American Pipe, because it's not a class action. [00:33:16] Speaker 03: They say it's to advance the goals of adjudicative efficiency and justice and to avoid individual filings that would burden our courts with the multiplicity of litigation, which was the reasoning underpinning American Pipe. [00:33:28] Speaker 01: Exactly. [00:33:28] Speaker 01: And that's what the plaintiffs did in this case. [00:33:31] Speaker 01: They reasonably relied on the pending class action, waited for resolution of it. [00:33:35] Speaker 01: I don't believe it was 11 months. [00:33:37] Speaker 01: I think that's an overstatement. [00:33:38] Speaker 01: How long was it? [00:33:40] Speaker 01: I think it was a few months that we filed. [00:33:42] Speaker 01: But you can imagine that there would be things to address as a new plaintiff after the city settled the Hunter's Capital case. [00:33:49] Speaker 01: I can just theorize. [00:33:50] Speaker 01: For example, settlement discussions could have occurred. [00:33:54] Speaker 01: or they needed to regroup after Hunnish capital and decide whether they needed to go forward. [00:33:59] Speaker 04: This is all speculation. [00:34:01] Speaker 04: So here's the question. [00:34:02] Speaker 04: Were we to decide that [00:34:07] Speaker 04: There is an option for equitable tolling. [00:34:09] Speaker 04: Would that go back to the district court to have all this come out and look at diligence and all those issues? [00:34:15] Speaker 04: How can we decide that on appeal? [00:34:17] Speaker 01: Well, I think you don't need to do that. [00:34:19] Speaker 01: You don't need to remand it if you decide that American pipe applies. [00:34:23] Speaker 01: I think at that point, you have everything you need to make that decision. [00:34:27] Speaker 03: You're well within the statute of limitations if American pipe is tolling. [00:34:30] Speaker 03: Yes, Your Honor. [00:34:32] Speaker 01: Yes, Your Honor. [00:34:33] Speaker 01: Either way. [00:34:38] Speaker 01: I would only just additionally point out that when you look at the state court rulings on whether nuisance is two or three statutes, there is a clear distinction between the cases. [00:34:47] Speaker 01: In cases where the nuisance is characterized as negligence, the court finds a two-year statute. [00:34:53] Speaker 01: In cases where the facts indicate that it's an intentional nuisance, the court applies a three-year statute. [00:35:00] Speaker 01: If you couple that with the Skokomish finding, [00:35:03] Speaker 01: And of course, when Skokomish was remanded, Judge Rosting did apply the three-year statute as directed by the appellate court. [00:35:11] Speaker 01: So I think you've got what you need there to just decide the case, but another option is obviously to use the American Pipe case, which I think, when I read the Campo case, it's quite clear that the Washington Supreme Court would apply American Pipe in a class action case, for the same reasons it applied it in the associational representative case that it did in Campo. [00:35:32] Speaker 01: Your Honors, I wanted to spend a minute on Sinclair. [00:35:35] Speaker 01: In Sinclair, I think the decision about whether or not there was a discrete identifiable group in Sinclair, the court actually addressed this quite clearly. [00:35:49] Speaker 01: It said with respect to visitors that come, voluntarily came into the zone, [00:35:55] Speaker 01: We're not going to find that they were a discreet and identifiable group that was subject to particular danger because they came to the location. [00:36:04] Speaker 01: Very clearly what Sinclair said is that with respect to the businesses and individuals who reside there, it's a different story. [00:36:12] Speaker 01: And the court found that's strong evidence, very persuasive evidence [00:36:16] Speaker 01: that there was a discrete and identifiable group that was subject to a particular harm. [00:36:21] Speaker 01: I mean, it's as clear as day in the opinion. [00:36:25] Speaker 01: They also found deliberate indifference on that scale. [00:36:31] Speaker 01: And my argument is actually different because I think in the First Amendment complaint, we actually say there are subgroups of identifiable groups that were subject to harm. [00:36:41] Speaker 01: The plaintiffs themselves who had individual contact with the city. [00:36:46] Speaker 01: where they told the city this is what you're doing and the city just ignored them essentially they continue to do what they were doing. [00:36:52] Speaker 01: We have the residents of the intersection of 11th and Olive which is an even smaller subgroup and more directly targeted because of the adjacent Cal Anderson Park and the epicenter of the hub at 11th and Olive. [00:37:04] Speaker 01: But Sinclair says it can be broadened even to the entire chop location which is not that many people when you compare it to [00:37:14] Speaker 01: uh... the city of san jose and hernandez case or even polanco number number of people were involved you were impacted in pol or potentially impacted by the decision to transfer those prisoners in polanco i think the point i want to make is [00:37:29] Speaker 01: While traditionally the issue has been directed toward a particular person, Hernandez shows it can be a larger group, Polanco shows it can be a larger group, and I think that's important to the decision here. [00:37:48] Speaker 01: Well, Your Honors, my conclusion is that what I'd like to conclude by saying is I think that in this particular case, the substantive due process argument, the civil rights case should be, you know, the judge's decision below should be reversed because when businesses are subject to this type of serious harm by a danger created by the state that's directed toward a particular group of people, they ought to get relief. [00:38:12] Speaker 01: And I know that no other court has found that, but there is a decision that we cite in our case, in our brief, which is called RK Ventures versus City of Sacramento, where district court did find that economic harm qualified. [00:38:27] Speaker 01: And I think the policy considerations to protect people, including businesses whose constitutional rights are violated, ought to be vindicated in the case. [00:38:36] Speaker 01: Thank you, Your Honor. [00:38:38] Speaker 03: for your argument in that case. [00:38:41] Speaker 03: The matter is now submitted and we'll hear the last case set for argument this morning.