[00:00:04] Speaker 04:
Go ahead.

[00:00:04] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:07] Speaker 04:
I'm William Freeman for the ACLU Foundation of Northern California for the plaintiff's appellants.

[00:00:13] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 04:
I'd like to focus first on the issue of void for vagueness and then move on to the equal protection claim.

[00:00:23] Speaker 04:
The court should reverse the grant of summary judgment for the city in this case and remand with instructions to grant summary judgment for the plaintiffs

[00:00:32] Speaker 04:
because the RV parking ordinance is void for vagueness as a matter of law.

[00:00:37] Speaker 04:
Such an order would dispose of the case in its entirety.

[00:00:42] Speaker 04:
As the court knows, whether an ordinance is void for vagueness is a matter of law.

[00:00:47] Speaker 04:
The court reviews the district court's determination de novo.

[00:00:52] Speaker 02:
And as the district- What does your argument hinge on?

[00:00:54] Speaker 02:
Is it the definition of recreational vehicle?

[00:00:57] Speaker 04:
It's two things, Your Honor.

[00:00:58] Speaker 04:
Either one of them is fatal the definition of recreational vehicle which is contradicted by a lot of testimony and the preamble of the of the of the ordinance which basically says it's addressing people sleeping in cars But perhaps even more serious is the problem that no one knows where they can park because the ordinance says this

[00:01:25] Speaker 04:
We prohibit parking on streets that are zoned residential at any hour of the day or night.

[00:01:32] Speaker 04:
And then we also prohibit parking on streets.

[00:01:36] Speaker 02:
Why is that vague?

[00:01:38] Speaker 04:
Streets aren't zoned in Sebastopol.

[00:01:39] Speaker 04:
The city attorney acknowledged that, number one.

[00:01:42] Speaker 04:
Number two.

[00:01:43] Speaker 02:
But isn't it reasonable just, I mean, isn't the meaning of that streets that are in residential neighborhoods?

[00:01:50] Speaker 02:
That's not, I mean, if it had said that,

[00:01:53] Speaker 04:
Well, the other problem is that there are plenty of places in Sebastopol, and this was admitted, it's in the record, where parcels on one side of the street are zoned one way and parcels on the other side of the street are zoned the other way.

[00:02:05] Speaker 04:
And what do you do with that street?

[00:02:06] Speaker 04:
Where can you park?

[00:02:08] Speaker 04:
And I took the depositions of all the city officials involved in this, and they basically said that would be a problem.

[00:02:15] Speaker 04:
And I asked them specifically, would people know where to park?

[00:02:19] Speaker 04:
And they said no.

[00:02:20] Speaker 04:
unless you went and looked at the zoning code and you looked at the zoning map.

[00:02:24] Speaker 04:
And even then, you'd have a problem figuring out what is a community facility?

[00:02:30] Speaker 04:
What is a commercial zone?

[00:02:32] Speaker 04:
The downtown, if you look at the zoning map, even if you get to the zoning map, the downtown core is zone CD.

[00:02:42] Speaker 04:
It doesn't say it's commercial.

[00:02:43] Speaker 04:
It doesn't say it's residential.

[00:02:45] Speaker 04:
And I asked the city attorney, what do you do with that?

[00:02:49] Speaker 04:
And he agreed with my statement that you basically have to be an insider in the city government to figure that out.

[00:02:55] Speaker 04:
So suppose you're a person who unfortunately has to live in a car.

[00:03:03] Speaker 04:
And there are people like that in and around Sebastopol, as we all know.

[00:03:07] Speaker 04:
You're looking for a place to park at 10 o'clock at night.

[00:03:10] Speaker 04:
And you don't know, first of all, because if you've actually read the ordinance, the ordinance says,

[00:03:17] Speaker 04:
in the findings and purpose section, we're trying to regulate the use of cars, the parking of cars used for sleeping.

[00:03:28] Speaker 04:
The definitional section then goes off in a different direction and has this technical definition of what an RV is, whether it's been altered for human habitation.

[00:03:38] Speaker 04:
People disagreed on what an alteration is.

[00:03:40] Speaker 04:
I actually asked the city attorney about that

[00:03:47] Speaker 04:
very question, and I'll just read the question and answer.

[00:03:51] Speaker 04:
Question, how would a person who's in a vehicle know whether their vehicle was an RV or not?

[00:03:56] Speaker 04:
Answer.

[00:03:58] Speaker 04:
If they were living in it, occupying it as a living space, then I would say it falls within the definition.

[00:04:05] Speaker 04:
That goes to the first problem, the definition of what's an RV.

[00:04:09] Speaker 01:
I mean, the RV definition incorporates a lot of

[00:04:13] Speaker 01:
other definitions within it from other provisions of law.

[00:04:17] Speaker 01:
So that gives it a certain core, unless you claim that all of those are also void for vagueness facially.

[00:04:24] Speaker 04:
It does incorporate those, Your Honor, but it also has a residual clause.

[00:04:29] Speaker 04:
which says other vehicle or trailer.

[00:04:32] Speaker 01:
Would your argument then only be to strike the residual clause?

[00:04:38] Speaker 04:
No, the residual clause infects the whole ordinance.

[00:04:41] Speaker 04:
It makes everything vague.

[00:04:43] Speaker 01:
I don't see how that could be true.

[00:04:46] Speaker 01:
we deal with the crime of violence where the residual clause was struck as void for vagueness, but the remainder of it stands.

[00:04:53] Speaker 01:
I don't understand how that wouldn't follow.

[00:04:56] Speaker 01:
I mean, even if we agreed with you that the residual clause was void, it's not going to void the rest of it, which incorporates very common sense definitions from other provisions of law.

[00:05:06] Speaker 04:
except for the fact, Your Honor, that, again, when we took testimony from city officials, they couldn't agree on what the entire ordinance meant.

[00:05:16] Speaker 01:
The fact that some city official can't figure out what the law is doesn't necessarily mean that the law, as we look at it and read it, isn't going to have a commonly understood meaning.

[00:05:27] Speaker 01:
You can pluck people out of a bureaucracy who are idiots.

[00:05:31] Speaker 04:
I would say, because the standard is you look at this from the point of view of an ordinary person, and I would say that if the city attorney can't figure out what this means, then there's no way for an ordinary person to figure out what it means.

[00:05:48] Speaker 02:
I wonder if you're overstating it a little bit, because you keep focusing on there are, at the margins, in some circumstances, there's going to be some confusion.

[00:05:59] Speaker 02:
But that's not that different from a whole bunch of areas of law where 90% of it is common sense and then you get into a thorny issue and somebody gets ticketed and they come in and argue, hey, this wasn't a residential area because there was a community center on the other side of the street.

[00:06:17] Speaker 02:
Well, then you've got an as applied challenge.

[00:06:20] Speaker 02:
I mean, part of the problem you have here is

[00:06:22] Speaker 02:
As I understand it, you're only raising facial challenges, right?

[00:06:26] Speaker 04:
Correct.

[00:06:26] Speaker 02:
Yeah.

[00:06:27] Speaker 02:
So I mean, that seems to be part of the problem that you have.

[00:06:32] Speaker 02:
You've bought off a very difficult standard of, you know.

[00:06:37] Speaker 04:
But I would suggest, Your Honor, and I think the law is definitive on this, that in terms of vagueness challenges,

[00:06:47] Speaker 04:
The vagueness challenges do not follow the Salerno rule.

[00:06:51] Speaker 04:
And this court has found that.

[00:06:53] Speaker 01:
I know, but it's still subject to the fact, you know, at twilight, day is hard to tell apart from night.

[00:06:59] Speaker 01:
But at noon, it's very clear.

[00:07:01] Speaker 01:
And so the fact that there might be areas where it's confusing doesn't mean that, for example, in large swaths of the city that are zoned single-family residential, it's not going to be unclear.

[00:07:13] Speaker 04:
But the fact that there are certain

[00:07:16] Speaker 04:
areas of clarity and certain conduct that is covered by the statute does not save a vague statute from being facially unconstitutional.

[00:07:25] Speaker 04:
And that's the point of Johnson versus United States.

[00:07:28] Speaker 02:
Yeah, I don't read the case a lot to say, in fact, I think it's just the contrary.

[00:07:34] Speaker 02:
It doesn't say that you can just focus on this one

[00:07:39] Speaker 02:
Difficult application of the law and then 99% of it which everyone would understand is common sense That's but I don't think that's that's not the situation here.

[00:07:50] Speaker 04:
We have these cross-cutting problems.

[00:07:52] Speaker 04:
We have dual problems and You know we asked the city attorney again and written interrogatory.

[00:08:00] Speaker 04:
He had months to respond to this interrogatory He testified that he had the assistance of the assistant city planner

[00:08:08] Speaker 04:
And the question could not have been much more simple.

[00:08:11] Speaker 04:
It was, essentially, tell us where all streets or street segments where RV parking is permitted overnight.

[00:08:20] Speaker 04:
And he couldn't do it.

[00:08:22] Speaker 04:
He got it wrong multiple times.

[00:08:25] Speaker 04:
I took his deposition.

[00:08:26] Speaker 04:
He had to admit that he'd gotten it wrong multiple times.

[00:08:29] Speaker 04:
Again, and we're talking about

[00:08:32] Speaker 04:
This is not just someone who gets a ticket.

[00:08:34] Speaker 04:
Remember that under the ordinance, you're subject to towing immediately.

[00:08:38] Speaker 04:
That's your home.

[00:08:39] Speaker 02:
Well, we all hate towing, so we're with you there.

[00:08:42] Speaker 04:
Well, I don't like it if my vehicle gets towed down to the lot at Fourth and Bryant, but that's my vehicle.

[00:08:47] Speaker 04:
This is someone's home.

[00:08:49] Speaker 04:
This is someone whose only shelter is a home.

[00:08:51] Speaker 04:
So it's a very serious problem, and I do believe it comes within the recognized law on vagueness challenges,

[00:09:01] Speaker 04:
as being facial challenges.

[00:09:03] Speaker 01:
Can I ask you a question about standing, because it goes to jurisdiction.

[00:09:06] Speaker 01:
And so it's something we might have to raise, Sue Esponte, if you have a question about it.

[00:09:10] Speaker 01:
Certainly.

[00:09:11] Speaker 01:
As I understand, do you represent two plaintiffs here, one individual, one organization?

[00:09:16] Speaker 01:
Do I have that?

[00:09:17] Speaker 04:
Actually, we represent three.

[00:09:19] Speaker 04:
There were three.

[00:09:20] Speaker 04:
And we didn't brief this.

[00:09:21] Speaker 04:
So if the court wants a supplemental briefing, we would certainly be glad to submit it.

[00:09:27] Speaker 04:
But there are three plaintiffs.

[00:09:29] Speaker 04:
One is Paige Elyza Corley.

[00:09:31] Speaker 04:
And as the district court noted in a footnote, her standing was never contested.

[00:09:37] Speaker 04:
So under the rule that standing by one plaintiff is sufficient to confer jurisdiction, I think we're home free on that.

[00:09:45] Speaker 04:
The second was Jessica Marie Wetch.

[00:09:47] Speaker 04:
The district court went through a number of findings about her situation, found that she had a real injury.

[00:09:54] Speaker 04:
It was traceable to the city's conduct.

[00:09:56] Speaker 04:
And it was redressable by the relief we were seeking.

[00:09:59] Speaker 04:
And then the third was Sonoma County Acts of Kindness, which was the organizational plaintiff, and we alleged and established to the satisfaction of the district court that they had organizational standing.

[00:10:10] Speaker 01:
So that was done on a Havens Realty Theory rather than a Hunt Theory?

[00:10:14] Speaker 04:
It was done on a Havens Realty Theory, but it would have come out the same way under FDA versus Alliance for Hippocratic Medicine.

[00:10:21] Speaker 04:
In other words, they had a core pre-existing function

[00:10:27] Speaker 04:
They were, their job, their mission is to go out and find unhoused people and provide them with food and supplies.

[00:10:35] Speaker 04:
that predated the ordinance by a long time, and the ordinance made it impossible for them to do that or made it much more difficult.

[00:10:43] Speaker 01:
The ordinance's regulation of other parties created sort of an indirect cost to other people who do other things, but that's, I thought, Hippocratic medicine suggests that that kind of indirect collateral injury isn't sufficient.

[00:11:00] Speaker 01:
I disagree respectfully honor because I think this was a direct injury in the sense that

[00:11:15] Speaker 04:
I'm trying to go out and find people to give them food.

[00:11:19] Speaker 04:
I can't find them anymore.

[00:11:20] Speaker 04:
The ordinance has made it impossible because people have dispersed there and hiding.

[00:11:24] Speaker 01:
There are so many parks in a particular area, and then they go to the coffee shop where that area is, and then the parking is eliminated.

[00:11:30] Speaker 01:
The coffee shop can sue because now I don't get the business because they can't park.

[00:11:34] Speaker 04:
I think that's a different set of circumstances, Your Honor.

[00:11:37] Speaker 04:
This is the core mission.

[00:11:39] Speaker 04:
The core mission of this organization is to serve this population.

[00:11:43] Speaker 04:
That's what they do.

[00:11:45] Speaker 04:
That's all they do.

[00:11:46] Speaker 02:
But their mission is still going forward.

[00:11:49] Speaker 02:
I mean, this is a debate that we're facing in a number of cases on this court.

[00:11:53] Speaker 02:
And I mean, I think Judge Collins' questions are apt, because your interpretation seems to be that as long as it's more difficult to find a client, you're harmed as an organization.

[00:12:09] Speaker 02:
And I don't think that's what the Supreme Court.

[00:12:11] Speaker 02:
I think the Supreme Court scaled back on Havens pretty clearly.

[00:12:14] Speaker 02:
and said, Havens, you have to actually cause harm directed at the organization.

[00:12:22] Speaker 02:
And whatever we have here, we don't have harm directed at the organization.

[00:12:25] Speaker 02:
You'd agree with that, right?

[00:12:28] Speaker 04:
We actually do have harm to the organization.

[00:12:30] Speaker 02:
You don't have harm directed at the organization.

[00:12:33] Speaker 04:
It is harm suffered by the organization, which I think is sufficient.

[00:12:37] Speaker 04:
I know my time is running short.

[00:12:39] Speaker 04:
I would like to briefly... I do want to clarify.

[00:12:41] Speaker 01:
How many appellants do we have in front of us?

[00:12:43] Speaker 01:
Do we just have Wetch and Sonoma acts of kindness in front of us?

[00:12:48] Speaker 04:
We have, no, we have three.

[00:12:50] Speaker 04:
Mr. Yesway was dismissed and we did not contest his dismissal.

[00:12:54] Speaker 04:
So we have two individuals.

[00:12:56] Speaker 01:
And who's the other individual?

[00:13:00] Speaker 04:
The other one is Paige Elytza Corley.

[00:13:03] Speaker 04:
She's referenced in a footnote in the district court opinion that her standing was not contested.

[00:13:08] Speaker 01:
It's not in the caption of the case.

[00:13:11] Speaker 01:
She should be.

[00:13:15] Speaker 01:
In your own brief, you don't list that person in the caption.

[00:13:21] Speaker 04:
She should be.

[00:13:21] Speaker 04:
There was no question.

[00:13:23] Speaker 04:
I can come back to that on rebuttal effect.

[00:13:26] Speaker 04:
I do want to just briefly mention the equal protection claim, because this is also, again,

[00:13:34] Speaker 04:
there were disputed issues of fact.

[00:13:35] Speaker 04:
And that's a very direct way for this court to reverse because the district court laid out all these facts and then said, in essence, we find that they don't matter or that we questioned their weight or their substance.

[00:13:53] Speaker 04:
And that was not the district court's prerogative to do on summary judgment.

[00:13:57] Speaker 04:
So the district court concluded that the question of animus was disputed.

[00:14:03] Speaker 04:
So once that happens under City of Cleburne, then the court had to go through what everyone agrees is a searching analysis of the city's proffer justifications.

[00:14:14] Speaker 04:
And you look at Cleburne, what the Supreme Court did there, they took eight rationales that the city suggested.

[00:14:22] Speaker 04:
For its regulation and ticked off each one and said no that's not sufficient.

[00:14:27] Speaker 04:
That's not sufficient went through the whole list Here what the court did was said well the city said in its preamble This is what we're addressing and that's good enough, but it never examined the relationship between the objectives which might have been reasonable and

[00:14:46] Speaker 04:
and the means that they were using.

[00:14:50] Speaker 04:
So why is it if you're trying to deal with health and safety issues?

[00:14:54] Speaker 04:
Why are you prohibiting even instant short-term parking by any one of a number of kinds of vehicles when they said, well, what we're really trying to address is long-term vehicle encampment?

[00:15:09] Speaker 04:
The means that they directed to try to deal with that Borno rational relationship, or at the very least, there was a factual issue as to whether there was a rational relationship that the district court never took the time to analyze.

[00:15:24] Speaker 04:
And so that's a de novo review, and there should be a reversal on equal protection.

[00:15:30] Speaker 02:
Thank you.

[00:15:31] Speaker 02:
We'll give you time for your panel.

[00:15:32] Speaker 04:
Thank you very much.

[00:15:32] Speaker 00:
Good morning, and may it please the court.

[00:15:46] Speaker 00:
Ed and Groot Smoker on behalf of Appellee and Defendant, City of Sebastopol.

[00:15:50] Speaker 00:
Unsurprisingly, the city thinks the district court got its decision right and urges this court to uphold the district court's finding of summary judgment in favor of the city.

[00:16:00] Speaker 00:
First, I think it's important to highlight, as some of the questions highlighted earlier, that appellants are not only bringing a facial challenge to this ordinance, but they're bringing a facial challenge to the ordinance where it has never actually been implemented or enforced by the city at all.

[00:16:14] Speaker 00:
As such, that means many of the arguments that appellants are bringing are based on hypothetical applications of the ordinance.

[00:16:20] Speaker 00:
and on assumptions regarding how the city will act regarding the ordinance.

[00:16:24] Speaker 00:
This also means it's difficult for them to meet their very high burden under the standard for facial challenges.

[00:16:29] Speaker 00:
And this is as it should be, because appellants are asking this court to overturn a legislative enactment that has never actually been put into practice.

[00:16:36] Speaker 01:
I just want to sort of understand exactly what we have in

[00:16:41] Speaker 01:
in front of us.

[00:16:42] Speaker 01:
So Mr. Yesway, wherever you pronounce that, was dismissed for standing, and that's not challenged.

[00:16:52] Speaker 01:
You say in a footnote that Corley has chosen not to pursue this appeal.

[00:16:57] Speaker 01:
Was she not listed in the Notice of Appeal?

[00:17:00] Speaker 00:
That's my understanding, Your Honor.

[00:17:01] Speaker 00:
Okay.

[00:17:02] Speaker 01:
So we're down to two.

[00:17:03] Speaker 01:
We're down to Wetch and then the organization.

[00:17:06] Speaker 01:
Correct.

[00:17:06] Speaker 01:
Okay.

[00:17:07] Speaker 01:
And you didn't challenge the standing of either of those?

[00:17:11] Speaker 00:
We did challenge the standing of both below the district court found that they did have standing the standing for which was based on her ability to have an RV.

[00:17:25] Speaker 00:
but was feeling discouraged from actually using the RV because of the ordinance.

[00:17:34] Speaker 01:
Does she have the RV yet, or she has access to it and could title it?

[00:17:38] Speaker 00:
It was not entirely clear whether she could get title to it.

[00:17:43] Speaker 00:
It sounded like it was more of, I have a friend who has an RV that will let me use it, but I don't want to do that because I don't want to get towed, was the explanation on that.

[00:17:54] Speaker 02:
And the district would be a harm to her even if it was a friend's RV that was towed Well, I think there's that part of your challenge.

[00:18:04] Speaker 00:
I guess is that part of your challenge below it was part of our challenge below also I think it's important to as we're talking about the various arguments here that the standing issues apply Differently to the different claims as well under the vagueness standards even if you had an RV which

[00:18:24] Speaker 00:
Plaintiff Corley did below one of the reasons we didn't challenge her standing on Was because she had the RV, but it does apply to the vagueness concerns because under vagueness either one that was mentioned in the footnote yes page Page Corley okay page Corley correct Okay, she's got to figure out whether she's still in or not got to figure out whether she's still in my understanding as was noticed in my footnote in our answering brief is that she didn't appeal and

[00:18:50] Speaker 02:
And that footnote was not responded to in the reply brief, so I... Can I just ask, if we said the organization did not have standing under a Hippocratic medicine, how would that, if at all, change the claims in this case?

[00:19:09] Speaker 02:
Would that resolve some, or if we said WETCH has standing, would that be enough to have standing for every one of these claims?

[00:19:21] Speaker 00:
Thank you, Your Honor.

[00:19:22] Speaker 00:
I think that it would resolve standing completely for the vagueness claims that are being made regarding the RV.

[00:19:31] Speaker 01:
Resolve which way?

[00:19:33] Speaker 00:
I don't think there's any standing to bring the claim

[00:19:40] Speaker 00:
that the RV definition is vague if the only plaintiff left is wedge.

[00:19:47] Speaker 00:
Because the RV she has clearly meets the definition of RV.

[00:19:53] Speaker 00:
And case law, I don't have the citation off the top of my head, but case law clearly indicates that where your conduct falls within the clear confines of the statute, you can't argue on behalf of third parties that it's vague as their application to them.

[00:20:12] Speaker 01:
But she would still have standing on equal protection.

[00:20:15] Speaker 00:
She would still have standing on equal protection, the Fourth Amendment claim, and the procedural due process claim, assuming that access to an RV is sufficient for standing.

[00:20:26] Speaker 01:
But would she still have standing to challenge the zoning aspect of the vagueness challenge?

[00:20:33] Speaker 00:
I suppose she probably would still have standing to do that, because their claim is that she doesn't know where to park.

[00:20:40] Speaker 00:
Her RV it would just resolve the challenge specifically based on the definition of RV however as indicated in our briefs I don't think that the zoning standard is actually vague the zoning standard is clear as this court has indicated it prohibits entirely parking of RVs in residential zones and allows parking in commercial industrial and community facilities certain hours a day believe it's 10 p.m.

[00:21:06] Speaker 00:
To 730 a.m.

[00:21:08] Speaker 03:
That standard is clear.

[00:21:12] Speaker 03:
Does she say she has a specific spot she wants to park?

[00:21:17] Speaker 03:
Because in theory, if she said, I want to park in this one spot, and that spot is clearly residential and falls within the core of what the statute covers, then that could affect her vagueness, the vagueness challenge in the same way that it affects for the

[00:21:38] Speaker 00:
Definition of where you're banned in the same way that would affect for the definition of RV When miss wedge did have an RV so as indicated in the record miss wedge at one point had an RV that was parked on Morris Street Which is in a commercial area of the city where a lot of the RVs were parked that RV burned down and

[00:21:58] Speaker 00:
which is one of the public health and safety impacts that the city relied on as she said where she wants to park the RV if she gets it and she has not indicated a specific spot this is my spot but when the RVs were parked they were parked in that industrial which was allowed that would that would be allowed even now that would be allowed overnight now but not till 10 pm

[00:22:22] Speaker 00:
Until 10 p.m.. Correct so the city council decided we're okay with people sleeping in their vehicles Overnight we recognize that they have a need to sleep when we rather than be sleeping in vehicles They are allowed to park in private areas they're allowed to park outside of the city they are allowed to park in private lots if there are

[00:22:44] Speaker 00:
They can park in city-owned lots if they're conducting city business But they're not allowed to park on city streets during the day and that applies

[00:22:56] Speaker 00:
Well, unfortunately, or unfortunately, depending on your point of view.

[00:23:00] Speaker 00:
There's no Walmart.

[00:23:00] Speaker 00:
There's no Walmart.

[00:23:03] Speaker 00:
That's the problem.

[00:23:06] Speaker 00:
Which might be the problem.

[00:23:07] Speaker 00:
We'll have to convince the city council.

[00:23:08] Speaker 02:
Sounds like part of settlement discussions is get a Walmart in there.

[00:23:13] Speaker 00:
I'm not sure my particular council would go for that.

[00:23:18] Speaker 00:
In any event, are there any further questions on the vagueness?

[00:23:25] Speaker 00:
Arguments okay moving on to the equal protection argument that Appellant was discussing earlier I really think that they're trying to graft on a least restrictive means test to what's supposed to be a rational basis test The district court properly analyzed that the classification of RVs Was causing two issues within the city one was parking availability and the second was the documented public health and safety impacts of RV encampments and

[00:23:56] Speaker 00:
That's what the statute does those are the legitimate government purposes that the statute is intended to the ordinance excuse me is intended to enforce It doesn't have to be that the city and enacting the ordinance finds the you know methodology of the ordinance that's least restrictive to their ability to park or that's least restrictive you know that Maximizes the amount of spaces or time that people can live there

[00:24:23] Speaker 00:
It's just a rational basis test and the City Council in its discretion came up with a policy decision to allow them to park in these certain areas of the city during certain times of the day, which

[00:24:34] Speaker 00:
Gives them access to a place to sleep and gives them access to a place to park at night But does prevent parking availability during business hours parking availability issues during business hours and does prevent them from staying for a long term And creating the encampment public health and safety issues that the city saw before the ordinance So unless there's any further questions Thank you We'll give you two minutes for a bottle

[00:25:09] Speaker 04:
First I'd like to clarify regarding ms.

[00:25:11] Speaker 04:
Corley.

[00:25:12] Speaker 04:
She is not a part of this appeal and so I stand corrected on that okay, so we're just dealing with wet and do you I?

[00:25:20] Speaker 02:
Know just assuming that we Said there was no standing on the organization.

[00:25:27] Speaker 02:
Do you agree with the assessment that that might affect a

[00:25:30] Speaker 02:
at least the vagueness challenge as to the recreational vehicle aspect.

[00:25:34] Speaker 04:
No, we do not agree with that, Your Honor, because I think counsel's recitation of the standard was incorrect in that that may be the case when there's an as-applied challenge, but this is not an as-applied challenge.

[00:25:48] Speaker 04:
It's a facial challenge, and courts routinely

[00:25:55] Speaker 04:
routinely rule that vague ordinances are facially unconstitutional, regardless of the circumstances that they might be properly applied to an individual who's challenging them.

[00:26:09] Speaker 04:
And Coates versus City of Cincinnati is an example.

[00:26:13] Speaker 04:
Papa Christi is an example.

[00:26:14] Speaker 04:
Even Desert Crate is an example.

[00:26:17] Speaker 04:
So I think that we disagree with that, Your Honor.

[00:26:20] Speaker 04:
Now, as to Ms.

[00:26:21] Speaker 04:
Wetch,

[00:26:23] Speaker 04:
And this comes from our opposition to the city's motion for summary judgment.

[00:26:29] Speaker 04:
She did have a vehicle.

[00:26:30] Speaker 04:
She needed to sell it because she knew that with the ordinance, she wouldn't be able to park it on the street.

[00:26:37] Speaker 04:
She's been threatened with towing in the past.

[00:26:40] Speaker 04:
She has access to a camper.

[00:26:42] Speaker 04:
She'd like to live in that camper, but she will not do that because of the ordinance.

[00:26:47] Speaker 02:
And she has a... So she owned one, entitled in her name,

[00:26:52] Speaker 02:
Yes.

[00:26:53] Speaker 02:
Once the ordinance was proposed or passed or whatever, she sold it because she thought it would be too difficult.

[00:26:58] Speaker 04:
I can't represent that that was the causative factor in the sale.

[00:27:03] Speaker 04:
But she has, in the past, parked on the streets of Sevastopol.

[00:27:07] Speaker 04:
And she knows that she can't now.

[00:27:08] Speaker 02:
But does she own one now?

[00:27:09] Speaker 02:
The answer is no.

[00:27:10] Speaker 04:
The answer, as of the time we filed the appeal, is no.

[00:27:14] Speaker 04:
But she does have access to one.

[00:27:16] Speaker 04:
She has through a friend.

[00:27:18] Speaker 02:
But would she have standing if she borrowed a friend's camper?

[00:27:21] Speaker 04:
Absolutely.

[00:27:22] Speaker 02:
Well, why?

[00:27:23] Speaker 02:
Because the friend would be the one who got the ticket and had to pay for it and would be towed.

[00:27:30] Speaker 02:
Why would I give her standing?

[00:27:31] Speaker 04:
Well, but she gets the citation.

[00:27:34] Speaker 02:
No, she doesn't get the citation.

[00:27:35] Speaker 02:
The owner of the vehicle gets the citation.

[00:27:37] Speaker 02:
Trust me, if I give my vehicle to my kid and they get a parking ticket, I'm the one who gets the pay.

[00:27:43] Speaker 04:
But she still suffers the injury because now she had access to a vehicle.

[00:27:46] Speaker 04:
Now she doesn't have access to a vehicle.

[00:27:48] Speaker 02:
OK.

[00:27:48] Speaker 02:
Well, that's a different issue.

[00:27:49] Speaker 04:
Yes.

[00:27:52] Speaker 04:
I get the sense from your honors that you are very concerned about the standing issue, which was not briefed.

[00:27:58] Speaker 04:
And we would just request the opportunity for supplemental briefing to answer any questions that you may have.

[00:28:03] Speaker 04:
It's a serious issue.

[00:28:04] Speaker 04:
It was not raised by either party on appeal, so it should be addressed seriously.

[00:28:11] Speaker 04:
Finally, on the equal protection piece, there was a question raised as to where vehicles can park.

[00:28:20] Speaker 04:
And the answer was, well, they can park outside of town, or they can park on private property, and they can park on the city lots while they're conducting city business.

[00:28:28] Speaker 04:
We didn't brief it on appeal, but we certainly briefed it below.

[00:28:31] Speaker 04:
Even that provision of the ordinance is vague, because everybody disagrees on what city business is.

[00:28:37] Speaker 04:
Some people said it's shopping in a store.

[00:28:39] Speaker 04:
Some people said it's going to the police department.

[00:28:42] Speaker 04:
Some people said it was hiking on a recreational trail.

[00:28:45] Speaker 04:
at the edge of town.

[00:28:46] Speaker 04:
So this ordinance is just riddled with problems that cannot be saved or severed.

[00:28:55] Speaker 04:
As we said before, they're multiple and they're cross-cutting.

[00:28:58] Speaker 04:
And the district court committed error when it essentially tossed them aside and said, I can decide what this means.

[00:29:06] Speaker 04:
I don't have to.

[00:29:09] Speaker 04:
I'm really deciding, as a matter of law, what this means.

[00:29:13] Speaker 04:
and disregarding testimony that the court was required to weigh most favorably towards the non-moving party, and it didn't do that.

[00:29:23] Speaker ?:
Okay.

[00:29:24] Speaker 02:
Thank you.

[00:29:24] Speaker 02:
We have your arguments.

[00:29:25] Speaker 02:
Thank you to both counsel for your arguments.

[00:29:27] Speaker 02:
In the case today, the case is now submitted.

[00:29:29] Speaker 02:
We are going to take a short recess and come back and hear argument in our following two cases.