Potter v. City of Lacey, 21-35259

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation46 F.4th 787
Docket Number21-35259
Parties Jack POTTER, Plaintiff-Appellant, v. CITY OF LACEY, Defendant-Appellee, and Ken Semko, Defendant.
Decision Date18 August 2022

46 F.4th 787

Jack POTTER, Plaintiff-Appellant,
CITY OF LACEY, Defendant-Appellee,
Ken Semko, Defendant.

No. 21-35259

United States Court of Appeals, Ninth Circuit.

Filed August 18, 2022

James E. Lobsenz, Carney Badley Spellman P.S., Seattle, Washington; Carrie Graf and Scott Crain, Northwest Justice Project, Olympia, Washington; for Plaintiff-Appellant.

John E. Justice, Law Lyman Daniel Kamerrer & Bogdanovich P.S., Olympia, Washington, for Defendant-Appellee.

Before: Kim McLane Wardlaw, Ronald M. Gould, and Mark J. Bennett, Circuit Judges.


Dissent by Judge Bennett


Chief Judge Mary H. Murguia U.S. Court of Appeals for the Ninth Circuit

46 F.4th 789


We respectfully ask the Washington Supreme Court to answer the certified question presented below, pursuant to Revised Code of Washington § 2.60.020, because "it is necessary to ascertain the local law of [Washington] state in order to dispose of [this] proceeding and the local law has not been clearly determined." This case involves federal and state constitutional challenges to the City of Lacey's recently passed RV Parking Ordinance. Jack Potter, a former Lacey resident who lives in a trailer hitched to his truck, challenges the RV Parking Ordinance as violative of his rights under both the United States Constitution and Washington State Constitution.

Pertinent to this certification order, Potter claims that the RV Parking Ordinance violates his right to intrastate travel under the Washington State Constitution. We determine that this issue is dispositive and has not been settled by Washington case law. Thus, we respectfully certify the following question to the Washington Supreme Court:

Is the right to intrastate travel in Washington protected under the Washington State Constitution, or other Washington law? If Washington state law protects the right to intrastate travel, does the RV Parking Ordinance codified in LMC §§ 10.14.020–045 violate Jack Potter's intrastate travel rights?


We summarize the material facts. The Lacey City Council enacted Ordinance 1551 on September 12, 2019. Ordinance 1551 amended Lacey's parking laws so that the laws now restrict the parking of a "recreational vehicle, motor home, mobile home, trailer, camper, vessel or boat upon the improved or unimproved portion of any street, alley, public right-of-way, or publicly owned parking lot for more than four hours" with two exceptions. LMC § 10.14.020(B). First, an RV owner may park temporarily for the purposes of loading or unloading. Id. § 10.14.020(B)(1). Second, an RV owner may obtain a permit according to the City Manager's permitting policies and procedures. See id. §§ 10.14.020(B)(2), 10.14.045.

If neither exception applies and an RV owner parks for more than four hours on Lacey public land, the ordinance prohibits an RV owner from parking on any City of Lacey "street, alley, public right-of-way or publicly owned parking lot" for the following 24 hours. Id. § 10.14.020(C). Lacey punishes violations of these parking provisions with a $35 fine and immediate impoundment of the RV. Id. § 10.14.040. These two provisions work in tandem to effectively render it impossible for vehicle-sheltered individuals to live in an RV on Lacey's public land.

Two weeks after the Lacey City Council passed Ordinance 1551, the City Manager adopted a two-tiered permitting system for RVs. The City Manager created one RV permitting system for "Residents," meaning

46 F.4th 790

a "Lacey homeowner or renter," and another for "Non-Residents," meaning an "[i]ndividual without a permanent address."

The resident permitting system allows homeowners or renters to request up to four temporary permits each year for visitors, allowing them to park their RVs for up to 48 hours within 150 feet of the resident's home. To obtain these permits, the resident must provide proof of residency, the license plate numbers for the RVs, and the address where the vehicle will be parked.

The non-resident permitting system allows someone without a permanent address to "receive a temporary parking permit in a designated permitted parking area," so long as the requestor is "actively engaged with social services." To obtain a permit, the non-resident must provide a government-issued ID, proof of insurance, and proof of vehicle registration. Anyone requesting a non-resident permit must also disclose all other occupants of the RV. Before issuing a non-resident permit, the Lacey Police Department must conduct a background check on all of the RV's occupants and may deny a permit if the background check reveals that any of the occupants have an existing or outstanding warrant or if any occupant is a registered sex offender. Non-resident permits are valid only "within designated areas of the City for the period indicated on the permit not to exceed 12 hours per day."

For those without a permanent address in Lacey, such as Potter, the permitting exception has been available in theory, but not in practice. Although various Lacey officials have discussed plans to designate a "safe lot" in which non-resident permit holders could park their RVs, Lacey has never actually designated a safe lot. The district court remarked that a "safe lot does not appear to have come to fruition." The City has not contested this in their briefing and the City conceded as much at oral argument. Therefore, the non-resident permitting system is essentially a bridge to nowhere.

This brings us to our plaintiff, Jack Potter. Potter is a 64-year-old man who lived in Lacey for most of the period between 1997 and 2019. Since 2016, Potter's housing stability has varied—at times he lived at a friend's house, at times in a car, and at times in a home on Martin Way East, where he operated the Veterans' Christian Charity's homeless outreach program. Shortly after spending a stint in the hospital, Potter began living in a 23-foot travel trailer that he hitched to his truck.

In the Spring of 2019, a police officer knocked on Potter's door to tell him that he could no longer park in the private lot where he had been parking. Potter asked the officer where he should go, and the officer informed him that the Lacey City Hall parking hall lot did not have any "No Parking" signs. Potter promptly moved to the City Hall lot, making it his home between May 2019 and October 2019, along with approximately 27 other people who were also living in their vehicles parked in the lot.

On September 27, 2019, after Lacey had passed the RV Parking Ordinance, an officer told Potter and the others staying in the City Hall parking lot that they had to leave within three days or face a ticket. Potter stayed in the parking lot because he hoped to be able to go to a doctor's appointment in Lacey on October 2. On September 30, however, an officer cited him for violating LMC § 10.14.020, and the next day, officers told Potter he needed to leave the parking lot or they would impound his home. Fearing that he would lose his home permanently because he could not afford to pay impoundment fees,

46 F.4th 791

Potter left Lacey that day. Throughout all these interactions, the police never directed Potter to a shelter or anywhere else within Lacey to park—Potter had not applied for a non-resident parking permit, but as stated above, a non-resident permit would have made little difference given that Lacey had failed to designate any safe lots where Potter could have used the permit. In his declaration, Potter stated that if he could park his trailer in Lacey without risk of impoundment, he "would immediately move back to Lacey."

In August 2020, Potter sued Lacey in Thurston County Superior Court for damages, declaratory relief, and injunctive relief, claiming that the RV Parking Ordinance codified at LMC §§ 10.14.010–045 violated several of his rights under the United States Constitution and the Washington State Constitution. Lacey then removed the case to federal court. Both parties moved for summary judgment, and the district court ultimately granted summary judgment to Lacey on all of Potter's claims. Potter timely filed a notice of appeal on April 6, 2021, appealing the district court's rulings on his Fourth Amendment claim, his Eighth Amendment claim, his right to intrastate travel claim under the United States Constitution, and his right to intrastate travel claim under the Washington State Constitution.



When state law issues are unclear, we may certify a question to a state's highest court "to obtain authoritative answers." Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid Co. , 779 F.2d 1429, 1432 (9th Cir. 1986), amended by 831 F.2d 180 (9th Cir. 1987). We have concluded that certification may be especially necessary when a panel faces "complex" state law issues carrying "significant policy implications." See, e.g., Centurion Props. III, LLC v. Chi. Title Ins. Co. , 793 F.3d 1087, 1089 (9th Cir. 2015) ; McKown v. Simon Prop. Grp. Inc. , 689 F.3d 1086, 1091 (9th Cir. 2012).

Washington law authorizes the state supreme...

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    ...[we] should avoid adjudication of federal constitutional claims when alternative state grounds are available." Potter v. City of Lacey, 46 F.4th 787, 791 (9th Cir. 2022) (brackets in original) (quoting Cuviello v. City of Vallejo, 944 F.3d 816, 826 (9th Cir. 2019) ) (internal quotation mark......
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