[00:00:06] Speaker 02:
Go ahead, Mr. Keenan.

[00:00:07] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:11] Speaker 01:
Gregory Keenan, appearing on behalf of Appellant Grimm.

[00:00:15] Speaker 01:
I'd like to reserve three minutes, if I may.

[00:00:18] Speaker 02:
So can I ask a question just up front on this?

[00:00:20] Speaker 02:
Sure.

[00:00:21] Speaker 02:
So your client, his dad, owns a company that creates a software that would supposedly prevent the problem that you're saying happened in this case.

[00:00:31] Speaker 02:
Is that right?

[00:00:32] Speaker 01:
That is true although that his dad had sent a notice to the city of Portland saying you should buy my software It said something to them certainly didn't say to buy it.

[00:00:44] Speaker 01:
I think made them available that that was an option, but So I'm just trying to figure out is this a lawsuit where this your client?

[00:00:53] Speaker 02:
It was just unintentionally.

[00:00:54] Speaker 02:
I'm trying to figure out like was this done intentionally in order to sort of?

[00:00:57] Speaker 01:
Demonstrate the need for this software No, your honor and for reasons for that if I may okay, so first the city makes a big deal out of this email but the record also indicates and they point to that this email went to tons of other cities and

[00:01:14] Speaker 01:
No one else was embroiled in any lawsuit.

[00:01:18] Speaker 01:
My client's not involved in any other lawsuits.

[00:01:20] Speaker 01:
This app isn't involved in any lawsuits.

[00:01:22] Speaker 01:
This case has been going on for seven years.

[00:01:24] Speaker 02:
The vehicle is owned by the father or not?

[00:01:27] Speaker 01:
The vehicle in the stipulated facts is owned by my client, not the father.

[00:01:31] Speaker 01:
The registration is still in the father's name.

[00:01:33] Speaker 01:
They share the same address, but it's undisputed that my client owns it and that he has had continuous and sole use of the vehicle.

[00:01:42] Speaker 01:
for the duration.

[00:01:44] Speaker 01:
Number two, just as a legal theory matter, nothing about our theory turns on that app.

[00:01:52] Speaker 02:
No, that's a good point.

[00:01:53] Speaker 02:
Maybe I shouldn't even ask the question.

[00:01:55] Speaker 02:
But I'm not sure anything turns on that.

[00:01:56] Speaker 02:
But it does.

[00:01:57] Speaker 02:
It's an interesting fact, I guess.

[00:02:00] Speaker 01:
Certainly.

[00:02:01] Speaker 01:
But most importantly, we're concerned with the government's use or failure to use its own app here.

[00:02:09] Speaker 01:
And I'd just like to put to the fore, this reflects a really concerning problem that Justices Thomas and Alito have stressed.

[00:02:17] Speaker 01:
Over the past decade, they have noticed that as advances in technology make it easier and easier for governments to identify and contact property owners, concerningly, states and governments are doing less and less.

[00:02:29] Speaker 01:
We think this case is a prime example.

[00:02:33] Speaker 01:
So there, I would point to the city's own app, the city's Parking Kitty app.

[00:02:36] Speaker 01:
It's an app the city uses and encourages citizens to adopt.

[00:02:40] Speaker 01:
to pay for public street parking it's downloaded directly from the city's own website and it requires a citizen to provide scores of contact information mailing address email address phone number license plate credit card information that app is then used to permit drivers to pay instantaneously from their phone but also to receive

[00:03:01] Speaker 00:
Is the city receiving all of that information anytime someone downloads the app or uses the app, their address information, their phone number, et cetera?

[00:03:11] Speaker 01:
The city's agent, Park and Kitty, is the one who is collecting that information.

[00:03:16] Speaker 03:
If that information were in the city's hands, would it be subject to public records requests?

[00:03:22] Speaker 01:
I'm not certain.

[00:03:24] Speaker 01:
My hunch is that it would be, but I wouldn't know a certain answer.

[00:03:26] Speaker 03:
So if I sign up for Parking Kitty, if the city adopts the changes you want, if I sign up for it, my credit card information becomes a matter of public record?

[00:03:38] Speaker 01:
No, Your Honor.

[00:03:40] Speaker 01:
That's because our theory in the case law does not turn, as a district court erroneously thought, on what is currently in the city's possession.

[00:03:47] Speaker 03:
That's not my, well, go ahead.

[00:03:50] Speaker 01:
I'll try and answer it more directly.

[00:03:51] Speaker 01:
I apologize.

[00:03:53] Speaker 01:
We don't think that it's subject to public records requests if it remains in their agent's possession.

[00:04:01] Speaker 01:
The pertinent question under the case law is,

[00:04:04] Speaker 01:
Is that information reasonably accessible that traces back at least as far back as Mennonite, which clarified that when conducting a Malan analysis, one has to look at the information.

[00:04:15] Speaker 00:
But right now there's no mechanism by which the city is receiving that information from Perkingkitty, correct?

[00:04:23] Speaker 00:
that appears to be the case that if they created that mechanism that information wouldn't be subject to public records request I mean if they have if if the city says like from now on every time someone signs up for parking kitty with the city has an open an open pipeline to that information then still they can keep it private I understand the concern I'm not sure

[00:04:49] Speaker 01:
that the fix would require the city automatically getting that information, as opposed to on an ongoing basis, someone picking up the phone and finding out.

[00:04:59] Speaker 01:
So perhaps in the record, there's an interesting example of this.

[00:05:05] Speaker 01:
During the COVID pandemic, the city of Portland started to have the Portland Police Department, in instances of toes, look up publicly available records at the DMV.

[00:05:15] Speaker 01:
And if they could find a phone number associated, pick up the phone and just call.

[00:05:19] Speaker 01:
I don't know that the city would be required to necessarily keep a repository themselves of this contact information, such that it would raise concerns of these public record requests.

[00:05:28] Speaker 00:
I have a different question, which is really how you get around our holding in Clement versus Glendale that parking tickets are generally sufficient to give notice.

[00:05:41] Speaker 00:
I don't understand what in that case tells us that now we have to add something

[00:05:45] Speaker 01:
additional just because parking is done through an app Of course your honor I would respectfully disagree with that reading of Clement I think the prior panel opinion in grim Clarified that what Clement was addressing was whether or not notice was required not assessing the discrete procedural question here and

[00:06:05] Speaker 01:
as to what method of notice is required.

[00:06:09] Speaker 01:
And those are governed by two totally different legal standards.

[00:06:12] Speaker 01:
So whatever Clement was saying, and he mentioned a litany of potential options that did mention knocking on a door or mailing out a letter, all sorts of things, I don't think that was a whole.

[00:06:23] Speaker 02:
It seems to me that your position then is that because we have, in theory, the technology.

[00:06:29] Speaker 02:
Now, I think we've talked about the fact that maybe this particular app doesn't transfer that information to Citi.

[00:06:34] Speaker 02:
But we probably all agree that, in theory, the technology would be available that could be more so that you're giving people notices on their cell phones or by email or something, something other than just a notice on their window of their car.

[00:06:49] Speaker 02:
It seems to me your argument is, because it's possible to do that now, probably wasn't 50 years ago when you didn't have apps, but because it's possible that the Constitution requires that.

[00:07:01] Speaker 02:
And that's an interesting argument.

[00:07:04] Speaker 02:
The thing that I'm struggling with about that is, and I think you started your argument by saying, there's a problem with abusing parking.

[00:07:15] Speaker 02:
And maybe there is.

[00:07:18] Speaker 02:
You know, municipalities abusing and towing vehicles.

[00:07:21] Speaker 02:
And I seem to remember something about that for a time when I lived in Dallas about the constables misbehaving and doing so.

[00:07:26] Speaker 02:
So I think you're probably right about that generally.

[00:07:29] Speaker 02:
What I'm struggling with in this case is, as I understand it, he did use an app to actually buy the parking.

[00:07:36] Speaker 02:
And he's not an idiot.

[00:07:37] Speaker 02:
So he knows when he buys it.

[00:07:38] Speaker 02:
He only bought parking for that one day or 12 hours or whatever it was.

[00:07:42] Speaker 02:
And so isn't he kind of on notice that,

[00:07:46] Speaker 02:
Listen, if you leave your car parked there for a week or two weeks or whatever, 10 days, whatever the time was, there's a good chance your car is going to be towed.

[00:07:54] Speaker 02:
And why does he necessarily need to have an app tell him that when he only bought eight hours of parking?

[00:08:00] Speaker 01:
Yeah, so the Supreme Court in Jones addressed this and discarded this argument.

[00:08:04] Speaker 01:
It comes up a lot, because those have a common sensical appeal, and defendants love to raise it in these types of cases.

[00:08:11] Speaker 01:
But the case law, dating all the way back to Malan in 1950 and clarified as recently as Jones, has consistently stressed that the common knowledge

[00:08:20] Speaker 01:
that if you break the law, fail to pay taxes, et cetera, fail to pay for your parking, that that could result in a property deprivation is very different than the type of notice that's required when the government decides to specifically tow your car.

[00:08:33] Speaker 02:
But they did give him notice.

[00:08:35] Speaker 02:
Your argument is, I mean, I don't think there's a dispute that they put lots of tickets.

[00:08:38] Speaker 02:
But most importantly, for purposes of this case, they put the thing saying, I think, two days before, you're going to get towed.

[00:08:44] Speaker 02:
And your argument is, yeah, but he didn't get that.

[00:08:47] Speaker 02:
And so I think your argument is that he has to.

[00:08:49] Speaker 02:
I know you kind of disclaim this, but your argument is that he has to get, it kind of devolves to, he has to get some sort of notice with his phone, otherwise they're not going to be sure otherwise.

[00:09:01] Speaker 02:
And so why would he not know, you know, they're going to try to give me notice on my car,

[00:09:07] Speaker 02:
I'm going to be out of town, I assume.

[00:09:12] Speaker 02:
He was off somewhere.

[00:09:13] Speaker 02:
And so I'm probably not going to get that notice.

[00:09:15] Speaker 02:
The same way as if he had said, you know what?

[00:09:17] Speaker 02:
I really like taking time off during the holidays.

[00:09:19] Speaker 02:
I'm going to just leave my phone at home.

[00:09:23] Speaker 02:
I'm probably going to get a notice on my car, and I'm not going to get that notice.

[00:09:27] Speaker 02:
Why does he not have some responsibility for that?

[00:09:31] Speaker 01:
I mean, the case law is clear that the ability to safeguard, I mean, and the courts have recognized the Supreme Court has put it beyond dispute by this point of 70 years of case law, that the ability to safeguard one's own property interest does not alleviate the government of its burdens regarding notice.

[00:09:46] Speaker 01:
But more importantly, I just want to clarify, we're not saying that you have to use the phone.

[00:09:51] Speaker 01:
That's just one option.

[00:09:52] Speaker 01:
The case law makes clear you do have to consider.

[00:09:54] Speaker 02:
What was your other option in this instance?

[00:09:56] Speaker 01:
Sure, the other option would be mailing.

[00:09:58] Speaker 02:
The mail wouldn't have even gone to him, I think.

[00:10:01] Speaker 02:
The car was registered in the father's name, so the mail wouldn't even have gone to him.

[00:10:07] Speaker 01:
Three points on that.

[00:10:10] Speaker 01:
One, Mennonite and Malane and Green recognize that where mail is an available option associated with the property if there's an address, sole reliance on posting is insufficient.

[00:10:21] Speaker 01:
Courts such as the District Circuit applying the Malane test in the tow context in the case of Propert, which we cite in both their opening and reply, applies this directly to CARS saying, hey, if a car is registered, you can go find contact information under Malane Jones.

[00:10:34] Speaker 03:
Does it make a difference?

[00:10:36] Speaker 03:
Does it make a difference that in the DC case, Profert or Propert, and in Jones and in the other cases we're talking about, the government's action was a permanent deprivation of property as opposed to, you left your car sitting on the streets, of course it's going to get towed eventually.

[00:10:57] Speaker 01:
And you can go redeem it.

[00:10:59] Speaker 01:
I understand the question under Ninth Circuit law No, because Ninth Circuit's been clear that even a temporary deprivation

[00:11:07] Speaker 03:
still counts as a Deprivation signify temporary deprivation is a property count, but we're talking about an overall standard of reasonableness here, right?

[00:11:17] Speaker 01:
Reasonable but as clarified by two things one reasonable if someone actually desires who is responding to unique information that they're learning as to the particular situation and more importantly Actually desirous and reasonable as the case law for over 50 years has teased out that

[00:11:33] Speaker 01:
that if a mailing address is available, you can't rely on posting alone.

[00:11:37] Speaker 01:
And I have not found a single Melanne Jones case.

[00:11:40] Speaker 02:
It seems like you're kind of arguing two different... When you're saying, well, I've got this legal standard that you should have sent me a...

[00:11:49] Speaker 02:
a mailer, something in the mail, even though I think we all acknowledge that that would have made no difference in this case.

[00:11:55] Speaker 02:
First of all, the time delay.

[00:11:57] Speaker 02:
Second of all, it would have went somewhere that wouldn't even went to him.

[00:12:02] Speaker 02:
And so your argument seems to be in different directions.

[00:12:05] Speaker 02:
On one hand, you're saying, I think if we were to buy your argument, we would have to say, yeah, the city has to mail, the city has to post, and the city has to have an app.

[00:12:16] Speaker 02:
I'm trying to figure out what- Or do you need a face-to-face contact?

[00:12:22] Speaker 01:
Sure.

[00:12:22] Speaker 02:
Yeah, yeah.

[00:12:24] Speaker 02:
So what would the standard be that you think would be sufficient here?

[00:12:29] Speaker 01:
I'd probably just go with the Supreme Court's standard in Jones, which says we're not supposed to prescribe for the city the particular method they're supposed to use.

[00:12:36] Speaker 01:
It's enough to say that there are other available options that they failed to make use of.

[00:12:40] Speaker 01:
So they would have to do everything under that standard.

[00:12:44] Speaker 01:
You would have to at least do the mail for a mailing address and just to respond very quickly if I may to the question wouldn't have gone to him here where the car wasn't registered.

[00:12:53] Speaker 01:
That's what I was trying to respond to.

[00:12:54] Speaker 01:
So in Jones it's interesting because the property owner actually didn't live at the address and so.

[00:13:00] Speaker 01:
They were mailing certified mail to the address.

[00:13:04] Speaker 01:
It was the guy's daughter who lived there, and the Supreme Court still said, you should have gone back to non-certified mail, just sent it to whoever's there, because it might, as a matter of pragmatics, bring it about to their attention.

[00:13:15] Speaker 00:
But Jones, if I'm not mistaken, was a situation where the government had no...

[00:13:19] Speaker 00:
Reason to know that the letter didn't reach the individual.

[00:13:25] Speaker 00:
How was the city to know here that your client wasn't just ignoring the parking tickets, as some people do?

[00:13:35] Speaker 01:
Well, one, the district court, and we think, properly found that the reasonable inference to draw from the tickets piling up was just that they weren't being received.

[00:13:42] Speaker 01:
And Millian Jones doesn't turn on- Or they were being ignored.

[00:13:45] Speaker 01:
Sure, but we don't know in Jones if it's being returned because he's ignoring them or because the test doesn't really turn and it never has on.

[00:13:54] Speaker 00:
But there you're clear that whatever is happening, this registered mail has not been received, it's not been opened.

[00:14:02] Speaker 00:
Here, you have a tow notice on the windshield.

[00:14:05] Speaker 00:
I don't really understand how those are equivalent.

[00:14:08] Speaker 01:
Well, you have eight tow notices posted on top of each other over the course of a week going undisturbed in photographs.

[00:14:14] Speaker 01:
So there's just this big stack of papers piling up.

[00:14:17] Speaker 01:
It's pretty clear he's not getting them.

[00:14:19] Speaker 01:
And I think the district court was right to draw that inference.

[00:14:22] Speaker 03:
Why is that the inference rather than this case is a setup to test the case and he's deliberately ignoring the parking tickets?

[00:14:32] Speaker 03:
Well, certainly in order to provoke the test.

[00:14:37] Speaker 01:
I'd say just as a procedural matter, I think at this posture, the inferences go in the non-movement's favor.

[00:14:44] Speaker 03:
Does it matter?

[00:14:46] Speaker 03:
Here's how the Chief Justice concluded his opinion in Jones.

[00:14:50] Speaker 03:
In this case, the state is exerting extraordinary power against a property owner, taking and selling a house he owns.

[00:14:57] Speaker 03:
The deprivation here is not even remotely comparable.

[00:15:00] Speaker 03:
Does that make a difference?

[00:15:03] Speaker 01:
Well, the Ninth Circuit, both in Clement and this prior panel in the Grimm case, has stressed that Ninth Circuit case law has for a long time stressed that a car deprivation

[00:15:13] Speaker 01:
When you need it, when you want to use it, the uninterrupted use is a serious deprivation.

[00:15:19] Speaker 01:
And pragmatically speaking, I mean, it's probably the most significant or second most significant piece of property that a person owns is their car.

[00:15:26] Speaker 03:
And it's not being taken and sold a la propert, right?

[00:15:30] Speaker 03:
That's correct.

[00:15:32] Speaker 03:
It's just being towed out of a place it's not supposed to be.

[00:15:35] Speaker 01:
And the test under long-standing precedent is when you disrupt that property interest, even if it's temporary, such as in Chin-Yi 2, which was a suspension, you have to comport with the strictures.

[00:15:45] Speaker 00:
One of the difficulties under the facts of this case is that although a car deprivation is extremely serious, here you have a car that's clearly just been

[00:15:58] Speaker 00:
sitting there.

[00:15:59] Speaker 00:
At some point, it starts to look like the person who owns the car doesn't actually need the car that much because you have tickets piling up on the windshield.

[00:16:08] Speaker 00:
So I think that's somewhat in tension with this argument that this is something that's really important that you really need that you can't be temporarily deprived of.

[00:16:19] Speaker 01:
See him over my time.

[00:16:20] Speaker 01:
Can I just answer that question?

[00:16:23] Speaker 01:
Yeah There's record evidence under a testimony that he was checking his phone He was checking his email that he did need to make use of the car in a particular day The subjective experience was he returned the car was gone He called retriever towing because that's where the city told him it was towed to Retriever towing told him initially they didn't have the car.

[00:16:43] Speaker 01:
He didn't know where the car was this is all in the record and

[00:16:45] Speaker 01:
He went to retrieve her towing.

[00:16:47] Speaker 01:
They wouldn't release it to him for several days until he paid the full amount He missed Christmas as a result.

[00:16:52] Speaker 01:
So I just think the facts in the record do demonstrate He was trying to make use of the car and it's not just a tow It's also the private lot that has it impounded and it's not going to be your property back until you pay the money All right.

[00:17:03] Speaker 02:
Well, we've taken you way over.

[00:17:04] Speaker 02:
I'll give you a couple minutes for a rebuttal time Thank you.

[00:17:08] Speaker 02:
Thank you

[00:17:11] Speaker 02:
We'll hear from the city.

[00:17:13] Speaker 02:
Can tell we're going to be really aggressive against your position.

[00:17:21] Speaker 04:
May I please the Court, Elsa Haig for the City of Portland?

[00:17:25] Speaker 04:
The District Court correctly concluded that the pre-tow placard placed on Grim's vehicle two days before towing was constitutionally adequate under the Malayne Jones standard.

[00:17:35] Speaker 04:
And Grim's arguments on appeal do not undermine that conclusion, so we'd ask this Court to affirm the judgment of the District Court.

[00:17:43] Speaker 04:
Under the Millane-Jones test, the preto warning was, quote, notice reasonably calculated under all the circumstances to apprise interested parties with due regard for the practicalities and peculiarities of the case.

[00:17:56] Speaker 04:
More specifically, the city, one, had no reason to suspect ineffective notice, and two, no additional reasonable steps available to attempt further notice that were also practicable under the circumstances.

[00:18:09] Speaker 04:
So I'll address each of those elements in turn.

[00:18:12] Speaker 04:
As for reason to suspect ineffective notice, as this court has already pointed out, the undisturbed notices, it's not a reasonable inference that Mr. Grimm was not receiving notice.

[00:18:25] Speaker 04:
That just isn't enough to put the city on, to give the city reason to suspect that they had to take further steps.

[00:18:33] Speaker 02:
In addition, in that sense, you disagree with the district court on that.

[00:18:37] Speaker 02:
Yes.

[00:18:37] Speaker 04:
Yeah, we do disagree on that point.

[00:18:40] Speaker 04:
In addition, the Preto warning placard was disturbed.

[00:18:43] Speaker 04:
That one was missing.

[00:18:44] Speaker 04:
So Mr. Grimm is asking for an inference in both directions that both undisturbed and disturbed notices gave the city reason to suspect that.

[00:18:55] Speaker 04:
I also want to address the question about the adequacy of notice and the type of deprivation and this idea that the permanency of the deprivation is a factor.

[00:19:07] Speaker 04:
And we agree that towing a vehicle is a deprivation and it does require notice, but as the court has pointed out,

[00:19:17] Speaker 04:
the fact that it's pre-toe notice and there is further notice after the toe, that does affect what's reasonable and practicable under the circumstances.

[00:19:27] Speaker 04:
And in propert, which is non-binding here, the posting there was insufficient for pre-destruction notice, which the court is the wording of the court there.

[00:19:36] Speaker 04:
The court also noted, it may be as DC contends that the warning sticker provides adequate pre-towing as opposed to pre-destruction notice.

[00:19:45] Speaker 04:
So we think that's an important distinction and really distinguishes propert.

[00:19:52] Speaker 04:
In addition, when we look at the affairs of men and reasonable expectations, as the court has pointed out,

[00:19:58] Speaker 04:
and the Supreme Court held in Green versus Lindsay, it's reasonable to expect that someone to look at how notice applies with how the affairs of men are ordinarily conducted and with the vehicle

[00:20:14] Speaker 04:
parked downtown where it's short-term parking and Mr. Grimm paid for a couple of hours of parking, it's reasonable to expect him to return to his vehicle.

[00:20:24] Speaker 04:
And in fact, he did eventually return to his vehicle and he did that, saw that the vehicle wasn't there and called the city and then discovered where his car was.

[00:20:38] Speaker 04:
As for the other methods for notice,

[00:20:43] Speaker 04:
In Duesenberry, the Supreme Court held that new technology does not make old methods insufficient, so the Constitution doesn't require new technology.

[00:20:54] Speaker 04:
As for mail, the court in Mennonite did not say that mail was the constitutional minimum.

[00:21:00] Speaker 04:
The court said, quote, mail are other means as certain to ensure actual notice if name and address are reasonably ascertainable.

[00:21:08] Speaker 04:
That's at 800.

[00:21:09] Speaker 04:
And here, as the court noted, the mail wouldn't have reached him and the name and address were not reasonably ascertainable.

[00:21:19] Speaker 04:
It's in the stipulated facts that the parking enforcement officers, quote, did not have vehicle ownership information and specifically did not have the name or contact information for the owner or user of the vehicle.

[00:21:31] Speaker 03:
So why doesn't the city have access to the information that drivers put into the app?

[00:21:38] Speaker 04:
The city doesn't have that information because passport which owns the parking kitty app It's a third-party app the city contracts with passport and has a white label use of the app But the city doesn't have a regular integration.

[00:21:55] Speaker 03:
My question is why not?

[00:21:56] Speaker 03:
I assume those are terms of a contract that could be altered

[00:22:00] Speaker 04:
Yes, so that's the way the app is set up.

[00:22:03] Speaker 04:
I'm not exactly sure of the precise reasoning for that, but that's the way it's set up.

[00:22:08] Speaker 02:
Do you know whether it was the private party app developer that is the impetus behind not wanting to share that information, or if it's the city saying, we don't want that information, do you know which way that is?

[00:22:19] Speaker 04:
I don't know, and that's not in the record.

[00:22:21] Speaker 04:
All that's in the record is that

[00:22:23] Speaker 02:
If the city was to say, Hey, we really want that information.

[00:22:27] Speaker 02:
Is there a, and we get these cases about, um, breaches of, and disclosures of people's personal information.

[00:22:35] Speaker 02:
So I suppose it's possible that the, um, that a city might say, you know, we just don't want to have that.

[00:22:40] Speaker 02:
You know, that's just another thing that we could go wrong and we could end up with a breach.

[00:22:43] Speaker 02:
And do you know, does that, is that, is that a legitimate, does that ever come up as somebody who works in the city or.

[00:22:48] Speaker 04:
I think that's a reasonable that that would be a reason.

[00:22:52] Speaker 04:
I don't know precisely what the city's reasons are.

[00:22:55] Speaker 04:
Yeah but you know the Constitutional standard doesn't require these heroic efforts and doesn't require that the city force a private business to provide us that information in this unique case for mr. Grimm's vehicle and we don't need to pry that information out in this situation and

[00:23:17] Speaker 04:
The stipulated facts show that we didn't have that information available.

[00:23:21] Speaker 04:
Parking Kitty does not regularly share that information.

[00:23:25] Speaker 04:
So under the constitutional standard, the city didn't need to do more in this situation.

[00:23:30] Speaker 02:
I have a question.

[00:23:30] Speaker 02:
Does the app allow you to just keep on like walking up physically to the meter and putting money in?

[00:23:38] Speaker 02:
Would it have been possible for Mr. Grim to keep paying his or does he have to move his car and the app doesn't really allow you to just every day?

[00:23:47] Speaker 02:
In other words, could he have just paid the amount every day and avoided all this?

[00:23:51] Speaker 04:
I'm not sure whether I know that the the different, you know You enter in what zone you're parked in and so the when you enter the zone, it's tied to whatever the limits are so I know from personal experience that if your two-hour time ends and it's two-hour parking You can't add more time after that.

[00:24:11] Speaker 04:
I'm not exactly sure whether on the next day you you could

[00:24:18] Speaker 04:
So I would also just note that with certified mail, a feature of using that method is that the government is given actual knowledge of whether it was effective.

[00:24:31] Speaker 04:
And so a lot of the cases where the court

[00:24:34] Speaker 04:
did require mail, Jones, Mennonite, Green, Yee-Too.

[00:24:38] Speaker 04:
That was a feature of the government's notice method.

[00:24:44] Speaker 04:
And with posting on a vehicle, that just isn't the case.

[00:24:47] Speaker 04:
And there isn't this system set up to give the government actual knowledge.

[00:24:52] Speaker 03:
How long does certified mail take?

[00:24:55] Speaker 03:
Send and then determine whether you've allowed sufficient time for an acknowledgement of receipt to be returned?

[00:25:02] Speaker 04:
Your honor, I'm not sure the exact time frame.

[00:25:05] Speaker 04:
I would imagine a few days, at least a week in this situation where the registered owner and the lien holder are both out of state.

[00:25:13] Speaker 03:
And typically a certified letter would be held for what, seven or 15 days at the post office for somebody to pick it up?

[00:25:19] Speaker 04:
Yes, I believe it's held at the post office for 15 days or it was in Jones.

[00:25:25] Speaker 04:
Yes.

[00:25:26] Speaker 04:
I would also note that in the delays for Mr. Grimm in picking up the vehicle after the tow, part of that delay was because of the requirement to get a notarized document from the registered owner of the vehicle.

[00:25:42] Speaker 04:
So part of that delay was because the registration was to Mr. Grimm's father.

[00:25:50] Speaker 04:
So I believe that one other important point here, Mr. Grimm argues that there's no balancing that's appropriate in this case.

[00:25:59] Speaker 04:
And I just want to note that under Malayne Jones, there is still some consideration of the state interest and balancing.

[00:26:06] Speaker 04:
In Jones, the court said,

[00:26:08] Speaker 04:
Assessing the adequacy of a particular form of notice requires balancing the interest of the state against the individual interests sought to be protected by the 14th Amendment."

[00:26:18] Speaker 04:
That's at 229, end quoting Mullane.

[00:26:21] Speaker 04:
So in Grim 1, this court never purported to overrule Jones, nor could it.

[00:26:27] Speaker 04:
The court was simply talking about

[00:26:30] Speaker 04:
using balancing in under the Matthews test to decide whether notice was appropriate, but that doesn't change the fact that you still do some amount of balancing in looking at the adequacy of a particular type of notice under Mullane Jones.

[00:26:45] Speaker 04:
Here the city's interest in enforcing downtown parking codes is at play and that goes to whether or not mail would be reasonable under these circumstances.

[00:26:59] Speaker 04:
And requiring mail would simply ignore the consideration of the practicalities of the case.

[00:27:06] Speaker 04:
So it seems that the court understands the issues at play here.

[00:27:10] Speaker 04:
And if you have no further questions.

[00:27:13] Speaker 02:
More questions from either of my colleagues?

[00:27:15] Speaker 02:
None from me either.

[00:27:16] Speaker 02:
So we'll go ahead and allow Mr. Keenan a couple more minutes to respond.

[00:27:21] Speaker 04:
Thank you.

[00:27:23] Speaker 02:
Thank you.

[00:27:30] Speaker 01:
Thank you, Your Honors.

[00:27:34] Speaker 01:
Just like to start with the dispute between how to read Mennonite.

[00:27:38] Speaker 01:
So Mennonite said where a mailing address is associated with the property, you have to use something at least as likely as the mail.

[00:27:45] Speaker 01:
The city wants us to read that to include posting, but the very teed up first sentence of Mennonite is we're assessing whether or not constructive notice by publication or posting is sufficient.

[00:27:57] Speaker 01:
So to read that as then saying posting is sufficient, we just think is a misreading of Mennonite.

[00:28:03] Speaker 01:
More importantly, the idea that you could just turn a blind eye to readily available contact information would create a circuit split with the 8th Circuit and the 1st Circuit, which reads Jones to reject that argument.

[00:28:14] Speaker 01:
Of course, Jones tells us we have to consider unique information about the particular person.

[00:28:19] Speaker 01:
So defendants try these arguments.

[00:28:20] Speaker 01:
And at least in the 8th Circuit and 1st Circuit, the argument has been expressly rejected because

[00:28:28] Speaker 01:
It's all about what's accessible.

[00:28:29] Speaker 01:
So the First Circuit says you have to look at obvious places.

[00:28:32] Speaker 01:
You have to ask.

[00:28:32] Speaker 01:
You have to pick up the phone and try.

[00:28:34] Speaker 01:
The Eighth Circuit expressly and Lynn Farms rejected the district court's reading of Jones saying you don't have to do the search.

[00:28:42] Speaker 01:
A reading that I will note was based on the syllabus of the case and not the actual part of Jones.

[00:28:47] Speaker 01:
That's a little bit more nuanced when you get down to the meat and potatoes of it.

[00:28:52] Speaker 01:
Finally, I would stress that even in the tow context, and I admit that it's persuasive authority,

[00:28:58] Speaker 01:
this long-standing feature of the Millane-Jones standard, tracing back to Mennonite, that if there's information available, you have to use it and you can't rely on posting alone, has been adopted and applied in a straightforward manner, even in the toe context by at least the Vasquez Court, which is an Illinois state court, and the Propert Court.

[00:29:20] Speaker 01:
And we would just stress that in Grim 1, the Ninth Circuit,

[00:29:23] Speaker 01:
said very clearly, this is a registered car.

[00:29:26] Speaker 01:
It was registered at the time of the tow.

[00:29:28] Speaker 01:
That means there was information that could be found.

[00:29:31] Speaker 01:
That means something under Melanne Jones due to Mennonite.

[00:29:33] Speaker 03:
So help me out, though, on this question of delay.

[00:29:38] Speaker 03:
How long does the city have to wait to tow if it has to rely on first class or certified mail?

[00:29:46] Speaker 03:
We're not talking about destroying the car, selling the house, anything like that.

[00:29:54] Speaker 01:
We won't know because they didn't actually try.

[00:29:56] Speaker 01:
We also don't know how long mail takes.

[00:29:57] Speaker 01:
But my understanding is mail takes approximately three days, according to the US Postal Service.

[00:30:03] Speaker 01:
Approximately.

[00:30:04] Speaker 01:
Sure.

[00:30:05] Speaker 01:
So the warning placard was left two days before the tow, I believe.

[00:30:08] Speaker 01:
We would submit that what they weren't free to do, and what's undisputed is that they did do, is wait until after they towed to even go and look up the contact information.

[00:30:18] Speaker 01:
That looking it up before and dropping the letter in the mail

[00:30:21] Speaker 01:
would have at least helped.

[00:30:23] Speaker 02:
This is what's challenging is you're saying that they should have done something.

[00:30:26] Speaker 02:
Three days would just be enough time to possibly that it would get there.

[00:30:29] Speaker 02:
It would never be enough time to know whether or not the person actually got notice who say certified mail or something like that.

[00:30:34] Speaker 02:
You wouldn't even have enough time if they had gotten notice to get the answer back.

[00:30:38] Speaker 02:
So then it sounds like your argument is basically that they just need to jump through this other hoop, even though, as you've heard from all of us, none of us think that that would have made any difference here, because he wouldn't have gotten it, right?

[00:30:47] Speaker 02:
It would have went to his father.

[00:30:48] Speaker 02:
That's a hard argument for you, because you're basically saying, we just wanted one other box to be checked that wouldn't have made any difference at all in my case, and you want us to

[00:30:58] Speaker 01:
Accept that that well see why that's a challenge of course But I think the argument kind of cuts the other way because the city wants to say well we have this app and we have this instantaneous contact information, but we can't use that and Okay, so we have to use something slower, but oh man the the mail is too slow especially if we wait what they're saying is if we put it if we put a Bunch of notices on your car in your party legally we kind of expect and I understand you're saying well there's some

[00:31:25] Speaker 02:
There's some precedent.

[00:31:26] Speaker 02:
Some of that doesn't have to do with towing cars, where you're not destroying them or taking them or anything.

[00:31:30] Speaker 02:
And so it's hard to see.

[00:31:31] Speaker 02:
I think the Supreme Court would have had a different, but would have had a different, reached a different conclusion for something like towing versus taking somebody's house.

[00:31:40] Speaker 01:
But just answer to that is, I've worked this case for seven years.

[00:31:44] Speaker 01:
I honestly think at this point, I've read more notice cases than I ever cared to.

[00:31:48] Speaker 01:
And I cannot find a single case where there's a mailing address available, and the constructive notice of posting is enough.

[00:31:56] Speaker 01:
And it's persuasive authorities that do it in the Toe case.

[00:31:58] Speaker 01:
But I mean, it's consistent.

[00:32:00] Speaker 01:
I mean, it's about as consistent of a line of precedent as you'll find.

[00:32:02] Speaker 01:
So I would just.

[00:32:03] Speaker 00:
I guess I'm still just thinking about the consequences of the rule that you're advocating.

[00:32:09] Speaker 00:
Because if we're saying something like, I don't know, 15 days for the certified mail,

[00:32:15] Speaker 00:
Over something like a holiday period where everybody's coming into town everybody wants to park no one wants to pay for parking you could have people just filling the downtown streets with their cars leaving them and then saying well now we get to stay here for two.

[00:32:31] Speaker 01:
For two weeks as a way and we we I mean we can't consider that kind of of course But the Ninth Circuit had two answers to that in its precedent and Clement one just the quicker you give notice that actually advances the government interest in getting the car moved and then to It was clear the answer to that is just then just raise the fines I mean there are other ways to punish and deter people but what's very clear is towing and giving short shrift to notice just isn't going to pass muster under Ninth Circuit precedent and

[00:32:58] Speaker 01:
So it's a legitimate concern.

[00:32:59] Speaker 01:
It's just you don't get to kind of cut down on the notice to take care of it, in part because Jones and Mennonite also recognize giving quick notice is the most efficient way.

[00:33:08] Speaker 01:
So pragmatically, if I was running the city, I'd probably just pick up the app and kind of send notice and say, it's the holiday season.

[00:33:14] Speaker 01:
Move your car.

[00:33:15] Speaker 01:
You're getting towed.

[00:33:16] Speaker 03:
Last week, I was on a beach in Oregon where a sign was posted by the access road.

[00:33:23] Speaker 03:
In emergencies, vehicles will be removed by all available means.

[00:33:27] Speaker 03:
I take it you would have no problem with that.

[00:33:30] Speaker 01:
Yeah, absolutely not.

[00:33:31] Speaker 01:
Grim 1 and Clement were both clear to say this is about non-exigency circumstances.

[00:33:37] Speaker 01:
So if this was blocking a fire line, if there was a blocking, impeding traffic, you know,

[00:33:42] Speaker 01:
parked on a sidewalk.

[00:33:44] Speaker 03:
In Chicago, we talk about snow emergencies.

[00:33:46] Speaker 03:
I don't know if that's a thing in Portland.

[00:33:50] Speaker 01:
Absolutely.

[00:33:50] Speaker 01:
I spent some time in Chicago, and I would consider that an emergency.

[00:33:54] Speaker 01:
And in that situation, I think that would fall in the exception to the general rule.

[00:33:58] Speaker 01:
But Grim 1 made clear we're in the ambit of the meat and potatoes, normal situation, non-exigency.

[00:34:03] Speaker 01:
You've got to meet the stricture.

[00:34:04] Speaker 03:
Sounds like it could take a month, right?

[00:34:08] Speaker 02:
Well, thank you very much, counsel.

[00:34:09] Speaker 02:
We took you way over.

[00:34:11] Speaker 02:
And how about any further questions from either of my colleagues?

[00:34:13] Speaker 01:
Thank you very much.

[00:34:14] Speaker 01:
I appreciate your time.

[00:34:14] Speaker 02:
Thank you to both sides.

[00:34:16] Speaker 02:
We have one more argument.

[00:34:17] Speaker 02:
Let me ask.

[00:34:20] Speaker 02:
I think we're going to plow through here for our last case, which is Connolly versus O'Malley.