[00:00:01] Speaker 00:
Good morning, your honors.

[00:00:02] Speaker 00:
Jared McLean for the appellants.

[00:00:04] Speaker 00:
I'm going to try to reserve three minutes of again.

[00:00:06] Speaker 04:
Okay.

[00:00:06] Speaker 04:
And I think you've heard my speech about watching.

[00:00:09] Speaker 04:
Thank you.

[00:00:11] Speaker 00:
The Thomas's bought their property with free and clear title.

[00:00:15] Speaker 00:
And just six days later, they were subject to $12,000 in daily penalties because someone else had cannabis in their garage two years before they even bought the place.

[00:00:26] Speaker 00:
Now, the county knew that the cannabis was gone, but that didn't stop the fines.

[00:00:30] Speaker 00:
The Thomases would soon learn that they were part of an extremely convoluted system that punishes innocent people by design.

[00:00:39] Speaker 00:
The due process problems here start as soon as the county sends these notices of violation.

[00:00:46] Speaker 00:
They don't describe what condition on the property is supposedly in violation of the code, and they don't tell you when the 10-day clock starts to run.

[00:00:55] Speaker 00:
The county predates the notices.

[00:00:58] Speaker 00:
It puts them in the mail.

[00:00:59] Speaker 00:
It posts them at the edge of the property.

[00:01:01] Speaker 00:
By the time someone gets it, they don't know how much time they have left to correct the violations, and they don't know what they have to do to correct the violations.

[00:01:10] Speaker 00:
And the problems, I think, start even before that, because this

[00:01:14] Speaker 00:
Dragnet enforcement schemes starts with the county looking down from satellite images to find supposed grading violations or unpermitted buildings, and then just assuming that they must contain cannabis.

[00:01:28] Speaker 00:
And this allegation of cannabis brings immediate and unavoidable consequences for the people who receive them.

[00:01:36] Speaker 00:
The fines begin to run automatically as a matter of law after 10 days, and the only way to stop them is by appealing.

[00:01:44] Speaker 00:
And while you wait for your appeal, you're not allowed to develop your property.

[00:01:48] Speaker 00:
You're not entitled to the permits you need to correct the supposed violations, and you're also not entitled to any other permits you might need to fully use and enjoy your property.

[00:01:58] Speaker 00:
And this weight is, I'm sorry, Your Honor, go ahead.

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

[00:02:01] Speaker 04:
No, I think that I'm just trying to, the district court, I think we read all the complaint and the briefing.

[00:02:07] Speaker 04:
The district court seemed hung up on the fact that the initial notices, at least for some of the plaintiffs, didn't specifically name them or were issued technically against the prior owner.

[00:02:21] Speaker 04:
My understanding, at least from the allegations of the complaint, is that there was sort of never any question that the county was still holding the current owners liable.

[00:02:29] Speaker 04:
Can you point to anything there specifically?

[00:02:31] Speaker 04:
I understand we're on a motion to dismiss, so there's not record evidence.

[00:02:36] Speaker 04:
But do you have allegations in the complaint that would show that the county was expecting the named plaintiffs to

[00:02:48] Speaker 04:
be reliable for these notices, even though they didn't specifically name them.

[00:02:52] Speaker 04:
Do you understand my question?

[00:02:53] Speaker 00:
Yeah, I completely understand.

[00:02:54] Speaker 00:
Yes, Your Honor.

[00:02:55] Speaker 00:
I have two responses to that.

[00:02:57] Speaker 00:
One, at paragraphs 123 to 134 of our complaint, we talk about how it's the county's policy that the current owner is responsible for all the conditions on the land.

[00:03:08] Speaker 00:
There was actually a public hearing with respect to our specific clients in response to a news article about how the government was punishing innocent purchasers.

[00:03:18] Speaker 00:
And Director John Ford, who's a defendant in this case, sat there at the public meeting and said,

[00:03:23] Speaker 00:
he lamented the sympathy that they were getting because they are responsible for all of the conditions on their property.

[00:03:28] Speaker 00:
So as we have alleged that they are responsible and beyond that I think

[00:03:34] Speaker 00:
The question's a bit beside the point because Rhonda Olson's fines were issued in her name in April 2020, and under this court's decision in Bates, which was en banc, as long as there's one named plaintiff in a class action who has standing to bring the claims, you don't need to get into all the other plaintiffs.

[00:03:52] Speaker 00:
I would assert that all of our plaintiffs have standing here, but because Rhonda Olson and the Thomases both clearly do, then I think that resolves the question.

[00:04:05] Speaker 03:
So the district court, or the magistrate judge that had this case, wrote an extensive order.

[00:04:15] Speaker 03:
I've read your brief, but where do you think is the most serious error in dismissing your claims without leave to amend?

[00:04:31] Speaker 00:
As a general matter, the error that pervaded everything was his refusal to accept our allegations as true.

[00:04:42] Speaker 00:
he he looks at all these documents he looks at six hundred pages of documents without identifying a single fact that's not subject to a reasonable that's not subject to differing interpretations that actually contradicted anything in our complaint and then he just ruled as a matter of law that everything the county had done was even-handed and proportionate and non-arbitrary and the standard for excessive fines claims and our substantive due process claims

[00:05:07] Speaker 00:
our proportionality and arbitrariness.

[00:05:10] Speaker 00:
So he assumed all of the facts against us, and then he reached legal conclusions and basically said, we're never going to be able to prove these claims.

[00:05:20] Speaker 00:
There's nothing that we can put forward that's going to change his mind that what the county did here was disproportionate or arbitrary.

[00:05:28] Speaker 03:
How about the timeliness arguments that were asserted in the district, in the order?

[00:05:35] Speaker 00:
Yeah, as I was touching on in response to Judge Sung, there was both a factual error.

[00:05:43] Speaker 00:
Rhonda Olson received her notes of violation, the operative NOV for her property, in April of 2022, and we allege that in our complaint at

[00:05:56] Speaker 00:
Paragraph 436.

[00:05:57] Speaker 00:
And so that claim was very clearly within the two-year statutory period as the trial court acknowledged the Thomas's notice of violation also came within the two-year statutory period.

[00:06:11] Speaker 00:
And so I think that

[00:06:15] Speaker 00:
Certainly the harm that Blue Graham and Ciro Glad continue to face is ongoing because every day that they still are waiting for their hearing, Ciro's still prohibited from developing his property.

[00:06:27] Speaker 00:
So I think that each day that that happens is a new violation, but I don't think this court needs to resolve that because under Bates we have Rhonda and we have the Thomases who have very clearly timely cases.

[00:06:41] Speaker 00:
And just expanding on your question, some other ways that the court erred that affected things, he refused to accept that our clients had applied for permits, that we weren't even allowed to allege that the county has this policy and practice of denying permits.

[00:07:00] Speaker 00:
And we alleged at paragraphs 362, 377, 390, and 442 that Blue Graham sought the grading permit that he needed to resolve his abatement case.

[00:07:13] Speaker 00:
He sought a safe home permit.

[00:07:14] Speaker 00:
He paid the fee for his safe home permit, and then code enforcement told him that there was a hold placed on his permit because he had an outstanding cannabis abatement case.

[00:07:24] Speaker 00:
And then also Rhonda Olson emailed the county and said, I just had an engineer come out.

[00:07:29] Speaker 00:
I'd like to have a septic system installed on my property.

[00:07:33] Speaker 00:
And the county responded, FYI, you are ineligible for permits while you wait for your abatement case.

[00:07:39] Speaker 00:
There is a very clear harm.

[00:07:41] Speaker 00:
These are rape allegations under Harris versus Riverside from this court.

[00:07:46] Speaker 00:
Our clients have been wholly precluded from developing their property while these cases drag out.

[00:07:52] Speaker 00:
And these cases just drag out indefinitely because as we alleged, unless they have hard proof that somebody actually grew cannabis without a permit, they just never give them a trial.

[00:08:01] Speaker 00:
The only people that are actually getting administrative hearings are the people who are guilty and everyone else is stuck in limbo indefinitely until they eventually give in and pay a settlement.

[00:08:11] Speaker 04:
Can you address the judicial notice issue a little more?

[00:08:14] Speaker 04:
The district court indicates in the order that the plaintiff's opposition to the motion for judicial notice was thin.

[00:08:23] Speaker 04:
I understand you have an argument that even if the judicial notice was proper, it at best created material factual disputes that

[00:08:33] Speaker 04:
at this stage of the proceedings should not have been resolved in favor of the defendants.

[00:08:37] Speaker 04:
But can you address the merits of the granting of the judicial notice in the first place in light of the nature of the opposition?

[00:08:46] Speaker 00:
Yeah, Andrea.

[00:08:48] Speaker 00:
So our position below was that these are 600 pages of hand-selected documents.

[00:08:53] Speaker 00:
This is a motion to dismiss.

[00:08:54] Speaker 00:
They can attach them when we get to summary judgment.

[00:08:57] Speaker 00:
And we were overruled on that objection.

[00:08:58] Speaker 00:
We haven't brought it up on appeal.

[00:09:00] Speaker 00:
Our position here is that

[00:09:02] Speaker 00:
Even if these documents themselves were susceptible to judicial notice, the trial judge still has a duty to specifically identify facts within those documents, not just the documents themselves.

[00:09:15] Speaker 00:
And the facts need to not be subject to reasonable dispute, and they also need to clearly contradict the allegations in our complaint.

[00:09:24] Speaker 00:
And he didn't specify anything.

[00:09:26] Speaker 00:
And to this day, we're still not sure what is in those documents.

[00:09:29] Speaker 00:
Like, we're up here on an amended complaint that got dismissed.

[00:09:33] Speaker 00:
We filed our original complaint.

[00:09:35] Speaker 00:
They attached all the documents to their original motion to dismiss.

[00:09:38] Speaker 00:
We looked through them.

[00:09:39] Speaker 00:
We said, there's a lot of good stuff in here for us.

[00:09:41] Speaker 00:
This system is working in a way that's even crazier than we imagined.

[00:09:45] Speaker 00:
We added 132 new allegations to our complaint based on these documents.

[00:09:49] Speaker 00:
And the trial court looked at those same documents and said that we were highly disingenuous to suggest that the system is working the way that it does.

[00:09:58] Speaker 00:
And that was error.

[00:09:59] Speaker 00:
And as this court explained it in Ray Gilead, by doing that, by sitting as a finder of fact at the motion to dismiss stage based on judicially noticeable documents, it makes it impossible for plaintiffs like us to prove our case.

[00:10:14] Speaker 00:
And as this court said in COJA, after you go through this analysis of whether or not a fact is subject to judicial notice,

[00:10:25] Speaker 00:
you still go back to rule eight, you still go back to the pleading standard, and whether under Twombly and Iqbal, what we said are well-pleaded allegations, were they plausible?

[00:10:36] Speaker 00:
And with the trial court here, he didn't look at whether our legal claims were plausible.

[00:10:41] Speaker 00:
He looked at whether our facts were plausible.

[00:10:44] Speaker 00:
And he said, it's just implausible to me that the government would act this way.

[00:10:48] Speaker 00:
And that's not the trial court's job at a motion to dismiss stage.

[00:10:52] Speaker 04:
Assuming hypothetically, we agree with you that there was reversible error.

[00:10:56] Speaker 04:
You're also asking for reassignment on remand.

[00:10:59] Speaker 04:
Can you address that argument?

[00:11:03] Speaker 00:
Yes, your honor.

[00:11:04] Speaker 00:
Um, sorry, bear with me one moment.

[00:11:08] Speaker 00:
So I think that the Yvonne decision from this court is the most on point for why reassignment is appropriate.

[00:11:17] Speaker 00:
The trial court already drew factual conclusions like this was an evidentiary stage.

[00:11:24] Speaker 00:
He held that our facts were implausible, highly disingenuous, not entitled to the presumption of truths.

[00:11:30] Speaker 00:
He accused us of being disagreeable, of obfuscating, of painting a distorted picture, of making gross mixed characterizations.

[00:11:38] Speaker 00:
On the merits, he said, we won't ever be able to state a claim that the county imposed an unconstitutional condition.

[00:11:44] Speaker 00:
And he ruled as a matter of law that everything they did was even-handed, proportionate, and non-arbitrary, which makes it impossible for us to state a claim under the due process clause,

[00:11:53] Speaker 00:
or under the Eighth Amendment.

[00:11:55] Speaker 00:
So I think that he has made very clear.

[00:11:58] Speaker 00:
I think this court has said when a trial judge is adamant in its decision and it makes it seem like the judge is not going to change his mind, that reassignment is appropriate.

[00:12:07] Speaker 00:
But this court has also said in Reyes versus Rivera that even if you believe that he might be able to put aside his past belief, you should also look to the appearance of injustice.

[00:12:17] Speaker 00:
And if we go back down,

[00:12:19] Speaker 00:
and we get kicked on a motion to dismiss for all these same reasons, it's not going to look like justice.

[00:12:25] Speaker 00:
And the hundreds of putative class members in Humboldt who have been subject to this system for over five years are going to have to wait a couple more years for relief as we're back up here in the Ninth Circuit raising all these same arguments.

[00:12:37] Speaker 04:
Why isn't that true whenever we reverse a case that was for dismissing improperly?

[00:12:43] Speaker 00:
Well, I think that that goes back to the first prong of the Sears Roebuck test, which is, has this judge made clear on the record, has he said something that suggests that his views are firmly held and he's not going to be pulled off of them?

[00:12:55] Speaker 00:
And I think the long list of adjectives and ridicule make that clear in this case.

[00:13:01] Speaker 00:
And I have about two minutes left, so I'd like to reserve that, if I may.

[00:13:28] Speaker 02:
Good morning.

[00:13:28] Speaker 02:
May it please the court, Pamela Graham on behalf of the County of Humboldt.

[00:13:33] Speaker 02:
I think what your honors just heard is precisely why this case should be affirmed.

[00:13:39] Speaker 02:
There are rare circumstances where when a case comes up on a complaint, it is appropriate for a judge when reviewing the complaint to go beyond the complaint as this judge did here and to dismiss it without leave to amend.

[00:13:56] Speaker 02:
This is that circumstance.

[00:13:58] Speaker 02:
It was a lengthy complaint.

[00:14:00] Speaker 02:
It raised numerous parties, numerous allegations that the county then had to defend.

[00:14:07] Speaker 02:
But it was mischaracterizing the nature of those code enforcement proceedings.

[00:14:13] Speaker 02:
And a court is entitled when reviewing a complaint

[00:14:17] Speaker 02:
before it requires here a public entity to put in taxpayers' dollars to defend the case to look beyond the complaint.

[00:14:27] Speaker 03:
I'm not aware of any law or anything that suggests that the county should get some special consideration.

[00:14:35] Speaker 02:
And I'm not asking for special consideration.

[00:14:37] Speaker 03:
I mean, it looks to me like what the judge did here was, you know, the standard is you take the facts in the light most favorable.

[00:14:45] Speaker 03:
to the non-moving party here would be the plaintiffs.

[00:14:48] Speaker 03:
And where there's discrepancies, you look at everything in light most favorable to the plaintiff.

[00:14:57] Speaker 03:
It doesn't look to me that that's what he did.

[00:14:59] Speaker 02:
So let's take a look at what he actually either took notice of or incorporated by reference.

[00:15:05] Speaker 03:
I don't know what he took notice of.

[00:15:06] Speaker 03:
He took notice of all those documents.

[00:15:08] Speaker 02:
Well, he took notice of public documents.

[00:15:10] Speaker 02:
So that included county code sections.

[00:15:13] Speaker 02:
It included some other cases that we asked the court to notice.

[00:15:19] Speaker 02:
But there were also then all of the documents, which was the majority of documents, that were code enforcement proceeding documents.

[00:15:26] Speaker 02:
So that included, and your honors have seen the record, so you understand what's in there, but just to summarize, the notices of violation, the actual notices to abate, communications that were going back and forth between the named plaintiffs and the county.

[00:15:41] Speaker 02:
So depending upon the plaintiff, that may have varied.

[00:15:43] Speaker 02:
It may have been emails.

[00:15:44] Speaker 02:
It might have been an engineering report.

[00:15:45] Speaker 04:
We're talking a very high level here, which is only of limited use.

[00:15:50] Speaker 04:
But for example, the plaintiff specifically alleged, this person from the county told me they weren't going to approve my permit application because I have

[00:15:59] Speaker 04:
the ascending violation or something to that effect.

[00:16:02] Speaker 04:
That seems to me to meet our requirements for specificity.

[00:16:08] Speaker 04:
Then we have the district court essentially making a finding that that couldn't have happened or didn't happen without pointing to something specific in the judicially noticed documents that could essentially negate that allegation, that could make it absolutely impossible that that was said.

[00:16:29] Speaker 04:
to one of the named plaintiffs.

[00:16:31] Speaker 04:
Are you saying there is something in those documents that disproves that allegation, that flatly contradicts it so that it's not something that the court was required to deem true?

[00:16:40] Speaker 02:
Let me give a few examples.

[00:16:42] Speaker 02:
So one I would note is anything that deals with the procedural issues of whether there is a fair process.

[00:16:49] Speaker 02:
If you look to the county code, which was taken notice of, and if you look to the notices of violation as well as the notices to abate, they will specifically list out most of the information that has been taken issue with.

[00:17:03] Speaker 02:
So for example, when are you required to get a hearing?

[00:17:07] Speaker 02:
Well, it will say in the county code section, which the court took judicial notice of, as well as in the actual notices of violation that were issued, that you are entitled to a hearing if you timely appeal no sooner than 15 days after that notice is issued.

[00:17:24] Speaker 02:
Right, no sooner, not no later then.

[00:17:25] Speaker 02:
That's correct, so no sooner.

[00:17:27] Speaker 02:
And there is no specific deadline within the code when they actually have to give that hearing.

[00:17:33] Speaker 02:
The reason that the judge then looked even beyond those core documents to the communications back and forth is because if you're going to raise an issue of delay, then it is appropriate to look at whether or not that delay was being caused by the county.

[00:17:49] Speaker 02:
or was it being caused by these specific plaintiffs?

[00:17:52] Speaker 02:
And when the court took notice or incorporated... I'm not sure you're answering my question though.

[00:17:57] Speaker 04:
I asked specifically about the allegation that the county has a policy or that at least the representation was made by someone from the county to name plaintiffs that they would not approve, the county would not approve their permanent applications unless they resolve the pending notices of violations.

[00:18:16] Speaker 04:
And the district court seemed to just say that's not

[00:18:21] Speaker 04:
We're not, basically the county does not, I'm going to find the county does not have such a policy.

[00:18:26] Speaker 04:
So is there, but it seems to me that then there would be somehow those judicially noticed documents would have to make it impossible for that to have been said.

[00:18:34] Speaker 04:
But I don't even see how that's possible.

[00:18:36] Speaker 04:
If there was a communication, a representation that there was that communication, how can the judicially noticed documents

[00:18:44] Speaker 04:
resolve that factual allegation so conclusively that it's not entitled to be deemed true on a motion to dismiss.

[00:18:51] Speaker 02:
So I would say there are two responses to that.

[00:18:53] Speaker 02:
One is specific to a plaintiff.

[00:18:55] Speaker 02:
So just to give an example, if we're talking about, for example, plaintiff Olson, it's important to note that she, in fact, reached out to the county, talked to them about curing some of these violations, abating them, and then asked for there to be a remediation plan for the properties.

[00:19:12] Speaker 02:
So that is all in the documents.

[00:19:14] Speaker 02:
The remediation plan that I'm referencing is 3ER-451.

[00:19:19] Speaker 02:
It goes all the way to 548.

[00:19:22] Speaker 02:
And it shows that there were these constant communications with the county, that the county agreed on a plan to actually abate these issues.

[00:19:30] Speaker 02:
The second response I would have to that is that one of the judicially noticed documents was in fact a plan or a policy that the county put into place, which was policy 2204,

[00:19:42] Speaker 02:
and that's at 2ER 243.

[00:19:45] Speaker 02:
And that shows that, in fact, it was not the policy of the county to just automatically deny any permit that was sought relating to the property.

[00:19:55] Speaker 02:
They could, in fact, keep that if they went through the appropriate steps that were in that policy.

[00:20:00] Speaker 04:
Right, but plaintiffs are saying someone told me otherwise.

[00:20:02] Speaker 04:
So why isn't that just a material factual dispute that has to be resolved in favor of the plaintiffs on a motion to dismiss?

[00:20:08] Speaker 02:
Well, I think the argument there is that that doesn't make out any of their claims, and it certainly doesn't get them past the procedural hurdles.

[00:20:14] Speaker 04:
It's just an example, though, of something that the district court, a factual allegation that seems specific, that the district court didn't credit to be true on a motion to dismiss.

[00:20:25] Speaker 02:
Again, I would say that the facts that are actually in the documents do not show that.

[00:20:31] Speaker 02:
And if I can go back to, Your Honor, the point about whether these claims are even procedurally appropriate.

[00:20:38] Speaker 02:
Any of the documents, any of those allegations that you're referencing right now still don't make these claims right.

[00:20:45] Speaker 02:
They still don't make them timely.

[00:20:47] Speaker 02:
So I think to the extent that the court is looking to those documents, also weighing the allegations in favor of the plaintiffs, he still appropriately found that the claims were not right.

[00:20:58] Speaker 02:
And the reason for that is because there was nothing in either the allegations or in the documents that he took notice of.

[00:21:05] Speaker 02:
that in fact any of these plaintiffs actually sought through permit applications these permits and that they were rejected.

[00:21:14] Speaker 02:
When it deals with the excessive fines issues, there were none of the plaintiffs that were actually imposed fines.

[00:21:19] Speaker 04:
Their claim isn't that they were entitled to the permits.

[00:21:21] Speaker 04:
Their claim is that the coercion brought upon them by saying that we're not going to approve these unless you do this is

[00:21:28] Speaker 04:
is the claim, and their claim is that we're suffering actual, I think our case law is very clear.

[00:21:37] Speaker 04:
If someone's bringing an action, we even have case law saying you can have standing, you can have concrete injury before a violation is being prosecuted against you if you can show that it's likely to occur.

[00:21:52] Speaker 04:
So why aren't these claims ripe?

[00:21:55] Speaker 04:
Why aren't they have sufficient injury under that line of cases?

[00:21:58] Speaker 02:
Sure.

[00:21:59] Speaker 02:
So the reason that they are not ripe, first of all, because they didn't seek a permit.

[00:22:03] Speaker 02:
I understand your point that there are cases where you may have a harm that precedes that.

[00:22:08] Speaker 02:
But let's remember what's going on with each of the four properties at issue here.

[00:22:12] Speaker 02:
All of them have evidence that there was previous unlicensed cannabis cultivation on these properties.

[00:22:19] Speaker 02:
There were unpermitted buildings, and I'm using generalities, obviously, across all four of them.

[00:22:25] Speaker 02:
There are specific allegations as to each of them.

[00:22:27] Speaker 02:
There was debris that related to that prior cannabis cultivation.

[00:22:33] Speaker 02:
And they're being no treated, they're not being treated any differently,

[00:22:37] Speaker 02:
than any other party that comes to the county who has violations on their property.

[00:22:42] Speaker 03:
Were they served with a notice of violation?

[00:22:44] Speaker 02:
I'm sorry, Your Honor.

[00:22:44] Speaker 03:
Were they served with a notice of violation?

[00:22:47] Speaker 02:
So there were notices of violation at issue here.

[00:22:50] Speaker 02:
They were served to the named plaintiffs in three of the cases.

[00:22:55] Speaker 02:
In one of the cases, the Thomases, it was not served on the Thomases, but rather on the prior owner of that property.

[00:23:02] Speaker 02:
For that reason, the Thomases, I would argue, do not have standing to bring a claim.

[00:23:06] Speaker 03:
And did the notice of violation impose a penalty?

[00:23:09] Speaker 02:
The notices of violation include a proposed penalty that penalty is subject to discretion, which means that there are factors that are listed in the Humboldt County code that may bring that amount down.

[00:23:21] Speaker 03:
Is that in the, is that in the notice of violation?

[00:23:24] Speaker 02:
Well, it references to the County code.

[00:23:27] Speaker 02:
So if you go to the County code, you would see the factors that are listed.

[00:23:30] Speaker 02:
Yes.

[00:23:31] Speaker 02:
And it also says on the very top of that, that it is a notice of violation and proposed penalty.

[00:23:37] Speaker 02:
And as your honors know from reading the briefs, in most of these cases, including plaintiff Graham's case, the penalties are either written off, so to say, if the case is settled.

[00:23:51] Speaker 02:
In Mr. Graham's case, he only paid about $500 for an actual permit fee.

[00:23:56] Speaker 02:
None of the other fines were imposed on him.

[00:23:58] Speaker 02:
Or, of course, there's always the alternative that if this is a case that goes up through the administrative process and is then reviewed by a superior court or by the hearing officer initially, those fines may be reviewed and reduced.

[00:24:12] Speaker 03:
Does the hearing officer have authority to reduce them down to zero?

[00:24:17] Speaker 02:
he does have authority here she does have authority to read it all the way down to zero and of course that would be i think in a circumstance where that hearing officer may not find that the violations withstand review but yes they may be reduced down to zero as they were in mister graham's case

[00:24:33] Speaker 02:
when he did settle his case.

[00:24:35] Speaker 04:
Everybody had to engage in various admissions, agree to take certain actions to get that settlement, correct?

[00:24:42] Speaker 02:
Well, but the only actions that he was required to take are actions, for example, in host circumstance to grade property that was not graded.

[00:24:51] Speaker 02:
And this is not some type of enhancement that the plaintiffs take issue with because of a prior cannabis cultivation.

[00:24:59] Speaker 02:
This is simply a land use

[00:25:01] Speaker 02:
and a code enforcement issue that would have to be corrected on anybody's property.

[00:25:05] Speaker 04:
Right, but the proposed penalties were based on the nexus with cannabis.

[00:25:10] Speaker 04:
That is true, that is true.

[00:25:12] Speaker 04:
I want to go back to something you said about the Thomases.

[00:25:16] Speaker 04:
You're saying the notice wasn't issued in their name.

[00:25:19] Speaker 04:
My understanding, at least from the complaint allegations, the Thomases have been operating under the assumption that they are liable nonetheless.

[00:25:26] Speaker 04:
Has the county ever affirmatively

[00:25:29] Speaker 04:
represented to the Thomases that they're not liable for those pre-existing violations.

[00:25:33] Speaker 04:
The county seems to be consistently taking the position that the current owners are liable for any existing violations, whether they were the cannabis growers or not.

[00:25:44] Speaker 02:
Right.

[00:25:44] Speaker 02:
So in the case of the Thomases, they actually reached out to the county, authorized an inspection of the property, and then there were communications back and forth.

[00:25:53] Speaker 02:
There was a proposed compliance agreement in terms of how they could actually fix those issues.

[00:25:58] Speaker 02:
They applied for a demolition permit.

[00:26:00] Speaker 02:
They never actually picked it up.

[00:26:02] Speaker 02:
So as you can see, Your Honor, they were trying to work with the county to fix the issues.

[00:26:05] Speaker 04:
All of that presumes the county is not disabusing them of their understanding that they are liable for that notice, notwithstanding the fact that they weren't named.

[00:26:12] Speaker 02:
So there were discussions with the county that the county would agree to not actually serve the notice to abate and the notice of violation on the Thomases as the current owners.

[00:26:23] Speaker 02:
if they proceeded through with the compliance agreement to actually fix the issues on the property.

[00:26:29] Speaker 04:
Okay.

[00:26:29] Speaker 04:
And there's also my understanding is a complaint allegation is that the county doesn't record any of the violations or at least in these cases have did not record any of the violations that pre existed their ownership of the property.

[00:26:43] Speaker 02:
Well, and in these cases, all of the notices of violation and notices to abate were actually served after these plaintiffs became the owners of the property.

[00:26:52] Speaker 02:
So there are not any notices to abate or notices of violation that would have preceded the recording of their grant deed.

[00:27:01] Speaker 04:
Even though you did seem to concede earlier that these are violations based on things that preexisted their ownership.

[00:27:07] Speaker 02:
That's true that the investigations began before the time that these particular named plaintiffs purchased these properties.

[00:27:15] Speaker 02:
Just one point I would make to that though, I think there is argument certainly in the briefs that they are, the plaintiffs are somehow innocent purchasers, but as your honors know from reviewing the documents that we think were properly noticed or incorporated by reference, it was very clear that there was prior cannabis cultivation unlicensed

[00:27:36] Speaker 02:
on all of these properties, which would have been apparent to somebody that was buying the property.

[00:27:40] Speaker 02:
Not necessarily something that needed to be investigated and uncovered through a title search, but was in fact apparent when the properties were inspected.

[00:27:55] Speaker 02:
Well, again, for these particular four of them, all of these plaintiffs were involved or owners of the property at the time that these notices were issued.

[00:28:03] Speaker 02:
So I can't speak to other notices of violation or notices to abate.

[00:28:07] Speaker 02:
But for these, they were actually the owners at the time they were issued.

[00:28:12] Speaker 03:
Okay.

[00:28:15] Speaker 02:
Okay.

[00:28:18] Speaker 01:
What's your position on reassignment if we agree with the appellants that it should be reversed?

[00:28:25] Speaker 02:
So I think obviously this judge took a lengthy pass through the documents that we requested notice of.

[00:28:33] Speaker 02:
I think that he showed through the opinion that he can base his opinions on the evidence.

[00:28:38] Speaker 02:
I don't see anything here that suggests that he would somehow be prejudiced to review evidence upon any type of a remand.

[00:28:45] Speaker 02:
We don't think it's appropriate to reassign.

[00:28:48] Speaker 02:
particularly considering in this case, because of the circumstances of where the plaintiffs are located, where the county is located, and where the judges are located in that district, we had actually agreed to have this case heard by a magistrate.

[00:29:03] Speaker 02:
Both sides agreed to that for all purposes.

[00:29:06] Speaker 02:
So we don't think this is a situation where there is such a clear prejudice or inability for him to be impartial that it could not be remanded back to the same judge.

[00:29:19] Speaker 04:
Thank you, Council.

[00:29:35] Speaker 00:
Thank you, Your Honors.

[00:29:36] Speaker 00:
I'll try to briefly touch on, there were many factual disputes that were raised during that argument, which shows why this should have got passed the motion to dismiss.

[00:29:44] Speaker 00:
I'd focus on the fact that these penalties are final unless they're appealed.

[00:29:48] Speaker 00:
It says so in the Notice of Violation.

[00:29:49] Speaker 00:
We allege it at Paragraphs 252 and 343 of our complaint.

[00:29:55] Speaker 00:
You have to, the only way to have your fine reduced on appeal, there's a mandatory minimum fine of $6,000 per day.

[00:30:02] Speaker 00:
The only way to have that reduced is if you take immediate steps to work with the county to resolve your violation.

[00:30:07] Speaker 00:
So this idea that by Rhonda Olson working with the county to resolve her violation, she has waived the right to a speedy hearing, it's the only way that she could possibly have her fines reduced.

[00:30:17] Speaker 00:
So they put you in this situation where you have no choice but to work with them, but then by working with them, you're never entitled to a hearing.

[00:30:23] Speaker 00:
and that's how you end up with these circumstances where it's five, six years on and these people have never gotten their day in court.

[00:30:33] Speaker 00:
whether these cases were started against the prior owner.

[00:30:37] Speaker 00:
If you look at some of the dates in the judicially noticed documents, they precede our client's ownership.

[00:30:41] Speaker 00:
These cases were started against the prior owner.

[00:30:43] Speaker 00:
They were never pursued against the prior owner.

[00:30:47] Speaker 00:
For the Thomases, for example, the case was two years old and they waited until six days after they recorded title to issue the violations to the Thomases and to show what happens if the Thomases don't work with them.

[00:30:58] Speaker 00:
And it's not just the outstanding permitting violations.

[00:31:06] Speaker 00:
It's not just that there's nuisances on your property that are causing harm to the society at large.

[00:31:12] Speaker 00:
It's that there was cannabis cultivated on this land and you're facing.

[00:31:16] Speaker 00:
cannabis penalties for the past conduct of the prior owner and those were issued in Rhonda Olson's name because she refused to settle and although we agree nothing about this case should upset how normal practice of nuisance abasement works but crimes do not run with the land and just because prior owners have committed illegal conduct on the land doesn't mean that years down the road a new purchaser should have investigated

[00:31:42] Speaker 00:
the the garage to see if maybe there was a crime because they they could could possibly conceive that they might be subject to over a million dollars in penalties and a two hundred thousand dollar order to destroy a three-story garage.

[00:31:54] Speaker 03:
The one point she did make though was that you know like it's these structures there's photos of them in the record a buyer who just walked through the property would be curious whether or not that structure was permitted.

[00:32:12] Speaker 03:
Right.

[00:32:12] Speaker 03:
You think you want to check.

[00:32:15] Speaker 00:
So that's and if this case were only about permits, our clients would have been able to get the permits.

[00:32:21] Speaker 00:
So there's an unpermitted structure on the property.

[00:32:24] Speaker 00:
And if it's able to be permitted, they would be able to then go through the process and get a permit for that.

[00:32:29] Speaker 00:
And they would be fully responsible for doing that.

[00:32:31] Speaker 00:
But because of the cannabis allegation,

[00:32:34] Speaker 00:
they're ineligible for that permit.

[00:32:36] Speaker 00:
So by alleging that there was cannabis involved, it takes them out of the normal permitting process and they can't actually correct the nuisances on their property.

[00:32:44] Speaker 00:
Like if this were actually about permits, the county would let our clients get permits.

[00:32:48] Speaker 00:
And if you look at Blue Graham's pond, the trial judge said it was a there and then permit.

[00:32:55] Speaker 00:
He applied for that permit in June of 2018 and completed his engineering report in January of 2019.

[00:33:04] Speaker 00:
And four more years passed and six more rounds of settlement and negotiations.

[00:33:10] Speaker 00:
And it was only when he finally agreed to pay a fine to settle the cannabis abatement case that they gave him the permit.

[00:33:17] Speaker 00:
They didn't come to the property.

[00:33:18] Speaker 00:
They didn't look at the pond.

[00:33:19] Speaker 00:
This isn't about public safety.

[00:33:21] Speaker 00:
He just needed to pay the settlement on his cannabis case until he could get back into the permitting process for all the other violations.

[00:33:29] Speaker 00:
Thank you, Your Honor.

[00:33:29] Speaker 04:
Thank you, Counsel.

[00:33:33] Speaker 04:
Thank you for your helpful arguments today, and this matter is submitted for decision.

[00:33:37] Speaker 04:
And with that, I believe we are adjourned for the day.

[00:33:39] Speaker 04:
I'll stand and recess until tomorrow.

[00:33:41] Speaker 04:
Thank you.