A DEMOCRACY TOWN HALL: Dearmore v. City of Garland/ Should housing inspection end now?

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Saturday, June 07, 2008

Dearmore v. City of Garland/ Should housing inspection end now?

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36 Comments:

Bob said...: There maybe copy errors.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11007
ROY DEARMORE, Individually and as Representative of all
Owners of Single Family Residential Property in Garland,
Texas; A C BLAIR, Individually and as Representative of all
Property Managers in Garland, Texas; MARIE COMBS,
Individually and as Representative of all Tenants of Single
Family Residential Property in Garland, TX
Plaintiffs-Appellees
v.
CITY OF GARLAND
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Defendant-Appellant City of Garland (“the City”) appeals from the district
court’s order awarding attorney’s fees to Plaintiffs-Appellees Roy Dearmore, A.C.
Blair, and Marie Combs (collectively “Dearmore”), under 42 U.S.C. § 1988(b).
This statute authorizes an award of attorney’s fees to a “prevailing party” in an
action to enforce the provisions of certain federal statutes, including 42 U.S.C.
§ 1983. The City also appeals from the district court’s order denying its motion
to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Because we conclude that Dearmore is a prevailing party and the district court
committed no reversible error in its Rule 59(e) order, we affirm.
I. FACTS AND PROCEEDINGS
On June 16, 2005, Dearmore filed a complaint against the City under 42
U.S.C. § 1983, challenging the constitutionality of Garland City Ordinance No.
5895 (“the Ordinance”), which related to the maintenance of rental properties in
the City. The complaint alleged that various minimum housing standards and
inspection procedures contained in the Ordinance violated the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution. That same day,
Dearmore filed a motion for a temporary restraining order, seeking to enjoin the
City from enforcing the Ordinance.
On June 28, 2005, the district court denied Dearmore’s motion for a
temporary restraining order. In response, on July 1, 2005, Dearmore filed an
amended motion for a temporary restraining order and a motion to reconsider
its denial of the temporary restraining order, or in the alternative, a request for
an expedited preliminary injunction hearing. On July 6, 2005, the City filed a
motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss
Dearmore’s complaint for failure to state a claim. Thereafter, Dearmore
amended his complaint and removed his Fifth and Fourteenth Amendment
takings and due process claims. Thus, Dearmore’s amended complaint alleged
only that the Ordinance authorized warrantless searches of private homes, failed
to provide a mechanism to notify tenants, property owners, or property
managers of their right to refuse a search, and required applicants to disclose
personal information, all in violation of the Fourth and Fourteenth
Amendments. Dearmore’s amended complaint sought a declaratory judgment,
injunctive relief, and attorney’s fees and costs.
On November 3, 2005, the district court granted Dearmore’s motion for a
preliminary injunction.1 In its order, the district court held that in so far as the
Ordinance allowed inspections and searches of unoccupied property, it violated
a property owner’s Fourth Amendment right to be free from unreasonable
searches and seizures. As a result, the district court issued a preliminary
injunction enjoining the City from enforcing section 32.09(F) of the Ordinance,
which required a property owner who rents or leases a single-family dwelling to
allow an inspection of the rental property as a condition of issuing a permit, or
penalizes the lessor for refusing to allow an inspection.2 The district court also
dismissed Dearmore’s other Fourth Amendment claims. On the same date, the
district court issued a scheduling order establishing discovery deadlines and
setting the case for trial on October 2, 2006.
Following the issuance of these orders on November 3, 2005, counsel for
the City informed counsel for Dearmore that he did not need to post the bond
necessary to enforce the preliminary injunction because the City planned to
amend the Ordinance to address the district court’s order. On November 15,
2005, the Garland City Council amended the Ordinance, removing the provisions
related to a nonresident owner’s consent to the inspection of single-family rental
properties and clarifying the circumstances under which the City may seek a
warrant to inspect such properties when consent has been refused or could not be obtained. The City notified the district court of this amendment and filed a
motion to dismiss Dearmore’s action as moot, which Dearmore did not oppose.
On November 30, 2005, the district court granted the City’s motion and entered
final judgment dismissing the case as moot and with prejudice. The order
granting this motion found that Dearmore was a “prevailing party” and awarded
him attorney’s fees and costs under 42 U.S.C. § 1988(b).
On December 12, 2005, the City filed a motion to alter or amend judgment
pursuant to Rule 59(e), requesting that the district court not designate
Dearmore as a prevailing party and asking that the court re-tax costs against
the parties incurring them. On December 13, 2005, Dearmore filed a motion for
attorney’s fees pursuant to Rule 54(d)(2). On August 29, 2006, the district court
denied the City’s motion to alter or amend judgment. On September 6, 2006,
following a stipulation by the parties as to the amount of fees only, the district
court granted Dearmore’s motion for attorney’s fees. The City appeals both
rulings.
II. STANDARD OF REVIEW
The district court has broad discretion to award attorney’s fees under
§ 1988(b). See Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000). In
evaluating whether the district court abused its discretion to award attorney’s
fees, this Court reviews the factual findings supporting the grant or denial of
attorney’s fees for clear error and the conclusions of law underlying the award
de novo. Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th Cir.
2006). “[T]he characterization of prevailing-party status for awards under feeshifting
statutes such as § 1988 is a legal question subject to de novo review.”
Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005). The denial of a motion to alter or amend judgment under Rule 59(e) is reviewed for abuse of discretion.
Molina v. Equistar Chems. LP, No. 06-41574, 2008 WL 104077, at *2 (5th Cir.
Jan. 10, 2008) (unpublished). “However, to the extent that a ruling was a
reconsideration of a question of law . . . the standard of review is de novo.” Id.
(internal quotations omitted). This appeal presents a question of law that is
reviewed de novo.
III. DISCUSSION
In § 1988(b), Congress created an exception to the “American Rule” that
litigants pay for their own attorney’s fees. See Sole v. Wyner, 127 S. Ct. 2188,
2191 (2007); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598, 602 (2001). This section provides that “the court, in
its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). This appeal
presents an issue of first impression in this Circuit: Whether a plaintiff qualifies
as a “prevailing party” under § 1988(b) when he obtains a preliminary injunction
after the district court makes an unambiguous indication of probable success on
the merits of his claim and the defendant subsequently moots the case before
trial in direct response to the court’s preliminary injunction order.
Supreme Court and Fifth Circuit precedent provide general guidance on
the qualifications for prevailing party status. The Supreme Court has noted that
“‘[t]he touchstone of the prevailing party inquiry’ . . . is ‘the material alteration
of the legal relationship of the parties in a manner which Congress sought to
promote in the fee statute.’” Sole, 127 S. Ct. at 2194 (quoting Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989)); see
Buckhannon, 532 U.S. at 603 (explaining that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of
at least some of his claims” (internal quotations omitted)). Such a material
alteration must have the “necessary judicial imprimatur.” See Buckhannon, 532
U.S. at 605. The Buckhannon Court did not expressly define “judicial
imprimatur” but stated that enforceable judgments on the merits and consent
decrees are sufficient for prevailing party status. Id. at 604. In so holding, the
Buckhannon Court rejected the “catalyst theory,” explaining that a defendant’s
voluntary change in conduct in response to the plaintiff’s lawsuit and not a court
order, although perhaps accomplishing what the plaintiff sought to achieve,
lacks the necessary judicial imprimatur to establish prevailing party status. Id.
at 601, 605. This Court considered such Supreme Court precedent in Energy
Management and held that, to be a prevailing party, a plaintiff must “(1) obtain
actual relief, such as an enforceable judgment or a consent decree; (2) that
materially alters the legal relationship between the parties; and (3) modifies the
defendant’s behavior in a way that directly benefits the plaintiff at the time of
the judgment or settlement.” 467 F.3d at 482.
Although an enforceable judgment on the merits and a court-ordered
consent decree have sufficient judicial imprimatur, these examples are not
exclusive. See Buckhannon, 532 U.S. at 605 (referencing the judgment on the
merits and consent decree as mere “examples”); Dupuy v. Samuels, 423 F.3d 714,
719 (7th Cir. 2005); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945
(D.C. Cir. 2005); John T. v. Del. County Intermediate Unit, 318 F.3d 545, 558 (3d
Cir. 2003); Dubuc v. Green Oak Twp., 312 F.3d 736, 753–54 (6th Cir. 2002);
Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002). As a result,
lower courts have had difficulties in ascertaining what other forms of judicial action have the “necessary judicial imprimatur” to create prevailing party
status, particularly in the context of preliminary injunctions. The Supreme
Court has never expressed a view “on whether, in the absence of a final decision
on the merits of a claim for permanent injunctive relief, success in gaining a
preliminary injunction may . . . warrant an award of counsel fees.” Sole, 127 S.
Ct. at 2196. Without a Supreme Court decision on point, circuit courts
considering this issue have announced fact-specific standards that are anything
but uniform. See Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480
F.3d 734, 740–41 (5th Cir. 2007). As this Court has noted,
several circuits have determined that a preliminary injunction that
merely preserves the status quo temporarily will not confer
“prevailing party” status on a party; instead, the preliminary
injunction must (i) reflect a merits-based decision on an issue
involved in the case, see, e.g., John T. v. Del. County Intermediate
Unit, 318 F.3d 545, 558–59 (3d Cir. 2003); Dubuc v. Green Oak
Twp., 312 F.3d 736, 753 (6th Cir. 2002); Taylor v. City of Fort
Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987); (ii) constitute
substantive, indefeasible relief akin to final relief on the merits
because, for example, “the party’s claim [for a] permanent injunction
is rendered moot by the impact of the preliminary injunction,” N.
Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006); see
also, e.g., Dupuy v. Samuels, 423 F.3d 714, 719, 723 (7th Cir. 2005);
(iii) grant the party concrete and irreversible relief in a merits-based
decision that vindicates the party’s claim and is not appealed by the
opposing party, see, e.g., Select Milk Producers, Inc. v. Johanns, 400
F.3d 939, 947–48 (D.C. Cir. 2005); or (iv) incorporate some
combination of these factors.
Yousuf v. Motiva Enters. LLC, 246 F. App’x 891, 894 (5th Cir. 2007) (per curiam)
(footnotes omitted) (citing Planned Parenthood, 480 F.3d at 740–41). “The Ninth
Circuit has . . . taken a relatively generous approach, at least in principle,
stating that a ‘preliminary injunction issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.’” Planned Parenthood, 480 F.3d
at 741 (quoting Watson, 300 F.3d at 1096). The Ninth Circuit, however, did note
that a plaintiff would not qualify as a prevailing party if he obtained a
preliminary injunction early in the litigation but later lost on the merits and had
a judgment entered against him. Id. (citing Watson, 300 F.3d at 1096). “By
contrast, the Fourth Circuit has expressed strong skepticism that a preliminary
injunction could ever serve as the basis for prevailing party status,” because “‘the
merits inquiry in the preliminary injunction context is necessarily abbreviated.’”
Id. (quoting Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir. 2002)).
This Court has not yet created or endorsed a particular test. Instead, this
Court has held that a plaintiff who obtains a preliminary injunction is not a
prevailing party if he fails to qualify under any of the other circuits’ tests. In
Planned Parenthood, the plaintiffs alleged in part that Rider 8, a statute that
prohibited the distribution of federal family funds to those who performed
elective abortion procedures or who contracted or provided funds to those who
perform such procedures, violated the Supremacy Clause. 480 F.3d at 736–37.
The district court granted the plaintiffs’ motion for a preliminary injunction,
enjoining enforcement of Rider 8, and the defendant appealed. Id. at 737. On
interlocutory appeal, this Court determined that Rider 8 did not violate the
Supremacy Clause and remanded the case, with instructions to dissolve the
injunction. Id. On remand, the district court granted the defendant’s motion to
dismiss the case and denied the plaintiffs attorney’s fees. Id. The plaintiffs
appealed the denial of fees. Id. This Court held that the plaintiffs were not
prevailing parties because (1) the preliminary injunction involved an
abbreviated inquiry into the merits coupled with a weighing of likely harms, (2)the preliminary injunction only preserved the status quo between the parties,
(3) the case was not mooted after the preliminary injunction was granted and the
defendant appealed, and (4) on remand, the plaintiffs did not seek to avoid the
dissolution of the injunction and eventually lost on the merits. Id. at 741–42.
Under these facts, this Court had no need to choose between the tests of the
other circuits because the plaintiffs clearly failed to qualify under any of them.
See id. at 741.
Likewise, in Yousuf, this Court held that the plaintiff was not a prevailing
party because he did not qualify under any test. 246 F. App’x at 894. The
plaintiff, who leased and operated a Shell service station pursuant to a franchise
agreement with the defendant, filed suit after the defendant notified him of its
intent to terminate the franchise relationship. Id. at 892. After suit was filed,
the parties executed a “Stipulated Standstill Agreement,” where they agreed to
maintain the status quo of the franchise relationship pending the district court’s
decision on the preliminary injunction, which the district court adopted as an
order of the court. Id. As discovery progressed, the parties reached another
agreement and filed a joint stipulation and motion for the entry of a consent
judgment on the plaintiff’s preliminary injunction motion. Id. The district court,
in accordance with the stipulation and motion, issued the preliminary injunction
maintaining the franchise relationship, but the order stated that the court made
no findings of fact or law on the motion. Id. at 892–93. Before the case could
proceed to a jury trial, Hurricane Katrina destroyed the service station, and the
defendant terminated the franchise agreement. Id. at 893. The plaintiff then
moved to dismiss the case as moot and filed for attorney’s fees under the
Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq., based on the entry of the standstill agreement and preliminary injunction. Id. The district court
denied the attorney’s fees, and plaintiff appealed. Id. On appeal, this Court
affirmed the district court and determined that the plaintiff was not a prevailing
party because (1) the preliminary injunction did nothing more than “temporarily
preserve the status quo, maintaining the parties’ preexisting franchise
relationship until the legal issues surrounding the approaching termination of
that relationship could be addressed on the merits,” (2) the district court did not
consider the merits of plaintiff’s claim and explicitly noted that it had not made
any findings of fact or conclusions of law in its order granting the preliminary
injunction per the parties’ agreement, and (3) the plaintiff’s claim became moot
“not because the court orders were so successful for [the plaintiff] that they
rendered any further relief unnecessary, but rather because of the unrelated
impact of Hurricane Katrina.” Id. at 894–95.
Unlike Planned Parenthood or Yousuf, this case does not fail every test
employed by the other circuits. As noted, the Sixth Circuit provides that a
plaintiff is a prevailing party if the preliminary injunction represents an
“unambiguous indication of probable success on the merits, and not merely a
maintenance of the status quo ordered because the balance of equities greatly
favors the plaintiff.” Dubuc, 312 F.3d at 753 (internal quotations omitted).
Likewise, the Seventh Circuit states that a plaintiff may obtain attorney’s fees
when the district court engaged in a discussion on the merits of the claim when
considering a preliminary injunction motion, and the case was mooted after the
plaintiffs were granted a preliminary injunction but before they requested
attorney’s fees. See Dupuy, 423 F.3d at 722–23. Further, the Ninth Circuit
holds that a plaintiff is entitled to attorney’s fees if he obtained a preliminary injunction and the case was subsequently mooted. See Watson, 300 F.3d at 1096.
Here, the district court considered the merits of Dearmore’s claim and clearly
concluded that a provision of the Ordinance violated the Fourth Amendment.
In response to the district court’s grant of this preliminary injunction, the City
amended the offending provision of the Ordinance, thereby mooting the case.
Under these facts, at a minimum, it appears that Dearmore qualifies as a
prevailing party under the Sixth, Seventh, and Ninth Circuits’ tests. As a result,
we are not required to reverse the district court’s grant of attorney’s fees to
Dearmore under Planned Parenthood, 480 F.3d at 740–42, or Yousuf, 246 F.
App’x at 894.
The City urges this Court to hold that Dearmore is not a prevailing party
because the preliminary injunction simply maintained the status quo until trial,
did not provide final relief on the merits, and did not materially alter the legal
relationship between the parties. The City contends that it changed its position
by amending the offending provision of the Ordinance voluntarily, not because
the preliminary injunction required it to do so. Dearmore, on the other hand,
argues that he is a prevailing party because he won a preliminary injunction
sufficiently grounded in the merits, which provided him with some judicial relief.
Dearmore also asserts that the grant of the preliminary injunction and the City’s
subsequent amendment of the offending portion of the Ordinance represents a
judicially-sanctioned material change in the legal relationship between the
parties.
The position urged by the City is simply not compelled by Buckhannon.
Contrary to the City’s argument, Buckhannon does not stand for the proposition
that a defendant should be allowed to moot an action to avoid the payment of the plaintiff’s attorney’s fees when a district court grants a preliminary injunction
based upon an unambiguous indication of probable success on the merits.
Instead, we agree with Dearmore that this preliminary injunction, coupled with
the City’s subsequent mooting of the case, is sufficient to establish prevailing
party status.
Under these facts, to qualify as a prevailing party under § 1988(b), we hold
that the plaintiff (1) must win a preliminary injunction, (2) based upon an
unambiguous indication of probable success on the merits of the plaintiff’s claims
as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that
causes the defendant to moot the action, which prevents the plaintiff from
obtaining final relief on the merits.3 Such a test satisfies Buckhannon, because
it requires that a party obtain a judicial ruling which results in a material
change in the legal relationship between the parties. It also does not implicate
the “catalyst theory,” which the Supreme Court struck down in Buckhannon,
because this test grants prevailing party status only when the defendant moots
the plaintiff’s action in response to a court order, not just in response to the filing
of a lawsuit. Likewise, it complies with the general prevailing party standard
announced by this Court in Energy Management, 467 F.3d at 482.
Dearmore clearly satisfies the three-prong test for prevailing party status
announced herein. First, it is undisputed that the district court grante Dearmore a preliminary injunction—an enforceable judgment—by court order
on November 3, 2005. Thus, Dearmore has satisfied the first prong of the test.
Second, the district court granted the preliminary injunction based upon
its assessment that Dearmore would likely succeed on the merits of his Fourth
Amendment claim, not because of any balancing of the equities in his favor. See
Dubuc, 312 F.3d at 753 (holding that a plaintiff is entitled to prevailing party
status when he obtains a preliminary injunction based upon the merits of his
claim); Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997) (holding that “[w]hen
a party receives a stay or preliminary injunction but never obtains a final
judgment, attorney’s fees are proper if the court’s action in granting the
preliminary injunction is governed by its assessment of the merits”); Taylor v.
City of Fort Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987) (stating that “a
preliminary injunction on the merits, as opposed to a merely temporary order
which decides no substantive issues but merely maintains the status quo,
entitles one to prevailing party status and an award of attorney’s fees”). In its
order, the district court clearly informed the City that certain provisions of its
Ordinance violated the Fourth Amendment, stating:
Inspections and searches of unoccupied property would clearly
infringe on the property owner’s right under the Fourth Amendment
to the United States Constitution to be free from unreasonable
search and seizure. In these limited situations, where the property
is unoccupied, the protections guaranteed by the Fourth
Amendment to the United States Constitution to the property owner
outweigh any interest that the government has in protecting the
health, safety or welfare of the public . . . . The ease with which the
City could acquire an administrative search warrant makes
unnecessary the need for the City to require property owners to
forego in advance their rights guaranteed by the Fourth
Amendment. The court fully understands that the City has a valid and important governmental interest in protecting the public,
however, the court sees no reason why this should be done at the
expense of infringing on rights guaranteed by the Fourth
Amendment to the United States Constitution.
Dearmore v. City of Garland, 400 F. Supp. 2d 894, 903 (N.D. Tex. 2005).
Although the district court indicated that it was “viewing [the facts] in the light
most favorable to Dearmore” and that Dearmore was likely to prevail, see id. at
904, this language was used to conform to the standard necessary for the
issuance of a preliminary injunction. Therefore, this is not a case where the
preliminary injunction was based less on the district court’s view of the merits
than on a perceived hardship to the plaintiff. Rather, the district court’s grant
of the preliminary injunction was clearly merit-based, and thus Dearmore has
satisfied the second prong of the test.
Third, the district court’s grant of the preliminary injunction directly
caused the City to amend the offending portion of the Ordinance, thereby
mooting the case and preventing Dearmore from obtaining final relief on the
merits. We note that this is not a case in which the City voluntarily changed its
position before judicial action was taken. Indeed, if the City had mooted the case
through amending the Ordinance before the court granted the preliminary
injunction, then Dearmore could not qualify as a prevailing party under
Buckhannon because it would have improperly invoked the “catalyst theory.”
The City, however, mooted the case after and in direct response to the district
court’s preliminary injunction order. There is an obvious direct causal link
between the district court’ s issuance of the preliminary injunction and the City’s
subsequent amendment of the Ordinance to moot the case. Almost immediately
following the district court’s issuance of the preliminary injunction, counsel for the City informed counsel for Dearmore that Dearmore need not post the bond
to enforce the injunction, because the City planned to amend the Ordinance to
address the district court’s concerns. Twelve days after the district court issued
the injunction, the Garland City Council amended the provision of the Ordinance
that the district court held to be violative of the Fourth Amendment. Dearmore
has satisfied the third prong of the test, and thus he is entitled to attorney’s fees
and costs under § 1988(b).4
In support of our holding, we note that the merits-based preliminary
injunction here, coupled with the City’s mooting of the action in direct response
to the injunction, caused a material alteration in the legal relationship between
the parties. The fact that Dearmore never obtained a final judgment on the
merits does not affect our ruling, as a final judgment is not required. We, like
the District of Columbia Circuit, conclude that “Buckhannon embraces the
possibility that, under certain circumstances, a preliminary injunction, like a
consent decree [which does not always include an admission of liability], may
result in a court-ordered change in the legal relationship between the parties
that is sufficient to make the plaintiff a ‘prevailing party’ under a fee-shifting
statute.” Select Milk Producers, 400 F.3d at 945. This is such a case. When the
district court granted the preliminary injunction, it provided Dearmore with the
interim judicial relief that he requested—it blocked the City from enforcing the
portion of the Ordinance that violated the Fourth Amendment. Because of this injunction, the City could not conduct warrantless searches or impose criminal
penalties for noncompliance under the offending provision of the Ordinance.
When the City modified its behavior in direct response to the injunction and
mooted the case, it ultimately provided Dearmore with his desired result.
Dearmore was never subjected to section 32.09(F) of the Ordinance, which is
what he sought. Such a situation satisfies Buckhannon and justifies conferring
prevailing party status to Dearmore under these facts.
IV. CONCLUSION
The district court’s award of attorney’s fees and denial of the City’s Rule
59(e) motion is AFFIRMED.; 8:14 PM
Anonymous said...: It's time for the city to stop their criminal actions, the appropriate people be sent to jail and the city gets back to serving the citizens like they are supposed to.; 12:19 AM
Anonymous said...: Minnesota courts do not have to adhere by decisions not in their circut.
This case means nothing in Minnesota other than what Minnesotans hope our courts might adopt in the future.; 12:30 AM
Nancy Lazaryan said...: This comment has been removed by the author.; 1:10 AM
Anonymous said...: Nancy, I read this as that the court just ordered attornies fees to the plaintiff. The City of Garland had already realized that they were in error and changed the law. It states that early on. This case continued on just about the fees.

Of course all inspections are voluntary and a court order is needed to enter any dwelling if you don't want to allow admittance. I would suggest though that once a building was on the vacant building list that it would take the City about 5 seconds to get a warrent from any judge to check on the safety issues.

This says nothing about if a City can have an inspections program it only says that you can't walk about to a door and demand admittance. The City can't. If the landlord or tennant won't let you in, you would have to get a warrent to get in. That has always been the case as far as I am concerned.

JMONTOMEPPOF

Chuck Repke; 8:43 AM
Anonymous said...: Then what is the standard that a Minnesota Judges must follow to grant a warrant for the city to enter an unoccupied dwelling or occupied dwelling ?

When the city fire or DSI inspects, can you say " You can't go in this particular area of my building without a warrant and ask the Fire or DSI to leave ?

What if DSI or fire is wrong and it turns out to be just a fishing expedition ?

We must be able to hold DSI and Fire responcible for making false affidavits to a judge to get a warrant.

Here is the problem, DSI or Fire gets a warrant to enter and later its determined that there was no sufficient basis to enter.

The landlord sues and the case is thrown out because of Qyasi-Judicial immunity.

The inspector was just following the Judges orders .

Bottom line, they have violated your constitutional rights and what kind of damages can there be ?

A system of getting court orders to enter private property must include a probable cause hearing AFTER THE WARRANT IS OBTAINED and a law that automaticaly says a city or government having obtained an order by a Judge via warrant where its later determined no cause existed, must pay a substancial fine to the landowner plus costs, disbursements, and attorneys fees.; 10:08 AM
Anonymous said...: The city of St Paul routinely goes into properties without a Search Warrant Chcuk and they do it against the wishes of the person living there.; 10:53 AM
Anonymous said...: http://laws.findlaw.com/us/495/91.html
RIGHT TO PRIVACY MN CASE
violated Olson's Fourth Amendment rights. Pp. 95-101.

(a) Olson's status as an overnight guest is alone sufficient to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. See Rakas v. Illinois, 439 U.S. 128, 143 -144; cf. Jones v. United States, 362 U.S. 257 . The distinctions relied on by the State between this case and Jones - that, there, the overnight guest was left alone and had a key to the premises with which he could come and go and admit and exclude others - are not legally determinative. All citizens share the expectation that hosts will more likely than not respect their guests' privacy interests even if the guests have no legal interest in the premises and do not have the legal authority to determine who may enter the household. Pp. 95-100.; 11:38 AM
Nancy Lazaryan said...: This comment has been removed by the author.; 12:52 PM
Anonymous said...: I think Nancy is missing a point here. Where she is correct about the city writing into code that they have the right to inspect and that they can get a warrant if the owner refuses to grant access, whaqt she missed is that the city code also says that if you violate any provision of the chapter 34, then you are guilty of a crime. Looking at it in it's entirely, what the city is saying is that if you do not grant permission for them to do their NAZI inspections, then they can criminalize you and prosecute you......inaddition to getting their BS warrant....which appears to now also be illegal. I think the whole damn chapter 34 is illegal.; 2:36 PM
Anonymous said...: chuck,

You are wrong again the Federal
court has the right to enforced
laws.

Just because we live in MN. They
can not obey the law. By set their ownlaws and tell the federal
goverment to go screw themself is wrong. The fifth circuit has the right to tell the state what to do.; 4:52 PM
Anonymous said...: Correctly said, the State....more specificaly the city of St. Paul has the duty to not act like a bunch of outlaws, but to respect and honor the laws that the Federal Court lays out. Repkes attitude of "we are exempt" is exactly the mind set that has landled St. Paul in not only the serious mess they are in now, but one that seems to be growing by the month.; 5:16 PM
Anonymous said...: This just demonstrates that the city needs responsible professionals, and not hot-shot cowboys and cowgirls for the job.; 8:01 PM
Anonymous said...: They are not cowboys and cowgirls, they are rouges and outlaws! The new breed of people without souls that Don Henley sings about in his songs, and they are your representitives who run the city.; 8:35 PM
Anonymous said...: I think the floodgates are about to open!; 10:11 PM
Anonymous said...: Let me say this again unless someone has a warrent the City can't enter unless there is a legit emergency. That doesn't mean that someone can't encourage you to let them in.

I didn't say the City was exempt. So, this case changes nothing it was only about lawyers fees because the City of Garland agreed their law was wrong.

JMONTOMEPPOF

Chuck Repke; 12:08 AM
Anonymous said...: " That doesn't mean that someone can't encourage you to let them in."

"encourage" meaning intimidation Chuck?

"encourage" meaning retaliation if you don't let them in?

That's what St. Paul does.; 12:26 AM
Nancy Lazaryan said...: This comment has been removed by the author.; 12:36 AM
Anonymous said...: Chuck the cit has put houses on the vacant list for a landlord not allowing inspectors in.The fact that the city is using a vacant building status to punish property ownwers who don't let them in is illegal.Also my friend saying that the court would have gave them a search warrent in 5 seconds doesn't and won't stand in court.Just imagine if the city would go around and barge into peoples home assuming the courts would grant a search warrent.

You my friend are giving the government way to much power.

Ed; 8:44 AM
Anonymous said...: "Chuck the cit has put houses on the vacant list for a landlord not allowing inspectors in"

Bullshit - give me an address Ed.

You guys just make up shit as you go.

Nancy - I am not arguing with you. I was only hoping that you would confirm what I said that the City of Garland was wrong, when pressed determed they were wrong and that what Bob posted as a case that suggested the courts ruled against inspections was nothing more than the court awarding attorney's fees.

Again, I agree with you that no one can enter your house with out a warrent, but... if that house is on the vacant building list I am guessing it isn't going to be hard to get a warrent.

JMONTOMEPPOF

Chuck Repke; 9:54 AM
Anonymous said...: Nancy you are arguing a case that has no precidential value as of yet in the state of Minnesota.
Someone needs to contact these homeowners and lead them on to this case so they can at least test it.
Why dont you do this instead of wasting your time trying to convince Chuck that he is wrong on the core issue ?; 11:01 AM
Anonymous said...: If you refuse to let the city in Chuck, then they condemn it right on the spot and after they get you out, then they make it a vacant building. They've done it lots of times. They also get search warrants for one thing when they're really looking for something else.; 11:04 AM
Anonymous said...: Chuck,

The city inspector threatened my contractor with not signing off unless certain preconditions were met, and also lied to them in order to gain entrance. Is this acceptable to you?; 11:59 AM
Anonymous said...: Neighbors told me they saw an inspector remove the sheet of wood on the window and go in to look around. Later we found out from the landlord that the inspector said he found it that way and cited the owner because the place was "open to entry." The neighbor still has the video he took of the inspector removing the wood and going in. How about if they did that at your house Chuck?; 12:41 PM
Nancy Lazaryan said...: This comment has been removed by the author.; 1:16 PM
Anonymous said...: My friend had an open window on his house by W 7th St and the inspectors used the window to go inside and take photos while my buddy had just went to the hardware store to get some sheetrock tape. They violate your rights all the time, but they do it in ways you cannot prove.; 1:18 PM
Anonymous said...: I had an inspector directing the contractors. It cost an extra trip from the contractor because of misdirection.; 7:21 PM
Anonymous said...: 1:18 PM

It shows again how these Democratic run this town, they are sneaks and when no one was looking they cleaned out Nancy O. garage.

Its to bad your friend wasn't home when the inspector came through the window, he could have shot that sneak thief in the head and there would be a employment opening with the city.

Wake up people, we need new government blood in this town.
Remember how Norm Coleman came from New York, as mayor he wanted to tear down the pavilion at Harriet Island.
He was one more sneak that was Democrat.; 7:53 PM
Anonymous said...: Chuck name one house the city has got a warrent for to see if it was vacant? We can go both ways Chuck. I'll be waiting for an address-i'm sure theres one person out there that didn't want to let inspectors in.

Ed; 11:11 PM
Anonymous said...: ricomen had tenants who did not want the city in their apartments and rather than go get a warrant, they forced their way in anyways.; 12:43 AM
Anonymous said...: Ed - you are the one that wants it both ways. You are the one that says the City did this or that and then don't give an address.

What the City does to put the house on a vacant list is get the notice that the water or power has been shut off. That is all they need to determine that it is no longer fit for habbitation. If you have no water to flush the toilet its over folks; it is a health hazard; done. They don't need any more than that. So, if you don't want your place on the vacant building list PAY THE POWER AND WATER!!!!

I tell that to anyone selling a house... DON'T SHUT THE WATER OFF AND DON'T TURN OFF THE POWER!

Its not my fault that some people are stupid, or cheep. I am sure that is how many of the crying landlords got on the list... power/water shut offs because they have the utilities in the renters' names.

JMONTOMEPPOF

Chuck Repke; 10:06 AM
Nancy Lazaryan said...: This comment has been removed by the author.; 1:02 AM
Anonymous said...: NO Nancy, you continue to show that you don't understand MORRIS vs SAX.

The court was clear that it had no intend to interfear with the City's interest in protecting the public health and stated that in it ruling. MORRIS vs SAX says that the City can not have an additional building code seperate from the state's.

Determining that the power needs to be on and that there needs to be potable water in order to make a building habitable is a PUBLIC HEALTH issue not a BUILDING CODE issue.

The City doesn't come into the building to make the determination if the water was hook up according to some "City Code," it simply sends you a notice that says, you have no water, you have no power, your structure is not a house. People may not live there until the building is brought up to code.

You want to winter in Florida Nancy and not have to worry about code issues? Don't turn off your power.

JMONTOMEPPOF

Chuck Repke; 1:47 PM
Anonymous said...: Hey Chcuk....I dont think "they" have the tuilities in the renters names, I think the renters have the utilities in the renters names because it's a contractual obligation under the terms of the lease agreement. Why do you always spin things to make it seem like the landlords are out to take someone?; 10:49 PM
Nancy Lazaryan said...: This comment has been removed by the author.; 1:39 AM
Anonymous said...: Nancy it really is pretty simple, you may think it is OK to take a dump in the corner of your house but most people think that is unsanitary. Your willingness to have rodents and other creatures sharing your abode does have an impact on the general public.

In order for a home to be habbitable it must have power and water. In this century those are reasonable public health issues. You have to be able to flush the toilet and you have to have power.

Now you may think that one would be an idiot to think that is a health issue, but that just says something about your personal hygene issues Nancy.

...and the court said it was not trying to interfere with public health issues...

JMONTOMEPPOF

Chuck Repke; 8:38 AM

A DEMOCRACY TOWN HALL

Saturday, June 07, 2008

Dearmore v. City of Garland/ Should housing inspection end now?

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