[00:00:00] Speaker 00:
tall versus city of Los Angeles.

[00:00:04] Speaker 00:
Council for pellet, please approach and proceed.

[00:00:06] Speaker 00:
Mr. Martin, can you hear us?

[00:00:12] Speaker 02:
Yes, your honor.

[00:00:13] Speaker 02:
Thank you.

[00:00:15] Speaker 04:
Thank you.

[00:00:16] Speaker 04:
May it please the court.

[00:00:17] Speaker 04:
Paul Hoffman for the plaintiffs and appellants.

[00:00:20] Speaker 04:
I'd like to reserve three minutes for now.

[00:00:23] Speaker 00:
So please be reminded that the time shown on the clock is your total time remaining.

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

[00:00:29] Speaker 04:
With the court's permission, I'd like to start with the as-applied issue in the case, since it's one that the district court really didn't deal with, and this court didn't reach in the first case.

[00:00:45] Speaker 04:
The question is, does the Eighth Amendment excessive fines clause require some consideration of ability to pay in the analysis?

[00:00:55] Speaker 04:
That's something that's been decided by this court or by the Supreme Court.

[00:00:59] Speaker 04:
Our position is that the analysis that's laid out in the City of Seattle versus Long case is the appropriate analysis for what we hope this Court would accept as a requirement under the Eighth Amendment.

[00:01:14] Speaker 04:
And it goes back as the city of Seattle case shows in a very detailed history of the eighth amendment, that this requirement goes back really to the Magna Carta, which is what the eighth amendment was basically taken from almost verbatim.

[00:01:30] Speaker 04:
Although over 800 years, it was accepted in the English bill of rights, the Virginia bill of rights, and now accepted in 50 states.

[00:01:39] Speaker 00:
Yes, but council, there is no case specifically that says in determining

[00:01:45] Speaker 00:
a case under the excessive fines clause, we have to consider the ability to pay.

[00:01:50] Speaker 00:
There is no case that says that.

[00:01:51] Speaker 04:
Well, there's no case.

[00:01:53] Speaker 04:
The Supreme Court hasn't decided the issue.

[00:01:54] Speaker 04:
This court hasn't decided either way.

[00:01:57] Speaker 04:
It hasn't decided whether it has or it hasn't.

[00:01:59] Speaker 04:
And the reason I refer to City of Seattle versus Long is that that's a case that took on this issue in the first instance, laid out the history that shows that it should be a requirement because the Magna Carta talks about

[00:02:13] Speaker 04:
the proportion of the fine or the penalty to the wrong, but it also talks about whether it has an impact on someone's livelihood.

[00:02:22] Speaker 04:
And so it was both parts of that were part of the excessive fines idea that came into our constitution with the founders.

[00:02:32] Speaker 04:
Yeah, I'm sorry.

[00:02:33] Speaker 00:
I'm just going to respond to this question, but that's a state court case.

[00:02:37] Speaker 00:
Sure.

[00:02:38] Speaker 00:
It would be asking us to adopt that.

[00:02:40] Speaker 00:
We don't have any precedent, any binding precedent for that from the Supreme Court or from our circuit or from any other circuit.

[00:02:47] Speaker 00:
So that would be the basis for it.

[00:02:49] Speaker 04:
I'm just, I'm just clarifying.

[00:02:52] Speaker 04:
This is a case of first impression.

[00:02:55] Speaker 04:
And it's a case of first impression for this court.

[00:02:59] Speaker 04:
It hasn't been decided expressly by the Supreme Court, which said it wasn't deciding.

[00:03:04] Speaker 03:
So so so in a in a case where somebody has the money to have a car, has the money to get the required insurance for the car, has the money for

[00:03:17] Speaker 03:
gas getting around in the car, we should say to all municipalities that before you can impose, for example, a $69 parking fee or a $20 parking fee, you have to take into account the ability to pay of everybody who's driving the car and

[00:03:39] Speaker 03:
parking on if it's New York 6th Avenue or the equivalent in Los Angeles to decide if they can pay before you can impose it.

[00:03:48] Speaker 04:
No, I don't think that that's the only way that a municipality can deal with it.

[00:03:53] Speaker 04:
The municipality could deal with it by having a program where people would with

[00:03:59] Speaker 04:
The impact on a person of low income would be such that it would trigger Eighth Amendment considerations that they could have a program where that person could pay over time, could pay less.

[00:04:12] Speaker 04:
In fact, the city has made some steps.

[00:04:14] Speaker 03:
towards that after this case, in your view, there's a constitutional requirement vis-a-vis parking tickets that the city has to take into account.

[00:04:24] Speaker 03:
It can't have like 20 bucks for everybody.

[00:04:27] Speaker 03:
It has to have a system in place to take into account the claims of people who say, yes, I can drive the car, but 20 bucks is grossly disproportionate.

[00:04:38] Speaker 03:
because paying the 20 bucks for my overstaying, my parking is going to impact my ability to get and keep a job.

[00:04:45] Speaker 04:
Well, 20 bucks, man, I'd do that, but $300 might do it.

[00:04:49] Speaker 04:
$126.

[00:04:50] Speaker 03:
But your point is that it has to be taken into account for parking fines and parking late fees in general.

[00:04:59] Speaker 04:
Well, I think the Eighth Amendment, yeah, it has to be taken into account by parking authorities in every city in the United States.

[00:05:08] Speaker 00:
OK, if we don't accept your argument, if we decide that we are not going to follow the Washington state case, what's your next argument?

[00:05:16] Speaker 04:
Well, OK, if you don't accept that ability to pay should be factored into an Eighth Amendment analysis, as the Washington Supreme Court has said,

[00:05:30] Speaker 04:
The facial challenge also we believe on the late payment penalty should be struck down as a violation of the Eighth Amendment.

[00:05:38] Speaker 04:
And we've laid this out in our briefs, of course.

[00:05:41] Speaker 04:
One point, and again,

[00:05:44] Speaker 04:
The court may not be persuaded by the Washington Supreme Court, but one of the things the Washington Supreme Court also said was that one of the other things the Eighth Amendment was designed to do was to prevent government from using fines and penalties basically for general revenue purposes.

[00:06:01] Speaker 04:
And that's just, oh, sorry.

[00:06:02] Speaker 04:
I can interrupt.

[00:06:03] Speaker 01:
Suppose the late fee here is say only $10.

[00:06:07] Speaker 01:
And the evidence shows the city is using it just for revenue purposes.

[00:06:12] Speaker 01:
Would that still be, would that still violate the Eighth Amendment?

[00:06:18] Speaker 04:
I think that's a close question in the sense that

[00:06:22] Speaker 04:
It's clear that a late penalty fee has some relationship to the loss of money for a period of time.

[00:06:29] Speaker 04:
So a $10 fee, given the discretion that's afforded to municipalities under the eighth amendment jurisprudence under by Jackie and in this court's opinion, I doubt there'd be much of a challenge to that.

[00:06:42] Speaker 04:
But we're not talking about a $10 fee here.

[00:06:43] Speaker 04:
We're talking about 100% penalty if you don't pay on the 22nd day.

[00:06:48] Speaker 03:
You had said, I think, below, and I'm looking at SER 104, the initial penalty should be no more than $25.

[00:06:58] Speaker 04:
Well, the expert, Mr. Bieber made a statement like that, yes.

[00:07:02] Speaker 03:
Okay, so, but from your answer to Judge Lee's question, there's some number here where you would say, no, it's on its face, fine.

[00:07:14] Speaker 03:
There's some number where you would say on its face, grossly disproportional, and everything else goes to a jury.

[00:07:25] Speaker 04:
Well, I think the first question from our standpoint, at least, is for the court to engage in the analysis that's required under Bajakian, the four-factor test and other factors that might be relevant, you need to know something about the offense, obviously.

[00:07:46] Speaker 04:
a parking, staying over a parking meter is about as minimal as fence as anyone could have.

[00:07:52] Speaker 04:
Hundreds of thousands of Angelenos have that problem every year.

[00:07:57] Speaker 04:
And 85% of them are first time offenders, right?

[00:08:01] Speaker 04:
The big issue, right?

[00:08:02] Speaker 04:
And the fight in this case has been about whether the 100% late payment fee after 21 days has some relationship to harm that the city

[00:08:16] Speaker 04:
is claiming, right?

[00:08:17] Speaker 03:
Part of your argument is if you don't win as a matter of law, it should go to a jury to decide whether $69 is too much.

[00:08:29] Speaker 03:
And if, for example, your jury decided everything over $49 was too much, then in your class action certification, you would be seeking to get $20 back for everybody who paid a late fee plus attorney's fees.

[00:08:46] Speaker 04:
Well, I mean, if there's a violation on the face, then yeah, I mean, if the court granted class certification, then that's what we would be asking for.

[00:09:00] Speaker 04:
In terms of the facial challenge and the analysis of it, our main point is that the city hasn't come forth with any evidence or facts about justifying 100% late penalty fee after 21 days.

[00:09:14] Speaker 01:
Just suppose the city produced a witness who says the $63 late fee is to ensure compliance.

[00:09:23] Speaker 01:
And we came up with that figure.

[00:09:24] Speaker 01:
We didn't do a, you know,

[00:09:26] Speaker 01:
Big study, but we looked at some data.

[00:09:29] Speaker 01:
No, we thought, you know, $5 probably won't ensure compliance 63 the modest amounts without that that would ensure compliance with paying paying the parking fine with the city prevail then.

[00:09:42] Speaker 04:
I think if the city came up with a rationale that said, look, here's the process that we engaged in.

[00:09:49] Speaker 04:
We think that this is something that will ensure compliance.

[00:09:53] Speaker 04:
Under our theory, they should also take into account ability to pay, given the fact that so many people that get these fines are low income and causes tremendous problems for our community because of that.

[00:10:05] Speaker 04:
But sure, if they came and they went through that process, I think they would get a great deal of deference.

[00:10:11] Speaker 04:
On the other hand, they don't get absolute deference.

[00:10:14] Speaker 04:
In other words, say they went through that process and they said, you know, 300% of the initial fine after 14 days, that'll really get people to pay.

[00:10:25] Speaker 04:
Well, at some point, it's excessive, right?

[00:10:27] Speaker 04:
And you have to go through the balance.

[00:10:28] Speaker 04:
You have to have the information to go through the balance.

[00:10:32] Speaker 04:
The Eighth Amendment would be a toothless amendment if all they have to do is say, well, you know, we came up with this number.

[00:10:40] Speaker 04:
We're not going to tell you how we came up with it, but 100% is probably going to make people pay.

[00:10:45] Speaker 03:
But doesn't the toothlessness type analysis sort of depend on what you're starting with, that if you were starting,

[00:10:53] Speaker 03:
with a fine of a million dollars.

[00:10:57] Speaker 03:
I mean, to channel Justice Stewart's words, I might not be able to come up with the exact rationale, but I know grossly disproportionate when I see it.

[00:11:09] Speaker 03:
And somebody could say for the million dollars, yeah, I know it when I see it, but $63 for a parking fine, I also know it when I see it and this doesn't make it.

[00:11:19] Speaker 03:
Well,

[00:11:19] Speaker 04:
I mean, that goes to sort of the function of a judge in a jury context, too, right?

[00:11:25] Speaker 03:
If there is a jury entitlement, yeah.

[00:11:27] Speaker 04:
Could a reasonable jury decide that when you look at the factors and the evidence that this is an excessive fine?

[00:11:34] Speaker 04:
Our position from the standpoint of why summary judging shouldn't be granted and why it is an appropriate jury decision is that we have evidence that, number one,

[00:11:43] Speaker 04:
The late penalty fee is a completely arbitrary number that they just double whatever the fine is without regard to any rationale for doing it.

[00:11:52] Speaker 04:
And that the main reason they do it is to make money, the revenue.

[00:11:56] Speaker 04:
And that, again, goes back to the history of the Eighth Amendment.

[00:11:59] Speaker 04:
I mean, the excessive fines clause was in part because

[00:12:04] Speaker 04:
the King John on through the stewards and the tutors used fines to make money, to wage war, to build castles.

[00:12:16] Speaker 04:
Now what's happening on this, our position is what they've done is this late penalty fee is just an add-on to the general revenue of the city of Los Angeles to balance their books, not to deal with the harms that have to do with overstaying a meter for a minute.

[00:12:34] Speaker 00:
Council, do you know what the maximum parking fine is?

[00:12:38] Speaker 04:
The maximum parking fine?

[00:12:40] Speaker 04:
Well, I think it's sixty three plus sixty three plus twenty five if you don't.

[00:12:44] Speaker 00:
In your case.

[00:12:45] Speaker 00:
But is there a scenario where the fine could be higher?

[00:12:49] Speaker 04:
You know, I think it depends.

[00:12:51] Speaker 04:
It has to bear some relationship to the offense.

[00:12:54] Speaker 00:
But I'm asking you the question.

[00:12:56] Speaker 00:
I don't know what the maximum parking fine is in the city of Los Angeles.

[00:13:01] Speaker 00:
That can be charged to someone.

[00:13:03] Speaker 00:
for overstaying their parking time.

[00:13:05] Speaker 00:
Do you know?

[00:13:06] Speaker 04:
Well, it's 63, 63, 25, 25.

[00:13:09] Speaker 00:
I just thought that was, I think it's 181.

[00:13:12] Speaker 04:
If I get the math right.

[00:13:14] Speaker 00:
You don't understand the question I'm asking you is $63 the maximum amount.

[00:13:20] Speaker 00:
We're not talking about adding on anything.

[00:13:23] Speaker 00:
What's the maximum amount?

[00:13:24] Speaker 00:
It's a $63.

[00:13:25] Speaker 00:
Oh, okay.

[00:13:26] Speaker 00:
So that's the most that someone can be charged.

[00:13:29] Speaker 00:
We're parking.

[00:13:29] Speaker 00:
So the, the most someone can be charged in the city of Los Angeles, regardless of how long they park over time is $63.

[00:13:37] Speaker 04:
Is that, that's the first violation.

[00:13:40] Speaker 04:
Fine.

[00:13:40] Speaker 04:
Yeah.

[00:13:42] Speaker 04:
Yeah, I'm sorry.

[00:13:44] Speaker 04:
I see.

[00:13:46] Speaker 04:
I want to reserve some time.

[00:13:48] Speaker 04:
That's okay.

[00:13:50] Speaker 00:
We'll hear from the city council.

[00:13:58] Speaker 02:
Morning, Your Honours.

[00:13:59] Speaker 02:
May it please the Court, Timothy Martin for Appellee City of Los Angeles.

[00:14:03] Speaker 02:
The Court should affirm the subway judgment for the City for much the same reasons that it affirms subway judgment in Pimentel 1.

[00:14:10] Speaker 02:
Just like the $63 parking meter fine, the $63 late payment penalty is not so large and it likely deters violations.

[00:14:19] Speaker 02:
While the initial fine directly deters parking meter violations,

[00:14:23] Speaker 02:
The penalty indirectly deters them by giving the offender a reason to pay the fine.

[00:14:29] Speaker 02:
The fine would be ineffective as a deterrent if scoff laws could ignore the parking citation and withhold payment indefinitely without receiving any penalty.

[00:14:40] Speaker 00:
But counsel, is there anything in the record that supports the fact that doubling the fine is the only way to have deterrence?

[00:14:48] Speaker 00:
What's the record about that and why is it double the fine?

[00:14:52] Speaker 00:
as opposed to some percentage of the fine.

[00:14:59] Speaker 02:
There's no direct evidence in the record as to why the city council adopted 100% relationship between the penalty and the fine as early as 2002 and maintained that 100% relationship over the ensuing decade when the city council enacted seven increases at increments of $5 or $3.

[00:15:20] Speaker 02:
But it would be a primitive burden on the city to have to track down all the various city council members who voted on those enactments over time.

[00:15:29] Speaker 00:
And well, ideally, the record would contain the reasoning for it.

[00:15:36] Speaker 02:
Correct.

[00:15:37] Speaker 02:
But there's no burden on the city to produce a relation or justification for the relation between the penalty and the fine.

[00:15:47] Speaker 00:
Well, there has to be some indication that the that the fine is not excessive.

[00:15:52] Speaker 00:
I mean, we have to look at whether it's excessive.

[00:15:55] Speaker 00:
And one of the reasons we ways we look at that is to determine

[00:15:59] Speaker 00:
how the fine was determined.

[00:16:05] Speaker 02:
But the linchpin of the excessiveness analysis is that in the excessive fines clause, purpose is to protect people from oppressive fines.

[00:16:15] Speaker 02:
And the oppressive effect of a fine is determined by its magnitude and dollars, not by its relation and percentages to some other fine or penalty.

[00:16:24] Speaker 02:
that relationship is not one of the logicology factors and plaintiffs haven't cited any case that has looked at that kind of relationship to determine excessiveness.

[00:16:35] Speaker 01:
Council, if I may interrupt, if suppose hypothetical evidence shows that the city analyzed late fees, and it turns out $25 late fee is sufficient to ensure compliance, but they set it for $63 because they say, well, we need an additional

[00:16:52] Speaker 01:
$38 because that's going to help us increase our salaries in our department.

[00:16:58] Speaker 01:
Would that be excessive under the Eighth Amendment?

[00:17:03] Speaker 02:
Well, no, Your Honor, because there's no narrow tailoring requirements.

[00:17:08] Speaker 02:
So just even if the city had determined that $25 was sufficient.

[00:17:14] Speaker 01:
If they say the reason why we're packing on this additional money is just so we can increase our salaries, that would be OK, just as a matter of what's not excessive.

[00:17:24] Speaker 02:
potentially a portion of it could be unconstitutional if there was direct evidence from city council members that that was specifically their reason for doing so.

[00:17:33] Speaker 02:
But there was no evidence of that matter in this record.

[00:17:37] Speaker 01:
I mean, I guess there's no evidence, at least before us, one way or the other, what the reason was.

[00:17:44] Speaker 01:
of the 100% late fee.

[00:17:45] Speaker 01:
I mean, I don't think it's a high burden.

[00:17:47] Speaker 01:
I think in Pimentel 1, we said it's not a high burden.

[00:17:49] Speaker 01:
We defer to legislatures.

[00:17:52] Speaker 01:
And if someone in the city said, well, we think this was a good amount, common sense, et cetera, looking back at our compliance data, X number of people, you know,

[00:18:05] Speaker 01:
don't pay in time, you know, probably defer to you.

[00:18:10] Speaker 01:
But here, the question is, there seems like there's no evidence offered by the city at all of what the basis was.

[00:18:17] Speaker 02:
Well, in Pimentel 1,

[00:18:19] Speaker 02:
This court didn't demand any sort of direct evidence as to the basis of the $63 amounts, even though plaintiff's experts, Jay Bieber and Jayce Carsman, said everything that they said about the late payment penalty about the initial fine as well.

[00:18:35] Speaker 02:
They said that he was neither intended to nor effectual in deterring parking meter violations and instead intended solely to generate revenue.

[00:18:45] Speaker 01:
I think the city produced, you know, some evidence saying this was to ensure that we don't clock traffic that people move out of parking space.

[00:18:53] Speaker 01:
I mean, you know, I think there was again, I don't think it's a demanding requirement, but at least there was some evidence and here at least in the record before it seems like there's none.

[00:19:02] Speaker 02:
Well, there is the testimony of Robert Andalon that the city adopted its two-tiered late payment penalty scheme because it believed that the similar penalty scheme used by the NDMV was effective in deterring violations and that Andalon successfully recommended an increase in the amount of the second penalty to strengthen its effectiveness as a deterrent.

[00:19:26] Speaker 01:
On the first late fee, he didn't know the basis at all, right?

[00:19:30] Speaker 01:
That's correct.

[00:19:32] Speaker 02:
But he said that because it was adopted before he arrived at the relevant part.

[00:19:38] Speaker 01:
But he was a 30b6 witness.

[00:19:39] Speaker 01:
It doesn't have to be in a personal knowledge.

[00:19:41] Speaker 01:
He just has to do a little investigation as a 30b6 witness.

[00:19:48] Speaker 02:
That is true, but it would actually be more than a little investigation to track down every single council member who had voted on those increases or set those amount.

[00:19:59] Speaker 01:
You just need a little bit of evidence.

[00:20:00] Speaker 01:
And we're not talking about 50 years ago.

[00:20:02] Speaker 01:
We're talking a couple of years ago, 10 years ago.

[00:20:08] Speaker 01:
That's part of preparing a 30B6 witness.

[00:20:11] Speaker 01:
The 30B6 witness is representing the entity.

[00:20:13] Speaker 01:
And again, he or she doesn't need personal knowledge.

[00:20:16] Speaker 01:
He or she just needs to do a little bit of due diligence.

[00:20:21] Speaker 02:
Well, plaintiffs didn't bring a motion to, you know, redepose a 30B6 witness or anything like that in terms of inadequate preparation.

[00:20:31] Speaker 02:
And ultimately, they bear the burden of proof on their claims.

[00:20:35] Speaker 03:
So counsel, aren't you also relying on the district court's finding, quoting us in Pimentel one that where the district court said in light of the monetary and non-monetary harms and without material evidence provided by the plaintiffs to the contrary, the court must afford substantial deference to the authority that necessarily all lies with the legislative branch of the council.

[00:21:03] Speaker 02:
Yes, I believe, given that substantial deference that is due to the legislative decisions.

[00:21:10] Speaker 02:
There's no affirmative burden on the city to produce direct evidence as to what the city council members were considering when they set the amounts of the late payment penalty.

[00:21:20] Speaker 00:
No, that wasn't for the late payment penalty.

[00:21:23] Speaker 00:
That was just for the fine, the original fine.

[00:21:26] Speaker 00:
And in Pimentel one, we expressly said that the district court

[00:21:30] Speaker 00:
should have applied the Bajacasian factors to the excessive, to the late fee part of it.

[00:21:38] Speaker 00:
So that language did not address the late fee portion of it, the late penalty.

[00:21:46] Speaker 00:
So if we applied those factors, how would we come out on this case in your view?

[00:21:52] Speaker 00:
Could you discuss each one of those factors and tell us why it favors the penalty?

[00:22:00] Speaker 00:
each one of those factors favors imposition of the penalty?

[00:22:06] Speaker 02:
Yes.

[00:22:07] Speaker 02:
Well, in the city's view, the fourth positive causative factor, which refers to the harm of the offense or the harm that the penalty protects the city from, is dispositive because, as the district court correctly found, the penalty protects the city from both substantial non-monetary harm to its interest in parking

[00:22:26] Speaker 02:
as well as substantial monetary harm in the aggregate in the form of the further collection costs it spares by encouraging people to pay the fine timely.

[00:22:37] Speaker 00:
So the extent of the harm, you think the extent of the harm caused by the offense carries the day against all of the other factors?

[00:22:45] Speaker 02:
I wouldn't phrase it as against the other factors because none of the other factors weighs in favor of the plaintiffs either.

[00:22:52] Speaker 00:
The nature and extent of the underlying offense

[00:22:54] Speaker 00:
doesn't weigh in favor of the plaintiffs in this case?

[00:23:01] Speaker 02:
No, Your Honor.

[00:23:01] Speaker 02:
Concededly, the culpability of failing the time we pay within 21 days or in some circumstances longer is low, but the culpability was low as well on PIMA cell one for violating a parking meter violation.

[00:23:19] Speaker 00:
But we're not talking about just the ticket.

[00:23:22] Speaker 00:
The parking fine we're talking about the penalty.

[00:23:26] Speaker 00:
So that was what Pimmel tail one said we should apply that the district court should apply to determine the penalty and the nature and extent of the underlying offense in this case is about as innocuous as it can be, isn't it.

[00:23:41] Speaker 02:
Yes, but as Pimentel 1 pointed out, with reference to the Towers case and the Seventh Circuit that have found analogous, even relatively benign actions can have at least a minimal degree of culpability that's sufficient to trigger the deference that is due to the legislative branch in setting the amounts of fines and penalties.

[00:24:02] Speaker 00:
Not penalties.

[00:24:04] Speaker 00:
Pimentel 1 didn't talk about the penalties.

[00:24:06] Speaker 00:
That's the difficulty I'm having with your argument.

[00:24:09] Speaker 00:
It expressly said

[00:24:11] Speaker 00:
that fines, the excessive clause, the eighth amendment did not prevent the imposition of the fine.

[00:24:21] Speaker 00:
But as for the penalty part of it, we need to apply the Bajakajian factors.

[00:24:29] Speaker 02:
Well, correct.

[00:24:30] Speaker 02:
But I mean, the court also applied the Bajakajian factors to the initial fine, 10 until one.

[00:24:36] Speaker 02:
And when I remanded the district court for a separate application of those factors, it didn't say that the record was materially different with respect to the penalty.

[00:24:45] Speaker 00:
Well, that's what we're here for now, though, to determine whether or not that determination is correct as a matter of law.

[00:24:56] Speaker 02:
Yes, and my position isn't that the late payment penalty is identical to the fine or that the underlying violation is identical, just that the instruction from Pimentel 1 and also the Towers case in which the underlying offense was simply lending one's car to somebody without asking hard questions about

[00:25:16] Speaker 02:
whether they were intending to use it to bring to trade in weapons or drugs, even such benign offenses are sufficiently culpable to at least not weigh in favor of the plaintiffs.

[00:25:28] Speaker 00:
What is there that we have to defer to in terms of the amount of the penalty?

[00:25:35] Speaker 00:
Why should we defer to a penalty that was set without any explanation?

[00:25:43] Speaker 02:
Well, partly because, to borrow a word from Judge Bennett's concurring opinion of P1, parking fines and penalties are routine.

[00:25:54] Speaker 02:
They're not the kind of hot button issue that is likely to generate a lot of legislative discussion or documentation as to the reasons for setting the amounts.

[00:26:03] Speaker 02:
There's also quite a few different

[00:26:07] Speaker 02:
parking violations of different natures.

[00:26:11] Speaker 02:
And then the record shows that in this case, the city council set the amount of this particular penalty and the underlying fine for parking meter violations at the same time that it set the amounts for all the other parking meters.

[00:26:24] Speaker 02:
And it would be difficult for the city council to have engaged in sort of individualized discussion or documentation of its reasons for each one.

[00:26:36] Speaker 02:
Why would that be difficult?

[00:26:38] Speaker 00:
Why would that be difficult for them to they can have a consent agenda, where it's all laid out in terms of what the recommendation because they don't do this in a vacuum.

[00:26:51] Speaker 00:
They have staff members who work up the reasoning for the legislation and then the legislators adopted or not.

[00:27:01] Speaker 00:
Oftentimes, there are consent agendas where all of this is laid out and then the legislators vote on it.

[00:27:07] Speaker 00:
So it's not like they would have to discuss specifically each and every item that's on the agenda.

[00:27:18] Speaker 02:
Correct.

[00:27:18] Speaker 02:
But in terms of setting the specific amounts, it would be difficult for them to sort of quantify

[00:27:26] Speaker 02:
this amount for this violation is appropriate, but then a slightly higher or lesser amount would be appropriate for a different violation.

[00:27:36] Speaker 02:
And it's important to recognize, of course, in terms of why they're entitled to deference,

[00:27:42] Speaker 02:
We were talking about very small differences in degree.

[00:27:46] Speaker 02:
Mr. Hoffman mentioned that J. Bieber said $25 would be acceptable, but in fact, Mr. Bieber said that even $39 would be constitutionally permissible.

[00:27:57] Speaker 02:
He said it would not be grossly disproportionate unless it was $40 or more.

[00:28:02] Speaker 02:
So that is a very small difference from the $63 that we have now.

[00:28:07] Speaker 02:
And as a, sorry, what was the question?

[00:28:10] Speaker 00:
Any evidence in the record regarding the collection costs?

[00:28:14] Speaker 00:
I think that was part of the justification for the harm that would be caused.

[00:28:19] Speaker 00:
Is there anything in the record regarding the collection costs?

[00:28:22] Speaker 00:
Because I thought the record reflected that there was a contractor who collected the costs for the city, who did collection for the city.

[00:28:32] Speaker 02:
The city refers an individual case to a contractor if the second late penalty is not paid.

[00:28:39] Speaker 02:
And there is a collection fee that is charged that is payable to the contractor.

[00:28:45] Speaker 02:
It doesn't reimburse the city for its own collection costs.

[00:28:48] Speaker 02:
Those costs would at least consist of mailing out the notices of the second late-payment penalty and communicating with the offender and the collection agency about their... As I understand it, though, the collection agency is not in play vis-a-vis the first $63 fee, right?

[00:29:09] Speaker 03:
That is correct.

[00:29:10] Speaker 00:
Right.

[00:29:10] Speaker 00:
But for the second one, that's where the collection agency comes into play.

[00:29:14] Speaker 00:
And so the cost to the city

[00:29:17] Speaker 00:
would be what for the second, for the penalty part?

[00:29:22] Speaker 00:
The collection costs would be what?

[00:29:24] Speaker 02:
Because the mailing out, preparing and mailing out the notice to the offender of the imposition of that penalty.

[00:29:32] Speaker 02:
which plaintiff him until declared that he did receive that notice as well as a notice of the referral to the collection agency later.

[00:29:41] Speaker 02:
And plaintiff's expert Jay Bieber recognized that there are costs to the city in mailing out those notices.

[00:29:48] Speaker 02:
He characterized those costs as minimal, but

[00:29:51] Speaker 02:
City's position or the city acknowledges that its costs are small, its monetary costs are small in any individual case in which an offender doesn't timely pay the fines and the penalties.

[00:30:03] Speaker 02:
The relevant costs from a constitutional standpoint are the aggregate costs that the penalty spares the city in the many other cases in which it induces the people to timely pay.

[00:30:16] Speaker 00:
All right.

[00:30:16] Speaker 00:
Thank you, counsel.

[00:30:17] Speaker 00:
You have a seat at your time.

[00:30:18] Speaker 00:
We helped you.

[00:30:19] Speaker 00:
Are there any other questions?

[00:30:21] Speaker 00:
No.

[00:30:21] Speaker 00:
All right.

[00:30:21] Speaker 00:
Thank you.

[00:30:22] Speaker 00:
The bottle.

[00:30:24] Speaker 04:
Thank you.

[00:30:25] Speaker 04:
I'll be brief.

[00:30:26] Speaker 04:
I think the point is, I think the city's conceded.

[00:30:31] Speaker 04:
There is no evidence justifying the 100% fee.

[00:30:34] Speaker 04:
It was an arbitrary fee.

[00:30:36] Speaker 04:
They just doubled the original fine.

[00:30:38] Speaker 04:
And it has nothing to do with the cost of collection.

[00:30:41] Speaker 04:
It has nothing to do with the underlying arms that the first fine were designed for.

[00:30:46] Speaker 04:
And we have lots of evidence in the record that it was designed

[00:30:50] Speaker 04:
to bring more money into the general fund.

[00:30:53] Speaker 01:
Do we presume that the government's late fee penalty is proportional?

[00:31:02] Speaker 01:
A lot of times we do that.

[00:31:03] Speaker 01:
When the reason seems obvious, a lot of times we presume the government's rationale is legitimate.

[00:31:08] Speaker 01:
Should we do that here?

[00:31:10] Speaker 04:
Well, I think the court did that to some degree in the first round on the original fine because there has to be some fine for staying over a meter.

[00:31:19] Speaker 04:
I don't think that applies for 100% penalty for not paying the original fine in 22 days.

[00:31:26] Speaker 04:
I mean, that's a different kind of offense.

[00:31:30] Speaker 04:
And if you're going through the factors, you need some understanding about the nature of the harm and why the city did it and how they came up with the money.

[00:31:39] Speaker 04:
And are they doing it just to put more money in their coffers?

[00:31:43] Speaker 04:
And as Justice Scalia said in Harmelin, when

[00:31:46] Speaker 04:
when the government is benefiting from the fine, you should take a much more critical look.

[00:31:54] Speaker 04:
Now, I understand that there's deference to be given in the Eighth Amendment, but that doesn't mean that the court abdicates its responsibility to insist that they come up with some evidence-based justification, even if it's a general one.

[00:32:08] Speaker 04:
And here, they have just come up with nothing to support this, other than we doubled it.

[00:32:15] Speaker 04:
And I think that's what the evidence in the case shows.

[00:32:18] Speaker 00:
Council, do you take issue with the way the district court applied the budget causing factors.

[00:32:23] Speaker 04:
Yes, I mean, I think what the basically I think this goes to judge least question I think basically what the district court did is defer.

[00:32:33] Speaker 04:
This is why it would help our overall parking system without any evidence of any of that.

[00:32:39] Speaker 04:
And I guess he understood his role as deferring to that.

[00:32:45] Speaker 04:
And our position is that an Eighth Amendment analysis for it, even with deference to the government, should require the government to say why it did it with some evidence of why it did it, even if it's not an exact proportion, because that's not the requirement.

[00:33:03] Speaker 04:
But I think you want to have that analysis in part to prevent the government from doing something like this to raise revenue on the backs, really, of a lot of low income mangelinos.

[00:33:16] Speaker 04:
Because this has a terrible impact on the community.

[00:33:19] Speaker 04:
It's not trivial.

[00:33:21] Speaker 03:
And we have that they could avoid by not overstaying their parking.

[00:33:27] Speaker 04:
You know, I've parked in the city for 50 years, right?

[00:33:32] Speaker 04:
You sometimes overstay.

[00:33:33] Speaker 04:
Everybody's gotten a ticket at some point.

[00:33:35] Speaker 03:
But counsel, you're talking about a big picture where somebody, this is affecting, in your view, somebody's life, the $63 and the extra $63.

[00:33:47] Speaker 03:
But ultimately, whether they have to pay a fine or a late fee, both things are totally under their control.

[00:33:55] Speaker 03:
They either don't have to overstay

[00:33:57] Speaker 03:
or they can send the money in in time.

[00:33:59] Speaker 03:
So the key to escaping that tragedy that you're talking about is in their pocket in both instances.

[00:34:08] Speaker 04:
On a late penalty fee, maybe not.

[00:34:11] Speaker 04:
What if that person is living on $1,000 a month, and they have to pay their rent, and they have to get food?

[00:34:17] Speaker 03:
No, but they could have put in the original thing on time.

[00:34:22] Speaker 04:
Well, maybe they couldn't afford the original 63.

[00:34:24] Speaker 03:
But we already dealt with that.

[00:34:28] Speaker 04:
I understand that.

[00:34:29] Speaker 04:
And I'm not challenging that.

[00:34:30] Speaker 04:
I'm just saying that for a lot of low income people that are affected by this, this is a big deal.

[00:34:37] Speaker 04:
That's the main point I'm making.

[00:34:38] Speaker 04:
And I think from the standpoint of excessive fines analysis, the fact that there was an offense is a given.

[00:34:44] Speaker 04:
I mean, factor one is there is an offense.

[00:34:48] Speaker 04:
But what I'm saying is that overstaying a parking meter for the hundreds of thousands of people in this community that do it every year is a pretty minor thing.

[00:34:57] Speaker 04:
It was decriminalized in 1992 for that reason.

[00:35:01] Speaker 04:
And it's not something that's a big deal from that standpoint.

[00:35:05] Speaker 04:
And on the harm part, the city could come up with a rationale for it.

[00:35:10] Speaker 04:
They could say, well, here's what it costs.

[00:35:12] Speaker 04:
I think you heard council say the cost is sending out a notice.

[00:35:16] Speaker 04:
What does that cost the city?

[00:35:18] Speaker 04:
It doesn't cost them $63.

[00:35:20] Speaker 04:
And there's plenty of other enforcement mechanisms, right?

[00:35:23] Speaker 04:
They can boot your car.

[00:35:24] Speaker 04:
They can take away your DMV registration.

[00:35:27] Speaker 04:
There's a whole other series of things.

[00:35:29] Speaker 04:
What we're focused on is why double a $63 penalty if you don't pay in 22 days other than to balance the budget of the city of Los Angeles.

[00:35:41] Speaker 00:
The district court said that doesn't necessarily render the fine excessive even if

[00:35:46] Speaker 00:
Part of the motivation is to collect revenue.

[00:35:50] Speaker 04:
I think that's wrong under the eighth amendment.

[00:35:53] Speaker 04:
I'd go back to the Magna Carta, go back to the tutors and the steward kings.

[00:35:58] Speaker 04:
That's why we have it, right?

[00:36:00] Speaker 04:
We don't want our monarchs or our leaders to use fines to raise revenue.

[00:36:08] Speaker 04:
it's perfectly appropriate for them to have some discretion to deal with the things that are appropriate to deal with in the Bajakian analysis.

[00:36:17] Speaker 04:
but it's not for them to just say, well, we'll double it and it's gonna bring in a bunch of million dollars to our budget.

[00:36:24] Speaker 04:
I mean, we have evidence in the record from the controller in 2017 where they were talking about reducing the fines for the very reasons that we're talking about in terms of impact on low income people.

[00:36:36] Speaker 04:
And what did the controller say?

[00:36:37] Speaker 04:
Don't do it, we rely on these fines for revenue.

[00:36:41] Speaker 04:
Don't reduce the fines, even though you could, and maybe that would be better for our community.

[00:36:48] Speaker 04:
The city council the controller says don't do that because it takes away our money.

[00:36:52] Speaker 00:
All right.

[00:36:52] Speaker 00:
Thank you, counsel.

[00:36:53] Speaker 00:
Thank you.

[00:36:54] Speaker 00:
Thank you to both counsel the case just argued is submitted for decision by the court and we are adjourned.