DAVID LANDRUM, Oregon State Bar ID Number 955425

Senior Deputy City Attorney

Email: david.landrum@portlandoregon.gov

DANIEL SIMON, OSB No. 124544

Assistant Deputy City Attorney

Email: dan.simon@portlandoregon.gov

Office of City Attorney

1221 SW 4th Avenue, Suite 430

Portland, OR 97204

Telephone: (503) 823-4047

Facsimile: (503) 823-3089

Attorney for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JOSEPH WALSH, 3:15-cv-01666 SI

PLAINTIFF,

v.

DEFENDANTS' REPLY IN SUPPORT OF

THEIR MOTION FOR SUMMARY

JUDGMENT

BRYANT ENGE, CHARLIE HALES,

CITY OF PORTLAND,

DEFENDANTS.

Defendants Bryant Enge, Charlie Hales, and the City of Portland reply to plaintiff's

"Response to the City's Brief Concerning Their Motion for Summary Judgment" (see

Declaration of Daniel Simon, Exhibit 1 (hereinafter "Plaintiffs Second Response")) as follows:

I. The Parties Have Agreed that The Issues are Solely Legal and that Summary

Judgment is the Appropriate Method to Resolve the Case.

During the September 10, 2015 telephone conference at the onset of this case, the parties

agreed to resolve this case through cross-motions for summary judgment (see docket #12,

Minutes of Telephone Conference). The parties agreed that the issues before the court were

solely legal issues that did not require a factual presentation to the court. The parties also agreed

to file cross-motions for summary judgment that would encompass their legal arguments and

Page 1 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEYS OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 1 of 11
evidentiary support. Following the telephone conference, plaintiff had notice of his requirements

and responsibilities for filing a motion for summary judgment.

In plaintiff's initial filing, entitled "Response to the City's Brief Concerning Their

Ability/Power to Exclude Citizens from Public Buildings" (hereinafter "First Response") (see

docket #23), plaintiff did not dispute that he had disrupted City Council meetings, nor did he

submit any declarations in support of his filing. In plaintiffs Second Response, he asserts for the

first time that there are "major disputes concerning every aspect of this case." (See Declaration of

Daniel Simon, Exhibit 1). Plaintiff also offers witnesses to testify regarding plaintiffs activism,

his actions at City Council meetings, the City's enforcement of its Code of Conduct, and the

mayor's obligations under the City Charter. Id. The court should disregard Plaintiff's assertion

of new factual issues and plaintiff's demand to solicit witness testimony in his Second Response.

Federal Rule of Civil Procedure 56, governing the procedures for Summary Judgment

Motions, reads as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party

may object that the material cited to support or dispute a fact cannot be presented

in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it

may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or

oppose a motion must be made on personal knowledge, set out facts that would be

Page 2 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEYS OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 2 of 11
admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.

Plaintiff has not cited to particular parts of the case record or shown that the record

establishes a genuine factual dispute. He does not point to any specific evidence submitted in

support of the City's Motion for Summary Judgment, but instead makes a broad assertion that

"every aspect of this case" is in dispute. A broad assertion does not create a genuine dispute of

material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) ("By its very terms,

[the FRCP 56(c)] standard provides that the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.") (Emphasis in

original).

Procedurally, plaintiffs opportunity to file declarations in support of his motion for

summary judgment has passed. Plaintiff was informed of the summary judgment process during

the September 10, 2015 telephone conference that established the procedural posture of this case.

Plaintiffs First Response, filed November 2, 2015 (see docket #23) encompassed his motion for

summary judgment and did not include any supporting declarations.

Even if plaintiff argues that he did not specifically receive instructions to file supporting

declarations at the time he filed his First Response, there is no requirement that a plaintiff receive

such instruction. In Jacobsen v. Filler, the Ninth Circuit held that there is no requirement that

pro se litigants in ordinary civil cases receive specific instructions about how to file summary

judgment motions. 790 F.2d 1362 (9th Cir. 1986). In Jacobsen, a pro se plaintiff argued that it

was the district court's duty to advise him of the measures he should take to oppose the

defendants' summary judgment motion. 790 F.2d, at 1363-64. The court rejected plaintiffs

argument, holding that requiring additional notice to pro se litigants would be an ad hoc

amendment to FRCP 56(c). Id. at 1366-67. Pro se litigants in the ordinary civil case should not

be treated more favorably than parties with attorneys of record. Id. at 1364.

Page 3 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 3 of 11
Moreover, the four issues on which plaintiff claims to require witness testimony are not

relevant to plaintiffs claims. See Anderson, 477 U.S., at 248 ("Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.")

First, plaintiffs history of activism is not in dispute. The City has acknowledged that

plaintiff has a history of appearing at City Hall to voice his opinions. (See docket #17,

Defendant's Motion for Summary Judgment, at 3).

Second, additional testimony regarding plaintiffs actions during City Council meetings

would be cumulative and irrelevant because plaintiffs actions are shown by video evidence (see

docket #22, Le Declaration). While plaintiff may dispute the characterization of those actions,

he cannot dispute that the events depicted in the videos are what actually transpired during the

respective City Council meetings. Furthermore, if plaintiff s witnesses will claim that plaintiff

did not disrupt City Council meetings, that position would directly contradict plaintiffs previous

assertions to the Court in this case.

Third, plaintiff has not raised any claims regarding an alleged selective enforcement of

the Code of Conduct, therefore testimony regarding the City's enforcement of the Code of

Conduct is irrelevant. Where a plaintiff alleges selective enforcement of criminal laws, the

"plaintiff must demonstrate that enforcement had a discriminatory effect and the police were

motivated by a discriminatory purpose," and that "the police misconduct is part of a 'policy,

plan, or a pervasive pattern.'" Anderson v. City of Portland, No. CIV. 08-1447-AA, 2011 WL

6130598, at *4 (D. Or. Dec. 7, 2011), citing Rosenbaum v. City and Cnty. of San Francisco, 484

F.3d 1142, 1152-53 (9th Cir.2007) (quoting Thomas v. Cnty. of Los Angeles, 978 F.2d 504, 509

(9th Cir.1993)). Notably, "the availability of such a claim has never been limited only to those

groups accorded heightened scrutiny under equal protection jurisprudence." Anderson, 2011 WL

6130598 at *4, citing Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir.1997). "Instead, a

Page 4 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 4 of 11
plaintiff makes out a selective-enforcement claim if she shows that the state based its

enforcement decision on an 'arbitrary classification,' that ... gives rise to an inference that the

state 'intended to accomplish some forbidden aim' against that group through selective

application of the laws." Anderson, 2011 WL 6130598 at *4, citing Stemler, 126 F.3d at 874

(quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) and Futernick v.

Sumpter Twp., 78 F.3d 1051, 1056 (6th Cir.1996)). Plaintiffs complaint raises no such claims.

(See docket #2).

Finally, lay opinion regarding the mayor's obligations under the City Charter is

inadmissible under Fed.R.Evid. 701 which prohibits lay witnesses from testifying as to legal

conclusions. A lay witness cannot testify to the correct interpretation of the City Charter. See

U.S. v. Crawford, (9th Cir. 2001), citing Evangelista v. Inlandboatmen's Union of Pacific, 777

F.2d 1390, 1398 n.3 (9th Cir. 1985) ("The lay witness may not, however, testify as to a legal

conclusion, such as the correct interpretation of a contract.").

Under FRCP 56(c), additional testimony from witnesses is impermissible at this stage in

the litigation. Furthermore, the testimony plaintiff offers would be irrelevant or inadmissible.

The court should therefore deny plaintiffs demand to solicit witness testimony for the purpose of

creating issues of material fact. The parties have agreed that summary judgment is the proper

method to resolve plaintiffs claim.

II. Plaintiff's Argument Regarding Mootness Provides No Additional Support for His

Claims

Plaintiff once again claims that the City has somehow waived a mootness argument. To

prove this claim, plaintiff submits an email sent to him from the City Auditor and a decision

from the City's Hearings Officer on January 6, 2015 in which the Hearings Officer denied

plaintiffs appeal of his September 17, 2014 exclusion because the appeal was moot. (See

Plaintiff's Second Response, at 2, attachments 1-2).

Page 5 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 5 of 11
Nothing in the City Auditor's email suggests that the Auditor's Office "will not use

mootness as an end result of hearings." Even if plaintiff's assertion were true, it would have no

bearing on this case because the applicable mootness standard is the standard for justiciability in

United States District Court, rather than the standard for justiciability in the City's administrative

appeals process.

The Auditor's email appears to discuss the Oregon Supreme Court case of Couey v.

Atkins, 357 Or 460 (2015). Couey involved a person registered with the Secretary of State to

collect initiative petition signatures for pay who wanted to collect signatures for a different

petition on a volunteer basis. 357 Or at 462. He contended that ORS 250.048(9), which

prohibited people from simultaneously collecting petition signatures for pay and volunteering to

collect signatures, violated his constitutional rights of freedom of expression and association. Id.

During the litigation, plaintiff stopped working as a paid signature collector, and his registration

expired. The Secretary of State moved for summary judgment on the ground that the action had

become moot, the trial court granted that motion, and the Oregon Court of Appeals affirmed. Id.

The Oregon Supreme Court granted review to resolve the conflict between Yancy v.

Shatzer, 337 Or 345 (2004) and ORS 14.175. Yancy held that the judicial power granted by

Article VII, section 1, of the Oregon Constitution did not give Oregon courts the power to hear

cases that had become moot but were capable of repetition yet evading review. 337 Or at 347,

353. ORS 14.175 authorizes Oregon courts to hear moot cases that are capable of repetition, yet

evading review. Couey, 357 Or. at 871. The Oregon Court of Appeals had previously noted that

there was an "obvious question" of whether ORS 14.175 was constitutional. Id., at 468, citing

Couey v. Brown, 257 Or App 434, 445 n. 1 (2013). The Oregon Supreme Court upheld the

constitutionality of ORS 14.175 and abrogated Yancy, holding that the legislature had authority

to enact legislation that allowed litigants to maintain an action that was moot but capable of

repetition yet evading review. Couey, 357 Or. at 901. Thus, in cases involving a public action or

Page 6 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEYS OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 6 of 11
issues of public interest, which includes challenging the lawfulness of an action, policy, or

practice of a public body, the court may determine whether it is appropriate to adjudicate an

otherwise moot case under the circumstances of each case. Id. at 902.

The email from the Auditor's Office simply states that Couey overruled Yancy. It does

not state any kind of City policy, nor did it affect the Hearings Officer decision attached to

Plaintiffs Second Response as Attachment 2. At the time the Hearings Officer issued his

decision denying plaintiffs appeal of his September 17, 2014 exclusion as moot, the Oregon

Supreme Court had not yet decided Couey.

Moreover, the holding of Couey and its effect of abrogating Yancy has no bearing on this

case. The City's argument is not that the case is moot even though the case is capable of

repetition yet evading review; indeed, federal jurisprudence allowed such cases to proceed prior

to Couey. See, e.g., Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994)

("There are, however a few exceptions to the mootness doctrine. These include cases where the

defendant's conduct constitutes a wrong 'capable of repetition yet evading review,' or where the

defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time").

Rather, the City's argument is that plaintiff has failed to show that his case is justiciable because

he has not shown that his case is capable of repetition yet evading review under federal

jurisprudence standards (see docket #17, Defendant's Motion for Summary Judgment, at 9-14;

docket #25, Defendant's Response, at 1-3).

The capable of repetition yet evading review exception applies only in extraordinary

cases. West Coast Seafood Processors Ass 'n v. Natural Resources Defense Council, Inc., 643

F.3d 701, 798 (9th Cir. 2011). Plaintiff must show that (1) there is a reasonable expectation that

the same party will confront the same controversy again, and (2) the issue evades review because

it is inherently limited in duration such that it is likely always to become moot before federal

court litigation is completed. West Coast Seafood Processors Ass 'n, 643 F.3d at 704. As noted

Page 7 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 7 of 11
in previous filings, the action is only capable of repetition if plaintiff continues to disrupt City

Council meetings to the extent that the City issues another exclusion against plaintiff. This is not

a case where the City has voluntarily ceased an allegedly illegal practice; rather, this a case

where plaintiff alone controls whether or not his behavior will necessitate a future exclusion.

Nothing in Plaintiffs Second Response provides support for that required showing.

Additionally, plaintiff raises no counter to the City's standing argument. Plaintiff must

show a concrete injury beyond an abstract interest in the correct application of the validity of the

law. Bricker v. TriMet, 2013 WL 2037123, at *10 (D. Or. May 14, 2013), citing Morgan v.

Sisters Co. Dist. No. 6, 353 Or. 189, 2013 WL 179480, at *5 (Or. Jan. 17, 2013). Plaintiff has

not shown such an injury. He is not currently excluded from City Hall. His rights to appear and

testify before the City Council are currently the same as they were prior to the exclusion.

Plaintiff in this case asks the court for an advisory opinion, because he does not have a concrete

injury that the court can remedy in this case.

Plaintiffs First Response and Second Response do not meet the criteria for establishing

the capable of repetition yet evading review exception to mootness, and his filings do not

establish that he has a concrete injury sufficient enough to grant him standing in this case.

Plaintiffs claim therefore lacks justiciability.

III. Plaintiff Cannot Raise a Due Process Claim in a Response to a Motion for Summary

Judgment

Plaintiffs Second Response raises for the first time an argument regarding due process.

Plaintiff did not plead a due process claim in his Complaint or raise a due process argument in

his First Response (see docket #2, Complaint; docket #23, Plaintiffs First Response). In his

complaint, plaintiff only asserted the First Amendment as the basis for the court's jurisdiction in

this case (see docket #2, Complaint, at 3).

Plaintiff may not allege a new cause of action in response to a summary judgment

motion. Mitchell v. Homesales, Inc., 2014 WL 1744991, at *4 n. 5 (D. Or. Apr. 30, 2014), citing

Page 8 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 8 of 11
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (finding that when

allegations are not in the complaint, "raising such claim in a summary judgment motion is

insufficient to present the claim to the district court"); Wasco Prods. Inc. v. Southwall Techs.,

Inc., 435 F.3d 989, 992 (9th Cir. 2006) ("Simply put, summary judgment is not a procedural

second chance to flesh out inadequate pleadings.") (quoting Fleming v. LindWaldock & Co.,

922 F.2d 20, 24 (1st Cir. 1990)); Pickern v. Pier I Imports (U.S.), Inc., 457 F.3d 963, 968-69

(9th Cir. 2006) (new issues raised in response to summary judgment were not appropriate for

consideration). The court should therefore decline to address plaintiff's new theory of liability.

Plaintiff also asserts that he attends City Council meetings as a representative of

"Individuals For Justice." (Plaintiffs Second Response, p. 3). Plaintiff Walsh is the only named

plaintiff in this action, and he appears pro se. For that reason, Plaintiff Walsh lacks standing to

assert a claim on behalf of any person or organization except himself Dean v. Jones, 2010 WL

1873089, at *3 (D. Or. Mar. 2, 2010) report and recommendation adopted, 2010 WL 1838962

(D. Or. Apr. 30, 2010), citing 28 U.S.C. § 1654 (2009).

IV. Plaintiff's "Grounds for Summary Judgment" Raises Only Factual Issues that are

Not Relevant to the Court's Decision

Plaintiffs "Grounds for Summary Judgment" contains no legal argument; rather, it

consists of plaintiffs characterization of the events leading to his exclusion during the City

Council meeting on July 8, 2015. Plaintiffs rationale for disrupting City Council meetings is not

relevant to the court's decision on the parties' cross-motions for summary judgment. (See infra,

Sec. I). Plaintiffs factual description also contains several hearsay statements that are

inadmissible under Fed.R.Evid. 802. The court should disregard plaintiffs factual argument.

V. Conclusion

Plaintiffs Second Response provides no new opposition to Defendants' Motion for

Summary Judgment. Plaintiffs attempts to introduce witnesses into the summary judgment

process, include new claims that were not previously pled, and create issues of fact by disputing

Page 9 — DEFENDANTS' REPLY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 9 of 11
or rationalizing video evidence should all be denied. The court should grant the City's Motion

for Summary Judgment and deny plaintiff's Motion for Summary Judgment.

Dated: December 4, 2015.

Page 10 — DEFENDANTS' REPLY

Respectfully submitted,

DAVID LANDRUM, OSB # 955425

Senior Deputy City Attorney

DANIEL SIMON, OSB #124544

Assistant Deputy City Attorney

Telephone: (503) 823-4047

Attorney for Defendants

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 10 of 11
CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing DEFENDANTS' REPLY IN SUPPORT OF

THEIR MOTION FOR SUMMARY JUDGMENT on:

Joseph F. Walsh

7348 SE Division Street

Portland, OR 97206

Plaintiff-Pro Se

on December 4, 2015, by causing a full, true and correct copy thereof, addressed to the lastknown address (or fax number) of said attorney, to be sent by the following method(s):

Z by mail in a sealed envelope, with postage paid, and deposited with the U.S. Postal

Service in Portland, Oregon.

❑ by hand delivery.

Z by email pursuant to LR 5-2(b).

❑ by facsimile transmission.

❑ by email.

Page 1 — CERTIFICATE OF SERVICE

wit/14i N kwarl

DAVID LANDRUM, OSB #955425

Senior Deputy City Attorney

DANIEL SIMON, OSB #124544

Assistant Deputy City Attorney

Telephone: (503) 823-4047

Attorney for Defendants

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:15-cv-01666-SI Document 26 Filed 12/04/15 Page 11 of 11