Petition for Writ of Certiorari — Corrine Morgan Thomas, et al., Petitioners v. Humboldt County, California, et al.

Supreme Court briefMay 15, 2025

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No. _______

In The

Supreme Court of the United States

CORRINE THOMAS, ET AL.,

Petitioners,

COUNTY OF HUMBOLDT, CALIFORNIA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT JOHNSON

INSTITUTE FOR JUSTICE

16781 Chagrin Blvd.,

Suite 256

Shaker Heights, OH

44120

(703) 682-9320

JARED MCCLAIN

Counsel of Record

SAMUEL B. GEDGE

MICHAEL PEÑA

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jmcclain@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover.

DEREK M. MAYOR

KAYLEE SHELDON

PILLSBURY WINTHROP SHAW PITTMAN LLP

500 Capitol Mall, Suite 1800

Sacramento, CA 95814

(916) 329-4703

QUESTION PRESENTED

Whether the Seventh Amendment right to a jury

trial in suits at common law is incorporated against

the States by the Fourteenth Amendment.

PARTIES TO THE PROCEEDING

Petitioners are Corrine Morgan Thomas, Doug

Thomas, Blu Graham, Rhonda Olson, and Cyro Glad,

on behalf of themselves and all other similarly situated. Respondents are County of Humboldt, California, Humboldt County Board of Supervisors, Humboldt County Planning and Building Department,

Steve Madrone, Rex Bohn, Mike Wilson, Michelle

Bushnell, and Natalie Arroyo, in their official capacity as Supervisors of Humboldt County, and John H.

Ford in his official capacity as Planning and Building

Director.

RELATED PROCEEDINGS

United States District Court for the Northern District

of California:

Thomas v. County of Humboldt,

No. 1:22-cv-5725-RMI (Apr. 3, 2023).

United States Court of Appeals for the Ninth Circuit:

Thomas v. County of Humboldt,

No. 23-15847 (Dec. 30, 2024).

iii

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISIONS & COUNTY

ORDINANCES INVOLVED ...................................... 1

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 5

REASONS FOR GRANTING THE PETITION ...... 10

I. This Court alone can address whether the

Seventh Amendment’s jury-trial right is

incorporated against the states. ................... 10

A. This Court hasn’t considered the

Seventh Amendment’s incorporation

since before the era of incorporation. ...... 11

B. This issue is important for the same

reason the Seventh Amendment is

incorporated—the civil-jury right is

fundamental. ............................................ 14

II. The Seventh Amendment’s incorporation is

an issue of nationwide importance that is

best decided now. ........................................... 18

A. States are routing more common-law

cases outside the judicial system............. 19

B. This Court should incorporate the

Seventh Amendment while the lower

courts consider Jarkesy’s application ...... 23

C. There is no benefit to waiting. ................. 25

III. This case is a good vehicle for

incorporation ................................................ 26

CONCLUSION ......................................................... 29

TABLE OF APPENDICES

Page

APPENDIX A:

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit,

December 30, 2024 .............................................. 1a

APPENDIX B:

Opinion of the United States Court of

Appeals for the Ninth Circuit,

December 30, 2024 ............................................ 17a

APPENDIX C:

Order of the United States District Court

for the Northern District of California,

May 12, 2023 ..................................................... 49a

APPENDIX D:

Amended Class Action Complaint,

January 20, 2023 ............................................ 130a

APPENDIX E:

Excerpts of the Humboldt County Code ........ 243a

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Dep’t of Env’t Mgmt. v. Wright Bros.

Constr. Co.,

604 So. 2d 429 (Ala. Civ. App. 1992) ...................21

American Dredging Co. v. Local 25, Marine Div.,

Int’l Union of Operating Eng’rs,

338 F.2d 837 (3d Cir. 1964) .................................13

American Pub. Co. v. Fisher,

166 U.S. 464 (1897) ..............................................22

AT&T, Inc. v. FCC,

No. 24-60223, 2025 WL 1135280

(5th Cir. Apr. 17, 2025) ........................................23

Atlas Roofing Co. v. OSHA,

430 U.S. 442 (1977) ........................................19–21

Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833) ...................................11

Benton v. Maryland,

395 U.S. 784 (1969) ..............................................18

Blue Beach Bungalows DE, LLC v. Delaware

Dep’t of Just. Consumer Prot. Unit,

2024 WL 4977006 (Del. Super. Ct. Dec. 4,

2024) .....................................................................24

Brady v. Southern Ry. Co.

320 U.S. 476 (1943) ..............................................13

vii

C.S. Lawn & Landscape, Inc. v. DOL,

No. 23-cv-1533 (D.D.C.) .......................................24

Capital Traction Co. v. Hof,

174 U.S. 1 (1899)..................................................22

State ex rel. Cherry v. Burns,

602 N.W.2d 477 (Neb. 1999) ................................20

Cheung v. Eighth Jud. Dist. Ct. ex rel. Cnty. of

Clark,

124 P.3d 550 (Nev. 2005) .....................................22

City of Austin v. Reagan Nat’l Advert. of Austin,

LLC,

596 U.S. 61 (2022) ................................................28

Coinbase, Inc. v. Bielski,

599 U.S. 736 (2023) ..............................................27

Commissoner of Env’t Prot. v. Conn. Bldg.

Wrecking Co.,

629 A.2d 1116 (Conn. 1993) ................................20

Crouchman v. Superior Ct.,

755 P.2d 1075 (Cal. 1988) ....................................22

De Young v. Lorentz,

69 F.3d 547, 1995 WL 662087 (10th Cir. 1995)

..............................................................................13

State ex rel. Dep’t of Env’t Prot. v. Emerson,

616 A.2d 1268 (Me. 1992) ....................................19

Dep’t of Transp. v. Del-Cook Timber Co.,

285 S.E.2d 913 (Ga. 1982) ...................................21

viii

Dimick v. Schiedt,

293 U.S. 474 (1935) .................................... 4, 14, 17

EFG Am., LLC v. Arizona Corp. Comm'n,

No. 1 CA-SA 25-0016, 2025 WL 1039587 (Ariz.

Ct. App. Apr. 8, 2025) ..........................................24

Franchise Tax Bd. v. Hyatt,

138 S. Ct. 2710 (June 28, 2018)...........................25

Gamble v. United States,

138 S. Ct. 2707 (June 28, 2018)...........................25

Gamble v. United States,

587 U.S. 678 (2019) ..............................................14

Georgia v. McCollum,

505 U.S. 42 (1992) ................................................13

Gitlow v. New York,

268 U.S. 652 (1925) ..............................................12

Hodges v. Easton,

106 U.S. 408 (1882) ..............................................17

Howlett v. Rose,

496 U.S. 356 (1990) ..............................................13

In re Investigation Pursuant to 30 V.S.A. Sec. 30

& 209,

327 A.3d 789 (Vt. 2024) .......................................24

In re Jacobs,

44 F.3d 84 (2d Cir. 1994) .....................................13

Inter-Modal R. Emps. Ass’n v. Atchison, Topeka

& Sante Fe Ry. Co.,

520 U.S. 510 (1997) ..............................................27

Iowa Nat. Mut. Ins. Co. v. Mitchell,

305 N.W.2d 724 (Iowa 1981) ...............................22

Jackson Water Works, Inc. v. Public Utils.

Comm’n,

793 F.2d 1090 (9th Cir. 1986)..............................10

Jacob v. City of New York,

315 U.S. 752 (1942) ..............................................17

Johansen v. Combustion Eng’g, Inc.,

170 F.3d 1320 (11th Cir. 1999)............................13

Knick v. Township of Scott,

138 S. Ct. 1262 (Mar. 5, 2018) .............................25

Lawrence v. Texas,

123 S. Ct. 661 (Dec. 2, 2002) ...............................25

Linton v. Great Lakes Dredge & Dock Co.,

964 F.2d 1480 (5th Cir. 1992)..............................13

Livingston’s Lessee v. Moore,

32 U.S. (7 Pet.) 469 (1833) ...................................12

Malloy v. Hogan,

83 S. Ct. 1680 (1963)............................................26

Marquez v. Screen Actors Guild, Inc.,

525 U.S. 33 (1998) ................................................27

Maryland Aggregates Ass’n, Inc. v. State,

655 A.2d 886 (Md. 1994) ......................................20

Maxwell v. Dow,

176 U.S. 581 (1900) ..............................................11

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................... 4, 16–18

McFadden v. Sears, Roebuck & Co.,

125 F.3d 855 (6th Cir. 1997)................................13

McHugh v. Santa Monica Rent Control Bd.,

777 P.2d 91 (Cal. 1989) ........................................21

Minneapolis & St. Louis R. Co. v. Bombolis,

241 U.S. 211 (1916) ............ 4, 10–14, 17–18, 25–26

National Velour Corp. v. Durfee,

637 A.2d 375 (R.I. 1994) ......................................20

Nationwide Biweekly Admin., Inc. v. Superior Ct.,

462 P.3d 461 (Cal. 2020) ......................................20

Near v. Minnesota ex rel. Olson,

283 U.S. 697 (1931) ..............................................12

Osborn v. Haley,

549 U.S. 225 (2007) ..............................................13

Parish of Jefferson v. Fayard,

No. 24-432, 2025 WL 618748 (La. Ct. App.

Feb. 26, 2025) .......................................................24

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) .......................................15, 23

ProCraft Masonry, LLC v. DOJ,

No. 23-cv-393 (N.D. Okla.)...................................24

Ramos v. Louisiana,

139 S. Ct. 1318 (Mar. 18, 2019) ...........................26

Ramos v. Louisiana,

590 U.S. 83 (2020) .............................. 17–18, 22, 28

Reid v. Covert,

354 U.S. 1 (1957)..................................................26

Ridlon v. New Hampshire Bureau of Sec. Regul.,

214 A.3d 1196 (N.H. 2019) ..................................20

Riley v. Jankowski,

713 N.W.2d 379 (Minn. Ct. App. 2006) ...............19

Rivera v. Centro Médico de Turabo, Inc.,

575 F.3d 10 (1st Cir. 2009) ..................................13

Scott v. Am. Tobacco Co.,

36 So. 3d 1046 (La. App. 2010) ............................16

SEC v. Jarkesy,

603 U.S. 109 (2024)

........................ 4, 5, 8, 15, 18, 21, 23–24, 26, 28–29

South Dakota v. Wayfair,

138 S. Ct. 735 (Jan. 12, 2018)..............................25

State v. One 1990 Honda Accord,

712 A.2d 1148 (N.J. 1998). ..................................23

State v. Schweda,

736 N.W.2d 49 (Wis. 2007) ..................................19

Students for Fair Admissions, Inc. v. University

of N.C,

142 S. Ct. 896 (Jan. 24, 2022)..............................25

xii

Sun Valley Orchards, LLC v. DOL,

No. 1:21-CV-16625, 2023 WL 4784204 (D.N.J.

July 27, 2023) .......................................................24

Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440 (Tex. 1993) .................................21

Thomas v. Humboldt County,

124 F.4th 1179 (9th Cir. 2024) ........................1, 10

Thomas v. Humboldt County,

2024 WL 5242613 (9th Cir. Dec. 30,

2024) ........................................................... 1, 10, 27

Thomas v. Humboldt County,

2023 WL 3437295 (N.D. Cal. May 12, 2023) ....1, 9

Timbs v. Indiana,

586 U.S. 146 (2019) .................................. 14, 16, 18

Tull v. United States,

481 U.S. 412 (1987) .......................... 4, 8, 20, 21, 28

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) ................................................20

W. J. Dillner Transfer Co. v. Pennsylvania Pub.

Util. Comm’n,

155 A.2d 429 (Pa. Super. Ct. 1959) .....................19

Walker v. Sauvinet,

92 U.S. 90 (1875)..................................................12

Wartman v. Branch 7, Civ. Div., Cnty. Ct.,

Milwaukee Cnty., Wis.,

510 F.2d 130 (7th Cir. 1975)................................13

xiii

State ex rel. Weiser v. Center for Excellence in

Higher Educ., Inc.,

529 P.3d 599 (Colo. 2023) ....................................20

YAPP USA Auto. Sys., Inc. v. NLRB,

748 F. Supp. 3d 497 (E.D. Mich. 2024) ...............24

Young v. City of LaFollette,

479 S.W.3d 785 (Tenn. 2015)...............................19

Rules & Statutes

28 U.S.C. 1254(1) ........................................................1

Fed. R. App. P. 41(d)(1) .............................................27

Fed. R. Civ. P. 12(b)(1) ................................................9

Fed. R. Civ. P. 12(b)(6) ................................................9

Fed. R. Civ. P. 48(b) ..................................................22

Or. R. Civ. P. 59(G)(2) ...............................................22

Other Authorities

1 Annals of Cong. 454 (Joseph Gales ed., 1789) ......15

1 Joseph Story, Commentaries on the

Constitution of the United States, § 165

(Thomas M. Cooley, 4th ed. 1873) .......................15

3 The Debates in the Several State Conventions

on the Adoption of the Federal Constitutions

(Jonathan Elliot ed., 2d ed., Philadelphia, J.B.

Lippincott 1888) ...................................................15

xiv

Charles W. Wolfram, The Constitutional History

of the Seventh Amendment, 57 Minn. L. Rev.

639 (1973) .............................................................15

Declaration of Independence (1776) .........................15

Keith Bradley, Does the Seventh Amendment

Limit State Adjudication?, YALE J. REG.

NOTICE & COMMENT BLOG (July 18, 2024),

https://www.yalejreg.com/nc/does-the-seventhamendment-limit-state-administrativeadjudication-by-keith-bradley/ ............................19

Kenneth S. Klein, The Myth of How to Interpret

the Seventh Amendment Right to A Civil Jury

Trial, 53 Ohio St. L.J. 1005 (1992)......................16

Letter from Thomas Jefferson to Thomas Paine,

11 July 1789 .........................................................16

Magna Carta ch. 39 (1215) .......................................14

Mark W. Bennett, Judges’ Views on Vanishing

Civil Trials, 88 Judicature 306 (2005) ................15

Steven G. Calabresi & Sarah E. Agudo,

Individual Rights Under State Constitutions

When the Fourteenth Amendment Was

Ratified in 1868: What Rights Are Deeply

Rooted in American History and Tradition?,

87 Tex. L. Rev. 7 (2008) .......................................16

Steven Gow Calabresi et al., Individual Rights

Under State Constitutions in 2018: What

Rights Are Deeply Rooted in a Modern-Day

Consensus of the States?, 94 Notre Dame L.

Rev. 49 (2018) ......................................................16

Suja A. Thomas, Nonincorporation: The Bill of

Rights After McDonald v. Chicago, 88 Notre

Dame L. Rev. 159 (2012) .....................................12

PETITION FOR WRIT OF CERTIORARI

Petitioners Corrine Morgan Thomas, Doug

Thomas, Blu Graham, Rhonda Olson, and Cyro Glad

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The circuit court issued two opinions in this case:

an unpublished opinion, Pet. App. 1a, which is available at 2024 WL 5242613 (9th Cir. Dec. 30, 2024), and

a reported decision, Pet. App. 17a, which is published

as Thomas v. Humboldt County, 124 F.4th 1179 (9th

Cir. 2024). The district court’s opinion dismissing this

case, Pet. App. 49a, is unpublished but available at

2023 WL 3437295 (N.D. Cal. May 12, 2023).

JURISDICTION

The Ninth Circuit issued its decision on December

30, 2024. On January 30, 2025, Justice Kagan issued

a 45-day extension for Petitioners to file this petition,

making it due by May 15, 2025. Petitioners timely file

this petition and invoke this Court’s jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS &

COUNTY ORDINANCES INVOLVED

The Seventh Amendment to the United States

Constitution provides: “In Suits at common law,

where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved,

and no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States, than according to the rules of the common law.”

Section 1 of the Fourteenth Amendment to the

U.S. Constitution provides, in relevant part: “No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

This Petition also concerns certain ordinances of

the Humboldt County Code, Sections 352-2, 352-3,

352-11, and 352-12. Petitioners have included the text

of these provisions in Appendix E.

INTRODUCTION

Long before there were united states in America,

the right to trial by jury already stood as a bulwark

against tyranny. The people who shaped our legal tradition dating back to Magna Carta have insisted upon

juries to prevent government overreach. Yet, as we

approach 250 years as a nation, states and municipalities can still try cases outside the judicial system

when the common law would have required a jury.

And they do. Places like Humboldt County, California, impose ruinous fines—and even take people’s

homes—without ever proving the government’s case

to a jury. Humboldt’s system is especially punitive.

The County fines people millions of dollars for basic

permitting and land-use violations that pose little or

no harm to the community. Like many state and municipal governments, however, Humboldt channels

these claims through administrative tribunals. Doing

so deprives the accused of their fundamental right to

a trial by jury.

Juries matter a lot in these cases because the facts

matter a lot in these cases. Humboldt’s exorbitant

fines are triggered by a code-enforcement officer’s presumption that the only reason someone would violate

the building code is because they’re growing cannabis

without a permit. So whether the accused loses everything depends on whether code enforcement can prove

its case to the factfinder. But Humboldt has designed

a system in which it gets to try its case to a “hearing

officer” who works for code enforcement. Unsurprisingly, Humboldt never loses on its home court. Pet

App. 167a–169a.

If the federal government imposed the same penalties, the Seventh Amendment would guarantee a

jury to determine whether the facts support the

charges. See, e.g., Tull v. United States, 481 U.S. 412

(1987). But 110 years ago, this Court held that the

Seventh Amendment does not apply to the states because the Bill of Rights does not apply to the states.

Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S.

211 (1916). That position, of course, is no longer good

law. And it hasn’t been for generations. See McDonald v. City of Chicago, 561 U.S. 742, 784 n.30 (2010)

(noting that Bombolis predates this Court’s selectiveincorporation era).

Since Bombolis in 1916, the Court has “shed any

reluctance to hold that rights guaranteed by the Bill

of Rights” apply to the states. McDonald, 561 U.S. at

764. Indeed, the Court has recognized that the Fourteenth Amendment applies “the first eight Amendments” to the states and has incorporated “almost all”

of them. Id. at 763–764.

The Seventh Amendment’s right to a civil jury is

one of the few remaining provisions from the Bill of

Rights left to incorporate. This Petition presents the

Court the chance to finally prevent local governments

from violating one of our most fundamental rights. As

this Court reiterated last term, “[t]he right to trial by

jury is ‘of such importance and occupies so firm a

place in our history and jurisprudence that any seeming curtailment of the right’ has always been and

‘should be scrutinized with the utmost care.’” SEC v.

Jarkesy, 603 U.S. 109, 121 (2024) (quoting Dimick v.

Schiedt, 293 U.S. 474, 486 (1935)). By granting certiorari and holding that the Seventh Amendment

applies to the states, this Court would protect the

right at all levels of government.

This issue is particularly ripe for review following

last term’s decision in Jarkesy. The lower courts are

just beginning to reconsider how the Seventh Amendment applies to administrative adjudications. If this

Court addresses Seventh Amendment incorporation

now, the lower courts can consider all at once how the

right applies in both the federal and state systems.

That dual consideration will help avoid the problems

that could arise if the law develops exclusively in the

federal context and is later incorporated wholesale

onto the many unique features of state and municipal

proceedings. It’s best to let the lower courts construe

the Seventh Amendment with a view of the full legal

landscape.

This Court should grant the Petition.

STATEMENT OF THE CASE

Humboldt County fines people millions of dollars

for things they didn’t do because it doesn’t care if

they’re innocent. This approach has been enormously

successful at depriving residents of their property and

liberty. One big reason for that success is that Humboldt does not afford the accused a jury of their peers.

Quite the contrary: Humboldt’s code-enforcement officers brag that enforcement actions are decided by

hearing officers who work for the County and have

never ruled against the government. Without hope for

a fair hearing, the accused face immense pressure to

settle baseless charges. Pet App. 167a–169a, 174a–

176a.

A. Humboldt’s Dragnet Code Enforcement

Humboldt implemented a system to enforce cannabis-permitting violations that relies primarily on

grainy satellite images that may show other permitting violations. Code-enforcement officers scour the

images for what looks like unpermitted development

on a property (e.g., a greenhouse, a building, a graded

flat of land, or trees removed without a permit on record). The County then presumes, without any evidence or further investigation, that the landowner

must have developed their property without a permit

because they were growing cannabis. In Humboldt’s

view, there’s just no other reason that someone might

not buy a permit before building a shed, a barn, or a

greenhouse in the rural countryside. Pet. App. 147a–

155a. So code enforcement doesn’t even bother to investigate its hunches. The official government position is that real investigations would be too burdensome because “the County is large, sparsely populated, and poorly served by roads, and roundtrip

travel from the County seat can take much of a day[.]”

Resp. C.A. Br. 23.

To compound the problems of evidence-less enforcement, Humboldt penalizes new owners for the

conduct of prior owners. A current owner is not merely

responsible for outstanding code violations on their

property but also for the County’s suspicion that the

prior owner improved the property without a permit

to grow cannabis. Pet. App. 153a, 184a–185a.

All fines for land-use violations with a nexus to

cannabis are multiplied exponentially. Just by alleging that nexus, the County transforms land-use violations that would typically cost between $1–$1,000

into “Category 4” offenses with 90 days of daily fines

between $6,000–$10,000. In a typical case, Humboldt

treats an unpermitted structure as three separate violations, worth $30,000 in daily penalties, quickly

running into the millions. Pet. App. 143a–144a, 158a–

160a.

B. Petitioners Are Innocent Residents

Caught in Humboldt’s Dragnet

Petitioners are all innocent victims of Humboldt’s

code-enforcement regime. All face life-ruining penalties for code violations supposedly related to cannabis

on their properties even though none ever grew cannabis on their properties.

Petitioners Corrine Morgan Thomas and Doug

Thomas are disabled and live on a fixed income. Aside

from their work running a non-profit, the Miracle Run

Foundation for Autism, they are retired. They bought

their dream home among Humboldt’s redwoods in

2021, after their house in Los Angeles County burned

down in a wildfire. The Thomases have never grown

cannabis, and they certainly did not set up an illegal

grow operation as soon as they moved into their retirement home. Nevertheless, just six days after the

Thomases bought the property with clean title, Humboldt fined them $1,080,000 for an unpermitted garage because the prior owner might have grown cannabis inside. In addition to the fines, the County also ordered them to destroy the garage simply because of

the alleged nexus to cannabis, at an additional cost of

$200,000. Pet. App. 176a–187a.

Petitioner Rhonda Olson also bought property

with clean title in Humboldt County in 2021. She has

never grown marijuana on the property, and the

County knew that. Pet. App. 199a–206a. But it still

fined Rhonda $7,470,000. Why? Because it believed

that the previous owner had grown cannabis on an

“old logging pad” that a timber operation graded without a permit in the 1980s. Ibid. Petitioner Cyro Glad

was similarly targeted with $900,000 in fines for

property he just purchased because the County saw

unpermitted development in satellite images of his

property. Pet. App. 206a–209a. And the same for Petitioner Blu Graham. He faced a $900,000 penalty because he didn’t get a permit to construct greenhouses

that he used to grow produce for his family’s restaurant. Without ever visiting his property, code enforcement insisted, “You’re not just growing asparagus in

there.” They were right, technically—Blu was growing peppers. Pet. App. 187a–193a.

Petitioners each challenged their penalties within

the 10 days provided by law. Pet. App. 178a, 190a,

203a, 206a, 209a, 211a. But county law does not set a

maximum time by which the County must schedule a

hearing, so code enforcement waits several years in to

schedule hearings on the charges it filed without evidence. See Pet. App. 165a, 169a.

Nor do county ordinances provide for trial by jury,

even though suits for civil penalties are “a particular

type of an action in debt, requiring a jury trial,” Tull

v. United States, 481 U.S. 412, 418 (1987)—especially

where the penalties “are designed to punish and deter, not to compensate.” SEC v. Jarkesy, 603 U.S. 109,

125 (2024). Instead, the County channels its enforcement actions through an administrative process. Pet.

App. 250a–253a.

Humboldt made its code-enforcement system as

perilous as possible to help generate revenue. In addition to the ruinous fines, Humboldt forces the accused to challenge their penalties before an attorney

who works for the County, rather than a jury of their

peers. The County’s explicit purpose for pushing these

cases through administrative hearings is “to penalize

Responsible Parties who fail or refuse to comply” with

the Code while “minimiz[ing] the expense and delay

of pursuing alternative remedies through the civil

and/or criminal justice system.” Pet. App. 245a. In

other words, Humboldt decided that providing juries

would cut into its revenue stream.

The lack of a jury also gives code-enforcement officers added leverage to threaten the accused: “[T]he

judges and attorneys work for the county and are on

the side of the Code Enforcement Unit.” “You’re going

to lose the hearing; it’s our people. We’re going to impose the maximum fine on you[.]” Pet. App. 167a–

168a.

C. Procedural History

In October 2022, Petitioners filed a putative class

action on behalf of themselves and others who have

requested but not yet received a hearing. They

pleaded five constitutional claims: (1) procedural due

process; (2) substantive due process; (3) unconstitutional conditions; (4) excessive fines; and (5) denial of

the right to a jury in violation of the Seventh and

Fourteenth Amendments. Pet. App. 210a–240a.

Respondents moved to dismiss under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court agreed on each point and dismissed the

case entirely. Pet. App. 82a–128a. Petitioners appealed, and the Ninth Circuit reversed the district

court’s decision almost entirely.

The appeals court held that Petitioners’ claims

were timely and ripe, and that they stated claims for

relief under the Due Process Clause, the unconstitutional-conditions doctrine, and the Excessive Fines

Clause. Pet. App. 5a–15a, 30a–48a. The Ninth Circuit

remanded those claims to the district court, where the

parties are beginning discovery. Pet. App. 16a, 48a.

For Petitioners’ Seventh Amendment claim, however, the Ninth Circuit affirmed the district court’s

dismissal. The Ninth Circuit has long recognized that

a Seventh Amendment claim against state and local

governments “is not viable under our court’s selectiveincorporation precedent.” Pet. App. 12a (citing Jackson Water Works, Inc. v. Public Utils. Comm’n, 793

F.2d 1090, 1096 (9th Cir. 1986)). See Jackson, 793

F.2d at 1096 (“[S]eventh amendment not applicable to

the states.” (citing Minneapolis & St. Louis R. Co. v.

Bombolis, 241 U.S. 211, 217 (1916))). The court thus

“d[id] not address the merits of the claim” and affirmed that it was rightly dismissed on the pleadings.

Ibid.

This Petition follows on the discrete issue of

whether the Seventh Amendment binds the states.

REASONS FOR GRANTING THE PETITION

This Court alone can address whether the

Seventh Amendment’s jury-trial right is

incorporated against the states.

The Seventh Amendment’s guarantee of a jury in

common-law cases easily satisfies the modern

approach to incorporation. But no one can bring Seventh Amendment cases against state and local governments because of wrongly decided precedent that

predates this Court’s recognition that the Fourteenth

Amendment applied the Bill of Rights to the states.

Whether the fundamental right to civil jury trials is

protected at all levels of government is an important

question that warrants this Court’s consideration.

A. This Court hasn’t considered the Seventh Amendment’s incorporation since

before the era of incorporation.

The last time the Court considered whether the

civil-jury right applies to the States was 1916, when

the Court viewed the Bill of Rights’ application

through a fundamentally different lens than the selective-incorporation approach that has prevailed for

nearly a century since.

Bombolis was a case about whether a non-unanimous jury in state court could decide a wrongfuldeath case brought under a federal law. 241 U.S. at

215. Minnesota law counted five-sixths of a jury as

unanimous if the jury remained deadlocked for more

than 12 hours. Ibid. The respondents argued that, dating back to Barron v. Baltimore, 32 U.S. (7 Pet.) 243

(1833), it has been “beyond controversy that the Seventh Amendment does not apply to proceedings in the

State Courts.” Opp. Br. at 22–27, Minneapolis & St.

Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) (No.

478). The Fourteenth Amendment did not change anything, they maintained, because the SlaughterHouse Cases established that “the protection of a citizen in his rights as a citizen of the state still remains

with the state.” Id. at 26–27 (quoting Maxwell v. Dow,

176 U.S. 581, 593 (1900)).

The Court agreed with the respondents and held

that the Seventh Amendment was “not concerned

with state action.” Id. at 217. It rejected the “new and

strange view” that the Bill of Rights might apply to

the states. Ibid. Instead, the Court relied on the antiincorporation consensus of the nineteenth century dating back to before the Fourteenth Amendment. See

ibid. (citing Livingston’s Lessee v. Moore, 32 U.S. (7

Pet.) 469, 539 (1833)). One of those cases, Walker v.

Sauvinet, 92 U.S. 90 (1875), reasoned that due process in the Fourteenth Amendment “does not necessarily imply that all trials in the State courts affecting

the property of persons must be by jury.” Id. at 92–93.

Nor was trial by jury “a privilege or immunity of national citizenship, which the States are forbidden by

the Fourteenth Amendments to abridge.” Id. at 92.

By Bombolis’s time, the Bill of Rights’ inapplicability to the states was so “completely and conclusively” settled that the Court never considered any

factors relevant to incorporation. 241 U.S. at 215. So,

the Court’s last word on Seventh Amendment incorporation did not discuss things like how fundamental

the civil-jury right has been for the last 800 years. See

Suja A. Thomas, Nonincorporation: The Bill of Rights

After McDonald v. Chicago, 88 Notre Dame L. Rev.

159, 174 (2012) (“In the decision, the Court did not

discuss the Fourteenth Amendment or due process.”).

Just nine years after Bombolis dismissed the

“strange” case for incorporation, the Court began accepting that the Fourteenth Amendment incorporated the Bill of Rights. See Gitlow v. New York, 268

U.S. 652, 666 (1925) (incorporating freedom of

speech). And from there, the Court never looked back.

See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707

(1931) (opining that First Amendment incorporation

was “no longer open to doubt” and that it was “impossible” to conclude otherwise).

Had Bombolis come a decade later, this question

could have been settled a century ago. But through an

accident of time, the Seventh Amendment has been

trapped in the bygone anti-incorporation era. Still,

Bombolis remains the law. The Court has acknowledged Bombolis’s continued effect but never revisited

its foundation. See, e.g., Osborn v. Haley, 549 U.S.

225, 252 n.17 (2007) (noting Bombolis’s holding);

Georgia v. McCollum, 505 U.S. 42, 52 (1992) (same);

Howlett v. Rose, 496 U.S. 356, 370 n.17 (1990) (same);

Brady v. Southern Ry. Co. 320 U.S. 476, 479 (1943)

(same). Consequently, the courts of appeals have recognized that Bombolis forecloses any consideration of

claims that apply the Seventh Amendment to state

and local governments.1 Only this Court can overturn

1 The circuits have recognized, as they must, that Bombolis

foreclosed the Seventh Amendment’s application to state or local

proceedings. See, e.g., Rivera v. Centro Médico de Turabo, Inc.,

575 F.3d 10, 23 (1st Cir. 2009); Johansen v. Combustion Eng’g,

Inc., 170 F.3d 1320, 1328 n.5 (11th Cir. 1999); McFadden v.

Sears, Roebuck & Co., 125 F.3d 855 (6th Cir. 1997); De Young v.

Lorentz, 69 F.3d 547, 1995 WL 662087, at *2 n.5 (10th Cir. 1995);

In re Jacobs, 44 F.3d 84, 89 (2d Cir. 1994); Linton v. Great Lakes

Dredge & Dock Co., 964 F.2d 1480, 1488 (5th Cir. 1992); Wartman v. Branch 7, Civ. Div., Cnty. Ct., Milwaukee Cnty., Wis., 510

F.2d 130, 134 (7th Cir. 1975); American Dredging Co. v. Local

25, Marine Div., Int’l Union of Operating Eng’rs, 338 F.2d 837,

856 (3d Cir. 1964).

Bombolis and recognize the Seventh Amendment’s incorporation.

B. This issue is important for the same

reason the Seventh Amendment is incorporated—the civil-jury right is fundamental.

Whether the Court ultimately adheres to or departs from Bombolis, the question presented is well

worth this Court’s attention. Cf. Gamble v. United

States, 587 U.S. 678, 681 (2019) (declining to overturn

the dual-sovereignty doctrine). That the Seventh

Amendment’s civil-jury right maps so readily onto the

Court’s selective-incorporation standard for fundamental rights only reinforces the question’s cert-worthiness.

A right guaranteed by the Bill of Rights is incorporated “if it is fundamental to our scheme of ordered

liberty, or deeply rooted in this Nation’s history and

tradition.” Timbs v. Indiana, 586 U.S. 146, 150 (2019)

(cleaned up). And by every metric, the Seventh

Amendment fits that bill. Like many of the other

rights the Court has held incorporated, the civil-jury

right is of “ancient” origin and dates to Magna Carta.

Dimick v. Schiedt, 293 U.S. 474, 485 (1935); see also

Magna Carta ch. 39 (1215). And again, like most other

fundamental rights, it developed in England as a

shield against government overreach. In Blackstone’s

time, the civil-jury right was already so deeply entrenched that he thought “no conquest, no change of

government, could ever prevail to abolish it.” 3 William Blackstone, Commentaries *350; see also

Dimick, 293 U.S. at 485 (noting that Blackstone characterized trial by jury as “‘the glory of the English law’

and ‘the most transcendent privilege which any subject can enjoy’”).

On this side of the Atlantic, the colonies “firmly

and universally” embraced juries for both civil and

criminal trials. 1 Joseph Story, Commentaries on the

Constitution of the United States, § 165, at 113

(Thomas M. Cooley, 4th ed. 1873); see also Charles W.

Wolfram, The Constitutional History of the Seventh

Amendment, 57 Minn. L. Rev. 639, 656 (1973). One of

the grievances detailed in the Declaration of Independence was the Crown’s “depriving us in many

cases, of the benefits of Trial by Jury[.]” Declaration

of Independence ¶ 20 (1776); see also SEC v. Jarkesy,

603 U.S. 109, 121 (2024) (citing the English practice

of trying Americans without juries “as a justification

for severing our ties to England”). And then every

state enshrined in its constitution a provision analogous to the Seventh Amendment, making the civiljury right “probably the only” fundamental right secured by all the original states. Parklane Hosiery Co.

v. Shore, 439 U.S. 322, 340–341 (1979) (Rehnquist, J.,

dissenting) (citation omitted).

All sides of the founding generation recognized

that civil juries were a necessity. As Madison put the

point, civil juries were “as essential to secur[ing] the

liberty of the people as any one of the pre-existent

rights of nature.” Mark W. Bennett, Judges’ Views on

Vanishing Civil Trials, 88 Judicature 306, 307 (2005)

(quoting 1 Annals of Cong. 454 (Joseph Gales ed.,

1789)). And Patrick Henry who disagreed on much

with Madison similarly hailed the jury as “the best

appendage of freedom” by which “our ancestors secured their lives and property.” 3 The Debates in the

Several State Conventions on the Adoption of the

Federal Constitutions 324, 544 (Jonathan Elliot ed.,

2d ed., Philadelphia, J.B. Lippincott 1888). Likewise,

Thomas Jefferson saw the right as “the only anchor,

ever yet imagined by man, by which a government can

be held to the principles of [its] constitution.” Letter

from Thomas Jefferson to Thomas Paine, 11 July

1789. The only disagreement between the Federalists

and Anti-federalists was “whether civil jury rights

were the most important of all individual rights, or

simply one of the most important rights.” Kenneth S.

Klein, The Myth of How to Interpret the Seventh

Amendment Right to A Civil Jury Trial, 53 Ohio St.

L.J. 1005, 1010 (1992) (emphasis added).

The right remained fundamental through Reconstruction and into the present day. At the Fourteenth

Amendment’s ratification, 98% of Americans lived in

states that guaranteed the right to jury trial in all

common-law cases. Steven G. Calabresi & Sarah E.

Agudo, Individual Rights Under State Constitutions

When the Fourteenth Amendment Was Ratified in

1868: What Rights Are Deeply Rooted in American

History and Tradition?, 87 Tex. L. Rev. 7, 77 (2008).

That means it enjoyed more robust protection than

even the rights to be free from excessive fines and to

keep and bear arms. See Timbs, 586 U.S. at 152 (35

out of 37 states forbid excessive fines); McDonald, 561

U.S. at 777 (22 of the 37 States “explicitly protected

the right to keep and bear arms”). Today, forty-nine

states “representing 98% of the states and 98.5% of

the U.S. population” guarantee the right to jury trials

in civil cases within their state constitutions.2 Steven

2 The one outlier? Louisiana. See Scott v. Am. Tobacco Co.,

36 So. 3d 1046, 1052–1053 (La. App. 2010) (noting that the

Gow Calabresi et al., Individual Rights Under State

Constitutions in 2018: What Rights Are Deeply Rooted

in a Modern-Day Consensus of the States?, 94 Notre

Dame L. Rev. 49, 113 (2018).

While full briefing can await the merits, the Court

can be confident that an overwhelming historical record bears out what the Court has long acknowledged:

“that the trial by jury is a fundamental guaranty of

the rights and liberties of the people.” Hodges v.

Easton, 106 U.S. 408, 412 (1882); see also Jacob v.

City of New York, 315 U.S. 752, 752–753 (1942) (“The

right of jury trial in civil cases at common law is a

basic and fundamental feature of our system of federal jurisprudence[.]”); Dimick, 293 U.S. at 486 (civiljury right “is of such importance” and “occupies so

firm a place in our history and jurisprudence”).

Whether this fundamental right applies to state

and local governments is an issue frozen in time. This

Court alone can reach it. And this Court alone can

weigh the stare decisis considerations (if any) that

might favor retaining Bombolis’s anachronistic reasoning or cutting it loose. Cf. McDonald, 561 U.S. at

758 (holding the Second Amendment is incorporated

without giving any weight to outdated precedent that

had reasoned “that the Second Amendment applies

only to the Federal Government” (citation omitted));

Ramos v. Louisiana, 590 U.S. 83, 105 (2020) (“[S]tare

decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”). This Court

alone can decide whether to adhere to Bombolis’s

Louisiana Constitution broke from common-law tradition for

both civil and criminal jury trials and guarantees the former

only by statute). This Court already corrected the latter problem

in Ramos v. Louisiana, 590 U.S. 83, 90 (2020).

perfunctory embrace of now-discredited decisions that

nowhere “engage[d] in the sort of Fourteenth Amendment inquiry required by [this Court’s] later cases.”

McDonald, 561 U.S. at 758 (citation omitted). This

Court alone can determine that the legal developments of the last century make Bombolis’s demise “inevitable.” Benton v. Maryland, 395 U.S. 784, 795

(1969). This Court alone can evaluate how any reliance interests the states have in “efficient” adjudications compares to “the reliance interests of the American people.” Ramos, 590 U.S. at 110. This Court

alone can conclude that the Bill of Rights’ incorporation includes this fundamental right, too. Win or lose,

it’s a question that warrants the Court’s plenary review.3

II.

The Seventh Amendment’s incorporation

is an issue of nationwide importance that

is best decided now.

As this Court reiterated last term, the civil-jury

right is fundamental when the government seeks

monetary penalties in cases involving private rights.

See Jarkesy, 603 U.S. at 122–125. State and local governments have channeled all sorts of these enforcement actions outside the judicial process. How the

3 “For many decades,” the Court has analyzed “the question

of the rights protected by the Fourteenth Amendment against

state infringement” under the Due Process Clause. McDonald,

561 U.S. at 758. Some Members of the Court have instead viewed

the issue through the Privileges or Immunities Clause. See id. at

805–35 (Thomas, J., concurring). But “regardless of the precise

vehicle,” the Fourteenth Amendment requires the states to respect the Seventh Amendment, and, as in Timbs, Petitioners’

question presented covers both paths. See Timbs, 586 U.S. at 157

(Gorsuch, J., concurring).

Seventh Amendment applies to that wide range of

claims is important to the development of the law. By

addressing incorporation now, the Court would allow

lower courts to construe Jarkesy’s scope at both the

state and federal levels simultaneously. That avoids

the risk that Seventh Amendment case law developed

with only the federal system in mind might not always map on well to the varied state systems.

A. States are routing more common-law

cases outside the judicial system.

The expansion of administrative enforcement

throughout the states, tracking the expansion in the

federal government, has increasingly removed common-law claims from a jury’s view.4 Given the differences in scope between federal and local authority,

however, the types of claims involved vary greatly.5

4 Keith Bradley, Does the Seventh Amendment Limit State

Adjudication?, YALE J. REG. NOTICE & COMMENT BLOG (July 18,

2024),

https://www.yalejreg.com/nc/does-the-seventh-amendment-limit-state-administrative-adjudication-by-keith-bradley/

(“Myriad state regulatory statutes implement enforcement by

administrative adjudication. Courts in multiple states have rejected jury demands in such matters, sometimes by use of the

expansive description of ‘public rights’ in Atlas Roofing, and

sometimes based on the functional description of adjudication

from Atlas Roofing.”).

5 See, e.g., Young v. City of LaFollette, 479 S.W.3d 785, 793–

794 (Tenn. 2015) (denying jury right in retaliatory-discharge

suit); State v. Schweda, 736 N.W.2d 49, 60 (Wis. 2007) (denying

jury right in $219,120 forfeiture award); State ex rel. Dep’t of

Env’t Prot. v. Emerson, 616 A.2d 1268, 1271 (Me. 1992) (denying

jury right for $191,600 environmental penalty); W. J. Dillner

Transfer Co. v. Pennsylvania Pub. Util. Comm’n, 155 A.2d 429,

435 (Pa. Super. Ct. 1959) (denying jury right for $5,000 penalty

for public-utility violation); Riley v. Jankowski, 713 N.W.2d 379,

Until the people can enforce the Seventh Amendment

against the states, the right to a jury in these cases

will not depend on the Seventh Amendment but on

the whims of local jurisdictions with an incentive to

collect monetary penalties. Cf. United States v. James

Daniel Good Real Prop., 510 U.S. 43, 55–56 (1993).

Many states deny juries in cases that would likely

require one under this Court’s Seventh Amendment

jurisprudence. See, e.g., State ex rel. Weiser v. Center

for Excellence in Higher Educ., Inc., 529 P.3d 599, 610

(Colo. 2023) (denying jury trial for $3 million in civil

penalties for deceptive trade practices because the

court was not bound by Tull); Nationwide Biweekly

Admin., Inc. v. Superior Ct., 462 P.3d 461, 489–490

(Cal. 2020) (denying jury right for $2,500 violation of

unfair competition and false advertising law because

the court was not bound by Tull); Ridlon v. New

Hampshire Bureau of Sec. Regul., 214 A.3d 1196,

1201 (N.H. 2019) (upholding $6 million penalties

without a jury trial because the Seventh Amendment

does not apply to the states); State ex rel. Cherry v.

Burns, 602 N.W.2d 477, 485 (Neb. 1999) (denying jury

right on theory that $50 million in punitive damages

was equitable); Maryland Aggregates Ass’n, Inc. v.

State, 655 A.2d 886, 897–898 (Md. 1994) (“[T]he jury

trial guarantee [is] inapplicable where the legislature

has committed to an administrative agency the initial

decision making function with respect to a particular

class of disputes[.]”); National Velour Corp. v. Durfee,

637 A.2d 375, 379–380 (R.I. 1994) (applying Atlas

Roofing Co. v. OSHA, 430 U.S. 442 (1977), to allow an

$205,000 administrative penalty in environmental396 (Minn. Ct. App. 2006) (denying jury right for civil penalties

for false political and campaign material).

enforcement proceeding); Commissoner of Env’t Prot.

v. Conn. Bldg. Wrecking Co., 629 A.2d 1116, 1122

(Conn. 1993) (denying jury right for $868,950 in environmental penalties by distinguishing Tull on state

grounds); Texas Ass’n of Bus. v. Texas Air Control Bd.,

852 S.W.2d 440, 450 (Tex. 1993) (reasoning that the

public-rights exception covers penalties designed to

protect public resources); Alabama Dep’t of Env’t

Mgmt. v. Wright Bros. Constr. Co., 604 So. 2d 429,

433–434 (Ala. Civ. App. 1992) (allowing punitive damages through administrative proceedings because

“the Seventh Amendment right to jury trial is not applicable to state courts”); McHugh v. Santa Monica

Rent Control Bd., 777 P.2d 91, 100 (Cal. 1989) (citing

Atlas Roofing to hold that treble damages for rentcontrol are incidental to restitution award); Dep’t of

Transp. v. Del-Cook Timber Co., 285 S.E.2d 913, 919–

920 (Ga. 1982) (denying jury right for civil penalties

because the Seventh Amendment “is generally inapplicable in administrative proceedings”).

After Jarkesy, that divergence will likely increase

as some states will follow this Court’s precedent to

limit administrative adjudication of common-law

suits for penalties and others will refuse. And in practical terms, the delta will appear in the sorts of cases

the framers were most concerned about: governments

using unaccountable decisionmakers to punish citizens and extract property.

At the same time, recognizing the Seventh Amendment’s incorporation is unlikely to impact most civil

litigation in state and local courts—especially suits

between private parties. Almost every state has a constitutional analog that already provides similar protections to the Seventh Amendment. While states

that have departed from this Court’s reading of the

Seventh Amendment will have to adjust around the

margins (some states, for example, do not require

unanimous civil juries),6 the disruption would be relatively modest.

Other states might need to tweak their procedures

in “small claims” cases. But several states that interpret their state constitutions consistently with the

Seventh Amendment have already held that the jury

right does not extend to small claims. See Cheung v.

Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 124 P.3d

550, 556 (Nev. 2005); Crouchman v. Superior Ct., 755

P.2d 1075, 1081 (Cal. 1988); Iowa Nat. Mut. Ins. Co.

v. Mitchell, 305 N.W.2d 724, 729 (Iowa 1981). Either

way, the small-claims question is one that the lower

courts can work out after incorporation.7

The biggest change will be in the cases the Seventh Amendment was enacted to address—

6 See, e.g., Or. R. Civ. P. 59(G)(2) (“In civil cases three-fourths

of the jury may render a verdict.”); but see Fed. R. Civ. P. 48(b).

But see American Pub. Co. v. Fisher, 166 U.S. 464, 468 (1897)

(“[U]nanimity was one of the peculiar and essential features of

trial by jury at the common law.”) The same was true in Ramos,

and this Court recognized that “the reliance interests of the

American people” must prevail. 590 U.S. at 110.

7 No matter the merits of the Seventh Amendment’s applica-

tion to small claims, the effects would be limited. By our count,

more than 75 percent of states already provide juries in smallclaims cases—whether by a defendant’s request in the small

claims proceeding itself, by transfer to a regular docket, or on

appeal. Cf. Capital Traction Co. v. Hof, 174 U.S. 1, 19 (1899) (upholding the provision for a jury on appeal rather than in the initial court).

government enforcement actions for which the civil

jury famously “stands as a shield between the individual and the State.” State v. One 1990 Honda Accord,

712 A.2d 1148, 1157 (N.J. 1998). For these cases, however, incorporation should be a burden on the government because the Seventh Amendment was enacted

to be a burden on the government. Parklane Hosiery,

439 U.S. at 346 (Rehnquist, J., dissenting).

B. This Court should incorporate the Seventh Amendment while the lower

courts consider Jarkesy’s application.

Incorporating the Seventh Amendment now will

allow lower courts to wrestle with Jarkesy’s implications at all levels of our federalist system. That will

produce more coherent and constitutionally faithful

outcomes than a fragmented process in which Jarkesy

is limited, for a time, to federal adjudications while

divergent and incompatible doctrines proliferate in

the states. If the law is developed for only federal adjudications, courts cannot consider unique issues presented at the state and municipal level. By contrast,

recognizing incorporation while the Seventh Amendment is still in a state of flux will allow the law to develop with an eye to both the federal and state contexts.

The longer the Court waits to confront this issue,

the greater the practical impact will become. Now is

as good a time as any—indeed, it may be the best

time—for this Court to resolve whether the Seventh

Amendment applies to the States.

Armed with Jarkesy’s enunciation of the Seventh

Amendment’s guarantee, the lower courts are already

deciding which other penalties must be tried before a

jury. See, e.g., AT&T, Inc. v. FCC, No. 24-60223, 2025

WL 1135280, at *1 (5th Cir. Apr. 17, 2025) (vacating

the FCC’s $57 million forfeiture order because its inhouse adjudication violated the Seventh Amendment); YAPP USA Auto. Sys., Inc. v. NLRB, 748

F. Supp. 3d 497, 514 (E.D. Mich. 2024), appeal filed

(6th Cir. Sept. 9, 2024); Sun Valley Orchards, LLC v.

DOL, No. 1:21-CV-16625, 2023 WL 4784204, at *6

(D.N.J. July 27, 2023), appeal filed (3d Cir. Sept. 5,

2023); C.S. Lawn & Landscape, Inc. v. DOL, No. 23cv-1533 (D.D.C.); ProCraft Masonry, LLC v. DOJ, No.

23-cv-393 (N.D. Okla.).

While Jarkesy reset the baseline for understanding the Seventh Amendment’s application to civil penalties at the federal level, many states have yet to revisit their own approaches. Worse, some have explicitly declined to follow Jarkesy until the Seventh

Amendment is incorporated. See, e.g., EFG Am., LLC

v. Arizona Corp. Comm’n, No. 1 CA-SA 25-0016, 2025

WL 1039587, at *1–2 (Ariz. Ct. App. Apr. 8, 2025) (declining to follow Jarkesy in affirming Commission’s

denial of jury trial request before imposing penalties

for violations of the Arizona Securities Act); Parish of

Jefferson v. Fayard, No. 24-432, 2025 WL 618748 (La.

Ct. App. Feb. 26, 2025) (declining to follow Jarkesy

and affirming civil penalties for feeding stray cats); In

re Investigation Pursuant to 30 V.S.A. Sec. 30 & 209,

327 A.3d 789, 805–07 (Vt. 2024) (declining to follow

Jarkesy and affirming $5,000 civil penalty, even

though “some of the criteria relate to the defendant’s

culpability”); Blue Beach Bungalows DE, LLC v. Delaware Dep’t of Just. Consumer Prot. Unit, 2024 WL

4977006, at *13 (Del. Super. Ct. Dec. 4, 2024) (noting

that Jarkesy is not binding on the States and holding

that juryless proceedings for violations of the Consumer Fraud Act are constitutional). Were it not for

Bombolis, these courts—and every other court across

the nation—would have to consider the Seventh

Amendment’s application to the states’ varied administrative-enforcement schemes.

Left unchecked, local governments will continue to

channel common-law claims away from the judicial

process. Administrative tribunals that resemble penal systems but without all the procedural safeguards

will continue to replace trials by jury. And, as in Humboldt, these tribunals will impose increasingly destructive penalties for increasingly minor infractions.

This Court should step in and restore the Seventh

Amendment’s protection.

C. There is no benefit to waiting.

Because Bombolis foreclosed the issue so long ago,

there has not been—and cannot be—any percolation

on whether the Seventh Amendment is incorporated.

Until this Court considers the question presented,

states and municipalities will continue to refuse jury

demands in whole categories of common-law cases.

There can be no percolation on the question presented. But the lack of lower-court disagreement in no

way precludes review. This Court does not require a

circuit split when its precedent forecloses consideration of the question. See, e.g., Students for Fair Admissions, Inc. v. University of N.C, 142 S. Ct. 896

(Jan. 24, 2022); Franchise Tax Bd. v. Hyatt, 138 S. Ct.

2710 (June 28, 2018); Gamble v. United States, 138 S.

Ct. 2707 (June 28, 2018); Knick v. Township of Scott,

138 S. Ct. 1262 (Mar. 5, 2018); South Dakota v.

Wayfair, 138 S. Ct. 735 (Jan. 12, 2018); Lawrence v.

Texas, 123 S. Ct. 661 (Dec. 2, 2002). Indeed, the last

time this Court granted certiorari in an incorporation

case, it did so in these exact circumstances. See Ramos v. Louisiana, 139 S. Ct. 1318 (Mar. 18, 2019); see

also Malloy v. Hogan, 83 S. Ct. 1680 (1963) (reconsidering precedent foreclosing incorporation of the right

against self-incrimination in the absence of a split).

Only this Court can restore the Seventh Amendment to the role the Fourteenth Amendment guaranteed. Without the possibility of any development below, there is no benefit to waiting. The constitutional

right to a jury trial will continue to erode in the name

of expedience under the weight of local financial incentives. Cf. Reid v. Covert, 354 U.S. 1, 10 (1957) (plurality) (The Seventh Amendment secured the civiljury right “against the passing demands of expediency

or convenience.”). Given last term’s decision in

Jarkesy, the time is right to resolve the incorporation

question so that courts can consider the Seventh

Amendment’s application at all levels of government.

III.

This case is a good vehicle for incorporation.

This Petition is an excellent vehicle to address an

important constitutional question. Incorporation will

be the sole issue before the Court, and Petitioners’

Seventh Amendment claim rises and falls on the issue

of incorporation.

The only obstacle to consideration of Petitioners’

Seventh Amendment claim is Bombolis. After 110

years with anti-incorporation as the controlling

standard, Seventh Amendment claims are a nonstarter in litigation against states and municipalities.

Consequently, the only clean vehicles for review will

be cases in which a petitioner preserves their Seventh

Amendment claim and has no other issues on which

to seek certiorari. Petitioners’ case presents that uncommon scenario. No factual disputes or ancillary issues cloud the record. There are no jurisdictional or

procedural complications that would prevent this

Court from deciding only the incorporation question.

The only reason the courts below could not address

the issue is because a Seventh Amendment claim “is

not viable” under current incorporation precedent.

Pet. App. 12a.

The remand of Petitioners’ remaining claims has

no bearing on this Petition’s suitability. They are currently proceeding in the district court pursuant to the

Ninth Circuit’s mandate because those issues aren’t

“involved in the appeal,” cf. Coinbase, Inc. v. Bielski,

599 U.S. 736, 741 (2023), and no party requested a

stay, Fed. R. App. P. 41(d)(1). As the Ninth Circuit

recognized, whether Humboldt’s current system provides adequate notice and timely hearings or imposes

excessive fines are distinct issues from whether the

hearings that Petitioners eventually receive must satisfy the Seventh Amendment. Pet. App. 12a. Cf.

Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 40–

42 (1998) (considering two issues on which summary

judgment was affirmed while the remaining issue was

remanded to the district court); Inter-Modal R. Emps.

Ass’n v. Atchison, Topeka & Sante Fe Ry. Co., 520 U.S.

510, 513–514 (1997) (considering the dismissal of Petitioners’ ERISA claims over welfare benefits while

their claims over pension benefits were remanded to

the district court).

Moreover, because Petitioners pleaded a core Seventh Amendment claim—a jury for an action in debt

over penalties for land-use violations—this Court’s

decision on the incorporation question will be outcome

determinative. Although the Court does not need to

get into the merits of how the Seventh Amendment

applies to Humboldt’s enforcement regime, Petitioners have a strong claim that should be allowed to proceed below.

To determine whether the civil-jury right applies

we look to (1) whether a similar claim would have

been brought in a court of law in the 18th century and

(2) whether the remedy sought is legal or equitable.

Tull v. United States, 481 U.S. 412, 417–418 (1987).

The remedy, however, “is all but dispositive.” Jarkesy,

603 U.S. at 123.

As Tull recognized, suits to impose penalties for

environmental nuisances are akin to actions at debt,

which require a jury. 481 U.S. at 418–425. More importantly, Humboldt designed its enforcement

scheme to “penalize” wrongdoing. Pet. App. 244a,

245a. Because the penalties “are designed to punish

and deter, not to compensate,” they are “‘a type of

remedy at common law that could only be enforced in

courts of law.’” Jarkesy, 603 U.S. at 125 (quoting Tull,

481 U.S. at 422).

But granting the Petition does not require the

Court to resolve the merits. The Court would address

only the “threshold question” presented, then remand

for the lower courts to resolve whatever issues their

error “prevented them from addressing.” City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S.

61, 77 (2022) (citation omitted); see also Ramos, 590

U.S. at 107 n.63 (“The scope of an incorporated right

and whether a right is incorporated at all are two different questions.”).

After this Court decides the incorporation issue,

the lower courts can apply Jarkesy to Petitioners’

claims and determine that Humboldt’s multi-milliondollar penalties for land-use violations are triable to

a jury under the Seventh Amendment.

CONCLUSION

This Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

ROBERT E. JOHNSON

INSTITUTE FOR JUSTICE

16781 Chagrin Blvd.,

Suite 256

Shaker Heights, OH 44120

(703) 682-9320

JARED MCCLAIN

Counsel of Record

SAMUEL B. GEDGE

MICHAEL PEÑA

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jmcclain@ij.org

DEREK M. MAYOR

KAYLEE SHELDON

PILLSBURY WINTHROP SHAW PITTMAN LLP

500 Capitol Mall, Suite 1800

Sacramento, CA 95814

(916) 329-4703

TABLE OF APPENDICES

Page

APPENDIX A:

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit,

December 30, 2024 .............................................. 1a

APPENDIX B:

Opinion of the United States Court of

Appeals for the Ninth Circuit,

December 30, 2024 ............................................ 17a

APPENDIX C:

Order of the United States District Court

for the Northern District of California,

May 12, 2023 ..................................................... 49a

APPENDIX D:

Amended Class Action Complaint,

January 20, 2023 ............................................ 130a

APPENDIX E:

Excerpts of the Humboldt County Code ........ 243a

Appendix A

Memorandum Opinion of the

United States Court of Appeals

for the Ninth Circuit

December 30, 2024

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORRINE MORGAN

THOMAS; et al.,

No. 23-15847

D.C. No. 1:22-cv-05725Plaintiffs-Appellants, RMI

COUNTY OF HUMBOLDT, California; et

al.,

MEMORANDUM *

Defendants-Appellees,

and

VIRGINIA BASS,

Chair, Board of Supervisors,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Robert M. Illman, Magistrate Judge, Presiding

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Appendix A

Argued and Submitted April 9, 2024

San Francisco, California

Before: PAEZ and SUNG, Circuit Judges, and FITZWATER, ** District Judge.

This putative class action arises out of Humboldt

County’s system of penalties and fees involving cannabis abatement. Plaintiffs—residents of Humboldt

County—filed this action under 42 U.S.C. § 1983, alleging a number of constitutional claims against the

County. 1 The district court dismissed all claims in

their entirety on various grounds. We have jurisdiction under 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand for further proceedings consistent with this disposition.

1. We first conclude that Plaintiffs have standing

to bring both their procedural and substantive due

process claims. Accepting Plaintiffs’ well-pleaded factual allegations as true and drawing all reasonable

inferences in their favor, see Pennell v. City of San

Jose, 485 U.S. 1, 7 (1988), Plaintiffs have plausibly alleged that they received Notices of Violations (NOVs)

for failure to comply with the County’s cannabis

abatement program and that the County imposed

penalties against them under the County’s administrative penalty scheme. As a consequence of these

The Honorable Sidney A. Fitzwater, United States District

Judge for the Northern District of Texas, sitting by designation.

In a separately filed opinion, we address Plaintiffs’ claim

that the County’s system of penalties and fees violates the

Eighth Amendment’s Excessive Fines Clause.

Appendix A

NOVs and penalties, Plaintiffs allege they have suffered emotional and psychological distress as well as

significant financial uncertainty. Plaintiffs have thus

alleged concrete injuries caused by the County’s actions. See Chaudhry v. City of Los Angeles, 751 F.3d

1096, 1109 (9th Cir. 2014) (finding emotional distress

cognizable); Robins v. Spokeo, Inc., 867 F.3d 1108,

1117 (9th Cir. 2017) (observing that “anxiety, stress,

concern, and/or worry about [the plaintiff’s] diminished employment prospects” are cognizable injuries).

In addition, Plaintiffs have plausibly alleged that

they applied for land-use permits but were denied as

a result of the County’s blanket policy of refusing to

issue permits to people facing cannabis-abatement orders. This is also sufficient to establish a concrete injury for standing purposes. See Carpinteria Valley

Farms, Ltd. v. Cnty. of Santa Barbara, 344 F.3d 822,

830 (9th Cir. 2003).

2. Plaintiffs also have standing to maintain their

claims under the unconstitutional-conditions doctrine. Plaintiffs allege that the County has conditioned land-use permits unrelated to cannabis or cannabis abatement on the settlement of separate (and

contested) cannabis-related violations. Plaintiffs further allege that such leveraged settlements, whether

accepted or not, would require them to pay penalties

unrelated to the land-use permits, pay administrative

fees unrelated to the land-use permits, and waive

their rights to an administrative hearing to contest an

NOV. Under Koontz v. St. Johns River Water Mgmt.

Dist., 570 U.S. 595 (2013), this form of conditioning

gives rise to a “constitutionally cognizable injury.” Id.

at 607.

Appendix A

3. Turning to the merits, Plaintiffs allege that the

County’s system of imposing administrative penalties

and fees for purported cannabis-related violations deprived them of procedural due process. “To evaluate a

procedural due process claim, we weigh the [factors

set out in Mathews v. Eldridge, 424 U.S. 319, 335

(1976)]: ‘(1) the private interest affected; (2) the risk

of erroneous deprivation through the procedures

used, and the value of additional procedural safeguards; and (3) the government’s interest, including

the burdens of additional procedural requirements.’”

Diamond S.J. Enter., Inc. v. City of San Jose, 100

F.4th 1059, 1069 (9th Cir. 2024) (quoting Yagman v.

Garcetti, 852 F.3d 859, 864 (9th Cir. 2017)).

As to the first factor, Plaintiffs have plausibly alleged that cognizable private interests are at stake,

including both their finances and the full use and enjoyment of their property. See Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 571-72 (1972); Harris v.

Cnty. of Riverside, 904 F.2d 497, 503 (9th Cir. 1990).

In addition, Plaintiffs allege that these interests are

significant. For example, Plaintiffs allege that the

penalties imposed against them can reach millions of

dollars. The minimum penalties accrued by Plaintiffs

and other responsible parties are also significant, especially when compared to the average income of the

residents subject to the County’s cannabis regulatory

scheme. Cf. Nozzi v. Hous. Auth. of Los Angeles, 806

F.3d 1178, 1193 (9th Cir. 2015). In combination with

the alleged deprivation of access to land-use permits

for those with outstanding cannabis-related NOVs,

this impact suggests the existence of substantial private interests.

Appendix A

As to the second factor, taking Plaintiffs’ allegations in the amended complaint as true, the risk of

erroneous deprivation through the County’s administrative procedures weighs strongly in Plaintiffs’ favor.

Plaintiffs allege a slew of procedural irregularities

that heighten the probability of an erroneous deprivation. These include, for example, (1) vague notices, cf.

Nozzi, 806 F.3d at 1194, that fail to describe the specific location of a violation, or the date on which the

ten-day clock to appeal the violation begins to run; (2)

the imposition of penalties and fees without a “reasonably reliable basis,” Yagman, 852 F.3d at 864 (quotation omitted); cf. Stypmann v. City & Cnty. of San

Francisco, 557 F.2d 1338, 1343 (9th Cir. 1977), both

by charging property owners with violations based on

unconfirmed, imprecise, or outdated satellite images

and by holding property owners accountable for previous owners’ cannabis-related violations, even when

the violations were not properly recorded; 2 (3) undue

delays in scheduling appeal hearings, cf. United

States v. Crozier, 777 F.2d 1376, 1383-84 (9th Cir.

1985); and (4) potentially biased hearing officers, cf.

Yagman, 852 F.3d at 865. These alleged deficiencies

are likely to result in erroneous deprivations, and

they are much more likely to do so than the procedures that were in place before the County enacted

the cannabis-abatement regulatory scheme challenged here.

Relatedly, Plaintiffs allege that the County does not record

existing violations against the subject properties, thereby depriving subsequent purchasers of constructive knowledge of previous violations.

Appendix A

Finally, Plaintiffs have plausibly alleged that

there is no clear governmental interest in maintaining this administrative penalty system. Plaintiffs allege that the County’s previous system was significantly different. The previous system gave property

owners at least seventy-five days to abate violations.

It also required a hearing before the Board of Supervisors, and the Board could not assess a penalty before such a hearing. And though the interests identified by the County— “environmental quality, residential quality of life, and fair competition with those who

bear the burdens to operate in nascent legal market

for cannabis”—are undoubtedly important, it is far

from obvious how these interests are served by the

County’s imposing significant heavy penalties for

vague alleged violations with minimal procedural

safeguards. Cf. Stypmann, 557 F.2d at 1344.

In sum, we conclude that Plaintiffs have plausibly

alleged that the County’s system of administrative

penalties violated their procedural due process rights.

We therefore reverse the district court’s dismissal of

this claim.

4. Plaintiffs further allege that the County’s system of penalties and fees violates their substantive

due process rights. “A substantive due process claim

involves the balancing of a person’s liberty interest

against the relevant government interests.” Freedom

to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438

(9th Cir. 1996). Importantly, “the protection from governmental action provided by substantive due process

has most often been reserved for the vindication of

fundamental rights.” Halverson v. Skagit Cnty., 42

Appendix A

F.3d 1257, 1261 (9th Cir. 1994). “Accordingly, where

. . . the plaintiffs rely on substantive due process to

challenge governmental action that does not impinge

on fundamental rights, we do not require that the government’s action actually advance its stated purposes, but merely look to see whether the government

could have had a legitimate reason for acting as it

did.” Id. (internal quotation marks and citation omitted). In other words, to establish a substantive due

process violation based on the County’s procedures in

the absence of an infringed fundamental right, Plaintiffs “must show the procedures are ‘clearly arbitrary

and unreasonable, having no substantial relation to

the public health, safety, morals or general welfare.’”

Yagman, 852 F.3d at 867 (quoting Samson v. City of

Bainbridge Island, 683 F.3d 1051, 1058 (9th Cir.

2012)). “This is an ‘exceedingly high burden.’” Id.

(quoting Samson, 683 F.3d at 1058).

We conclude that Plaintiffs have plausibly alleged

both a violation of a fundamental right and that the

County lacks “any reasonable justification in the service of a legitimate governmental objective” in its enforcement of the cannabis abatement scheme. Id.

(quoting Samson, 683 F.3d at 1058).

First, Plaintiffs have sufficiently alleged that the

County has violated their fundamental due process

right to a showing of personal guilt. See Scales v.

United States, 367 U.S. 203, 225 (1961). Plaintiffs rely

on the doctrine that “[p]enalizing conduct that involves no intentional wrongdoing by an individual can

run afoul of the Due Process Clause.” Rucker v. Davis,

237 F.3d 1113, 1124 (9th Cir. 2001), rev’d sub nom. on

Appendix A

other grounds Dep’t of Hous. & Urb. Dev. v. Rucker,

535 U.S. 125 (2002); see also Sw. Tel. & Tel. Co. v.

Danaher, 238 U.S. 482, 490-91 (1915) (similar). Plaintiffs’ most compelling illustration of this violation is

their allegation, which we must accept as true, that

the County institutes administrative proceedings—

resulting in the imposition of heavy fines—for facilitating the cultivation of cannabis, even when it knows

or should know that the party is not responsible. For

example, Plaintiffs allege that the County has repeatedly charged new property owners with the cannabisrelated offenses of previous owners, thereby severing

the administrative proceedings from individual culpability.

Second, Plaintiffs have adequately alleged that

the County’s administrative penalty procedures are

“clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals

or general welfare.” Yagman, 852 F.3d at 867 (quoting

Samson, 683 F.3d at 1058)).

The district court dismissed Plaintiffs’ allegations

as “implausible,” underscoring that Plaintiffs “purchased properties with existing code violations.” This

reasoning, however, ignores Plaintiffs’ well-pleaded

allegations that the County does not record existing

violations against the property, thereby depriving

subsequent purchasers of the most common method

of learning about claims against the property.

Moreover, the district court disregarded Plaintiffs’

allegations that the County imposed fees on the basis

of violations related to the cultivation of cannabis,

10a

Appendix A

even in cases where it knew or should have known

that the current landowners were not responsible for

the underlying violation. It is irrelevant that Plaintiffs were aware of other property violations because

the substantive due process claims are based on the

missing connection between the NOVs—which are

predicated on cannabis-related conduct—and Plaintiffs’ lack of culpability. Under these circumstances, a

practice of charging subsequent owners of a property

with the cannabis-based offenses of the previous owners cannot be said to have “any reasonable justification in the service of a legitimate governmental objective.” Id.; see also Sinaloa Lake Owners Ass’n v. City

of Simi Valley, 882 F.2d 1398, 1410 (9th Cir. 1989),

overruled on other grounds by Armendariz v. Penman,

75 F.3d 1311 (9th Cir. 1996).

5. Plaintiffs have also plausibly alleged that the

County’s procedure for evaluating land-use permit

applications violates the unconstitutional conditions

doctrine. “[T]he unconstitutional conditions doctrine

. . . vindicates the Constitution’s enumerated rights

by preventing the government from coercing people

into giving them up.” Koontz, 570 U.S. at 604. The Supreme Court has specifically recognized a “special application” of this doctrine that “protects the Fifth

Amendment right to just compensation for property

the government takes when owners apply for a landuse permit.” Id. This doctrine “prohibits the government from ‘deny[ing] a benefit to a person because he

exercises a constitutional right’ or ‘coercing people

into giving [those rights] up’ by imposing unconstitutional conditions on the use of private land.” Ballinger

v. City of Oakland, 24 F.4th 1287, 1298 (9th Cir. 2022)

11a

Appendix A

(citing Koontz, 570 U.S. at 604, 612). The Supreme

Court has extended this prohibition to conditioning

land-use permits on monetary exactions and mandatory grants of easements. See Koontz, 570 U.S. at 612.

Such conditions are only permissible if there is a

“‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social

costs of the applicant’s proposal.” Id. at 605-06 (citations omitted).

Here, Plaintiffs allege that the County violates the

unconstitutional conditions doctrine by conditioning

land-use permits on the settlement of cannabis-related violations unrelated to the desired permits. Indeed, Plaintiffs allege that the County has withheld

land-use permits unrelated to cannabis abatement

until Plaintiffs agree to settle their cannabis abatement cases. In so doing, Plaintiffs have alleged that

the County aims to coerce property owners into accepting responsibility for violations they contend they

did not commit, paying a significant fine related to

such violations, and forgoing their right to an administrative hearing. Such conditions, even those based

on settlements, are not permitted under the unconstitutional conditions doctrine where there is no “close

nexus” between the conditions imposed and the permits requested. Davies v. Grossmont Union High Sch.

Dist., 930 F.2d 1390, 1399 (9th Cir. 1991).

In discussing this claim, the district court ignored

Plaintiffs’ well-pleaded allegations and misapplied

the law. For example, the court determined that no

plaintiff had applied for a non-remedial land-use permit during the pendency of their cannabis-abatement

12a

Appendix A

case, even though Plaintiffs specifically allege otherwise. In addition, the district court’s observations

about the County’s eventual acceptance of one such

application—specifically, that it was ultimately “accepted and granted on the spot”—ignored Plaintiffs’

allegations that (1) the County had previously expressed it would not do so until that plaintiff settled,

and (2) the County eventually did so only after that

plaintiff paid administrative fees related to the “baseless cannabis charges” the County had pursued

against him and ultimately dropped. In failing to recognize that the conditioning of permits on the settling

of unrelated violations is a viable constitutional

claim, the district court disregarded the Supreme

Court’s admonition that “regardless of whether the

government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the

Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.”

Koontz, 570 U.S. at 606.

6. Plaintiffs’ last substantive claim alleges that

the County’s enforcement of its system of administrative penalties and fees violates the Seventh Amendment. As Plaintiffs acknowledge, however, this claim

is not viable under our court’s selective-incorporation

precedent. See Jackson Water Works, Inc. v. Pub.

Utils. Com., 793 F.2d 1090, 1096 (9th Cir. 1986).

Thus, we do not address the merits of the claim, and

we affirm the district court’s dismissal.

7. The district court erred in dismissing Plaintiffs’

facial and as-applied claims because they were not

13a

Appendix A

brought within two years of the law’s enactment. The

statute of limitations begins to run when a plaintiff

“knows or has reason to know of the actual injury,”

not necessarily when a local ordinance was enacted.

Scheer v. Kelly, 817 F.3d 1183, 1188 (9th Cir. 2016)

(quoting Lukovsky v. City & Cnty. of San Francisco,

535 F.3d 1044, 1051 (9th Cir. 2008)).

At the earliest, Plaintiffs’ facial claims accrued

when they received their initial NOVs, the earliest

point at which they had notice they were subject to

the County’s cannabis abatement scheme. Because at

least some plaintiffs, for example the Thomases, allege that they received their initial NOVs within two

years of filing suit, Plaintiffs have a timely facial challenge. 3

The district court also erred in categorically dismissing Plaintiffs’ individual as-applied claims as untimely. First, at least four named Plaintiffs have alleged timely as-applied procedural due process

claims. Plaintiffs allege that the County violated their

rights to procedural due process when it deprived

them of property interests—by imposing penalties

and/or denying permits—with inadequate notice, lack

of probable cause, and lack of a timely opportunity to

be heard. The earliest these claims could have accrued is when a deprivation occurred. The Thomases

and Olson have plausibly alleged that they experienced unconstitutional deprivations during the

Because at least the Thomases have a timely facial challenge, we do not need to address whether the other named plaintiffs have timely facial challenges.

14a

Appendix A

limitations period because they allege that the

County imposed baseless penalties on them during

this period. Although Graham’s NOV was issued (and

daily penalties were imposed) well before the limitations period, he alleges that during the limitations period, he was denied a permit due to his abatement

case. Because he alleges that the abatement case had

no reasonable basis and that he was denied a timely

hearing, he too has plausibly alleged a procedural due

process violation during the limitations period.

The remaining named Plaintiff, Glad, alleges a

claim of undue delay in scheduling a hearing about

his alleged Code violation. Glad would have known or

had reason to know of this injury, at the earliest,

when the delay became unreasonable. Because we do

not engage in fact-finding, determining whether the

delay became unreasonable during the limitations period is a task for the district court on remand. See Supermail Cargo, Inc. v. United States, 68 F.3d 1204,

1206-07 (9th Cir. 1995); United States v. $8,850 in

U.S. Currency, 461 U.S. 555, 564-65 (1983) (describing four factors to measure constitutionality of delay

under the analogous, Sixth Amendment context). We

therefore reverse the district court’s dismissal of

Plaintiffs’ individual as-applied procedural due process challenges as untimely.

Second, the Thomases, Olson, and Graham have

alleged timely as-applied substantive due process

challenges for similar reasons as above. Plaintiffs

knew or should have known of their substantive due

process injuries at each point the County imposed a

penalty on them unrelated to any personal guilt, with

15a

Appendix A

each such penalty being a new, distinctly actionable

claim. See Flynt v. Shimazu, 940 F.3d 457, 462 (9th

Cir. 2019) (“When the continued enforcement of a

statute inflicts a continuing or repeated harm, a new

claim arises (and a new limitations period commences) with each new injury.”). During the limitations period, the Thomases and Olson allege that the

County imposed monetary penalties, and Graham alleges that the County denied him a permit, because of

alleged violations involving no wrongdoing by them.

We agree with the district court, however, that Glad’s

substantive due process claim is untimely. He does

not allege that the County imposed any penalties—

such as monetary penalties, the denial of a permit, or

the deprivation of the use of his land—during the limitations period. We thus affirm the dismissal of Glad’s

as-applied substantive due process claim but reverse

as to the other plaintiffs.

Third, Plaintiffs’ as-applied unconstitutional conditions claims begin to accrue when the County conditioned a permit on entering into such a settlement

agreement. The Thomases, Olson, and Graham allege

that this happened to them during the limitations period. Glad, however, does not allege ever seeking a

land- use permit, so he has not stated an individual

claim to begin with. Thus, we affirm the district

court’s dismissal of Glad’s as-applied unconstitutional

conditions claim but reverse as to the other plaintiffs.

8. Finally, we conclude that reassignment of this

case on remand is not warranted. “In determining

whether reassignment is proper, we consider: (1)

whether the original judge would reasonably be

16a

Appendix A

expected upon remand to have substantial difficulty

in putting out of his or her mind previously-expressed

views or findings determined to be erroneous or based

on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of

justice, and (3) whether reassignment would entail

waste and duplication out of proportion to any gain in

preserving the appearance of justice.” Evon v. L. Offs.

of Sidney Mickell, 688 F.3d 1015, 1034 (9th Cir. 2012)

(quoting United States v. Arnett, 628 F.2d 1162, 1165

(9th Cir. 1979)). “The first two of these factors are of

equal importance, and a finding of one of them would

support a remand to a different judge.” Id. (quoting

United States v. Sears, Roebuck & Co., 785 F.2d 777,

780 (9th Cir. 1986)).

Here, although the district court’s dismissiveness

of Plaintiffs’ well-pleaded allegations is cause for concern, we trust that the “original judge would [not] . . .

have substantial difficulty in putting out of his . . .

mind previously-expressed views or findings determined to be erroneous.” Id. (quoting Arnett, 628 F.2d

at 1165). Reassignment upon remand is thus not warranted.

REVERSED in part, AFFIRMED in part, and

REMANDED.

Appellants shall recover their costs on appeal.

17a

Appendix B

Opinion of the

United States Court of Appeals

for the Ninth Circuit

December 30, 2024

18a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORRINE MORGAN

THOMAS; DOUG THOMAS;

BLU GRAHAM; RHONDA

OLSON; CYRO GLAD,

No. 23-15847

D.C. No. 1:22-cv05725-RMI

Plaintiffs-Appellants,

COUNTY OF HUMBOLDT,

California; HUMBOLDT

COUNTY BOARD OF SUPERVISORS; HUMBOLDT

COUNTY PLANNING &

BUILDING DEPARTMENT;

MIKE WILSON, Vice Chair,

Board of Supervisors; REX

BOHN, member, Board of Supervisors; MICHELLE

BUSHNELL, member, Board

of Supervisors; STEVE MADRONE, member, Board of

Supervisors; JOHN H. FORD,

Director, Humboldt County

Planning and Building Department; NATALIE ARROYO, in her official capacity

as Supervisor of Humboldt

County,

OPINION

19a

Appendix B

Defendants-Appellees,

and

VIRGINIA BASS, Chair,

Board of Supervisors,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Robert M. Illman, Magistrate Judge, Presiding

Argued and Submitted April 9, 2024

San Francisco, California

Filed December 30, 2024

Before: Richard A. Paez and Jennifer Sung, Circuit Judges,

and Sidney A. Fitzwater, * District Judge.

Opinion by Judge Paez

The Honorable Sidney A. Fitzwater, United States District

Judge for the Northern District of Texas, sitting by designation.

20a

Appendix B

SUMMARY**

_________________________________________________

Eighth Amendment’s Excessive Fines Clause

The panel affirmed in part and reversed in part

the district court’s dismissal of a putative class action

brought by residents of Humboldt County pursuant to

42 U.S.C.§ 1983, alleging, in part, that the County’s

system of administrative penalties and fees pertaining to cannabis abatement violates the Eighth

Amendment’s Excessive Fines Clause.

Pursuant to the County Code, illegal cultivation of

cannabis can carry a daily fine of anywhere between

$6,000 and $10,000. Once the County’s Code Enforcement Unit serves a responsible party with a notice of

violation (“NOV”), the party has ten days to abate all

violations or face penalties, subject to an appeals process, during which the penalties continue to accrue.

Plaintiffs contend that the County charges landowners with violations based on imprecise data, or on the

conduct of previous property owners. The district concluded that because plaintiffs had yet to pay a fine,

they lacked standing, the Eighth Amendment claim

was unripe, and both the facial and as- applied challenges were untimely.

** This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

21a

Appendix B

The panel first held that plaintiffs’ claim under the

Excessive Fines Clause was constitutionally ripe and

that plaintiffs plausibly alleged a sufficient concrete

injury to satisfy standing due to the County’s imposition of penalties, even before any payment. The continued imposition of significant penalties caused

plaintiffs emotional and psychological distress, and

they incurred expenses attempting to abate the violations by hiring engineers to inspect their property and

attorneys to defend them in hearings. Prudential

ripeness considerations further counseled in favor of

allowing the litigation to proceed.

The panel found that with one exception, plaintiffs’ challenges under the Excessive Fines Clause

were timely. The statute of limitations begins to run

on a claim(whether facial or as-applied) when a plaintiff knows or has reason to know of the actual injury,

not, as the district court found, when the challenged

ordinance is enacted. Plaintiffs’ facial claim began to

run when they received NOVs, which was the earliest

point at which they could have known of the penalties

at issue. Because at least some plaintiffs alleged they

received their initial NOVs within two years of filing

suit, the panel reversed the district court’s dismissal

of plaintiffs’ facial challenge as untimely. Several of

the named plaintiffs also appeared to have timely asapplied challenges, although plaintiff Cyro Glad’s asapplied Eighth Amendment claim appeared to be untimely because he received his initial NOV nearly four

years before the suit was filed and no daily penalties

were imposed within the limitations period. The

panel, therefore, partially reversed the district court’s

dismissal of the as-applied excessive fines challenges

22a

Appendix B

as untimely but affirmed the dismissal with respect

to Cyro Glad.

Turning to the merits, the panel held that plaintiffs alleged a plausible claim for relief under the Excessive Fines Clause. Plaintiffs alleged that the administrative penalties, which can reach millions of

dollars, and the County’s demolition orders are punitive, not remedial. They also plausibly alleged that

the fines were excessive given that (1) at least some

of the plaintiffs have been charged with violations

that pre-date their occupation of their respective

properties; (2) the violations were inaccurately

charged or were the fault of previous property owners;

(3) lesser penalties could accomplish the same health

and safety goals; and (4) the alleged offenses caused

no harm beyond a technical lack of compliance with

the County’s cannabis permitting regulations.

COUNSEL

Jared McClain (argued), Institute for Justice, Arlington, Virginia; Robert Johnson, Institute for Justice, Shaker Heights, Ohio; Thomas V. Loran III,

Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Derek M. Mayor, Pillsbury Winthrop Shaw Pittman LLP, Sacramento, California;

for Plaintiffs-Appellants.

Pamela K. Graham (argued), Colantuono Highsmith

& Whatley PC, Pasadena, California; John A. Abaci,

Colantuono Highsmith & Whatley PC, Sonoma, California; Michael G. Colantuono, Colantuono

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Appendix B

Highsmith & Whatley PC, Grass Valley, California;

for Defendants-Appellees.

Thomas Q. Swanson, Hilgers Graben PLLC, Lincoln,

Nebraska, for Amicus Curiae Daniel J. Altstatt.

OPINION

PAEZ, Circuit Judge:

This putative class action arises out of Humboldt

County’s system of administrative penalties and fees

involving cannabis abatement. Plaintiffs—residents

of Humboldt County—filed this action under 42

U.S.C. § 1983, alleging a number of constitutional

claims against the County. The district court dismissed all claims in their entirety on various grounds.

We focus only on one of Plaintiffs’ claims: that the

County’s system of administrative penalties and fees

violates the Eighth Amendment’s Excessive Fines

Clause. 1 The district court dismissed that claim because it concluded that the claim was not justiciable

and that it was untimely. For the reasons below, we

affirm in part, reverse in part, and remand for further

proceedings.

In a separately filed memorandum disposition, we address

Plaintiffs’ remaining claims.

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Appendix B

I. Background

This case concerns Humboldt County’s enforcement of its local building and zoning laws, specifically

those involving cannabis abatement. We briefly discuss the relevant provisions of the Code of Humboldt

County, California (“HCC” or “the County Code”).

Pursuant to the County Code, violations of local

building and zoning laws are classified into four categories ranging from “Category 1” to “Category 4.”

HCC §§ 352-3(e)-(h). Those violations classified as

Category 4 are the most severe and carry the greatest

penalty: a daily fine of anywhere between $6,000 and

$10,000. Id. § 352-6(a)(4). As relevant here, the illegal

cultivation of cannabis, as well as any other violation

that facilitates the illegal cultivation of cannabis, is

classified as a Category 4 offense. Id. § 352-3(h).

The County’s Code Enforcement Unit is responsible for enforcement. Id. § 352-3(j). Once the Code Enforcement Unit determines that a violation has occurred, it serves each “Responsible Party” with a “Notice of Violation [(NOV)] and Proposed Administrative

Civil Penalty.” Id. § 352-7. The County Code requires

the NOV to contain certain information, including the

name and last known address of each responsible

party and a “description of the specific acts or omissions that gave rise to the Violation.” Id. § 352-8.

A responsible party who is served with an NOV

must abate the violations within ten days or face

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Appendix B

penalties. Id. § 352-5(b)(1). 2 Indeed, pursuant to the

County Code, fines are imposed automatically no

later than ten days after service of the NOV. Id. §§

352-3(m)(1), 352-5(b)(1). Moreover, in the case of “subsequent or ongoing cannabis Violations or Violations

that exist as a result of or to facilitate illegal cultivation of cannabis, the imposition of administrative civil

penalties will start to accrue after service of [an

NOV],” unless a tenant (rather than the property

owner) is in possession of the property. Id. § 3523(m)(2). The imposition of the “penalty” becomes “final” and the Code Enforcement Unit “acquire[s] jurisdiction to collect the full amount thereof and any and

all Administrative Costs and/or Attorney’s Fees” ten

calendar days after service of the NOV unless a responsible party timely appeals. Id. § 352-8(l).

If a responsible party appeals “the determination

that . . . a Violation has occurred and/or the amount

of the administrative civil penalty [imposed] . . . , the

Code Enforcement Unit shall set the matter for hearing before [a] Hearing Officer and serve a ‘Notice of

Administrative Civil Penalty Appeal Hearing’ upon

each Appellant.” Id. § 352-9. The hearing must be

scheduled “no sooner than fifteen (15) calendar days

after the date on which the Notice of Administrative

Civil Penalty Appeal Hearing is served on the Appellant.” Id. § 352-11. The imposition of fines, however,

2 The County is authorized to issue an additional NOV and im-

pose an additional penalty if the violations remain after ninety

days. HCC § 352-5(d). It can additionally “withhold issuance of

any licenses, permits and other entitlements to a Responsible

Party on any project that is subject to unpaid administrative

civil penalties.” Id. § 352-5(e).

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Appendix B

does not stop during this period, and can continue “up

to and including the ninetieth (90th) calendar day,”

id. § 352-5(a), following the original “Imposition

Date,” id. § 352-3(m).

On appeal, the hearing officer has the authority to

determine that no violation has occurred and terminate the administrative proceedings. Id. § 352-12. If

the hearing officer determines that a violation has occurred or continues to exist, they can affirm the civil

penalty or reduce it in limited circumstances. In no

event, however, can the hearing officer reduce the

penalty “to an amount that is less than the minimum

amount set forth [in the County Code] for the Violation category imposed.” Id. § 352-12(b). For example,

in the case of Category 4 offenses, the reduction cannot result in a penalty lower than $6,000 per day. Id.

§ 352-6(a)(4). Once the hearing officer’s decision is final, the responsible party may seek judicial review.

Id. § 352-13.

Finally, once jurisdiction to collect the administrative civil penalty is final, the Code Enforcement Unit

may serve the responsible party with a “Notice of Administrative Civil Penalty Assessment” and collect

the penalty or impose a lien on the property, id.

§§ 352-15, 352-16(l), unless the responsible party objects and requests additional review by the County’s

Board of Supervisors, id. § 352-16(i).

Plaintiffs are residents of Humboldt County who

allege that they have been aggrieved by the County’s

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Appendix B

enforcement of its cannabis-abatement regulatory

scheme. In general, Plaintiffs allege that the County

charges landowners with violations of the County

Code on the basis of (1) imprecise images taken from

satellites or drones without reasonable suspicion or

any further investigation, or (2) the conduct of previous owners, which ceased before Plaintiffs purchased

their respective properties. Plaintiffs also allege that

the County fails to record the violations of previous

owners, such that new landowners like Plaintiffs have

no actual or constructive knowledge of ongoing violations when they purchase land. The County nonetheless serves these landowners with vague NOVs that

fail to properly inform them of the grounds for the

charges or their right to appeal. Once served with an

NOV, Plaintiffs allege that landowners face “immediate costs and immense pressure to settle due to the

County’s issuance of ruinous fines unsupported by

any legitimate governmental interest, its refusal to

drop baseless charges, its undue delay in providing

hearings, its denial of permits while abatements are

pending, and the cost the County imposes to prove

one’s innocence.”

In October 2022, Plaintiffs filed this action on behalf of themselves and others similarly situated in the

district court. As relevant here, Plaintiffs allege that

the County’s system of administrative penalties and

fees with respect to cannabis abatement violates the

Excessive Fines Clause of the Eighth Amendment. After Plaintiffs filed an amended complaint, the County

moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The County also requested

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Appendix B

judicial notice of over 500 pages of documents, which

the court granted. 3

The district court granted the County’s motion to

dismiss. The district court reasoned that “the [Complaint was] overwhelmingly dominated by legal arguments couched as factual allegations, unreasonable

inferences, unwarranted deductions, conclusory assertions, unjustified labels, and hyperbole.” With respect to the Plaintiffs’ claim under the Excessive

Fines Clause of the Eighth Amendment, the district

court concluded first that Plaintiffs’ claim was not justiciable because Plaintiffs lacked standing and the

claim was unripe, and second that their claim was untimely. This appeal followed.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. Dismissals under Rule 12(b)(1) are reviewed de novo. See

Erickson v. Desert Palace, Inc., 942 F.2d 694, 694 (9th

Cir. 1991). “[W]hen standing is challenged on the basis of the pleadings, we accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party.” Pennell v.

City of San Jose, 485 U.S. 1, 7 (1988) (internal quotation marks and citation omitted).

3 Plaintiffs assert that the district court improperly relied on

facts it took from documents it judicially noticed. Because Plaintiffs’ allegations in their amended complaint are sufficient to

conclude that their claim is justiciable, we do not address the

propriety of the district court’s judicial- notice ruling.

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Appendix B

A dismissal under Rule 12(b)(6) is also reviewed de

novo. See Moore v. Mars Petcare US, Inc., 966 F.3d

1007, 1016 (9th Cir. 2020). At the motion to dismiss

stage, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light

most favorable to Plaintiffs.” Id. (citing Williams v.

Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008)).

III. Discussion

The district court determined that Plaintiffs’ claim

under the Excessive Fines Clause of the Eighth

Amendment was not justiciable as well as untimely.

We therefore first determine whether Plaintiffs’ claim

is justiciable— specifically, that at least one named

plaintiff in the putative class has standing to bring

such a claim and that the claim is ripe—and then determine whether the claim is timely. 4 We then consider whether Plaintiffs plausibly allege that the

County’s system of administrative penalties and fees

violates the Eighth Amendment. For the reasons below, we conclude that (1) at least one plaintiff has

standing and their claim is ripe; (2) with one exception, Plaintiffs’ claims are timely; and (3) Plaintiffs

have plausibly alleged a violation of the Excessive

Fines Clause.

4 See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th

Cir. 2007) (en banc) (“In a class action, standing is satisfied if at

least one named plaintiff meets the requirements.”).

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Appendix B

A. Standing and Ripeness

The County contends that the Excessive Fines

Clause claim is not ripe because Plaintiffs have yet to

pay a fine. The district court, for the same reason,

held that all Plaintiffs lacked an injury-in-fact under

Article III. We conclude that Plaintiffs’ claim is indeed

ripe and that they have suffered a cognizable injury. 5

“[S]tanding is an essential and unchanging part of

the case-or-controversy requirement of Article III.”

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Its

“injury in fact” prong requires a plaintiff to demonstrate an “invasion of a legally protected interest that

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560

(cleaned up). A related doctrine, ripeness, is “drawn

both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction.” Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43,

57 n.18 (1993). The ripeness doctrine is designed to

“separate matters that are premature for review because the injury is speculative and may never occur

from those cases that are appropriate for federal court

action.” Portman v. Cnty. of Santa Clara, 995 F.2d

898, 902 (9th Cir. 1993) (citation omitted). As a result,

“[t]he constitutional component of the ripeness inquiry is often treated under the rubric of standing

and, in many cases, ripeness coincides squarely with

5 Because the County argues—as the district court determined—

only that the allegations in the amended complaint do not establish that they have suffered any injury, we focus on the injuryin-fact prong of standing.

31a

Appendix B

standing’s injury in fact prong.” Thomas v. Anchorage

Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th Cir.

2000) (en banc). In addition, the ripeness doctrine has

a prudential aspect “guided by two overarching considerations: the fitness of the issues for judicial decision and the hardship to the parties of withholding

court consideration.” Id. at 1141 (internal quotation

marks and citation omitted). 6

Here, in arguing that Plaintiffs’ alleged injury is

speculative because the fines have not yet been paid,

the County effectively challenges Plaintiffs’ ability to

demonstrate an actual injury as well as ripeness. See

Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir.

2010) (“Whether framed as an issue of standing or

ripeness, the inquiry is largely the same: whether the

issues presented are ‘definite and concrete, not hypothetical or abstract.’” (quoting Thomas, 220 F.3d at

1139).

To begin, the Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Although we have

not previously considered constitutional ripeness and

the actual injury requirement in the context of the Excessive Fines Clause, we have addressed the issue in

other cases involving the Eighth Amendment. For

6 The Supreme Court has “cast doubt on the prudential compo-

nent of ripeness in Susan B. Anthony List v. Driehaus, [573 U.S.

149 (2014)].” Safer Chems., Healthy Fams. v. U.S. Env’t Prot.

Agency, 943 F.3d 397, 412 n.8 (9th Cir. 2019) (quoting Clark v.

City of Seattle, 899 F.3d 802, 809 n.4 (9th Cir. 2018)). Nonetheless, we consider the issue for the sake of thoroughness.

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Appendix B

example, in 18 Unnamed John Smith Prisoners v.

Meese, 871 F.2d 881 (9th Cir. 1989), we considered

whether a correctional facility’s decision to “double

bunk” inmate-participants in the Department of Justice’s Witness Protection Program constituted infliction of cruel and unusual punishment in violation of

the Eighth Amendment. Id. at 882. In so doing, we

recognized that “[o]ne does not have to await the consummation of threatened injury to obtain preventive

relief. If the injury is certainly impending, that is

enough.” Id. at 883 (alteration in original) (quoting

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

568, 581 (1985)). We nonetheless held that the inmates’ Eighth Amendment claim was too speculative

because (1) there was “no evidence of a concrete injury

caused by actual overcrowding, intolerable conditions, . . . and the like,” and (2) we could not “conjecture with any reasonable measure of assurance what

impact the proposed double bunking would have on

the inmates.” Id. In other words, the inmates’ claims

involved “contingent future events that may not occur

as anticipated, or indeed not occur at all.” Id.

Here, by contrast, the factors identified in 18 Unnamed John Smith Prisoners counsel in favor of actual injury and constitutional ripeness. First, there

are clear and concrete injuries stemming from the imposition of the penalties. Taking Plaintiffs’ factual allegations as true and drawing all reasonable inferences in their favor, the continued imposition of such

significant penalties 7 has already caused Plaintiffs

7 At the upper end, Plaintiffs allege that the penalties imposed

by the County can reach millions of dollars.

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Appendix B

emotional and psychological distress. Plaintiffs also

allege significant financial uncertainty because of

these penalties, which the County does not dispute.

These alleged injuries are sufficiently concrete to confer standing and establish that Plaintiffs’ claim is

ripe. See Chaudhry v. City of Los Angeles, 751 F.3d

1096, 1109 (9th Cir. 2014) (recognizing emotional distress as a concrete and cognizable injury); Robins v.

Spokeo, Inc., 867 F.3d 1108, 1117 (9th Cir. 2017)

(holding that allegations of “anxiety, stress, concern,

and/or worry about [the plaintiff’s] diminished employment prospects” presented concrete, cognizable

injuries); Krottner v. Starbucks Corp., 628 F.3d 1139,

1142 (9th Cir. 2010) (holding that “generalized anxiety and stress” can be sufficient to confer standing).

Plaintiffs also allege that in the face of continuously

imposed fines, they have spent money attempting to

abate the violations by hiring engineers to inspect

their property as well as attorneys to defend them in

hearings. See, e.g., Clapper v. Amnesty Int’l USA, 568

U.S. 398, 414 n.5 (2013) (recognizing standing where

there is “a substantial risk that the harm will occur,

which may prompt plaintiffs to reasonably incur costs

to mitigate or avoid that harm”) (internal quotation

marks and citation omitted)).

Second, unlike in 18 Unnamed John Smith Prisoners, we can determine with reasonable certainty the

impact of the penalties on Plaintiffs. Plaintiffs allege

that the County holds new owners responsible for violations and corresponding fines that were based on a

prior owner’s conduct. The amounts of the daily penalties are readily ascertainable from the number of

days that have passed since the original imposition

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Appendix B

date. There is an objectively reasonable likelihood

that these substantial penalties, which have already

been imposed, financially burden Plaintiffs because

Plaintiffs will have to pay them in full or settle with

the County to avoid paying penalties they cannot afford. Thus, Plaintiffs have sufficiently alleged a concrete injury, and their Eighth Amendment claim is

ripe. 8

Decisions from our sister circuits addressing constitutional ripeness under the Excessive Fines Clause

support our conclusion. The leading case is Cheffer v.

Reno, 55 F.3d 1517 (11th Cir. 1995), which relied on

our decision in 18 Unnamed John Smith Prisoners to

conclude that “challenges under the Excessive Fines

Clause are . . . generally not ripe until the actual, or

impending, imposition of the challenged fine.” Id. at

1523 (emphasis added); cf. Club Madonna, Inc. v. City

8 In reaching the opposite conclusion, the district court relied on

several other reasons purportedly demonstrating that Plaintiffs’

alleged injuries were too speculative. For example, the court suggested that certain plaintiffs—specifically, Corinne and Doug

Thomas—did not have standing because the previous owners of

their properties were named as responsible parties, not the

Thomases. Although the NOV attached to the Thomases’ land

was addressed to the previous owners, the Thomases specifically

allege that, even after contacting the County and informing

them that they were the new owners, the County has nonetheless held them responsible for the penalties. Moreover, the

County Code itself defines a “Responsible Party” as “Any Owner,

Beneficial Owner, [or] person . . . who has caused, permitted,

maintained, conducted or otherwise allowed a Violation to occur.” HCC § 352-3(s) (emphasis added). Based on this information, and drawing all reasonable inferences in the Thomases’

favor, the Thomases have plausibly alleged that the penalties

were directed at them.

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Appendix B

of Miami Beach, 924 F.3d 1370, 1381 (11th Cir. 2019)

(agreeing that a claim is not ripe because the plaintiff

“does not allege that the City imposed a fine under

that provision or that the imposition of a fine is immediately forthcoming”). Under this standard, Plaintiffs’ Eighth Amendment claim is ripe. Under the

plain terms of the County Code, the penalties have

been imposed. See HCC § 352-3(m).

Moreover, the very reason the court in Cheffer

found the claim unripe is not at issue here. In Cheffer,

the plaintiffs alleged that they “may be arrested and

convicted under [the relevant statute] and, if so, that

they may be subject to the maximum imprisonment

and civil penalties.” 55 F.3d at 1524 (emphases

added). As a result, the Eleventh Circuit concluded

that the plaintiffs’ “allegations amount[ed] to mere

speculation about contingent future events.” Id. Here,

by contrast, Plaintiffs allege that they have been

charged with violating the County Code, the daily fine

has automatically accrued, and the County has reiterated on multiple occasions that Plaintiffs are responsible for paying the fine, thereby reducing the

speculative nature of their injury.

In response, the County raises two arguments.

First, the County suggests that the availability of an

appeal hearing to contest the violation, before any

penalty must be paid, indicates that Plaintiffs’ allegations about the penalty “amount to mere speculation

about contingent future events.” Cheffer, 55 F.3d at

1524. And second, the County suggests that the authority of a hearing officer and other administrative

and judicial officers to reduce a penalty underscores

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Appendix B

the contingent nature of the penalties. These arguments are unconvincing.

First, these arguments cannot change the fact

that, by the time a responsible party obtains an administrative hearing— which, as Plaintiffs allege, can

take years—the penalty will already have been imposed. And, unless a hearing is requested within ten

days of service of the NOV, there will be no administrative review before the penalty becomes collectable.

See HCC § 352-8(l)(i).

Second, given Plaintiffs’ numerous allegations

that the County has found them responsible and will

not remove the penalties, there are fewer possible

contingencies that could render Plaintiffs’ alleged injuries speculative. See In re Coleman, 560 F.3d 1000,

1005 (9th Cir. 2009) (“But plan completion is a single

factual contingency—not a ‘series of contingencies’

rendering the decision ‘impermissibly speculative.’”

(quoting Portland Police Ass’n v. City of Portland, 658

F.2d 1272, 1273-74 (9th Cir. 1981))). Plaintiffs do not

need to demonstrate that it is “literally certain” that

the harms they identify will materialize; therefore,

the mere possibility that a hearing officer could determine that the penalties imposed were not warranted

does not render Plaintiffs’ alleged injuries speculative. Clapper, 568 U.S. at 414 n.5.

Third, assuming that a hearing officer does not

terminate the proceedings, the officer’s discretion to

reduce any penalties is limited. Indeed, according to

the County Code, the hearing officer cannot reduce

the penalty below the minimum amount set by the

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Appendix B

Code for the category of violation. HCC § 352-12(b).

Here, cannabis-related offenses are classified as Category Four violations and carry a minimum penalty

of $6,000 per day. Id. § 352-6. And because Plaintiffs

allege that even this minimum amount is excessive,

the hearing officer’s discretionary authority to reduce

the fine to that amount does not make Plaintiffs’ injuries contingent on the hearing officer’s decisions. 9

And fourth, as a factual matter, Plaintiffs’ allegations cast doubt on the impartiality of the hearing officers. Indeed, Plaintiffs allege that the hearing officers are biased, such that Plaintiffs seem all but certain to face the penalty, even if they pursue an administrative hearing.

Our conclusion that Plaintiffs have standing to

challenge the penalties already imposed upon them—

but before payment—aligns with our precedents in

other pre-enforcement standing and ripeness cases.

In Los Angeles Haven Hospice, Inc. v. Sebelius, the

plaintiff “was the object of [a] governmental action,”

specifically, “an individualized demand for repayment

of over $2.3 million.” 638 F.3d 644, 655 (9th Cir.

2011). We held that this alone was sufficient to establish a concrete injury. Id.; see Susan B. Anthony List,

573 U.S. at 159 (recognizing that a “plaintiff satisfies

9 The County points to cases where courts have reduced fines,

citing for example County of Humboldt v. Appellate Division of

Superior Court, 46 Cal. App. 5th 298, 304-05 (2020). As Plaintiffs

argue, however, “[t]hat a court went beyond the text of the law

to reduce mandatory fines worth more than a property’s value

does not preclude Plaintiffs from bringing an Eighth Amendment challenge to the penalties they face.”

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Appendix B

the injury-in-fact requirement” where “‘there exists a

credible threat’” that the government will enforce the

challenged law (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)); see

also Babbitt, 422 U.S. at 298 (recognizing that plaintiffs “should not be required to await and undergo

criminal prosecution as the sole means to seeking relief” (quotation omitted)). Similarly, in Hotel Employees & Restaurant Employees International Union v.

Nevada Gaming Commission, we held that “[w]here

the agency has threatened enforcement, the actual

commencement of administrative enforcement proceedings is not necessary” to establish ripeness for a

facial challenge to a regulatory system. 984 F.2d

1507, 1513 (9th Cir. 1993) (citing Pac. Gas & Elec. Co.

v. State Energy Res. Conserv. & Dev. Comm’n., 461

U.S. 190, 201 (1983)); see also Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1435 (9th Cir. 1996)

(similar).

Finally, prudential ripeness considerations also

counsel in favor of allowing the litigation to proceed.

As we observed in Engquist, prudential “[r]ipeness

analysis has two prongs: the fitness of the issue for

judicial review and the hardship to the parties if review is withheld.” Engquist v. Oregon Dep’t of Agric.,

478 F.3d 985, 1000 n.11 (9th Cir. 2007), aff’d 553 U.S.

591 (2008). With respect to the “fitness” prong, we

concluded that the constitutional challenges in that

case “easily satisf[ied] both prongs of the ripeness

test, as the issues presented are purely legal and delay will cause unnecessary hardship.” Id. Here, the issues are also purely legal, and at the motion to

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Appendix B

dismiss stage, we take the allegations in the amended

complaint as true.

Likewise, Plaintiffs have sufficiently alleged that

delay in adjudication will cause hardship. For example, Plaintiffs allege that the County’s conduct has resulted in such coercive force that several of the named

plaintiffs have needed to “modify [their] behavior to

avoid future adverse consequences.” Ohio Forestry

Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734 (1998).

Plaintiffs also allege that the County has used and

will continue to impose penalties to coerce putative

class members into undesirable settlements. Plaintiffs finally allege that the unique nature of this administrative penalty scheme causes even more fines

and administrative fees to accrue over time. Cf. id. at

733 (suggesting that hardship can be demonstrated

when the provisions challenged “subject [the plaintiffs] to any civil or criminal liability”).

In sum, taking Plaintiffs’ factual allegations as

true and drawing all reasonable inferences in their favor, they have plausibly alleged a concrete injury as a

result of the County’s imposition of penalties, even before any payment. We therefore conclude that Plaintiffs’ claim under the Excessive Fines Clause is ripe.

B. Timeliness

“Section 1983 does not contain its own statute of

limitations.” Flynt v. Shimazu, 940 F.3d 457, 461 (9th

Cir. 2019) (quoting Butler v. Nat’l Comm. Renaissance

of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014)). “Instead,

claims brought under § 1983 are subject to the forum

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Appendix B

state’s statute of limitations for personal injury suits.”

Id. (citation omitted). In California, “the relevant period is two years.” Id. (citing Cal. Civ. Proc. Code

§ 335.1). “Although state law determines the length of

the limitations period, federal law determines when a

civil rights claim accrues.” Knox v. Davis, 260 F.3d

1009, 1013 (9th Cir. 2001) (internal quotation marks

and citation omitted). “A claim may be dismissed as

untimely pursuant to a 12(b)(6) motion only when the

running of the statute of limitations is apparent on

the face of the complaint.” United States ex rel. Air

Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d

1174, 1178 (9th Cir. 2013) (cleaned up). The district

court concluded that both Plaintiffs’ facial and as-applied Eighth Amendment claims were untimely. We

disagree.

First, the district court erred in dismissing Plaintiffs’ facial challenge because it was not brought

within two years of the law’s enactment. The district

court reasoned under Action Apartment Ass’n, Inc. v.

Santa Monica Rent Control Bd., 509 F.3d 1020 (9th

Cir. 2007), that all facial challenges against a local ordinance must be brought within two years of its enactment. As Plaintiffs correctly argue, however, we

expressly rejected such a reading in Scheer v. Kelly,

817 F.3d 1183, 1187 (9th Cir. 2016). There, we recognized that Action Apartment Ass’n, Inc. applied only

in the context of injury to property where “the very

enactment of the statute [at issue] has reduced the

value of the property or has effected a transfer of a

property interest.” Id. (quoting Guggenheim v. City of

Goleta, 638 F.3d 1111, 1119 (9th Cir. 2010) (en banc)).

By contrast, the statute of limitations begins to run

41a

Appendix B

on a claim (whether facial or as-applied) when a plaintiff “knows or has reason to know of the actual injury,”

not when the challenged ordinance was enacted. Id.

at 1188 (quoting Lukovsky v. City & Cnty. of San

Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008)).

At the earliest, Plaintiffs’ facial claim under the

Excessive Fines Clause began to run when they received NOVs, the earliest point at which they could

have known of the penalties at issue. Because at least

some plaintiffs, for example the Thomases, allege

they received their initial NOVs within two years of

filing suit, we reverse the district court’s dismissal of

Plaintiffs’ facial challenge as untimely.

Second, several of the named Plaintiffs appear to

have timely as-applied challenges. The Thomases allege that they received their initial NOVs within the

limitations period, so their as-applied challenge is

timely. Although Rhonda Olson alleges that she received her initial NOVs shortly before the limitations

period, she could nonetheless demonstrate timeliness

in several ways. For example, because the NOVs were

addressed to a different property owner, she may be

able to prove that she did not know or have reason to

know she was subject to these penalties until later.

The running of the statute of limitations is thus not

apparent on the face of the complaint. See Air Control

Techs., 720 F.3d at 1178.

Additionally, even assuming that Olson should

have known of her injury when she received the initial

NOVs, the County continued to impose penalties associated with those NOVs during the limitations

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Appendix B

period. “When the continued enforcement of a statute

inflicts a continuing or repeated harm, a new claim

arises (and a new limitation period commences) with

each new injury.” Flynt, 940 F.3d at 462. In the excessive fines context, each imposition of a challenged fine

is a new, distinct injury. See U.S. Const. amend. VIII

(prohibiting “excessive fines imposed” (emphasis

added)); cf. Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002) (“Each discrete discriminatory

act starts a new clock for filing charges alleging that

act.”). Because Olson alleges that the County imposed

penalties on her well into the limitations period, and

each imposition was a new unlawful act, Olson’s asapplied challenge is not time-barred.

Finally, Olson may be able to prove that she was

subject to a distinct unlawful act when, within the

limitations period, the County issued a new NOV in

her name, reimposing penalties after she disputed

their basis. “Rather than being the inevitable consequence of an earlier decision [to issue the initial

NOV], this decision [to issue a new NOV] was [plausibly] the result of ‘independent consideration,’” and

is therefore separately actionable. RK Ventures, Inc.

v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 2022)

(quoting Knox, 260 F.3d at 1014). We reverse the district court’s dismissal of the Thomases’s and Olson’s

as-applied claims as untimely.

Plaintiff Cyro Glad’s as-applied Eighth Amendment claim, however, appears to be untimely, even

reading his complaint with the required liberality.

Glad received his initial NOV nearly four years before

this suit was filed and no daily penalties were

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Appendix B

imposed within the limitations period. Further, the

NOV he received was addressed to him, so there is little question that he knew or should have known he

was subject to the penalties at the time he received

the NOV and for the ninety days during which daily

penalties were imposed. While Glad may continue to

face the coercive effects of the heavy penalties, that is

not enough to make his as-applied claim timely. See,

e.g., Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir.

2008) (“[A] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from

an original violation.” (quoting Ward v. Caulk, 650

F.3d 1144, 1147 (9th Cir. 1981)). We therefore affirm

the district court’s order dismissing Glad’s as-applied

excessive fines claim as untimely.

C. Plausible Claim

Next, we turn to whether Plaintiffs allege a plausible claim for relief under the Excessive Fines

Clause. 10 Notably, our court has extended the protections of the Excessive Fines Clause to local penalties,

fines, and fees. See Pimentel v. City of Los Angeles

(“Pimentel I”), 974 F.3d 917, 922 (9th Cir. 2020); see

also Pimentel v. City of Los Angeles (“Pimentel II”),

115 F.4th 1062, 1065 (9th Cir. 2024). “To determine

whether a fine is grossly disproportional to the underlying offense, four factors are considered: (1) the

10 The district court did not address whether Plaintiffs had al-

leged a plausible claim under the Excessive Fines Clause. Because our review is de novo and the issue is purely legal, we exercise our discretion to address it in the first instance. See AMA

Multimedia, LLC v. Wanat, 970 F.3d 1201, 1214 (9th Cir. 2020)

(quoting Raich v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2007)).

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Appendix B

nature and extent of the underlying offense;

(2) whether the underlying offense related to other illegal activities; (3) whether other penalties may be

imposed for the offense; and (4) the extent of the harm

caused by the offense.” Pimentel I, 974 F.3d at 921.

We conclude that Plaintiffs have plausibly alleged

that the County’s system of administrative penalties

and fees violates the Excessive Fines Clause.

Plaintiffs allege that the penalties are clearly punitive, not remedial as argued by the County. As

Plaintiffs allege, administrative penalties imposed by

the County can reach millions of dollars. In the case

of Olson, for example, the imposed penalty dwarfs the

value of her property. And even if the penalties serve

some remedial purpose, the Supreme Court has rejected, on a similar basis, the argument that such penalties are not punitive. See United States v. Bajakajian, 524 U.S. 321, 329 (1998) (“Although the

Government has asserted a loss of information regarding the amount of currency leaving the country,

that loss would not be remedied by the . . . confiscation of respondent’s $357,144.”); see also Pimentel II,

115 F.4th at 1067 (noting that only “purely remedial

sanctions” are not subject to Eighth Amendment scrutiny).

With respect to the four factors identified in Pimentel, Plaintiffs have plausibly alleged that the

fines at issue here are excessive. To assess the first

factor, “[c]ourts typically look to the [alleged] violator’s culpability.” Pimentel I, 974 F.3d at 922. That is,

“if culpability is low, the nature and extent of [their]

violation is minimal.” Id. “It is critical, though, that

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Appendix B

the court review the specific actions of the violator rather than by taking an abstract view of the violation.”

Id. Here, the underlying offense is a property offense

related to cannabis cultivation. More importantly,

and considering the specific actions of the alleged violators, the amended complaint alleges that at least

some of the plaintiffs have been charged with County

Code violations that pre-date their occupation of their

respective properties. At the time of their purchase

and since then, Plaintiffs allege that the property was

not used and has not been used for any cannabis cultivation or operation. In such cases, the nature and

extent of the alleged violations are minimal. Indeed,

even if plaintiffs like Olson were aware that the property had some past association with cannabis cultivation, Olson alleges that she was not aware of outstanding County Code violations because the

County—contrary to the Code— failed to record the

violations against the properties. HCC § 352-4(c).

Turning to the remaining factors, the second factor— “whether the underlying offense relates to other

illegal activities”—supports Plaintiffs, even if the underlying offense is related to cannabis cultivation. Pimentel I, 974 F.3d at 923. Plaintiffs have plausibly alleged that such violations are either inaccurately

charged or the fault of previous property owners.

Likewise, the third factor— “whether other penalties

may be imposed for the violation”—weighs in Plaintiffs’ favor, as the permitting violations would carry a

smaller fine if not for the tenuous nexus to cannabis,

elevating the violations to Category 4 violations. Id.

Moreover, it seems clear to us that lesser penalties

could accomplish the same health and safety goals,

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Appendix B

and the County offers no reason to infer otherwise.

And finally, as to the fourth factor, the “extent of the

harm caused by the violation,” Plaintiffs have alleged

that the offenses here have caused no harm beyond a

technical lack of compliance with the County’s cannabis permitting regulations. Id. As Plaintiffs argue on

appeal, “[Olson] faces millions in penalties for what is

now an empty field. No harm to the community justifies those penalties.” See also Bajakajian, 524 U.S. at

340 (noting the absence of an “articulable correlation

to any injury suffered by the government”); Pimentel

II, 115 F.4th at 1072 (requiring the City to “provide

some evidence that the penalty amount was actually

tethered to the nature and extent of the harm caused

by nonpayment”).

In addition, Plaintiffs have alleged that the

County’s demolition orders are unconstitutionally excessive penalties. Importantly, the Eighth Amendment covers civil penalties like the demolition orders

at issue here. See Austin v. United States, 509 U.S.

602, 610 (1993) (observing that “a civil sanction that

cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving

either retributive or deterrent purposes, is punishment” (quotation omitted)). Indeed, the removal of

structures on a property owner’s land is effectively an

in rem forfeiture. See Timbs v. Indiana, 586 U.S. 146,

154 (2019) (“[C]ivil in rem forfeitures fall within the

Clause’s protection when they are at least partially

punitive.” (citation omitted)).

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Appendix B

The County argues that “[a]batement of unlawful

and potentially unsafe structures (like an unpermitted and uninspected tunnel under a [building]) is remedial, not punitive.” Plaintiffs respond that the

demolition orders also “serve to punish and deter unpermitted cannabis cultivation.” Although a closer

question than the imposition of penalties, taking

Plaintiffs’ allegations as true and drawing all reasonable inferences in their favor, the demolition orders

are at least partly punitive. Plaintiffs allege that the

orders target otherwise lawful structures simply because they once had a nexus to illegal cannabis cultivation, regardless of their effects on public health and

safety. In the absence of other justifications, it is plausible that the demolition orders—and the significant

expenses they pose to owners—serve, at least in part,

to punish and deter unpermitted cannabis cultivation. Thus, for the same reasons as the penalties,

Plaintiffs have plausibly alleged that the demolition

orders violate the Excessive Fines Clause.

IV. Conclusion

Local governments are often at the forefront of addressing difficult and complex issues. As a consequence, they undoubtedly require flexibility in their

decision- making. Nonetheless, and as we have recently observed, “[t]he government cannot overstep

its authority and impose fines on its citizens without

paying heed to the limits posed by the Eighth Amendment.” Pimentel I, 974 F.3d at 925. With this important caveat in mind, and for the foregoing reasons,

we reverse the district court’s dismissal of Plaintiffs’

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Appendix B

Eighth Amendment claim and remand for further

proceedings consistent with this opinion.

REVERSED in part, AFFIRMED in part, and

REMANDED for further proceedings consistent

with this opinion.

Appellants shall recover their costs on appeal.

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Appendix C

Order of the

United States District Court

Northern District of California

May 12, 2023

50a

Appendix C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EUREKA DIVISION

CORRINE

MORGAN Case No. 22-cv-05725THOMAS, et al.,

RMI

Plaintiffs,

ORDER RE:

MOTION TO DISMISS AMENDED

COUNTY OF HUM- COMPLAINT

BOLDT, CALIFORNIA,

et al.,

Re: Dkt. No. 32

Defendants.

Now pending before the court is Defendants’ Motion to Dismiss (dkt. 32) and Request for Judicial Notice (dkt. 32-2) (“RFJN”); Plaintiffs have filed a Response in Opposition (dkt. 36), and have objected (dkt.

36-1) to Defendants’ RFJN; Defendants filed a Reply

Brief (dkt. 37), a Supplemental Request for Judicial

Notice (dkt. 37-2) (“SRFJN”), as well as a Response to

Plaintiffs’ objections to Defendants’ RFJN (dkt. 37-3).

For the reasons set forth below, Defendants’ requests

for judicial notice and their motion to dismiss the operative complaint with prejudice are granted.

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Appendix C

FACTUAL BACKGROUND

Plaintiff’s Amended Class-Action Complaint

Pursuant to 42 U.S.C. § 1983, and the Declaratory

Judgment Act (28 U.S.C. §§ 2201-02), on behalf of

themselves and others similarly situated, five individuals have sued Humboldt County (California), its

Planning and Building Department, its Board of Supervisors, and six individual county officials. See First

Amend. Compl. (“FAC”) (dkt. 31) at 4-6. The five

named Plaintiffs are Corrinne and Doug Thomas, Blu

Graham, Rhonda Olson, and Cyro Glad – all of whom

find themselves embroiled in disputes related to the

County’s abatement efforts related to the appendages

of illegal cannabis cultivation activity, as well as its

non-cannabis code enforcement efforts. Id. In addition

to the County and its above-named subdivisions,

Plaintiffs have also sued John H. Ford (the Director

of the Planning and Building Department), as well as

the following five members of the County Board of Supervisors: Steve Madrone, Rex Bohn, Mike Wilson,

Michelle Bushnell, and Natalie Arroyo. Id. at 5-6.

Plaintiffs’ class-action allegations are only advanced

by Plaintiffs Corrine and Doug Thomas (hereafter,

“the Thomases”), Olson, and Glad; Plaintiff Graham

“was planning to be a class representative until the

County suddenly agreed to dismiss his abatement order the week before filing the initial complaint.” Id. at

51. Plaintiffs propose a class to be defined as such: all

persons who are currently facing proposed penalties

for cannabis-related Category 4 violations – that were

“levied” after January 1, 2018 – and who requested

administrative hearings within 10 days of service but

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Appendix C

who still have not received a hearing for their appeal.

Id. Plaintiffs, and the members of the proposed class,

reportedly will suffer under a litany of asserted policy

failures by the County including – inter alia – the

County’s alleged issuance of cannabis-related code violations without adequate investigation or due regard

for probable cause; its delays in providing administrative hearings; and, its failure “to provide a jury at the

administrative hearing.” Id. at 51-54. Plaintiffs plead

five causes of action: a claim asserting procedural due

process violations focused on alleged defects in the

County’s administrative processes (Claim-1) (see id.

at 56-58); a claim asserting substantive due process

violations that, in essence, contends that the allegedly

baseless allegations, coupled with the delays in the

hearing process, and the alleged interference with the

Plaintiffs’ right to develop their properties while

awaiting resolution of the code enforcement matters

result in unconstitutional “deprivations of life, liberty, or property when there is no governmental interest in the deprivation” (Claim-2) (see id. at 59-62);

a claim premised on the notion that the County’s permitting fees, its settlement offers, its fines, and its

fees all constitute “unconstitutional exactions” in violation of the unconstitutional conditions doctrine

(Claim-3) (see id. at 62-64); a claim alleging the levying of excessive fines and fees under the Eighth and

Fourteenth Amendments (Claim-4) (see id. at 64-66);

and, a claim asserting that the Seventh and Fourteenth Amendments should be construed to mandate

jury trials in the sort of administrative hearings of

which Plaintiffs have complained, at least as to the

factual determination of whether or not a landowner

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Appendix C

has violated the code (Claim-5) (see id. at 66-68). By

way of relief, Plaintiffs seek the certification of the

aforementioned class; a bevy of declaratory and injunctive relief; an award of nominal damages for the

named Plaintiffs; an award of $795.92 “in damages or

restitution in addition to nominal damages” for Blu

Graham; and, an award of attorneys’ fees, costs, and

expenses. Id. at 68-70. As far as factual allegations go

– Plaintiffs’ FAC paints an implausible picture of the

events underlying the above-mentioned claims. See

generally id. at 6-55. Despite the FAC’s length, overlooking its irrelevant content, and its conclusory and

implausible assertions – and in light of the materials

of which the court is taking judicial notice – it becomes clear, as set forth infra, that the underlying

facts do not, and simply can not, entitle these Plaintiffs to any relief against these Defendants.

The Statutory Framework

Chapter 2 of the Humboldt County Code (“HCC”)

was enacted pursuant to California Government Code

§ 53069.4 with the intention of serving as the primary

procedure for the imposition of administrative civil

penalties within the unincorporated areas of Humboldt County. See Defs.’ Request for Judicial Notice

(dkt. 32-2, Exh. NN) at 466 1; see also Defs.’ Supp.

1 Chapter 2 of the Humboldt County Code is appended to De-

fendants’ RFJN at Exhibit NN. See id. at 465-485. For simplicity,

the court will simply cite to those provisions by their codified

section numbers. Plaintiffs do not offer any factual dispute about

these code provisions; therefore, judicial notice of these local

laws is appropriate here. See Aids Healthcare Found., Inc. v. City

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Appendix C

Request for Judicial Notice (dkt. 37-2) at 1-50. In

promulgating the Code – the County’s Board of Supervisors found that it was furthering the following

goals: (1) protecting the public’s health, safety, and

welfare; (2) laying out an administrative process that

employs objective criteria for the imposition of penalties and provides for a process to appeal the imposition of penalties; (3) providing a means of properly penalizing persons who fail or refuse to comply with the

County’s code and its other ordinances; and (4) minimizing the expense and delay associated with pursuing alternative remedies through the civil and criminal justice system. HCC § 352-2(b)(1)-(4). Whenever

the County’s Code Enforcement Unit (“CEU”) becomes aware that a violation has occurred, the Unit

“shall prepare, and serve upon each [r]esponsible

[p]arty, a ‘Notice of Violation and Proposed Administrative Civil Penalty, as set forth in this Chapter.’

The Notice of Violation may be combined with a Notice to Abate Nuisance issued pursuant to the provisions of this division.” See id. at § 352-7 (emphasis

supplied). 2 Notices of this sort must contain a host of

information including: the responsible party’s name

and last known address; the address and description

& Cnty. of S.F., 208 F. Supp. 3d 1095, 1098 n.2 (N.D. Cal. 2016)

(citing Colony Cove Props., LLC v. City of Carson, 640 F.3d 948,

954-56 n.3-4 (9th Cir. 2011) (taking judicial notice of undisputed

contents of local ordinances and resolutions)).

2 As discussed in detail herein, a great deal of the thrust of Plain-

tiffs’ lawsuit depends on obfuscating the “proposed” nature of the

administrative civil penalties set forth in the County’s § 352-7

notices, by couching them as finalized fines that have in fact

been levied when that is not the case.

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Appendix C

of the property on which the violation exists; a description of the acts or omissions (and pertinent regulation or ordinance) constituting the violation; an order to correct or otherwise remedy the violation

within 10 calendar days after service; a statement

that each day after the 10th day that the violation persists constitutes a separate violation up to the 90th

day; the amount of the proposed daily administrative

civil penalty to be incurred after the 10th day; a statement that the responsible party may file a written appeal request with the CEU of the determination as to

the existence of a violation and / or the amount of the

proposed administrative civil penalty; a statement

that such an appeal has already been taken (if that is

the case) along with a bevy of attendant information

pertaining to that appeal; and, a statement that, upon

the lodging of such an appeal, the CEU shall set the

matter for a hearing before a hearing officer appointed by the County Board of Supervisors and issue

a notice of hearing no sooner than 15 calendar days

after the notice. Id. at § 352-8(a)-(k). Further, the notice also must state that the administrative civil penalties will no longer be “proposed,” and will become

final – conferring jurisdiction on CEU to undertake

collection actions (along with costs and attorneys’

fees) – under the following circumstances: (1) within

10 days after service of a Notice of Violation and Proposed Administrative Civil Penalty if no appeal request is filed; or, (2) within 20 days of service of the

Finding of Violation and Order Imposing Civil Penalty (following an appeal) if a request for judicial review of the hearing officer’s final appeal decision is

not filed with the Humboldt County Superior Court;

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Appendix C

or, (3) within 10 days after service of the Humboldt

County Superior Court’s final adverse decision. See

id. at §352-8(I)(i)-(iii); see also §352-14(a). Lastly, the

notice must state that a finalized administrative civil

penalty may become a lien against the property on

which the violation occurred or exists, and will have

“the same force, effect, and priority” as a judgment

lien – also, an additional notice can be served if a new

violation occurs or if an existing violation persists for

more than 90 days. Id. at § 352-8(m), (n). In the case

of illegal cannabis cultivation, as in the case of other

code violations, the above-described procedure (including the provision for seeking judicial review in the

Humboldt County Superior Court) applies. See id. at

352-3(m); 352-5; 352-13.

As to potential penalties through the 90th day of

the existence of a violation, the proposed daily administrative civil penalty could be as high as $10,000 per

day, or up to any amount allowed by state law –

whichever is higher. See id. at 352-2(a). Violations

and their attendant daily penalty ranges are graded

by severity according to the following method: Category-1 ($1.00 to $1,000 per day), Category-2 ($1,000

to $3,000 per day), Category-3 ($3,000 to $6,000 per

day), and Category-4 ($6,000 to $10,000 per day). See

id. at 352-6(a). Factors that determine the category in

which a violation should be placed include: the seriousness of its impact on the public’s health, safety, or

general welfare; the number of complaints received

about it; issues pertaining to the responsible party’s

willfulness or negligence; the number of times a responsible party has committed the same or similar violations; the amount of penalties which have been

57a

Appendix C

imposed in similar situations in the past; and, any efforts made by the responsible party to correct or remediate the violation. See id. at 352-6(b).

On appeal from the CEU’s issuance of a Notice of

Violation and Proposed Penalty, hearing officers are

empowered to find that no violation was committed at

all, or to suspend or reduce fines upon a finding that

a party took steps to remedy a violation that did not

impact the health, safety, or general welfare of the

[public]. See id. at §352-12(a)-(b). In the event of an

adverse decision by a hearing officer, a Finding of Violation and Order Imposing Administrative Civil Penalty issued by such an officer “shall be final in all respects unless overturned or modified on appeal by the

Humboldt County Superior Court . . . [and] shall be

accompanied by instructions for obtaining [such] judicial review . . .” See id. at 352-12(c); see also 352-13

(describing the method for seeking judicial review of

a hearing officer’s final decision).

Prior to the completion of the administrative proceedings described above, in addition to any judicial

review that may have been pursued in the Humboldt

County Superior Court, the County is not empowered

to collect any penalties. See id. at 352-14(a). Lastly,

the County’s Planning Director – either personally or

through an assistant so designated – is statutorily authorized to reduce or eliminate penalties, costs, and

attorneys’ fees, and may enter into compliance and

settlement agreements with owners or occupiers of

the property on which violations have been deemed to

exist; that is, “in exchange for compliance to correct or

otherwise remedy the [v]iolation to preserve the

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Appendix C

public health, safety, and welfare of the County residents.” See id. at 352-14(c).

The Code Enforcement Matter of

Corrine and Doug Thomas

In August of 2021, the Thomases purchased certain real estate in Miranda, California, situated atop

a ridge near Avenue of the Giants in Humboldt

County. See FAC (dkt. 31) at 30. Behind the residential structure on the property, there is a detached garage and a three-story building which was described in

the real estate listing as a “workshop.” Id. A few days

after the closing of their purchase, the Thomases received a Notice of Violation and Proposed Civil Penalty addressed to Summerville Creek LLC, the property’s previous owner. Id. Apparently referring to the

three-story workshop, the Notice reportedly alleged

the following violations: violation of the commercial

cannabis land use ordinance; construction of a building or structure in violation of building, plumbing,

and electrical codes; and, facilities or activities in violation of the commercial cannabis land use ordinance.

Id.

As to the origin of the Notice, in mid-2021 satellite

imagery and a realtor’s listing revealed a metal building with a reflective roof used to grow cannabis at a

home in Miranda (274 Lower Cathey Ln., APN 211391-011-000). See RFJN, Exh. A (dkt. 32-2) at 13-173

3 Plaintiffs do not offer any factual dispute about the authentic-

ity, accuracy, or correctness of any of the records and reports of

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Appendix C

see also FAC (dkt. 31) at 70. The realtor’s photographs

(now part of the administrative record of CEU’s casefile in the case related to the Thomases’ matter) revealed a number of building vents and certain implements of commercial cannabis cultivation. See RFJN,

Exh. A (dkt. 32-2) at 13-16. As mentioned, in August

of 2021, the CEU served a Notice of Violation and Proposed Administrative Penalty, and a Notice to Abate

Nuisance, alleging: an “unpermitted commercial cannabis operation with approximately 2,500 square feet

of cultivation”; and, a “structure facilitating commercial cannabis activity and constructed contrary to the

provisions of the Humboldt County Code.” See id. at

24-39. Naming Sommerville Creek LLC (the prior

owner) as the responsible party, the notices were sent

to the address on record (which was now owned by the

Thomases) and notified them as to the possible penalties, while also informing them as to how they might

remedy what had been graded as Category-4 violations with proposed daily penalties in the order of

$6,000. Id. at 27, 35. In other words, while the notices

were received by the Thomases, they named

the administrative proceedings that have been referred to in the

FAC and appended to Defendants’ RFJN; therefore, the court

finds that under the doctrines of incorporation by reference and

judicial notice (discussed infra), consideration of the entirety of

the records and reports of those administrative proceedings is

appropriate here. See Apartment Ass’n of L.A. Cnty. v. City of

L.A., 10 F.4th 905, 910 n.2 (9th Cir. 2021); Barron v. Reich, 13

F.3d 1370, 1377 (9th Cir. 1994) (judicial notice can be taken of

the “[r]ecords and reports of administrative bodies.”); see also

United States v. 14.02 Acres, 547 F.3d 943, 955 (9th Cir. 2008)

(courts may take judicial notice of matters of public record and

the reports of administrative bodies and consider them without

converting a Rule 12 motion into one for summary judgment).

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Appendix C

Sommerville Creek LLC as the responsible party, and

they gave 10 days for the correction of the violations

such as to avoid being subjected to a daily administrative penalty of $12,000 (the combined sum for 2 violations) for up to 90 days. See id. at 24. The required

abatement action would consist of the discontinuation

of cannabis cultivation and removal of all cannabis

and cannabis cultivation infrastructure, including

power and irrigation infrastructure, and the removal

of all structures connected to cannabis cultivation

that had been constructed in violation of local building, plumbing, and / or electrical codes, including obtaining any necessary demolition permits. Id. at 36.

In early September of 2021, a CEU site inspection

was mutually arranged at which the Thomases (and

their attorney) were present, and to which they had

expressly consented. See id. At 111, 112-13. The inspector found that the “workshop” was, in fact, “a

three-story, seven-room wooden building with metal

sheathing, on a pier-and-post foundation” with a

measured footprint of 3,780 sq. ft., a total effective

floor space of 7,956 sq. ft., and with numerous indicia

of having been used as an industrial-scale cannabis

production facility. Id. at 114. In addition to containing various implements associated with cannabis cultivation, the building still contained the “remnants of

cannabis . . . on the floor of every space within the

building.” Id. Moreover the inspector also found: that

none of the stairwells had proper railing or hand

grips, including the one at the entrance to the building; that none of the six doors in the rear of the building – three on the first floor and three on the second

floor – opened to landings; and, that the only safety

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Appendix C

measure keeping a person from walking out of a second story door and falling was tape. Id. The inspector’s report attributed various statements to the

Thomases (reportedly made during the course of that

inspection) ranging from stating that they might allow their children to ride their bicycles inside the

structure, to stating that the building had no apparent usefulness and might never be used. Id. The inspector’s report concluded that the only potential use

for the building might be a barn; however, the inspector found even that use to be inapplicable due to the

fact that the Thomases owned no livestock, had no

farm equipment, and produced no agricultural products. Id.

At that time – that is, during 2021 – the County

had a policy “requiring all unpermitted structures associated with an unpermitted cannabis operation to

be removed.” Id. at 135. However, by March of 2022,

the county promulgated a policy allowing property

owners and operators to prepare a plan and description for the (non-cannabis) continued use of such unpermitted structures if such property owners wanted

to maintain, rather than remove, the structure. See

id. at 132-33. The requirements for this policy were:

that the structure be identified for a use permitted by

applicable zoning and land use laws; that the structure be within the curtilage (i.e., 2 acres) of an existing residence; that the structure be such that it can

be permitted (i.e., a building permit); that the continued existence of the structure not cause environmental harm; and, that it be understood that any subsequent unpermitted cannabis cultivation therein

62a

Appendix C

would be subject to further penalties pursuant to the

Code. Id.

In any event, on September 2, 2021, notwithstanding the fact that they had never been designated as

“responsible parties,” the Thomases requested an appeal hearing to contest the CEU’s determinations as

to the unpermitted 3-story structure on their newlyacquired parcel of land. See id. at 119-20. However,

the following month – on November 8, 2021 – the

Thomases executed a Compliance Agreement (see id.

at 122-30) to resolve the violation; under that agreement, they agreed to obtain a demolition permit, and

to remove the structure within six months. Id. at 123.

In exchange for the Thomases’ promised corrective action, the County agreed to stay enforcement for the

agreed-upon period, and upon execution of the Thomases’ corrective action, the County would dismiss the

pending code enforcement case. Id. at 124. However,

the agreement also stated that if the Thomases failed

to uphold their end of the bargain, the County would

then name them as responsible parties, lift the stay,

and reinstitute the enforcement proceedings. Id.

Midway through the 6-month period of the Compliance Agreement – specifically, in March of 2022 –

the County promulgated the above-mentioned policy

allowing (under certain conditions) the repurposing of

such structures. See id. at 132-33. That is, the new

policy afforded property owners an avenue to avoid

demolition by providing the County with a restoration

plan that described a permitted use for the structure.

See id. at 132. Following the promulgation of the new

policy, in April of 2022, an attorney representing the

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Thomases informed CEU that his clients wished to

keep the structure in place pursuant to the new policy

(rather than to demolish it pursuant to their agreement). See id. at 462-63. Thus, in August of 2022, the

Thomases were presented with a new agreement that

allowed them to avoid removing their unpermitted

structure if, within eight weeks, they submitted a restoration plan and a permit application; however, finding themselves displeased with the fees associated

with the repurposing permits (reportedly triple the

amount of ordinary permitting fees), the Thomases

chose to neither proceed down that avenue, nor to demolish the structure as they had previously agreed.

See FAC (dkt. 31) at 35-36. The Thomases contend

that “they remain intent on keeping the [unpermitted] three-story structure they purchased with the

property, but they are not willing to pay penalties for

the prior owner’s wrongdoing.” Id. at 36. At bottom,

they complain that they “have still not received an administrative hearing since filing their notice of appeal

on September 2, 2021.” Id. On the other hand, as far

as the Thomases’ case is concerned, the only operative

Notice of Violation and Proposed Administrative Civil

Penalty still does not name them as the “responsible

party,” and instead names their property’s previous

owner, Summerville Creek LLC. See RFJN (dkt. 322) at 24. While the FAC complains that the Thomases

have not yet received an administrative hearing – neither does the FAC allege that the Thomases have either been actually named in a Notice of Violation, nor

does the FAC allege that the Thomases have ever actually been fined. See generally FAC (dkt. 31) at 1-70.

Indeed, the County has expressly stated that “it has

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not named the Thomases in an NOV or fined them,”

(see Defs.’ Mot. (dkt. 32) at 13), a fact that Plaintiffs

expressly confirm. See also Pls.’ Opp. (dkt. 36) at 14

(“That the County has not yet collected the fines and

fees it’s assessed does not change this analysis.”).

The Code Enforcement Matter of Blu Graham

In 2012, Plaintiff Blu Graham (“Graham”) purchased an 80% interest in a parcel of land in Whitehorn on which “he has been slowly developing a homestead [] ever since.” FAC (dkt. 31) at 36. At some

point, Graham constructed a number of greenhouses

on his property for the purpose of growing produce for

his family’s restaurant; his property “also contains a

fire road and [a] rainwater-catchment pond for fire

control.” Id. On May 10, 2018, CEU issued a Notice of

Violations and Proposed Administrative Penalty, and

a Notice to Abate Nuisance, to Graham and Jessica

Modic (who is not a party to this action) alleging the

existence of three violations on the land identified by

Parcel No. 108-281-002-000 in Whitehorn, California.

See RFJN (dkt. 32-2) at 139-43, 145-49. The nature of

the alleged violations were: grading without permits

(HCC § 331-14); construction of buildings in violation

of building, plumbing, and / or electrical codes (HCC

§ 331-28); and, a violation of the County’s commercial

cannabis ordinance (HCC § 314-55.4). See id. at 141,

147.

As set forth in the CEU’s summary of the Graham

code enforcement matter, the investigation into his

property “relied on high-resolution satellite data interpolated with relevant Geographic Information

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Science [] data as well as permit records of the Humboldt County Planning and Building Department and

related government agencies in order to identify properties engaged in unpermitted cannabis cultivation

and to assess code violations related to unpermitted

development of the property.” Id. at 164. While the

FAC alleges that Graham “was not cultivating cannabis on his property and [that] no infrastructure on his

property supported cannabis cultivation,” the FAC

does not state that Graham disputes the other two alleged violations. See FAC (dkt. 31) at 36-43. Nevertheless, Graham contends that “[o]n or about May 12,

2018, the County published [a notice] in a local newspaper that [Graham’s] property was under an abatement order relating to illegal [cannabis] cultivation,”

which “caused him stress and embarrassment.” Id. at

37.

On May 21, 2018, Graham filed an appeal request

which “disputed the [CEU’s] determination that a violation exists but also stated that the requested corrective actions would commence [] [and] satellite review of visible abatement efforts on the subject property revealed that roughly within the 10-date abatement period that the unpermitted greenhouse/hoophouse structures cited as violations had been removed

from the property [but that] [t]wo greenhouse/hoophouse structures on [the] [S]outh portion of [the] property were re-constructed in 2019; however, this construction was consistent with an approved building

permit application received for constructing two Agricultural Exempt greenhouse structures.” RFJN (dkt.

32-2) at 164-65. The upshot was that, from CEU’s perspective, “two of the three cited violations were timely

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abated and [were] not of concern for [the] [appeal]

hearing,” but that “the unpermitted grading violation

had not been corrected or resolved.” Id. at 165.

Over the next several years, the County offered

Graham several opportunities to settle the remaining

dispute about the unpermitted grading violation. See

FAC (dkt. 31) at 39-40. In July of 2018, a County official “acknowledged that [Graham’s] pond may be for

fire prevention,” but also noted that he “had evidence

that [the] grading was done with the intent to support

cannabis infrastructure” – an assertion which Graham disputed, resulting in his rejection of a settlement offer. Id. at 39. In September of 2018, the

County proposed another settlement officer that required Graham to admit he had graded the land for

unpermitted cannabis cultivation – once again, Graham rejected the offer. Id. A similar agreement was

proposed in early 2019 which Graham also rejected.

Id. at 40. The aforementioned agreements all contained penalty provisions that required Graham to

pay a sum ranging from $10,000 to $20,000. See id. at

39-40. However, in August of 2021, the County offered

Graham a no-penalty settlement agreement that proposed the re-grading and filling of the pond in question which Graham also refused to sign “because the

offer required him to accept responsibility for the

County’s [reportedly] baseless claim that he was cultivating cannabis.” Id. at 40; see also RFJN (dkt. 322) at 168-70.

After a good bit of more back-and-forth, during

which Graham repeatedly expressed that he wanted

to keep the pond for firefighting purposes (see id. at

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182-83; see also FAC (dkt. 31) at 40-42), his case finally came on for an administrative hearing, which

was scheduled for October 14, 2022. Id. at 41. The

only remaining violation at issue for the hearing was

the unpermitted grading (as set forth in the abovediscussed summary of Graham’s code enforcement

matter, Graham’s prior removal of the unpermitted

structures meant that “two of the three cited violations were timely abated.”). See RFJN (dkt. 32-2) at

164-65. The FAC appears to imp

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