City Attempts To Block Testimony In Racketeering Lawsuits
Hi All,
The SAGA of the Racketeering lawsuits against the City of Saint Paul continues.
The Racketeering depositions have been going on for some time now. Code Enforcement Officers have been for the most part coming in and telling the truth.
Even going as far as to say the Racketeering Lawsuits against the City have merit.
The people higher up on the ladder seem to be playing DUMB.. That shouldn't surprise anyone the policies that brought about the Racketeering lawsuits are DUMB. It seems they are working to set up the people on the bottom to take the fall.
I have been looking into the up coming hearing for the Protective Order.The City doesn't want some people deposed because they claim it is just a method of harrassment. NON-SENSE, they really don't want these people deposed because the depositions will only drive their case further into the ABYSS!
I have posted the Plaintiffs response to this Protective Order in the comment section of this post.
The SAGA of the Racketeering lawsuits against the City of Saint Paul continues.
The Racketeering depositions have been going on for some time now. Code Enforcement Officers have been for the most part coming in and telling the truth.
Even going as far as to say the Racketeering Lawsuits against the City have merit.
The people higher up on the ladder seem to be playing DUMB.. That shouldn't surprise anyone the policies that brought about the Racketeering lawsuits are DUMB. It seems they are working to set up the people on the bottom to take the fall.
I have been looking into the up coming hearing for the Protective Order.The City doesn't want some people deposed because they claim it is just a method of harrassment. NON-SENSE, they really don't want these people deposed because the depositions will only drive their case further into the ABYSS!
I have posted the Plaintiffs response to this Protective Order in the comment section of this post.
posted by Bob at Tuesday, January 16, 2007
4 Comments:
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et. al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. JOINT MEMORANDUM OF
LAW IN OPPOSITION TO
MOTION FOR PROTECTIVE
ORDER
City of St. Paul, et. al.,
Defendants.
Sandra Harrilal, et. al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Thomas J. Gallagher, et. al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Plaintiffs Frank J. Steinhauser, III, et. al., Sandra Harrilal, et. al., and Thomas J.
Gallagher, et. al., through their undersigned counsel, submit this Joint Memorandum of Law
in opposition to Defendants’ Motion for Protective Order.
INTRODUCTION
In her letter dated November 20, 2006, Ms. Seeba confirmed that she was not going to
produce the following individuals to be deposed: former Mayor Randy Kelly, Council
Members Kathy Lantry and Dave Thune, Legislative Hearing Officer Marcia Moermond, and
Assistant City Attorney Maureen Dolan. Former Mayor Randy Kelly is named as a defendant
in each of the three cases. The other individuals are not named as defendants.
In the meet and confer meeting on November 15, 2006, Plaintiffs’ counsel made clear
to Defendants’ counsel that it was our position that the deponents in question had personal
knowledge of issues that would be relevant to the Plaintiffs’ claims. See Affidavit of Matthew
A. Engel, Paragraph No. 2. Plaintiffs counsel agreed to suspend the taking of the five
disputed depositions and to move forward with the other noted depositions. Thereafter,
Defendants’ counsel submitted a four-page, single spaced letter citing no less than 19 cases,
many of which were unpublished and not produced by Defendants’ counsel until the filing of
this motion (See Exhibits to Seeba Affidavit). See Affidavit of Matthew A. Engel, Paragraph
No. 3. It was clear to Plaintiffs’ counsel that the subject deponents had personal knowledge of
information worthy of oral deposition and that the analysis used by Defendants’ counsel in her
letter did not apply. See Affidavit of Matthew A. Engel, Paragraph No. 4.
Defendants’ counsel alleges that Plaintiffs’ are on a fishing expedition and campaign of
harassment. The depositions taken to date have been crucial in not only discovering relevant
facts related to Plaintiffs’ specific rental properties and code enforcement operations directed
against those properties, but also facts relevant to other similarly situated low-income rental
property owners also targeted by Defendants. See Affidavit of Matthew A. Engel, Paragraph
No. 5.
Any argument by Defendants that Plaintiffs have not been diligent in their discovery
efforts is baseless. As the Court will recall, the early delay in proceeding forward with
discovery was caused by the Defendants’ initial motion to dismiss which was subsequently
withdrawn. Thereafter, Defendants made a motion to strike certain portions of the pleadings
in the Steinhauser, et. al case. The Harrilal, et. al case was filed in March 2005, and the
Gallagher, et. al case was filed in July of 2005. Defendants then duplicated their motion to
strike in each of those cases. All three cases were finally consolidated for discovery and the
Court issued its Pre-trial Scheduling Order in January 2006. The parties exchanged discovery
documents throughout 2006 and submitted documentation to experts and exchanged expert
reports.
Defendants’ counsel did not depose Plaintiff Steinhauser until July 19 and July 25,
2006. See Affidavit of Matthew A. Engel, Paragraph No. 6. Defendants’ counsel deposed
Plaintiff Harrilal on October 27, 2006, Plaintiff Johnson on November 9, 2006, Plaintiff
Collins on December 29, 2006, Plaintiff Gallagher on January 10, 2007, and Plaintiff Allison
on January 12, 2007. See Affidavit of Matthew A. Engel, Paragraph No. 7. Plaintiffs Jeff and
Sara Kubitschek have been scheduled by Defendants’ counsel for their depositions January
23rd and 24th, 2007. See Affidavit of Matthew A. Engel, Paragraph
No. 8.
Plaintiffs in the Steinhauser, et. al. case have produced over 10,000 pages of documents, Plaintiffs in the Harrilal, et. al. case have produced over 70,000 pages of
documents, and Plaintiffs in the Gallagher, et al case have produced over 10,000 pages of
documents. See Affidavit of Matthew A. Engel, Paragraph No. 9. Plaintiffs have produced to
Defendants over 13,000 color photographs. Id. Defendants’ have produced over 25,000
pages of documents. Id. Plaintiffs’ counsel have submitted answers to interrogatories that are
over 70 pages in length. Id.
Plaintiffs’ counsel noted their depositions approximately 4 months prior to the March
2, 2007, discovery deadline. See Affidavit of Matthew A. Engel, Paragraph No. 10. During
November and December 2006, depositions were conducted by Plaintiffs of inspectors from
the City’s code enforcement agencies, of certain Defendants, and of the City’s Public Housing
Agency. Id.
Defendants’ counsel argues that adequate reference is not made to the disputed
deponents in the three Complaints. The depth and complexity of the discovery and
information being gathered is the basis for the essential need of the oral depositions of the
disputed individuals, as can be seen herein. Much of the information to form the basis for oral
depositions of the proposed deponents was not available at the time the Complaints were filed
and has only been discovered through depositions of City inspectors or through review of City
documents in the discovery process.
Given the law, and the facts set forth in the documents attached to the Affidavit of
Matthew A. Engel, Plaintiffs submit that the oral depositions of the subject City officials and
employees will 1) likely lead to the discovery of admissible evidence, 2) the facts sought to be
developed are essential to Plaintiffs’ cases, and 3) these facts are not available through any
alternative source or less burdensome means, including deposition by written questions.
All of the proposed deponents have personal knowledge of claims relevant to the
Steinhauser, Harrilal and Gallagher law suits and therefore they do not enjoy immunity from
being deposed. They do, in fact, have information that “is relevant to the claim or defense of
any party.” Fed. R. Civ. P. 26(b)(1)(2006).
Finally, it has been the Defendants themselves that have noted to Plaintiffs and the
Court in Defendants’ Rule 26(a)(1)(a) Report, that former Mayor Randy Kelly, Marcia
Moermond and Maureen Dolan are individuals with knowledge.
ANALYSIS
STANDARD OF REVIEW
Rule 26(c) of the Federal Rules of Evidence grants the trial court broad discretion in
determining motions for protective orders in discovery matters before the Court. Fed.R.Civ.P.
26 (c) (West 2007). The Court may issue a protective order in order to “protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,”. Id.
Plaintiffs submit that Defendants have not shown “good cause” that would require the Court
to grant Defendants’ motion for a protective order.
ARGUMENT
I. Former Mayor Randy Kelly and Council Members Kathy Lantry and Dave Thune.
Former Mayor Randy Kelly and City Council Members Kathy Lantry and Dave Thune
are not immune from oral depositions. Plaintiffs are not seeking information from these
officials that is protected by any privilege, including legislative privilege. Each of these
officials has personal knowledge of relevant information that is essential to Plaintiffs’ claims
and this information cannot be readily obtained from another less intrusive source.
In Stone’s Auto Mart, Inc. v. St. Paul, 721 F. Supp. 206 (D. Minn. 1989), the
Minnesota District Court, held that: (1) city council members were not entitled to legislative
immunity, and (2) the motivation of city council members was discoverable, but discovery
was to be restricted. In Stone’s Auto Mart, Defendants requested an order prohibiting
discovery into the motivations of defendant council members. The Court stated that: “The
motivation of the council members is precisely what is at issue and, therefore, is
discoverable.” 721 F. Supp. at 211(citing Martin v. D.C. Metropolitan Police Department,
812 F.2d 1425,1433 (D.C.Cir.1987) ("where intent ... [is] an essential element of plaintiff's
claim, plaintiff must be afforded an opportunity to overcome an asserted immunity with an
offer of proof of the defendant's alleged unconstitutional purpose")). The court in Stone’s
Auto Mart required the plaintiffs to support their allegations with evidence before the
depositions would be allowed. Here, evidentiary support for the court allowing the
depositions of the subject officials can be found in the supporting affidavit of Plaintiffs’
counsel. Plaintiffs are not seeking privileged information or the thought processes of Council
members Lantry and Thune related to their performance of legislative duties as City Council
Members. Plaintiffs are seeking an oral deposition of Council members Lantry and Thune
concerning facts they have personal knowledge of and which are relevant to Plaintiffs’ claims
that the Defendant City intentionally targeted their low-income rental properties with adverse code enforcement operations while at the same time allowed a preferential code enforcement
standard to apply to the City’s Public Housing Agency rental properties and to City officials’
properties.
The Minnesota Court of Appeals in Zeman vs. City of Minneapolis reviewed the entry
of a protective order by the district court related to a Minneapolis City Council Member, and
stated that:
It also appears from the record that, in issuing the protective order, the district court
did not consider the issue of the alleged personal animosity between Zeman and
Council Member Cherryhomes. The question of whether the city's action was
motivated by personal or political animus is relevant to Zeman's substantive due
process claim.
Zeman vs. City of Minneapolis, 540 N.W.2d 532, 538 (Minn. Ct. App. 1995).
Here, as in Zeman, the Plaintiffs’ have due process claims that the city’s action was
motivated by personal or political animus, among other reasons, which is relevant to the
Plaintiffs’ claims.
The Plaintiff’s claims in the lawsuits involve civil rights, as was the case in Stone’s
Auto Mart, as well as fair housing and other constitutional, federal and state law claims. In
addition, Defendants are using immunity as a defense in this case. “Qualified immunity
shields government officials performing discretionary functions from civil liability ‘insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Stone’s Auto Mart at 210 (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982)).
Here, Plaintiffs claim that Defendants’ conduct violated clearly established statutory or
constitutional rights. Depositions of each of the subject individuals are necessary as part of
the Plaintiffs’ claims.
Citizen Service Office Audit Report 2000 – Code Enforcement
Officials and Employees Subject to Political Influence
In 1996, the St. Paul City Council established the Performance Audit Program to help
the Council fulfill its legislative oversight and budgetary responsibilities. See Engel Aff.
Exhibit A, Performance Audit of the City of Saint Paul’s Citizen Service Office, 2000, Bates
Nos. 043207, page 1. The Council directed Council Research to conduct performance audits
of City operations. In the year 2000, Council Research conducted a performance audit of the
City’s Citizen Service Office (“CSO”) consisting of four divisions including Code
Enforcement. See Engel Aff. Exhibit A, CSO Performance Audit, p. 1. As part of the
performance audit, Council Research audit members administered a written survey to 72
percent of the CSO staff members, conducted 20 interviews of CSO staff, and participated in a
ride-along with inspectors to gain first-hand knowledge of how inspections were conducted.
See Engel Aff. Exhibit A, CSO Performance Audit, p. 3. The CSO Audit report noted that
code enforcement “work is often influenced by political decisions” (CSO Audit, p. 51), and
that, “It was frequently mentioned by senior leaders and front-line staff that the CSO is
vulnerable to political pressures.” See Engel Aff. Exhibit A, CSO Audit, p. 60. Council
Research staff further stated that, “Several respondents reported that Councilmembers, the
Mayor’s Office and the media have a tremendous influence over the practices and plans of
CSO.” Council Research auditors noted, “Although it is entirely appropriate for these parties
to take a keen interest [in] the operations of government agencies, many front-line employees
claimed this involvement was overly meddlesome and was often motivated by something
other than the public good.” Id. See Engel Aff. Exhibit A, “Summary of Findings,” p. 62,
No. 4, “Code Enforcement seems particularly susceptible to outside influences from sources
such as City Council, Mayor and the media.” See also, Code Enforcement Organizational
Chart, p. 26, CSO Audit.
a. Former Mayor Randy Kelly.
The Court should allow Plaintiffs to take the oral deposition of former Mayor Kelly
because he has given directives to code enforcement officials and employees on certain
properties in the City during the time relevant to Plaintiffs’ claims and because he has
personal knowledge of the political influence exerted on code enforcement officials and
inspectors in code enforcement operations directed against low-income rental property owners
and other property owners in the City and against “protected class” occupants of properties in
the City.
In a particularly egregious case, Mayor Kelly gave direct orders to Andy Dawkins to
have inspectors “write up everything” on a home owned by a disabled Hispanic woman who
had suffered a couple of heart attacks and possibly two strokes. See Engel Aff. Exhibit E,
Schiller deposition, pp.110-123. Inspector Schiller stated that there were properties in the
neighborhood with similar conditions as the disabled woman’s property (Schiller deposition,
p. 116), and properties in worse shape than hers. Schiller deposition, p. 116-17. A few months
after the code enforcement orders, Inspector Schiller says the disabled woman died (Schiller
deposition, p. 115) and shortly thereafter with the City code enforcement orders still in effect,
her boyfriend committed suicide. Schiller deposition, pp. 120-122. Inspector Schiller
testified that it is his belief that a neighbor, an aid to Councilmember Thune made the
complaint against the disabled homeowner. Schiller deposition, p. 113. Schiller testified that
Mayor Kelly fabricated a story against the homeowner in order to justify the complaints and
code enforcement attacks against the disabled home owner (Schiller deposition, pp. 110-113)
and that Mayor Kelly wanted the orders issued and brought downtown the next day. Schiller
deposition, p. 114-115.
Inspectors have provided deposition testimony concerning a city code enforcement tour
with the Mayor Kelly and neighborhood activists to observe the condition of certain properties
located on the East side of the City (See Engel Aff. Exhibit B, Inspector Harold Robinson,
deposition pp. 82-86; See Engel Aff. Exhibit C, Inspector Tom Friel depo at p. 193-197).
Other deposition testimony has established Mayor Kelly’s inspection standard for inspectors
to “call everything” (Robinson, deposition pp. 80; Schiller Deposition, p. 115; See Engel Aff.
Exhibit D, Dawkins’ deposition p. 277), and to issue criminal citations every time any code
violation was observed by an inspector (Dawkins’ deposition p. 116).
Inspector Robinson testified concerning the Mayor Kelly code enforcement tour that,
“these particular ladies are, in my mind and a lot of inspectors’ minds, and our directors – they
are unreasonable. Robinson deposition, p. 86. They want us to enforce things that aren’t even
violations. And the thing is, they get the ear of the politicians and we have no defense.”
Robinson deposition, p. 86.
Inspector Harold Robinson testified that Mayor Kelly “was a micro manager,”
Robinson deposition, p. 137, and that Mayor Kelly wanted to use the City’s paint ordinance
on exterior of homes in the City as an aesthetics ordinance when the ordinance was in fact
intended to protect the wood surfaces of houses. Robinson deposition, p. 201.
These facts show that Former Mayor Kelly should be deposed because he has given
directives on certain properties, including where a “protected class” disabled occupant lived,
and because he has personal knowledge of the political influence on code enforcement
activities in the City during his administration.
At a meeting of the St. Paul Association of Responsible Landlords held on October 23,
2003, Mayor Kelly was asked, “Why are you coming into places when the tenant doesn’t want
you there and citing minor things and just condemning the buildings. I don’t think that is fair
and what happens if I don’t let you into my house?” “In a loud and threatening voice,
Defendant Mayor Kelly said, “You will comply”. See Steinhauser, et al. Third Amended
Complaint, Paragraph No. 197; see also Harrilal, et al. Second Amended Complaint,
Paragraph No. 79.
Mayor Kelly continued the long-standing preferential code enforcement standard the
City has applied to Public Housing Agency scattered site, single family and duplex homes for
over a decade. During Mayor Kelly’s term, even though PHA owned 450 homes in the City
and was renting to “protected class” tenants, PHA homes were not subjected to the targeted code enforcement operations that Mayor Kelly directed against the private rental property
owners. No PHA homes have been condemned, or forced to go through expensive
renovations in the full code compliance process.
This evidence discussed detailed herein shows that Mayor Kelly has personal
knowledge of facts and circumstances surrounding the preferential treatment in code
enforcement which are essential elements of Plaintiffs’ claims under Fair Housing, Sections
1982, 1982 and 1983, and other claims in the Plaintiffs’ complaints. The evidence Plaintiffs
have outlined herein goes directly to the motivation and intent of Mayor Kelly as a former
official of the City to discriminatorily target “protected class” members in the City as well as Plaintiffs and others providing “protected class” tenants with housing in the City. The
evidence of intent is an essential element of Plaintiffs’ claims under Fair Housing and
Sections 1981, 1982 and 1983.
Given the evidence above, Kelly is not immune from deposition, information protected
by privilege is not being sought, and because he has personal knowledge of relevant
information which cannot be readily obtained from another less intrusive source, Kelly should
be subject to deposition by oral examination.
b. Council Member Kathy Lantry.
Andy Dawkins, Former Director of Neighborhood Housing and Property Improvement
(“N.H.P.I.”), testified that in the second hour of his first day on the job as the Director,
Council Member Lantry showed up in his office with a list of “problem properties” for code
enforcement. See Engel Aff. Exhibit D, Dawkins’ deposition pp. 147, 276. Andy Dawkins testified that Mr. Steinhauser’s 910 6th Street low-income rental property was on
Councilmember Lantry’s list the first day she came to his office. Dawkins deposition, pp.
146-47.
Plaintiff Steinhauser’s Affidavit sets forth his claims about Council Member Lantry’s
personal or political animus toward him. See Engel Aff. Exhibit F. Mr. Steinhauser states
that Councilmember Kathy Lantry has had it in for him as a low-income landlord in St. Paul
since 1998, and that she has known for 6 years that he rents primarily to low-income African-
Americans. See Engel Aff. Exhibit F, Paragraph 2. Prior to the City’s targeting Mr.
Steinhauser’s low-income rental properties with illegal code enforcement under the direction
of Andy Dawkins, Councilmember Lantry frequently called Mr. Steinhauser to tell him that
neighbors of his rental properties were complaining about his tenants. Id. Councilmember
Lantry told Mr. Steinhauser that he was single handedly destroying the property values in the
neighborhoods where those rental properties were located. Id.
Prior to Mr. Dawkins taking over code enforcement in the City in 2002, Mr.
Steinhauser’s and his attorney Patricia Whitney attended a meeting with Councilmember
Lantry at her office. Steinhauser Affidavit, Paragraph 3. At that time, Councilmember
Lantry commented about Mr. Steinhauser’s tenant at his 910 6th Street East rental property.
Councilmember Lantry said that she didn’t understand why he would even rent to someone
like that who had been convicted of a felony five years before. The tenant was an African
American family with children. Id. On another occasion, Councilmember Lantry told Mr.
Steinhauser’s attorney, Ms. Whitney, that Ms. Lantry thought he must be on drugs. Id. at paragraph 4. Mr. Steinhauser states that Councilmember Lantry told Bill Cullen, a St. Paul
landlord, and President of St. Paul Association of Responsible Landlords, that Mr. Steinhauser
was a problem landlord who was not doing his job and that he was the kind of landlord the
City did not want in the City. Id. at paragraph 5.
In another example of Councilmember Lantry’s “hands on” control over code
enforcement in the City, documents discovered by the Plaintiffs during searches of City
records reveal that Councilmember Lantry and her staff were instrumental in the
condemnation of a four-plex apartment building located on the East side during 2004. The
Four-plex was owned by an African-American couple and solely occupied by “protected
class” tenants. The four-plex had received a certificate of occupancy from Inspector Pat Fish
of the City’s Fire Prevention office in early 2004. Shortly thereafter, through neighbor
pressure on Councilmember Lantry and her staff, Inspector Fish condemned the apartment for
over crowding and removed the certificate of occupancy. The occupants were forced to leave
their homes. Council Member Lantry corresponded via email with neighbors about the
property owners selling their properties and neighbors emailed Lantry’s staff about putting the
owner in the corner so she would sell the apartment. See Engel Aff. Exhibit H. In August
2004, Council Member Lantry received a letter from a legal aid attorney Perry DeStefano,
representing the caretaker, and brother of the owner, providing Councilmember Lantry with
notice of illegal discriminatory conduct by the City’s code enforcement office, fraud or
misrepresentation in the City process of condemning the unit, and the resulting discriminatory
impact on “protected class” members. See Engel Aff. Exhibit G. Attorney DeStefano claimed that the neighbors were making unfounded complaints against the minority tenants.
After the building was condemned, Councilmember Lantry attempted to convince the African-
American owners to sell their building. See Engel Aff. Exhibit H.
Council Member Lantry would accompany code enforcement officers on city tours of
properties to discuss code enforcement. See Robinson deposition, pp. 89-93. City council
members would call up inspectors directly and ask an inspector to inspect a property.
Robinson deposition, p. 90-91. This occurred before and after Andy Dawkins became director
of N.H.P.I. Robinson Deposition, p. 90-91.
Plaintiffs are not seeking to take the oral deposition of Council member Lantry in order
to obtain information about thought processes or discretionary acts related to Councilmember
Lantry’s legislative role with the City Council. The evidence Plaintiffs have outlined herein
goes directly to the motivation and intent of the officials of the City to discriminatorily target
Plaintiffs and others providing “protected class” tenants with housing in the City. The
evidence of intent is an essential element of Plaintiffs’ claims under Fair Housing and
Sections 1981, 1982 and 1983.
Given the evidence above, Council Member Lantry is not immune from deposition,
information protected by privilege is not being sought, and because she has personal
knowledge of information of a substantial need which cannot be readily obtained from another
less intrusive source, Council Member Lantry should be subject to deposition by oral
examination.
c. Council Member Dave Thune.
Council Member Dave Thune is a residential and commercial property owner and
landlord in the City of St. Paul with properties located at 26 Irvine Park and 943 West 7th.
Council Member Thune’s properties have a history of multiple housing code violations and
preferential code enforcement. See Engel Aff. Exhibit I, correction orders, and Engel Aff.
Exhibit J, photographs.
Council Member Thune directed the Housing Information Office until shortly before
the Defendants started targeting Plaintiffs and other landlords. The Housing Information
Office (“HIO”) was responsible for assisting tenants who were displaced from housing in the
City. Plaintiffs seek to depose Councilmember Thune concerning his knowledge of the HIO
and its activities prior to the targeting of Plaintiffs and concerning his role in the Dayton’s
Bluff Code Enforcement project that he was instrumental in during his leadership of HIO.
Displacement of tenants in the City due to code enforcement operations, including through
forced renovations and police-code enforcement coordinated raids on rental properties is
relevant to Plaintiffs’ claims.
Code enforcement inspectors testified in their depositions that they would get
complaints from the city council office, specifically Council Member Thune or his aide, Barb
Benson and from Council Member Lantry. See depositions of Inspectors Schiller, Robinson
listed above.
When the issue of preferential code enforcement treatment came to public light in 2005
through media outlets, Council Member Thune submitted comments to a web-site regarding the nature of his properties, his claimed repair history and the fact that he had not received
preferential code enforcement treatment on his properties. See Engel Aff. Exhibit K.
Nevertheless, the photographs of Thune’s properties do demonstrate long-standing code
violations in those properties.
Plaintiffs recently requested from the City’s Fire Prevention office, code enforcement
documentation on Thune’s rental and commercial property. These documents include two
separate code enforcement notices addressed to Council Member Thune in 2001. However,
these code notices may not have actually been sent to Councilmember Thune in 2001 but
actually created four years later when the political fire storm over his properties spread across
the City. The dates on the cover pages of each letter are in the year 2001. However, the
second page of both of the inspection letters from the Fire Prevention office show dates in
2005. Copies of these documents were requested on two separate occasions, most recently in
December of 2006, and both produced sets of code letters are identical. See Engel Aff.
Exhibit L.
The evidence demonstrates that Council Member Thune has personal knowledge of
facts and circumstances surrounding the preferential treatment in code enforcement in the
City, essential elements of Plaintiffs’ claims under Fair Housing, Sections 1982, 1982 and
1983, illegal monopoly and antitrust. Plaintiffs are not seeking information about Council
Member Thune’s thought processes or discretionary acts as it relates to his legislative role in
the City Council.
Given the evidence above, Council Member Thune is not immune from deposition, information protected by privilege is not being sought, and because he has personal
knowledge of relevant information which cannot be readily obtained from another less
intrusive source, Council Member Thune should be subject to deposition by oral examination.
Overall, in cases cited by Defendants in support of their position, the courts look for
evidence to substantiate the need to depose high ranking officials. The evidence presented
above is direct evidence and more than unsubstantiated hearsay and is essential to Plaintiffs’
cases. See Warzon v. Drew, 155 F. R. D. 183, 186 (E.D.Wis.1994) (Aside from
unsubstantiated hearsay, Ms. Warzon has not produced any evidence to the contrary, and that
Ms. Warzon has been unable to obtain any direct evidence to corroborate her ‘deal’ theory
does not entitle her to interrogate the Governor and the Secretary); see also Sweeney v.
Bond, 669 F.2d 542, 546 (8th Cir. 1982) (Plaintiffs failed to show that Governor Bond
possessed information which was essential to plaintiffs' case and which could not be obtained
from Director James or other staff members).
Unlike the Warzon and Sweeney, Plaintiffs here have much more than unsubstantiated
hearsay; there is direct evidence, emails, letters, photographs, rental property ownership, and
testimony of fellow city employees, showing that each of the subject officials has personal
knowledge of issues surrounding Plaintiffs’ claims.
The deponents’ personal knowledge of code enforcement, discussions with code
enforcement, referrals to code enforcement, orders from code enforcement, orders to code
enforcement, discussing sales of property, and prior knowledge of discriminatory actions in
code enforcement, are all essential to Plaintiffs’ claims.
II. Legislative Hearing Officer Moermond and Assistant City Attorney Dolan.
Legislative Hearing Officer Marcia Moermond and Assistant City Attorney Maureen
Dolan are subject to oral deposition because they are not immune from deposition, the
information sought is not protected by privilege and they have personal knowledge of relevant
information.
Plaintiffs are not seeking the decision making process of Moermond or Dolan in
denying Steinhauser’s appeal or the decision making processes, impressions, conclusions,
opinions or legal theories of Dolan in bringing TRA’s.
The lawsuits before us are unlike the McGoldrick vs. Koch, 110 F.R.D. 153 (S.D.NY.
1986), case cited by counsel for Defendants. In McGoldrick, “The plaintiffs [replied] that
they have no interest in the thought processes of departmental personnel; rather, they are
seeking evidence of communications among the hearing officer, the prosecutor, and other
departmental employees which would show that the process was tainted by considerations of
politics or public relations.” McGoldrick , 110 F.R.D. at 155.
Further, the court in McGoldrick stated: “Nevertheless, where a party has made a
prima facie showing that the decision by an agency or a judicial officer is tainted by
impropriety, the decision-making process may be an appropriate subject of inquiry.” Id.
However, in denying the plaintiff’s deposition request, the court in McGoldrick stated that:
“Such general allegations, however, will not justify intrusion into the mental processes of a
hearing officer.” Id. at 156.
Like McGoldrick, Plaintiffs here are also interested in this type of information – communications among departmental employees and decisions tainted by impropriety. Unlike
McGoldrick, Plaintiffs have evidence from city produced documents with specific examples.
There are other situations discussed in McGoldrick where oral depositions were
allowed, specifically, where an individual was involved in the role of an investigator. The
Court in McGoldrick, stated that, “it is proper for plaintiffs to examine him concerning any
communications he may have had within the Department concerning the disciplinary
proceedings against the plaintiffs… plaintiffs may take an oral deposition of Captain
Frances”. Id. The Court noted that in the role as a participant in the disciplinary
proceedings “he could well have been provided with information relevant to the instant action
which was not contained in the hearing record. The Court allowed plaintiffs to proceed with
the oral deposition. Id. at 157.
a. Legislative Hearing Officer Marcia Moermond.
Marcia Moermond was involved as an investigator for the Chronic Problem Property
Report published in March 2002. Dawkins has testified that Ms. Moermond, in her role as a
council research staff member, had a role in two of the chronic problem property lists, “A and
B lists.” Dawkins deposition pp. 67-68. Certain of the Plaintiffs’ properties were on problem
property lists maintained by the City and others.
Ms. Moermond also conducted interviews with all of the City and district council staff
who worked with owners and occupants of the chronic problem properties, as well as the
neighbors affected by the problems. See Engel Aff. Exhibit M, Chronic Problem Property
Report, Bates 40007, p. 10 (hereinafter, “CPP Report”).
Ms. Moermond and other Council Research staff had the opportunity to accompany
various inspectors and enforcement agents in the field on numerous occasions and
accompanied the FORCE unit of City’s Police Department on execution of search warrants.
Id.
Most importantly to Plaintiffs’ claims, Ms. Moermond and fellow researchers noted
elements of racism against certain occupants of properties in the City. Four areas of the
Report (case studies) are particularly troubling including the notation by Ms. Moermond and
staff that, “the County conducted an assessment [at the subject problem property]” and “[t]hat
assessment suggested a large part of the problem was due to the racist attitudes of the
neighbors.” Report, p. 34.
A second case study in the CCP Report noted, “This is compounded by cultural and
race-based conflicts between the white neighbors and the black tenants.” CCP Report, p. 42.
The CCP Report further states, “Some neighbors have pledged themselves to drive these
“undesirables” out of the neighborhood and call the police at every opportunity.” Id. “There
seems to be a racist element to the conflict at the property.” Id.
The CCP report cites a third example (case study) of a racial element to complaints at
another study property: “Because of their behavior, and possibly also because of their race,
they are not welcome in the neighborhood.” CCP Report, p. 54.
A fourth case study noted that, “the behavior of a neighbor further complicates the
situation at this address.” CCP Report, p. 58. “She is thought by staff to be a mentally ill
individual who is overly sensitive and racist.” Id. “She reportedly has an avowed hatred of black people and was determined to force them out of the neighborhood.” Id.
Finally, the CCP Report makes frequent use of derogatory terms to describe occupants
of so called, “chronic problem properties” including “Down ‘n Out,” and “undesirables”.
CCP Report, p. 44. The Council Research staff stated on a case study they labeled, “Down ‘n
Out” that, “the thing that made this a chronic problem was its use as a rooming house for
marginal “down and out” characters in the midst of a residential neighborhood of mostly one
and two-unit residences.” CCP Report, p. 37. The CCP Report also uses the derogatory terms
of “bottom of the barrel” tenants. CCP Report, p. 102.
Ms. Moermond, as a City Council legislative hearing officer hears legislative appeals
from property owners in the City. Property owners have complained that the hearing process
administered by Ms. Moermond is a “sham” and only purpose to support the “already-made
decision”. See Engel Aff. Exhibit N, legislative hearing minutes.
Ms. Moermond has attempted to entice property owners to get code compliance
inspections on their property falsely claiming that such an inspection is cheaper than an
inspection under the City’s Truth in Sale of Housing (“TISH”) program. Id. In reality,
having a code compliance inspection on an older home is considerably more expensive in that
a code compliance actually requires substantially renovations that most property owners can
ill afford. Ms. Moermond’s efforts to get properties into the code compliance system would
appear to serve the City’s interest in fee generation through the vacant building registrations
and permit fees. Plaintiffs claim that the City’s code compliances increase the costs for
property owners and thereby reduces affordable housing for low income tenants.
Ms. Moermond has demonstrated her ill will toward Plaintiff Steve Johnson and
another low-income “protected class” landlord, Ken Johnson, by making public, defamatory
statements about the Johnson brothers and their rental properties shortly after having them
escorted from her hearing room in June 2004. The audio tape of the June 22, 2004, hearing
attended by the Johnson brothers on an appeal of code enforcement orders on 405 East
Jessamine, contains statements Ms. Moermond made to the property owners who continued to
remain in her hearing room after the Johnson brothers had been escorted from the room,
“They are in here every week – what’s a person to do – They own twenty to twenty-five
properties that are all really bad – I see these guys like once a week – what ya goin to do?”
These statements were false and demonstrate Ms. Moermond’s animosity toward the Johnson
brothers. This audio tape is in the possession of counsel. The hearing notes or minutes do not
include the statements made by Ms. Moermond as set forth herein.
b. Assistant City Attorney Maureen Dolan.
Maureen Dolan was a member of the Problem Property Unit and has information
related to the workings of that unit as it affected Plaintiffs. Ms. Dolan attended field
inspections as well and has personal knowledge related to the facts of those inspections and
conversations that occurred during those inspections. Ms. Dolan has misrepresented the
nature of code compliance during City initiated tenant remedy cases against Plaintiffs, using
the term “as built,” in a conspiracy to get property owners into code compliance.
Given the evidence above, Moermond and Dolan are not immune from deposition,
information protected by privilege is not being sought, and because they have personal knowledge of relevant information which cannot be readily obtained from another less
intrusive source, Moermond and Dolan should be subject to deposition by oral examination.
III. The information sought from the disputed deponents is essential to Plaintiffs’ cases.
The information sought from the disputed deponents is essential to the Plaintiffs’
claims which involve racially discriminatory intent, including the Federal Fair Housing Act,
Equal Protection, and Civil Rights violations under 46 U.S.C. Sections 1981, 1982 and 1983.
Proper inquiry into discriminatory intent was discussed in Village of Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555 (1977), in which the
Supreme Court stated: “The foregoing summary identifies, without purporting to be
exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent
existed.”
The Courts’ summary included the following cases and analysis regarding
discriminatory intent:
Our decision last Term in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976), made it clear that official action will not be held unconstitutional
solely because it results in a racially disproportionate impact. “Disproportionate impact
is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.”
Id., at 242, 96 S.Ct., at 2049. Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause. Id at 265 (emphasis
added).
Davis does not require a plaintiff to prove that the challenged action rested solely on
racially discriminatory purposes. Rarely can it be said that a legislature or
administrative body operating under a broad mandate made a decision motivated solely
by a single concern, or even that a particular purpose was the “dominant” or “primary”
one. In fact, it is because legislators and administrators are properly concerned with
balancing numerous competing considerations that courts refrain from reviewing the
merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a
discriminatory purpose has been a motivating factor in the decision, this judicial
deference is no longer justified. Id at 265-266 (emphasis added).
Determining whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct evidence of intent as
may be available. The impact of the official action whether it “bears more heavily on
one race than another,” Washington v. Davis, supra, 426 U.S., at 242, 96 S.Ct., at 2049
may provide an important starting point. Sometimes a clear pattern, unexplainable on
grounds other than race, emerges from the effect of the state action even when the
governing legislation appears neutral on its face (citations omitted). Id at 266
(emphasis added).
Departures from the normal procedural sequence also might afford evidence that improper
purposes are playing a role. Substantive departures too may be relevant, particularly if the
factors usually considered important by the decision maker strongly favor a decision contrary
to the one reached. Id at 267 (emphasis added).
Plaintiffs herein must show direct and/or circumstantial evidence of discriminatory
intent. Oral depositions of the disputed deponents is essential to further develop the existing
evidence and to gather further evidence of direct or circumstantial evidence of the
discriminatory intent of the defendants.
a. Depositions Upon Written Questions.
Defendants’ counsel avers to the use of depositions upon written questions. Plaintiffs’
counsel reject the idea of using depositions upon written question given the complexity of the
evidence involved and the personal knowledge of the deponents and the need for follow-up
questions and the spontaneity that oral depositions provides to counsel. The use of
depositions upon written questions is not widely used. Herr and Haydock have the following
to say about depositions upon written questions:
This discovery device is not widely used but may have a place in the overall discovery
process. Written deposition questions can be particularly useful in obtaining
information from a person who lives some distance from the site of the lawsuit or who
cannot attend an oral deposition because of poor health. Telephone depositions have
replaced much of the need for a Rule 31 deposition.
1A Minn. Prac., Civil Rules Annotated R 31 (4th ed.)
With the exception of Mayor Kelly, who may now be in Washington, D.C., all of the
other individuals reside in or near St. Paul, and do not seem to be prohibited from oral
deposition because of poor health. With respect to Mayor Kelly, if he is no longer in the Twin
Cities, it is possible to take a deposition by telephone, as suggested by Herr and Haydock, if
attorney travel is not warranted.
Herr and Haydock make the following additional comments about the lack of
effectiveness of depositions upon written questions:
Other discovery devices, including an oral deposition, may be employed after the
responses to the written questions have been made to obtain further necessary
information. Written question depositions do have substantial limitations which
restrict their use in many cases. Preparation of the questions may take a significant
amount of time. There exists no flexibility for redrafting the questions after they have
been asked. The discovery format is not adaptable to depositions involving subjective
information or facts dependent upon the demeanor and credibility of a deponent. The
witness may have access to the questions before the deposition, eliminating the
opportunity to obtain spontaneous responses.
Id.
From a procedural standpoint, in comparing the Federal and Minnesota Rule 31, Herr
and Haydock stated:
Minnesota Rule 31 is identical to Federal Rule 31 with the difference that the federal
rule requires leave of court to take the Rule 31 deposition if more than ten depositions
have been taken in a case or if a party seeks to take a Rule 31 deposition before the
federally required discovery conference under Rule 26. Federal cases are of persuasive, precedential effect. Few federal cases have been reported interpreting Rule 31 because
it has not been widely used.
Id.
b. Attorney Fees and Costs.
Given the evidence discussed above and the attached exhibits to counsel’s affidavits,
Plaintiffs are substantially justified in their insistence that the disputed deponents be deposed,
and attorney fees are not warranted. Other than the Zeman case, all of the cases used by
Plaintiffs to support their position were cited by Defendants’ counsel in her memorandum.
Further, common practice and commentary cited above by Herr and Haydock shows
that using deposition upon written question is an ineffective method for obtaining further
necessary information because written question depositions do have substantial limitations
which restrict their use in many cases, including no flexibility for redrafting the questions
after they have been asked and eliminating the opportunity to obtain spontaneous responses.
CONCLUSION
Oral depositions of the subject officials and employees are appropriate. The
information sought by Plaintiffs from former Mayor Kelly, Council Members Lantry and
Thune, Marcia Moermond and Maureen Dolan is not of a general nature but relates to relevant
facts directly supporting many of Plaintiffs’ claims. These individuals have specific personal
knowledge of facts directly relevant to Plaintiffs’ claims. Oral depositions of these
individuals will likely lead to the discovery of admissible evidence that is essential to
Plaintiffs’ claims. The evidence sought to be developed from these individuals is not available through any alternative source or less burdensome means.
Plaintiffs request the Court to deny the Defendants’ motion for a protective order.
Respectfully submitted,
THE ENGEL FIRM, PLLC
Dated: January 15, 2007 By: s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) (Deleted by Bob)
F: (763) (Deleted by Bob)
Attorney for Plaintiffs Gallagher, et. al.
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: January 15, 2007 By: s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) (deleted by Bob)
Attorneys for Plaintiffs Steinhauser, et. al.
Attorneys for Plaintiffs Harrilal, et. al.
L:\Clients\1005\Litigation\City of St. Paul - 1005.2\Pleadings\0701 Memo in response to motion for protective order - D5 (MAE).doc
If this shit is true, the FBI will be after them when the landlords are done with them. This crap is criminal for the pete sakes! How can the city council be working behind the scenes with code enforcement people and neighbors to make an owner sell a property? Then they are falsifying records regarding inspections? I hope they all go ot jail!
If the city was smart they would have settled thing and gotten rid of it when they could stick it on Dawkins and Kelly. Now it's gonna to stick to them!
There's nothing ever going to stick to these politicians. They are too crafty for that. They'll find someone at the bottom and set them up to take the fall, all the while denying any resonsibility.
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