Dec. 2—Citing reasons that include insufficient evidence and a local lawyer's lack of experience with complex civil cases, a federal judge sided against expanding a civil rights lawsuit filed in the names of a half-dozen homeless individuals against the city of Medford to class-action status.
U.S. Magistrate Judge Mark D. Clarke determined "class certification is not appropriate" in his Findings and Recommendation filed Tuesday in U.S. District Court in Medford, siding against a key request in the lawsuit filed last year by Medford criminal defense lawyer Justin Rosas — representing homeless individuals Andre Bilodeau, Robert Bessy, Amber McNab, Greg Killingsworth, Travis Greiner and Ronda Bjork.
Clarke's 20-page findings are not a court order, but a recommendation on Rosas' motion for class-action status that will be referred to another district judge. Rosas and the city have two weeks to submit any objections.
"The city agrees with the courts findings and recommendations and will not be filing objections," Medford City Attorney Eric Mitton stated in an email Thursday afternoon.
Because the suit is still pending, Mitton declined further comment.
A message to Rosas was not immediately returned Thursday.
The court "only finds that class certification is not appropriate" because "plaintiffs have failed to submit material sufficient for the court to form a reasonable judgment" and that Rosas' legal team "lacks the experience necessary to adequately represent the interests of the class," according to Clarke's filing.
"In making this recommendation, the court is not suggesting that the individual plaintiffs do not have meritorious cases," Clarke wrote.
Rosas' lawsuit targets several Medford ordinances that Rosas alleges unconstitutionally criminalize homeless people's existence in Medford. Clarke, however, states Rosas' legal team "submitted no supporting evidence with their motion for class certification."
The judge instead draws in his findings from "220 pages of various evidence" from a May filing. Of those 220 pages — more than half of them being two defendants' Medford municipal cases — Clarke notes Rosas' legal team "rarely cite to any of these materials in support of their arguments."
That's despite obtaining more than 26,000 pages of discovery from the city, according to Clarke.
"Plaintiffs (Rosas) represent that defendant (the city) 'produced 26,000 pages of discovery on Christmas week knowing that [Rosas'] motion for class certification was due in early February,'" Clarke wrote. "Plaintiffs insist such actions were 'cruel' and 'unprofessional.' ... The court notes that plaintiffs did not file any motions for an extension of time in this case."
Clarke at one point went so far as to highlight a source Rosas could have used to demonstrate whether his proposed class was sufficiently numerous. Clarke recommended Rosas draw from Jackson County's point-in-time homeless survey instead of the online spreadsheet Rosas cited.
That spreadsheet showed 1,270 homeless youth enrolled in Medford School District, but failed to break down the numbers in the spreadsheet's columns titled "In Shelter," "Doubled-Up," "Motel/Hotel" and "Unsheltered."
The judge stated Rosas' team offered "no evidence in support of their (numerosity) claims" aside from one declaration Rosas filed based on his eyewitness account walking the Greenway.
Clarke notes Rosas' lawsuit attempts to replicate the success of a homelessness class-action suit against the city of Grants Pass in which the same court determined prohibited-camping fines and fees were cruel and unusual punishment.
Grants Pass ultimately donated a park as a congregate living shelter and changed how police enforced laws, according to earlier news reports. The 9th Circuit Court of Appeals affirmed the ruling in September.
Clarke states Rosas' motion for class certification "is nearly identical to the motion for class certification filed in Blake v. City of Grants Pass."
"A notable difference between the Blake motion and this motion is the near-total absence of citations to evidence here," Clarke added.
" ... The Medford ordinances at issue here are not the same," Clarke wrote. "Medford does not have a citywide ban on sleeping or camping," Clarke wrote.
Since the court's decision on the Grants Pass case in February 2021, Medford changed its laws setting "time-place-manner restrictions" surrounding sleeping in public.
Clarke points out Rosas missed an argument the 9th Circuit Court didn't address about whether it's constitutional for time-place-manner restrictions to prohibit sleeping outside nights and evenings.
"Plaintiffs, however, do not make that argument here," Clarke wrote.
The city has worked with and financially supported the nonprofit Rogue Retreat since 2017 on transitional housing projects and low-barrier shelters that include Hope Village, the Kelly Shelter and the Urban Campground.
"In Blake v. City of Grants Pass, this court encouraged the City of Grants Pass to develop adequate strategies for addressing its homeless crisis and specifically referenced the city of Medford's efforts as an example."
Rosas' legal team "submitted various declarations from homeless individuals living in Medford," but Clarke stated he failed to explain how those claims are typical of other class members' experiences.
One homeless woman provided a statement describing how she overdosed on pills, was transported to a crisis center and later "kicked out."
"Nothing in the declaration indicates that this individual was affected by the ordinances at issue in this case," Clarke notes.
Clarke's findings could impact one of the costliest threats in the lawsuit. At an April 2021 press conference in Alba Park announcing his plans to file the lawsuit, Rosas warned that prior federal class-action lawsuits against cities of Grants Pass and Boise, Idaho, proved costly for the cities fighting them.
Oregon Law Center, which handled the Grants Pass class-action suit, was awarded $300,000 in legal fees during fall 2020, according to court records and an earlier news report.
Rosas argued his team "has met with counsel from the Grants Pass case and Boise case, and is certain the class is similarly represented in this case."
Clarke, however, expressed doubts. Clarke stated he believes Rosas is "passionate about his work," but it's the court's responsibility to ensure a lawyer can adequately represent the class' interests.
"While plaintiffs' counsel (Rosas) is a very experienced criminal defense attorney, plaintiffs' counsel has no experience handling class actions, other complex civil litigation or the types of claims asserted in this action," Clarke wrote.
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