A DEMOCRACY TOWN HALL: Saint Paul RICO UPDATE/ If this isn't

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Wednesday, July 30, 2008

Saint Paul RICO UPDATE/ If this isn't

Please click onto the COMMENTS for the story.

48 Comments:

Bob said...: Hi All,

I will be posting this summary judgement by the "defendants" (City of Paint Paul) in sections on this thread. There is 55 pages total. This is page 1 thru part of page 8.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________________
Civil No.: 05-461 JNE/SRN
Frank J. Steinhauser, III, et al.,
Plaintiffs,
vs.
City of St. Paul, et al.,
Defendants.
DEFENDANTS’ MEMORANDUM
OF LAW IN SUPPORT OF
SUMMARY JUDGMENT
________________________________________________________________________
INTRODUCTION
Plaintiffs are former landlords who at one time owned rental property within the
City. Like any landlord with substandard housing stock in violation of City codes, they
were subject to the City’s lawful code enforcement. After selling many of their
properties, many of which were sold at a substantial profit, they now claim that the code
enforcement was in violation of various federal and state laws. Plaintiffs’ claims in sum
and substance are that the City has illegally targeted some, but not all, of their properties
for code enforcement based on the protected class status of many of their tenants.
Plaintiffs make this claim although Plaintiffs do not necessarily have protected class
tenants at allegedly targeted homes, at times admit that the alleged illegal code
enforcement had nothing to do with the identity of their tenants, and fault the City for not
targeting other landlords who had protected class tenants.
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 1 of 55
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Plaintiffs have taken forty-five depositions and have searched over a million
documents for evidence to support their claims for over four years. Plaintiffs do not have
any evidence to support their causes of action and, in fact, make crucial admissions that
support Defendants’ position that their claims are entirely meritless. Pursuant to Rule 56
of the Federal Rules of Civil Procedure, Defendants seek summary judgment in their
favor as there are no genuine issues of material fact.
STATEMENT OF FACTS
City of St. Paul Code Enforcement
Since 1993, the City Council determined that there existed in the city, structures
that were substandard and lacking in basic facilities constituting a menace to public
health, safety and welfare of its citizens. Therefore, the Council enacted Chapter 34 of the
Saint Paul Legislative Code (“SPLC”). (Exhibit 3; pp. 0558-0573). The Council found
the existence of such conditions aggravated urban blight requiring the establishment and
enforcement of minimum property standards. (Exhibit 3, p. 0558).
In 2003, the Council established the Department of Neighborhood Housing
and Property Improvement, (“NHPI”), formerly known as Code Enforcement. (Exhibits 1
and 2). The duties of NHPI consists of administering and enforcing city housing and
property maintenance codes. Chapter 14A of the SPLC describes the duties and
responsibilities of NHPI. (Exhibit 2).
NHPI is responsible for administrating and enforcing multiple city
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 2 of 55
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ordinances to accomplish the goals of providing minimum property maintenance
standards for all structures and premises within the City. To accomplish this, NHPI is
responsible for investigating all citizen complaints concerning problem properties in
neighborhoods and enforcing the city code. (Exhibit 11, pp. 409, 410).
During the time-frame of this lawsuit, Defendant Andy Dawkins was the appointed
Director of NHPI by Mayor Kelly. (Exhibit 8, p. 205). According to Dawkins, Mayor
Kelly “believed that the city’s future was dependant upon having an aggressive,
consistent stepped up code enforcement department.” (Exhibit 8, p. 118).
In response to the Mayor’s vision, Dawkins developed the following mission
statement for NHPI: “to keep the city clean, keep its housing habitable, and make
neighborhoods the safest and most livable anywhere in Minnesota.” (Exhibit 5, p.
40012).
Dawkins’ priorities were: 1) to investigate citizen complaints and respond to calls
for service, 2) conduct routine inspection patrols, 3) conduct proactive sweeps, 4) close
down problem properties, and 5) enforce dwelling unit registration provisions. (Id.).
In 2002, Dawkins developed a packet of Rules and Procedures for inspectors.
(Exhibit 7). Dawkins said the goal was to provide consistent application of these rules.
(Id., p. 50083). However, because of the limited number of inspectors and resources,
Dawkins indicated that inspectors must use discretion in applying these rules and
suggested the following priorities in exercising that discretion: “1. Serious health and
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safety issues; 2. Cleaning up “problem properties”; 3. Garbage and nuisance violations;
4. Falling down and dilapidated structures; 5. Interior habitability has a higher priority
than minor exterior violations, and 6. Structure with multiple violations gets priority.”
(Id., pp. 50083-50093).
In 2004, Dawkins’ NHPI website provided a guide for residents to work with
NHPI concerning problem property complaints, routine code enforcement protocol,
sweeps protocol, and notes for tenants and landlords. (Exhibit 6, pp. 40022-26). The
website outlines NHPI’s comprehensive approach to dealing with “problem properties.”
(Id.) A “problem property” is defined on the website as one where there are “constant
calls to get rid of the junk, intolerable behavior by occupants and guests, etc.” (Id.
p.40022).
The website lists six steps for citizens to deal with a problem property. (Id., pp.
40022-24). Step one encourages citizens to exhaust all of the procedures in step one
before proceeding to the subsequent steps. (Id., p. 40022).
Routine NHPI enforcement included inspecting interior and exterior property.
(Id., p. 40024). The website lists eight steps for routine code enforcement. (Exhibit 6;
40024-26). The most common complaints to NHPI are for “garbage/rubbish, mattresses,
appliances, junk vehicles, graffiti, and overgrown properties.” (Id., p. 40024). When an
inspector visits the property, the very first thing he/she does is to “determine the
complaint is valid or ‘founded’ (i.e., finds a violation).” (Id.). If there is a violation, then
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a correction order or abatement order is mailed to the occupant and the property owner.
(Id.).
NHPI Supervisor Magner describes the duties of an inspector as: “if you have a
complaint, you need to investigate it to see if its valid, and if there is a violation of the
law, you need to take enforcement action.” (Exhibit 11, p. 410). Code enforcement
officers would inspect the properties and use their discretion when deciding what the
appropriate code enforcement action should be. They could give written or verbal orders,
depending on the situation, and consider the season it was and whether or not the
particular correction could be made (i.e. would not require painting to be completed
during winter months). (Exhibit 12, pp. 42, 62, 63, 78, 79; Exhibit 39, pp. 113-15;
Exhibit 15, p. 66; Exhibit 14, p. 241; Exhibit 9, p. 34-35, Exhibit 10 p. 63).
City’s code enforcement manager, Lippert, described the duties of inspectors
stating, “we inspect properties for code violations, so that’s what we are looking for. If
someone calls in a complaint on a property, we are going to look at the property and call
the code violations.” (Exhibit 10, p. 237). When Plaintiffs asked Lippert about
complaints that might possibly be ill-motivated, Lippert responded, “we are not dealing
with the motivation of a complaint we’re only going to be looking for the validity of the
complaint....[W]e are primarily a complaint-based system so we respond to complaints
without taking into account motivation.” (Id., p. 238-239).
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Dawkins was asked by Plaintiffs about pitfalls in the complaint-based system.
(Exhibit 8, p. 678). Dawkins responded, “any time you’ve got a complaint-based system
and I call in a complaint, I could be calling in because I don’t like you or because I got
into a beef with you about something or other and I just want to call you in. And then we
go out and look and see if it’s there. On the other hand, if you do a sweep, then there’s no
- - the system isn’t susceptible to that problem.” (Id.).
Dawkins explained that he moved the City from a complaint-based system to a
proactive system, “[M]oving to a pro-active patrol system is a good thing - - not only for
the obvious reasons such as a cleaner city, less blight, greater safety, higher property
values and preserving affordable housing - but also because it undoes racism by reducing
the possibility of one group manipulating the system against another group as to which
properties get called - in.” (Id., p. 678).
Besides moving to a pro-active patrol system, Dawkins utilized several tools for
problem properties. (Exhibit 6, p. 40023). Those include, code enforcement orders to
correct or abate, condemnation/vacant building registration, criminal charges, charging
for excessive consumption of services, nuisance abatement orders (Exhibit 4), nuisance
abatement (Minnesota Statute §617.80), rental registration, City Attorney initiated
evictions, City initiated Tenant Remedies Action (Minnesota Statute §504B.401 et seq.)
and real estate seizures. (Exhibit 6, p. 40023).
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Plaintiffs questioned Dawkins about these tools, asking him which was his least
favorite, Dawkins answered, “condemnation”. (Exhibit 8, p.666). Dawkins was asked
what was the best tool, Dawkins answered, “voluntary compliance”. (Id.). Plaintiffs
asked Dawkins to put the tools in order between voluntary compliance and condemnation.
(Id.). Dawkins responded, “I didn’t like tagging. That was near the bottom. In terms of
condemnation, I didn’t like to get to that. I hated getting to a $75.00 excessive
consumption fee. To me, there was something going on at that property that the inspector
needed to find out more about. Was it because they couldn’t read English? They didn’t
have enough money to fix their place up, whatever. The second best favorite to voluntary
compliance was you get a correction notice and you correct it in the time line.” (Id., pp.
666, 667).
Dawkins was asked about the use of Tenant Remedy Actions. (Id., p. 667).
Dawkins answered, “Tenant Remedy Action is one that I wanted to use the $200,000 that
had been granted to the city to repair properties and I felt terrible that it was just sitting in
this account gathering dust and not interest, and every dollar could be well spent fixing up
a place. So I encouraged more Tenant Remedy Actions, especially as a way to avoid
condemnations.” (Id., p. 667).
In addition to these enforcement tools, Dawkins encouraged neighbors to
voluntarily patrol their areas and keep them looking good. This was called the “Good
Neighbor Program”. (Exhibit 6, p. 40026).
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Dawkins was instrumental in providing changes to Section 34.18 of the SPLC to
“provide landlords with a very clear direction on what their defenses could be if code
enforcement was coming after them for tenant behavior.” (Exhibit 8, p. 628). Dawkins
called this his “best lease management practices” and stated, “as long as the landlord has in the lease that the tenant must be law abiding, as long as the landlord patrols the property
to monitor the lease, so long as the landlord takes action to enforce the lease if there’s a
violation, then it’s a total defense to anything; 8:55 AM
Anonymous said...: Anyone with any sense can tell just from reading this that it's a pack of lies. I hope the rest is better than this!; 9:14 AM
Anonymous said...: This should be the end of the RICO case. The City appears to be finally asking for summary judgement in their favor and to dismiss the case.

There is no evidence of any wrong doing by the City that would be a violation of Federal statutes.

JMONTOMEPPOF

Chuck Repke; 11:22 AM
Anonymous said...: Hate to admit it, but Chuck maybe right here. Maybe these guys business was "Big Slums" instead of providing housing to the poor. What say you Eric?; 2:50 PM
Anonymous said...: I say that they didn't produce the evidence to back up the specific RICO claim.

Same thing I said when I was physically in the courtroom.

Eric; 4:11 PM
Anonymous said...: Federal Files are online
Look at new Site
Suggestion Lawyers Compromise all the time http://www.mnd.uscourts.gov/; 5:33 PM
Bob said...: There maybe copy errors.

Plaintiffs
1. Kelly Brisson
Brisson purchased 297 Burgess Avenue, a duplex, on September 10, 2001 as a
place to live and also rent out. (Exhibit 23, pp. 62, 63) Brisson was not a member of a
protected class. (Exhibit 23, p. 89) When he purchased the property it was in deplorable
condition and he admittedly did not have the money to make the necessary repairs.
(Exhibit 23, pp. 46-48, 64-70, 99, 251)
Brisson admits that many of the conditions for which he was cited actually existed
on the property. (Exhibit 23, pp. 75, 81, 94, 95, 101, 119, 120, 121, 122, 124, 125, 126,
127) He admits that photos of his property taken by the Defendant in support of the City’s
correction orders were accurate. (Exhibit 23, pp. 84, 85) He blames his tenant or others
for some of the conditions. (Exhibit 23, pp. 112-116, 120-121) For example, Brisson’s
lower unit tenant left without paying rent and the unit was “completely trashed.” (e.g., dog
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urine, feces, and garbage in the house) (Exhibit 23, pp. 112-116) Brisson simply could not
meet the deadlines set forth in the correction orders because he did not have the money to
fix his property. (Exhibit 23, p. 127)
Brisson eventually went through the Section 8 inspection and rented to Leo Sider, a
friend of Brisson’s for fifteen years. (Exhibit 23, p. 131, 135, 136, 137). Brisson claims
that Sider was disabled because he had serious back problems. (Exhibit 23, p. 132).
Brisson has no evidence that any of the Defendants knew that Sider had received Section 8
assistance or that he was disabled with a bad back. (Exhibit 23, p. 136). In fact, he had
no evidence that any Defendants had even met Sider. (Id.). Brisson admits that the
identity of his tenant and his tenant’s disability status had absolutely nothing to do with the
City’s code enforcement and condemnation. (Exhibit 23, pp. 132, 136-137, 169, 170,
268, 269). Brisson’s complaint is that he received a condemnation notice for the entire
duplex when the upper unit was the only one that did not have electricity. (Exhibit 23, pp.
170, 171). Brisson admits that the photos that were taken on July 22, 2003, one week after
he was issued a notice of condemnation, accurately depict his property on that date.
(Exhibit 23, p. 180). On August 12, 2003, Brisson was issued another condemnation
notice. (Exhibit 23, p. 196). Sider independently went to Legal Aid and retained an
attorney to assist him in a tenant’s remedy action (TRA) against Brisson. (Exhibit 23, p.
197). The action brought by Sider was resolved. (Exhibit 23, pp. 197-199). The City did
not have anything to do with the TRA or the settlement. (Exhibit 23, p. 199). Brisson
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admits that he would have addressed all of the issues listed in the correction notices
because the property needed it. (Exhibit 23, p. 254).
2. Mark Meysembourg
Mark Meysembourg previously owned a number of rental properties within the
City, but claims that only one of his properties, 970 Euclid St., has been the subject of
alleged illegal targeting by Defendants. (Exhibit 22, p. 53). Meysembourg is not a
member of a protected class. (Exhibit 22 p. 47) However, he claims that there was
discriminatory code enforcement at 970 Euclid St. (Id.). Meysembourg admits that he had
minority tenants at his other properties and that those properties were not targets of illegal
code enforcement. (Exhibit 22, pp. 62-84). Meysembourg admits the code enforcement
has actually helped his rental business many times. (Exhibit 22, p. 79). Meysembourg
never rented to any Section 8 tenants so he admits that he could not have been treated
differently because of renting to Section 8 tenants. (Exhibit 22, p. 100).
He has no first-hand knowledge that Randy Kelly directed Andy Dawkins to try and
gain access to interiors of properties. (Exhibit 22, p. 88). He has no facts to support his
claim that Randy Kelly ordered inspectors to rid the City of “bottom of the barrel
individuals” or “low-income individuals.” (Exhibit 22, pp. 90-91). He has no facts to
support his claim that Randy Kelly maliciously and intentionally commenced a policy of
discriminatory code enforcement, or that Randy Kelly selectively targeted for
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 10 of 55
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discriminatory code enforcement properties with “bottom of the barrel, undesirable and
low-income individuals.” (Exhibit 22, p. 92).
Meysembourg’s entire lawsuit rests on the code enforcement of 970 Euclid St. He
claims that other nearby properties were not held to the same standard as 970 Euclid St.
(Exhibit 22, pp. 110-112). He states that his next door neighbor did an illegal foundation
repair, but when the inspectors were inspecting Meysembourg’s property they did not cite
the next door neighbor for the illegal foundation repair. (Exhibit 22, p. 110). He admits
that his neighbor rents to protected class individuals and claims that his neighbor was not
subject to code enforcement that he should have been subjected to. (Exhibit 22, pp. 110,
111). Meysembourg admits that he never reported his next door neighbor to code
enforcement. (Exhibit 22, p. 111).
Meysembourg’s allegations surround an inspection at 970 Euclid by Defendant
Martin wherein she was accompanied by Officer Koehnen. (Exhibit 22, pp. 112-114). He
claims they informed his tenants that he knew about the inspection and the inspection is
okay with him, and that is the reason the tenants let them in. (Exhibit 22, pp. 114, 115).
No affidavit or deposition testimony of any of Meysembourg’s tenant was ever presented
to corroborate his statement of what he heard from his tenants. (Exhibit 22, p. 115).
Meysembourg was sent a correction notice on November 15, 2002 listing a number
of violations. (Exhibit 22, pp. 122-123). Meysembourg admits that many of the
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deficiencies listed on the correction notice actually existed, but complains that some of the
deficiencies were untrue. (Exhibit 22 pp. 123-129).
Meysembourg appealed the correction notice to the legislative hearing officer.
(Exhibit 22, p. 131). Meysembourg’s only issue on appeal to the legislative hearing
officer was that the inspection was illegal and that the correction notice items should not
be considered. (Exhibit 22, p. 136 ). He did not present any evidence that any of the
violations were false. (Exhibit 22, p. 136). Meysembourg contacted the Department of
Justice and informed them of what happened at his property. (Exhibit 22, p. 148). The
Department of Justice Civil Rights Division did not find any prosecutable violation of
federal law. (Exhibit 22, p. 148). Meysembourg could not identify any other occasion or
property where he believed inspectors misrepresented their authority to gain entry to a
property. (Exhibit 22, p. 150). Upon reinspection by the City, Meysembourg refused to let
the inspectors back into the property. (Exhibit 22, p. 138). A search warrant was issued
by the Ramsey County Court so a follow-up inspection could be completed. (Exhibit 22,
p. 155). After that inspection, a correction notice was issued on January 2, 2003, listing a
number of deficiencies. (Exhibit 22, pp. 156-158). Again, Meysembourg admits that
some of the deficiencies existed, but disputes other deficiencies. (Id.). Upon the third
inspection, Meysembourg came up to his property as Defendant Magner was coming out
of the property’s basement. (Exhibit 22, pp. 159-160). Magner informed Meysembourg
that there was not a proper safety relief valve on the boiler. (Exhibit 22, p. 160).
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Meysembourg disagreed because he had St. Paul Plumbing there the year before and they
put in a safety relief valve. (Exhibit 22, pp. 162, 163). Meysembourg later admits that
there were two valves in the basement but he had nothing to show that one of the valves
was working. (Exhibit 22, p. 200).
Meysembourg received a notice of condemnation of his property dated February 3,
2003. (Exhibit 22, p. 164). Meysembourg appealed the condemnation order to the
legislative hearing officer. (Exhibit 22, p. 169). Meysembourg limited his appeal to the
illegality of the November 15, 2002, inspection and the question of whether or not there
was a pressure relief valve on the boiler. (Exhibit 22, p. 170). The City then filed a TRA
against the property. (Exhibit 22, p. 173). At the hearing on the TRA, the parties had a
conversation about a code compliance inspection. (Exhibit 22, p. 176). After conferring
with his attorney, Meysembourg agreed to do a code compliance inspection so that the
TRA lawsuit was dropped. (Exhibit 22, p. 178). Meysembourg later disagreed with what
had to be done as part of the code compliance. (Exhibit 22, pp. 179-182, 186, 188).
Meysembourg admits that he would have, even without the code compliance inspection,
done many of the repairs in order to be a responsible landlord. (Exhibit 22, p. 190, 191).
Meysembourg has not indicated that his tenants at 970 Euclid were protected class
individuals. (Exhibit 20, #3(c), (d), and (e)). [Meysembourg does not recall the race of his
tenants but thinks 70 percent were African-American and Hispanics. Meysembourg
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indicated he would supplement his answer concerning the specific of his tenant’s race, but
has not done so]; 9:30 PM
Anonymous said...: well 9:14, are you any more impressed?

granted, this is the defendant's lawyers writeup, but especially in Mark M's case, it appears the entire basis of his accusation is not that he didn't have code violations, but because his neighbor did too but wasn't also condemned. (but he never made a complaint. downright neighborly of him...)

guess last time I got a speeding ticket I should have filed a class action RICO lawsuit with my defense as all the other speeders who aren't getting tickets...; 10:08 PM
AMANDA said...: From the time I started reading this blog I felt this lawsuit was ludacris.

Looks like the last chapter of this story is about to unfold.

Eric said, "The Pigs are the Rico-men". *(Animal Farm by George Orwell)

I smell pig roast! I think I will stick around for the picnic. Serve up another dish of this summary judgement Bob! :); 10:25 PM
Anonymous said...: As I said before this never was a RICO case or a civil rights case. Some bright guy figured that you could start a case like this demand every piece of paper and email ever sent to the City as evidence of a conspiracy and if they couldn't produce every scrap of paper try to get a summary judgement based on the City withholding evidence.

It was alway a shell game. They had no evidence just accusations and the case was based on we have no evidence, therefore the City must be hiding the evidence that we don't have.

When the judge ruled against the plaintiff's request for summary judgement based on the City's withholding evidence, this case was over. The judge said produce one piece of evidence from all of the stuff you got and then I might consider it. They had nothing to show the judge. No discusion of a conspiracy, no discussion of a beneficary of the enforcement; nothing to show the base elliments of the case.

The plaintiff's have nothing.

There is nothing to try.

JMONTOMEPPOF

Chuck Repke; 11:01 PM
Anonymous said...: What do you have to say now Bob? It looks like Chuck, Eric and Amanda are about to have your rico boys for a barbeque!; 11:46 PM
Anonymous said...: Ya know Repke.....you bad mouth these rico guys every chance you get, but in all reality, especially considering your problems and neglect at your own property.....aren't the whole damn bunch of you just a big happy slum partnership? Your no better than what you claim they are from what I've read about your code violations......ongoing violtions according to our city watchman Tim. I'm waiting for the day when you get together with these guys and put on a "Slum Fest" in one of your run down, empty, torn up, crime infested neighborhoods where you guys are booking tenants into these shacks for double deposits. Perhaps froggy's neighborhood! He could serve hot dogs and chips.; 4:38 AM
Anonymous said...: Want some new neighbors Froggy?; 8:06 AM
Anonymous said...: The Froggy and Eric types of this world will end up as neighbors if the city wins. Just like two peas in a pod.; 8:51 AM
Anonymous said...: Take the Kessler Quiz

http://uktv.co.uk/history/vote/aid/602830

Kessler: The Quiz
The Nazi network that former Gestapo officer Ludwig Kessler has helped create prides itself on secrecy. How much of the twisting plot can you uncover? Test your knowledge of Kessler with our quiz; 9:25 AM
Anonymous said...: Chuck and Eric I think the plaintiff now can show their hand.Hold your horses big fella.Bob when do the plaintiffs submit their evidence?; 9:40 AM
Bob said...: There maybe copy errors.

3. Frank Steinhauser
Steinhauser is a white male and former landlord who owned fifteen properties
within the City. (Exhibit 20, at pp. 6, 7). Steinhauser admits that all of his properties were
not subject to the alleged illegal code enforcement although all of his properties had the
same “tenant base of minorities and low-income people.” (Exhibit 19, pp. 112, 113, 157).
Steinhauser claims that the targeting of some of his properties because of the his tenant
base began in early summer 2002 with his property located at 1038 Aurora. (Exhibit 19, p.
473). Steinhauser claims that a code enforcement officer was “stalking” him at his
property at 1038 Aurora, but he did not know who the code enforcement officer who was
“stalking” him. (Exhibit 19, p. 331). Steinhauser also claimed illegal code enforcement at
719 Sherburne, but could not identify any facts to support his claim. (Exhibit 19, p. 96).
In fact, Steinhauser admitted that “the things [Lisa Martin] cited me for [at 719 Sherburne]
were legitimate at the property.” (Exhibit 19, p. 334). Steinhauser also claimed that he
was targeted at 953 Wilson and subject to illegal code enforcement at that property.
(Exhibit 19, p.335) However, Steinhauser admits that he was not sure if there were any
false claims made by code inspectors at the Wilson address and, in fact, admitted that [he]
thinks “most of them were legitimate code deficiencies.” (Exhibit 19, p. 336).
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Steinhauser also claims that his property at 118 Litchfield was illegally targeted
based on the race of his tenants, but he admits that he did not remember who the tenant
was. (Exhibit 19, pp. 206-208). In fact, Steinhauser admits that the tenants caused
damage to 118 Litchfield. (Id.). He alleges that by the City enforcing its code against
Steinhauser for tenant caused damage, the City was interfering with Steinhauser’s contract
rights to pursue his damages’ claims against his tenants, because the City required him,
instead of his tenants, to fix his property. (Exhibit 19, pp. 207, 208). Steinhauser
complains that he was cited for doorknobs missing and admits that he replaced the
doorknobs, but directs the cause of the doorknobs missing to his tenant. (Exhibit 19, p.
208). Steinhauser admits there was a gas leak in the stove but claims it was not his
responsibility. (Exhibit 19, pp. 206, 207). He also admits the tenants ripped up the floor
at 118 Litchfield. (Exhibit 19, p. 212). Finally, Steinhauser admits that many of the
deficiencies cited against 118 Litchfield were, in fact, legitimate items. (Exhibit 19, p.
206). Steinhauser also claims the illegal entry and search of 118 Litchfield by code
enforcement. (Exhibit 19, p. 501). However, he admits that he does not know whether or
not the tenant or her son, white individuals, let them in. (Exhibit 19, p. 502, Exh. 20, p. 6).
Steinhauser also claims illegal code enforcement at his property at 1024 Euclid, but
admits that many of the deficiencies that he was cited for were legitimate and even
possibly caused by tenants. (Exhibit 19, pp. 186-188; 199-200). Steinhauser took photos
of 1024 Euclid that he admits legitimately show deficiencies in his properties. (Exhibit 19,
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p. 312). Through the photos he attempted to document damage caused by the tenant.
(Exhibit 19, pp. 312-315). The Police were called to 1024 Euclid on October 29, 2002, by
a tenant because Steinhauser was “verbally threatening” the tenant. (Exhibit 40). Officer
Wroblewski found the property, which had just been condemned by code enforcement,
“uninhabitable.” (Id., 1770). She noted that there was “no heat or smoke detectors, rotting
floors, running water in the bathroom (won’t stop), water damage, holes in the walls
throughout where rats have access....”) (Id., pp. 1770-1771) Steinhauser’s verbal threats
came after he learned that the property was condemned. The tenant reported to police that
Steinhauser stated “Why are you doing this black bitch? Why do you have the state on my
ass? Bitch you’re gonna lose in fucking court. You’ll be back on the fucking street!”
(Id., p. 1771).
Steinhauser admits that his property at 910 East Sixth St. had a number of
legitimate deficiencies that he thought were most likely caused by the tenant. (Exhibit 19,
pp. 414-416). He admits that he was responsible for the tenant caused damage and took
photos to document it. (Id., p. 302) However, the rats that he was cited for which
triggered the condemnation and code compliance “were not true.” (Exhibit 19, p. 417).
He claims that since the rats citation was not true, a condemnation and code compliance
should not have followed, and he should not have to pay to fix the legitimate code
violations discovered because of the untrue rats citation. (Exhibit 19, p. 417-419). As he
stated, “those code violations existed.” (Exhibit 19, p. 417). Steinhauser claims that he
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 16 of 55
17
was sent repair orders that were designed so that he could not comply with the repairs.
(Exhibit 19, p. 359). However, he admits that he was able to comply with the orders.
(Exhibit 19, p. 360). Steinhauser admits that there were rats at his property at 910 East
Sixth St. but claims that the rats in his property came from a large pile of trash that was
next door. (Exhibit 19, pp. 504-505). Steinhauser claims that there was an illegal entry at
910 East Sixth St. because his tenant LaChaka Cousette did not want the code enforcement
officer to enter her apartment. (Exhibit 19, pp. 500-505). However, Cousette testified that
on October 21, 2002, Lisa Martin and Officer Dean Koehnen came to her door and Martin
explained to her that the unit downstairs was being condemned. (Exhibit 35, p. 69). Once
Martin explained to Cousette why they had come to her door, Cousette agreed to allow
them in. (Id., p. 143-144). Martin did all the talking. (Id. p. 144) According to Cousette,
Officer Koehnen never ordered her to admit them into her home. (Id. p. 143)
Steinhauser hired an B&E Pest Control to treat 910 East Sixth St. which noted that
units were sub-par sanitation, and had mice and rats, and rats in basement. (Exhibit 19, p.
178-179, Exhibit 21). Steinhauser claims that what B&E Pest Control meant was no rats
in basement, instead of rats in basement. (Exhibit 19, pp. 179-180).
Steinhauser also claims that his properties at 910 and 921 York were subject to
illegal targeting. (Exhibit 19, pp. 317-318). He claims the City gave him criminal tickets
regarding the painting of the property. (Compl. at ¶¶ 198-201) However, Steinhauser
admits that there was something wrong at the properties and he was able to fix it. (Exhibit
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 17 of 55
18
19, p. 362). Steinhauser admits that many properties in the City of St. Paul owned by
him, owned by others, and owned by the Public Housing Agency, who have a similar
tenant base (many protected class citizens), were not subject to illegal code enforcement.
(Exhibit 19, p. 112, 113, 152-153, 524-526).
STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1985); Unigroup, Inc. v. O'Rourke Storage &
Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992). “Summary judgment will not lie if
the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court determines materiality from the
substantive law governing the claim. Anderson, 477 U.S. at 248. Further, “the
nonmoving party may not merely rest upon allegations or denials in its pleadings, rather,
they must by affidavits, ‘depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.’” Williams v.
Thomson Co., No. 00-2256, 2003 U.S. Dist. LEXIS 4481, *17 (D. Minn. Mar. 21, 2003)
(Exhibit 41), citing, Fed. R. Civ. P. 56(e); Celotex Co. v. Catrett, 477 U.S. 317, 324
(1986); U.S. v. Crane Co, 122 F.3d 559, 562 (8th Cir. 1997); McLaughlin v. Esselte
Pendaflex Co., 50 F.3d 507, 511 (8th Cir. 1995). “A plaintiff may not merely point to
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 18 of 55
1 Plaintiffs alleges various causes of action against John and Jane Doe in their
individual and official capacities. However, Plaintiffs have not indicated the identity of
either Doe or identified any specific actions or involvement these individuals had with
regard to the matters alleged in her complaint. Plaintiffs have failed to state a claim
against these purported defendants upon which relief can be granted. See Frey v. City of
Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995) (complaint which did not indicate how
defendants were involved in alleged violations was conclusory and failed to meet
notice-pleading standard); Tatam v. Iowa, 822 F.2d 808, 810 (8th Cir. 1987) (per curiam)
("While pleadings are to be construed to do substantial justice . . . the pleading must at
minimum be sufficient to give defendant notice of the claim.").
19
unsupported self-serving allegations, but must substantiate her allegations with sufficient
probative evidence that would permit a finding in her favor.” Haas v. Kelly Services, Inc.,
409 F. 3d 1030, 1034 (8th Cir. 2005), citing, Wilson v. Int’l Bus. Mach. Co., 62 F.3d 237,
241 (8th Cir. 1995). “Evidence, not contentions, avoids summary judgment.” Haas, 409
F.3d at 1036, quoting, Mayer v. Nextel West Co., 318 F.3d 803, 809 (8th Cir. 2003).
ARGUMENT1
I. PLAINTIFFS RICO CLAIMS FAIL AS A MATTER OF LAW
Plaintiffs allege that the defendants in their individual capacity committed and
conspired to commit a RICO violation under 18 U.S.C. §§ 1962(c) and (d). To establish a
civil violation of 18 U.S.C. § 1962(c), the Plaintiffs must prove that at least one of the
individual “defendant[s] engaged in (1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997),
citing, Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). See also United States v. Darden,
70 F.3d 1507, 1518 (8th Cir. 1995) (describing same elements in slightly different way).
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 19 of 55
20
Racketeering activity is defined through an exclusive list of criminal statutes referred to as
predicate acts. 18 U.S.C. § 1961(1) (2006). Proof of at least two predicate acts are
necessary to establish a pattern of racketeering activity. 18 U.S.C. § 1961(5).
Further, a pattern is only established if the predicate acts are related, “amount to or
pose a threat of continued criminal activity.” H. J. Inc. v. Northwestern Bell Tel. Co., 492
U.S. 229, 240 (1989); Wisdom v. First Midwest Bank, 167 F.3d 402, 406 (8th Cir. 1999).
“‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period
of repeated conduct, or to past conduct that by its nature projects into the future with a
threat of repetition.” H. J. Inc., 492 U.S. at 241. If the alleged conduct is closed-ended,
then a RICO violation is only established if the predicate acts occurred over a “substantial
period of time.” Id. at 242. As a matter of law, the predicate acts must span more than
one year. Webster Indus. v. Northwood Doors, Inc., 320 F. Supp. 2d 821, 850 (D. Iowa
2004). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d
1208, 1215 (8th Cir. 1993) (ten to eleven months insufficient); Cwick v. Life Time Fitness,
Inc., No. 04-2731, 2004 U.S. Dist. LEXIS 18463 (D. Minn. Sept. 2, 2004) (Exhibit 42)
(eight to nine months insufficient). Cf. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769
(8th Cir. 1992) (holding predicate acts over two years enough to establish a pattern).
To establish their conspiracy claim under 18 U.S.C. § 1962(d), the Plaintiffs must
first prove a violation of 18 U.S.C. § 1962(c). Darden, 70 F.3d at 1518. See also G-I
Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 267 (S.D.N.Y. 2001), citing,
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 20 of 55
2 The Plaintiffs have plead the commission of Bank Fraud (18 U.S.C. § 1344),
Mail Fraud (18 U.S.C. § 1341), Wire Fraud (18 U.S.C. § 1343), a Hobbs Act violation
(18 U.S.C. § 1851), Tampering (18 U.S.C. § 1512), and Bribery (18 U.S.C. § 201). See
Pl. Compl. 213(a)-(f). They also appear to have made an attempt to plead a violation of
Interstate Travel or Transportation in Aid of Racketeering Enterprises (18 U.S.C. § 1952).
See Pl. Compl. 213(g).
21
Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 244-245 (2nd Cir. 1999).
Then the Plaintiffs must prove that a second defendant “objectively manifested an
agreement to participate directly, or indirectly, in the affairs of [the] enterprise through the
commission of two or more predicate crimes.” Handeen, 112 F.3d at 1355, quoting United
States v. Bennett, 44 F.3d 1364, 1372 (8th Cir. 1995) (quotation omitted).
The Plaintiffs have alleged multiple violations of seven predicate act statutes.2
After almost four years of discovery, however, the Plaintiffs have failed to identify facts
which support a single violation of any predicate act statute. The Plaintiffs’ failure to
prove that at least one individual Defendant, acting outside the scope of their employment
for the City, committed at least two predicate acts, over a period of more than one year,
translates into a failure to establish a RICO claim. Furthermore, aggressive enforcement
of the housing code by the Defendants does not create a pattern of racketeering activity if
those actions are adverse to landlords with code violations. See Sinclair v. Hawke, 314
F.3d 934, 943-944 (8th Cir. 2003) (discussing regulation by bank regulators). Housing
code enforcement officers “do not become racketeers by acting like aggressive” housing
code enforcement officers. Id., see also Terry A. Lambert Plumbing, Inc. v. Western Sec.
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 21 of 55
3 Plaintiffs also claim Defendants interfered with their rights under the Civil
Rights Act of 1866, 42 U.S.C. Section 1982, which is the same analysis herein. E.g.,
Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989).
22
Bank, 934 F.2d 976, 981 (8th Cir. 1991) (discussing normal banking activity taken by
bankers). Any contrary “proposition is ludicrous on its face.” Sinclair, 314 F.3d at 943-
944.
Plaintiffs have presented serious allegations of RICO violations against the
individual defendants. Yet Plaintiffs’ independent and exhaustive search has failed to
uncover any actual RICO violation. As a result, summary judgment is appropriate.
II. PLAINTIFFS’ FAIR HOUSING ACT CLAIM FAILS AS A MATTER OF
LAW3
Plaintiffs allege that Defendants violated their rights under the FHA by illegally
using code enforcement to remove protected class citizens from the City. The FHA, 42
U.S.C. §§ 3601 et. seq., provides “[i]t shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on account of his having
aided or encouraged any other person in the exercise or enjoyment of, any right granted or
protected by [42 U.S.C. § 3604].” These rights include the right to exercise, enjoy,
encourage, or aid in the rental of homes to protected class citizens without race, color,
religion, sex, familial status, or national origin being implicated. 42 U.S.C. § 3604(a).
In order to bring suit under the FHA, 42 U.S.C. § § 3601, et. seq., an individual
must have standing as an “aggrieved person.” 42 U.S.C. § 3613. Admittedly, it is very
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 22 of 55
23
easy for an individual to be an “aggrieved person” as they must only “claim . . . to have
been injured by a discriminatory housing practice [or] believe . . . that such person will be
injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(I).
As a result, standing to sue under the FHA has been held to be as broad as that permitted
by Article III of the United States Constitution. Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 209 (1972).
Apart from Article III standing, the Supreme Court has recognized prudential limits
to standing, which limits the class of persons who may invoke the court’s remedial powers.
Warth v. Seldin, 422 U.S. 490, 499, 45 L.Ed.2d 343, 95 S.Ct. 2197 (1975). When the
asserted harm is a “generalized grievance” shared in substantially equal measure by a large
class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Id.,
e.g., Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221-227 (1974).
Accordingly, although Plaintiffs may have Article III standing, the claimed injury runs
afoul of prudential limits to standing because “its effects are indistinct from those felt by
persons generally,” thereby depriving Plaintiffs of a unique stake in the controversy.
Warth, 422 U.S. at 499.
Plaintiffs’ alleged injury is indistinguishable from other landlords in the City who
are similarly subject to the housing code. Plaintiffs generally claim the housing code is
enforced more aggressively against them, but proof of such is without any comparative
analysis as to how Defendants enforce the code against other landlords. For instance,
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 23 of 55
24; 9:47 AM
Bob said...: Anonymous said...
Chuck and Eric I think the plaintiff now can show their hand.Hold your horses big fella.Bob when do the plaintiffs submit their evidence?

9:40 AM

Anytime within the next few weeks.; 10:06 AM
Anonymous said...: Bobby your doing a great job
We all Win if the Landlords Win

Trying to assist with pdf files

http://www.scribd.com/my_docs#

aFederal courts charge 08 cents a page

The Landlords will beat the city if all files are in Order; 10:20 AM
Anonymous said...: Does anyone really think the City will change its tune now? Their denial just continues on. I'm most anxious to see what the plaintiff's say. Does anyone really think the plaintiffs would have gotten this far or would have spent the kind of money it takes to sue the City if there was nothing?; 10:52 AM
Anonymous said...: I don't believe any of this. I know the landlord mentioned above and he doesn't talk the way these writings claim. Nothing but lies.; 11:07 AM
Anonymous said...: As I have said before, the evidence is so not there that the plantiffs are making you look bad. Just a couple of excerpts from above:
*Frank Steinhauser
Steinhauser is a white male and former landlord who owned fifteen properties within the City. (Exhibit 20, at pp. 6, 7). Steinhauser admits that all of his properties were not subject to the alleged illegal code enforcement although all of his properties had the same “tenant base of minorities and low-income people.”

If the base of the claim is that the city is targeting landlords who rent to low income minorities to remove them from the city, why didn't they just go after all of his properties? This one plantiff is enough to cast doubt on the conspiracy suit.

Steinhauser also claimed illegal code enforcement at
719 Sherburne, but could not identify any facts to support his claim. (Exhibit 19, p. 96).
In fact, Steinhauser admitted that “the things [Lisa Martin] cited me for [at 719 Sherburne]
were legitimate at the property.”

So, after being asked about the illegal code enforcement, he admits that it was actually a legal code enforcement. Nice witness.

Finally, Steinhauser admits that many of the
deficiencies cited against 118 Litchfield were, in fact, legitimate items. (Exhibit 19, p.
206). Steinhauser also claims the illegal entry and search of 118 Litchfield by code
enforcement. (Exhibit 19, p. 501). However, he admits that he does not know whether or
not the tenant or her son, white individuals, let them in. (Exhibit 19, p. 502, Exh. 20, p. 6).
Steinhauser also claims illegal code enforcement at his property at 1024 Euclid, but
admits that many of the deficiencies that he was cited for were legitimate and even
possibly caused by tenants. (Exhibit 19, pp. 186-188; 199-200). Steinhauser took photos
of 1024 Euclid that he admits legitimately show deficiencies in his properties.

Wow, wow, wow. He has nothing. He admits that the write-ups were legit and we find out that not all of his tenants are minorities. He does seem to lay fault of damage to tenants which is what happens- but it doesn't change the fact that he was written up legitimately and thus no conspiracy.

he Police were called to 1024 Euclid on October 29, 2002, by
a tenant because Steinhauser was “verbally threatening” the tenant. (Exhibit 40). Officer
Wroblewski found the property, which had just been condemned by code enforcement,
“uninhabitable.” (Id., 1770). She noted that there was “no heat or smoke detectors, rotting
floors, running water in the bathroom (won’t stop), water damage, holes in the walls
throughout where rats have access....”) (Id., pp. 1770-1771) Steinhauser’s verbal threats
came after he learned that the property was condemned. The tenant reported to police that
Steinhauser stated “Why are you doing this black bitch? Why do you have the state on my
ass? Bitch you’re gonna lose in fucking court. You’ll be back on the fucking street!”

Gee, you still wondering why I don't believe this was really about the civil rights of tenants? This guy sounds like a real stand up guy. Good thing the cops wrote this up or he'd claim code enforcement was lying.

You assholes want to repeat your bs claim to me?

It isn't the horses ass as Bob wrote in his title, the horses ass continue to be the RICO men.

Eric; 1:10 PM
Anonymous said...: Henry,
for you and others that have a hard time reading I took out some relevant information for you. Your RICO men are telling on themselves and have blown their own case up.

Johnny Howard was smart enough not to get involved with the slumlords because guys like Frank Steinhauser are not who you want to hitch your wagon to. You're better off going off alone and suing for your particular disagreement instead of trying to force a windfall.

The people who were involved in RICO that possible came across some rogue activity on behalf of the city are now tainted with this frivolous lawsuit.

Eric; 1:17 PM
Anonymous said...: Eric, if anyone has a literacy problem it is you. I can't see where you understand anything.; 2:07 PM
Anonymous said...: Don't you think you should read the other side of the story before you all start pontificating. This brief by the city ignores and/or glosses over many, MANY facts!; 3:33 PM
Anonymous said...: Steinhauser this and Steinhauser that. I have news for you. I dated him for long enough to know him well. You have not seen anything yet. I also saw his properties and they were not terrible houses. Frankie is a sly boy and if he gave them pictures (which I doubt) of problems with his houses, then there's a trap somewhere. This will be interesting.; 4:01 PM
Anonymous said...: The difference between the landlords and the city personnel is that the city people have the heart of a turd.

While the city council is probably misadvised, there is no future with the arrogant treatment, and they will have to pay the price.; 4:59 PM
Anonymous said...: eric,

Maybe you should man a put the whole thing up. For us to decide on what then hell the truth is.

I read both side of the lawsuit.
And the city put in very nasty picture to things. And If every dael with city on this issures you would know What I means.; 5:26 PM
Anonymous said...: Eric, if anyone has a literacy problem it is you. I can't see where you understand anything.
Henry,
You're just embarrassing yourself. Hush up now.
---
Anonymous said...

Don't you think you should read the other side of the story before you all start pontificating. This brief by the city ignores and/or glosses over many, MANY facts!

3:33 PM

You know when to stop digging the hole?
When your own witness testifies on the record that all of the code violations were real violations.
When your own witness admits that RICO can't be RICO because he really was in violation and some of the units were lived in by non-minorities.

Anonymous said...

Steinhauser this and Steinhauser that. I have news for you. I dated him for long enough to know him well. You have not seen anything yet. I also saw his properties and they were not terrible houses. Frankie is a sly boy and if he gave them pictures (which I doubt) of problems with his houses, then there's a trap somewhere. This will be interesting.

4:01 PM
Why do you doubt he gave them pictures? He said so? He's not denying that. He admits his properties were infested shitholes. he tries to put the blame elsewhere- THEN admits he is responsible.
You dated him? I wish I could say I find that hard to believe as we all see how he talks to women.

Anonymous said...

The difference between the landlords and the city personnel is that the city people have the heart of a turd.

While the city council is probably misadvised, there is no future with the arrogant treatment, and they will have to pay the price.

4:59 PM

Uh-Huh. OK buddy. Again, your own plantiffs admit to wrongdoing. They'll be lucky if the court doesn't sanction their attorney and punish them for lying.

Your Frankie boy is so sly, that he blew your case. That and the fact the plantiffs didn't produce one piece of evidence showing RICO or a conspiracy to hide evidence. Those are the words of the court- not mine.

Your legal scholar Nancy will probably explain to you a way that you can still sue and get some money. Please listen to her.

Eric; 5:28 PM
Anonymous said...: Leslie, before this devolved into pro-RICO and everybody else, I said the problem is two part:

1. A policy of even enforcement across the city is needed. (This would not go over too well with some of you as your property is in poorer neighborhoods and to be held to the same standards as other neighborhoods would be hard on you. Too bad.)

2. Most of YOUR housing stock is older and need more frequent upkeep and maintenance. That's tough to do when you add in people who may destroy your property. However, that is a risk in the business. Some landlords seem to find a way that it works for them.

--------------
When you take your grievance to court, you are in effect agreeing to let the judicial system find a solution. Well, your own witness blew your claim to RICO wide open. Its his own words and his own pictures he says he took that blows it out of the water.

Tomorrow is August and it will be almost two years since this blog started and nothing, I mean nothing has been brought forth that even looks close to anything that has to do with RICO. You keep saying wait and see, wait and see. We've waited and seen nothing. That's because there never was nothing and testimony of your 'stand up' witness and the lack of your attorneys to bring one iota of evidence forward to show a cover-up has brought this frivolous lawsuit to an end.

The system works. Now some of you may have to.

Eric; 5:38 PM
Anonymous said...: 4:01 writes:
Steinhauser this and Steinhauser that. I have news for you. I dated him for long enough to know him well.

The Police were called to 1024 Euclid on October 29, 2002, by
a tenant because Steinhauser was “verbally threatening” the tenant. Officer Wroblewski found the property, which had just been condemned by code enforcement,
“uninhabitable.” She noted that there was “no heat or smoke detectors, rotting
floors, running water in the bathroom (won’t stop), water damage, holes in the walls
throughout where rats have access....”) Steinhauser’s verbal threats came after he learned that the property was condemned. The tenant reported to police that
Steinhauser stated “Why are you doing this black bitch? Why do you have the state on my
ass? Bitch you’re gonna lose in fucking court. You’ll be back on the fucking street!”

Now that's classy with a 'K'.

He's all yours baby.

Eric; 5:44 PM
Anonymous said...: Attorneys always write things one-sided – it is their job to represent the client. It is premature to declare victory or defeat with either attorney’s writings.

But, if one reads carefully, there are some interesting admissions by the city. Try this ditty: “problem property” is defined as “constant calls to get rid of the junk, intolerable behavior by occupants and guests, etc.” I remember a SPARL meeting where Andy said “a problem property is the intersection of code enforcement violations and occupant behavior problems.” Andy stressed the word “intersection” -- it required BOTH.

I have not read the entire summary judgment memo, but I have yet to find their description of the “intolerable” behaviors NHPI encountered at the buildings they targeted. I suspect it is because the “intolerable” behavior is more common amongst protected classes.

Then Dawkins says HE moved NHPI to a sweep based system (really?!?) because “it undoes racism by reducing the possibility of one group manipulating the system against another group”.

Put these together: The city REQUIRES “intolerable” occupant behaviors to exist, refuses to address what those activities were, and then admits the process they used is “possibly” racist. Didn’t the city just admit to the case?

I think the city is fighting this because they don’t respect or want to reward Steinhauser and other landlords. Johnny Howard might not have such a fight (cause leadership likes him). But make no mistake – Howard’s allegations are the same. ('cept RICO).

Bill Cullen.; 8:13 PM
Anonymous said...: Cullen open minded and smart-Eric hard headed and one sided.Eric shut up for a couple of seconds so others can post.

Jim; 9:09 PM
Bob said...: There maybe copy errors.

A. Disparate Impact
To prove discrimination under a disparate impact analysis, Plaintiffs must show a
facially neutral policy has a significant adverse impact on members of a protected minority
group. Id., quoting, Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 700 (8th Cir.
1987); see also United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184 (8th Cir.
1974) (plaintiff must show defendant’s conduct “actually or predictably results in racial
discrimination”). Plaintiffs fail to establish both elements of their prima facie case.
In the first instance, Plaintiffs make no attempt to identify a facially neutral policy.
The crux of their argument is that the City maintained a discriminatory policy that
aggressively targeted Plaintiffs and other St. Paul landlords. Although Defendants admit
that identifying a facially neutral policy is easy and Plaintiffs need only look to the City’s
policies, it is worth noting that Plaintiffs’ theory contradicts the existence of a facially
neutral policy, and therefore, Plaintiffs’ disparate impact claim technically fails before it
reaches the second prong.
To succeed at the second prong, Plaintiffs must prove a significant adverse impact
of the policy on a protected class. See Oti Kaga, Inc., 342 F.3d at 833. Plaintiffs cannot
do so and therefore their disparate impact claim fails as a matter of law. Plaintiffs provide
no evidence to support their sweeping claims that the City’s policies have a disparate
impact on protected-class citizens. To prove a fair housing disparate impact claim
statistics or some other analytical method is invariably used. Andrews v. City of New
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 25 of 55
26
York, No.CV-01-7333, 2004 U.S. Dist. LEXIS 30290 (E.D.N.Y. Nov. 22, 2004) (Exhibit
43), citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575 (2nd Cir. 2003). In
addition, plaintiffs must also use the appropriate comparison groups and first identify
members of protected group that are affected by the neutral policy and then similarly
situated persons who are not affected by the policy. Id., see also, Brown v. Omaha
Housing Authority, No. 8:05CV423, 2007 U.S. Dist. LEXIS 53308, at #5 (D. Neb. July
20, 2007) (Exhibit 44) (disparate impact claim generally proved with statistical evidence).
In the present case, however, Plaintiffs provide no statistical proof or any other sort of
analytical method demonstrating Defendants enforced the housing code more aggressively
against them as compared to other landlords who have non protected class tenants. In fact,
the record reflects quite the opposite.
Brisson explicitly admits that the identity of his tenant had nothing to do with the
City’s code enforcement action against his property. (Eshibit 23, pp. 132, 137, 169, 170,
268, 269). Meysembourg has not indicated that 970 Euclid, the property in which he
alleges illegal code enforcement, had protected class tenants (Exhibit 20, #3 (c), (d), and
(e)). Steinhauser alleges illegal code enforcement at a property in which he did not recall
the race of the tenant, and also at a property with a white tenant. (Exhibit 19, pp. 206-208,
502).
Furthermore, Plaintiffs admit that they have protected class tenants in other
properties but such properties are not targeted for aggressive code enforcement. (Exhibit
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 26 of 55
27
22, pp. 62-84, 110, 111.) (Exhibit 19, pp. 112, 113, 157) They also admit that other
landlords, including the PHA, rent to protected class tenants but such properties are not
similarly targeted. (Exhibit 22, p. 110, Exhibit 19, pp. 112, 113, 152, 525, 526).
Plaintiffs further concede that many of their housing code violations were in fact
valid due to the condition of their properties. (Exhibit 23, pp. 74-75, 120-122, Exchibit
22, pp.123-129, Exhibit 19, pp. 206-208, 334-336) Consequently, had Plaintiffs attempted
to support their claims with statistical or analytical evidence, they would have discovered
that there was no illegal targeting. The record simply falls short of supporting Plaintiffs’
contention that Defendants maintained a policy which had a significant adverse impact on
a protected class and, therefore, Plaintiffs’ disparate impact claim should be dismissed.
If the Court finds that Plaintiffs demonstrate a prima facie claim, however, the
Court next determines whether Defendants satisfy their burden to prove that any disparate
impact was justifiable as necessary to achieve legitimate policy objectives. See Darst-
Webbe v. St. Louis Housing Authority, 417 F.3d 898, 901 (8th Cir. 2005), citing Oti Kaga,
Inc., 342 F.3d at 883 (applying a burden shifting analysis to a FHA disparate impact claim
and finding a public housing fund allocation decision “justifiable on the ground it is
necessary to [the defendant’s] exercise of its funding responsibilities”). NHPI has
identified numerous legitimate policy objectives to support its code enforcement plan.
(See Statement of Facts above.) The Defendants’ general and specific objectives are
legitimate and facially neutral. Id. As such, the Court should conclude that Defendants
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28
satisfy their burden of proving any disparate impact was justified as necessary to achieve
legitimate policy objectives.
Upon finding Defendants have met their burden, the Court then addresses whether
Plaintiffs offer an alternative policy that could meet the many and varied goals set out for
the Defendant City of St. Paul’s NHPI. See Darst-Webbe, 417 F.3d at 902. (noting that a
plaintiff “may nonetheless prevail by showing another policy would accomplish [the
proffered policy] objectives without the discriminatory effects”). The Plaintiffs do not
establish any alternative that satisfies the NHPI’s legitimate policy objectives while
reducing the plan’s alleged discriminatory impact.
Based on the foregoing, Plaintiffs do not allege a prima facie case for disparate
impact. Plaintiffs cannot convert their disappointment of the Defendants’ code
enforcement into a disparate impact claim without providing any evidence of disparate
impact. By Plaintiffs’ own admissions, they cannot meet this burden and their disparate
impact claim should be dismissed.
B. Disparate Treatment
If Plaintiffs are alleging a disparate treatment claim, such claim should be
dismissed. To prevail under a prima facie case of discrimination, a plaintiff must prove
that the state acted with the intent of discriminating against a protected class. Familystyle
of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396, 1402, note 9 (D. Minn. 1990) aff’d,
923 F.3d 91 (8th Cir. 1991). This Court has recognized such intent when a policy is
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4 In fact, the only evidence of racial discrimination was of behalf of Steinhauser
verbally threatening his tenant and calling her a black bitch. (Exhibit 40, p.1771).
29
enacted for the purpose of discrimination. United States v. City of Black Jack, 508 F.2d
1179, 1185 (8th Cir. 1974) (racial criticism of [low to moderate income integrated
townhouse development] was made and cheered at public meetings. [A]t all levels of
opposition, race played a significant role, both in the drive to incorporate and the decision
to rezone). Plaintiffs, however, present no evidence of racial discrimination as there is no
indication race, or some other protected class, played a role in Defendants’ housing code
enforcement.4 Without evidence of intent, Plaintiffs fail to provide proof that Defendants
enacted and enforced the housing code with purposeful discrimination. Accordingly, any
disparate treatment claim made by the Plaintiffs should be dismissed.
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1981
At Count IV of Plaintiffs’ Complaint, Plaintiffs claim Defendants intentionally
denied Plaintiffs’ “the same right to make and enforce contracts, and to have the full and
equal benefit of all laws or proceedings for the security of persons and property as is
enjoyed by white citizens.” Complaint, ¶251. Specifically, Plaintiffs allege that
Defendants violated 42 U.S.C. § 1981 by interfering with Plaintiffs’ contracts, right to
make and enforce contracts, and contractual relationships with their non-white tenants.
(Complaint, ¶252).
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42 U.S.C. § 1981 protects the rights of all individuals to make and enforce contracts
without respect to race. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474, 126
S.Ct.1246, 1075 (2006). This section was enacted “to protect identifiable classes of
persons who are subjected to intentional discrimination solely because of their ancestry or
ethnic characteristics.” Occhino v. Lannon, 150 F.R.D. 613, 620 (D. Minn. 1993), quoting
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d
582 (1987), reh'g. denied, 483 U.S. 1011, 107 S.Ct. 3244, 97 L.Ed.2d 749 (1987). It is
directed at racially motivated misuse of government power and protects against racial
discrimination in a limited range of civil rights. Bell v. City of Milwaukee, 746 F.2d 1205,
1270 (7th Cir. 1984) (overruled on other grounds, Russ v. Watts, 414 F. 3d 783 (7th Cir.
2005)).
Plaintiffs alleging violations of 42 U.S.C. § 1981 must show, by a preponderance of
the evidence, that a defendant intentionally and purposely discriminated against the
plaintiffs because of race. General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458
U.S. 375, 391-92 (1982); Youngblood v. Hy-Vee Food Stores, Inc, 266 F.3d 851, 855 (8th
Cir. 2001). Once a prima facie case of discrimination in violation of § 1981 is established,
the burden shifts to the defendant to respond with proof of legitimate, nondiscriminatory
reasons for its actions. If the defendant satisfies this requirement, the burden shifts back to
the Plaintiff to prove that the proffered reason is merely a pretext for discrimination. See
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31
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Sandy Hill Apts. v. Kudawoo,
No. 05-2327, 2006 U.S. Dist. LEXIS 75229 (D. Minn. Oct. 16, 2006) (Exhibit 46).
Summary judgment is appropriate here because Plaintiffs cannot make a prima
facie showing of racial discrimination under § 1981. The record in this case does not
establish that Defendants misused government power to interfere with or deny Plaintiffs’
right to make and enforce contracts with non-white tenants, or that Defendants misused
their authority to interfere with Plaintiffs’ contractual relationships with non-white tenants.
Defendants did not prevent Plaintiffs from renting or leasing their properties to any tenants
on the basis of race; nor did they interfere with any business or contractual relationship
between non-white tenants and the Plaintiffs.
Analogous to claims under the Fourteenth Amendment, in order to prevail on a
claim under § 1981, a plaintiff must present evidence of defendant’s discriminatory intent.
Mere conclusory allegations of discrimination are insufficient, Davis v. Frapolly, 717
F.Supp. 614, 616 (N.D.Ill.1989), and, will not sustain plaintiff’s burden of demonstrating
genuine issues of material fact sufficient to preclude entry of judgment in civil rights
actions under §1981. Taliaferro v. Voth, 774 F. Supp. 1326 (D. Kan. 1991). Plaintiffs, in
this case, have failed to produce evidence of discriminatory intent under § 1981 by any of
the named Defendants. Because of Plaintiffs’ failure to produce evidence of
discriminatory intent, Plaintiffs’ § 1981 claims against these Defendants should be
dismissed as a matter of law.
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32
Plaintiffs also allege the City violated their rights under § 1981. However, § 1981
does not impose vicarious liability on municipalities for civil rights violations committed
by the municipality’s employees. A municipality will not be held liable for its employees’
acts through a respondeat superior standard. Dunham v. Special Sch. Dist. No. 1, 484
N.W.2d 63 (Minn. Ct. App. 1992), rev’d 498 N.W.2d 441 (Minn. 1993), citing Jett v.
Dallas Indep. Sch. Dist., 491, U.S. 701, 735, 109 S.Ct. 2702, 2721, 105 L.Ed.2d 598
(1989). Consequently, Plaintiffs’ § 1981 claim against the City should be dismissed.
IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1983
Count VI of Plaintiffs’ Complaint asserts civil rights violations under 42 U.S.C. §
1983. Specifically, Plaintiffs allege Defendants and other employees of the City “did
wrongfully deprive Plaintiffs and their tenants of . . . the right to be free from
unreasonable searches and seizures, the right to be free from taking of their property
without compensation, the right to due process of law, the right to equal protection of the
laws, and the right to pursue an occupation, business or profession free from governmental
deprivation or undue interference, or government imposed monopoly, guaranteed by the
Fourth, Fifth, Ninth, and Fourteenth Amendments.” (Complaint, ¶264).
42 U.S.C. § 1983 imposes liability for damages upon any person acting under color
of state law who deprives another of the rights, privileges, or immunities secured by the
Constitution. It is well established that 42 U.S.C. § 1983 does not provide an independent
basis for liability. Rather, it is a remedial statute affording remedies for violations of
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5 Brisson is the only plaintiff who actually lived at the property where he claims
illegal code enforcement. However, Brisson does not claim any Fourth Amendment
violation by defendants.
33
constitutional rights or federal laws. See Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979). In order to recover under § 1983, Plaintiffs must (1) establish that Defendants
violated a right secured by the United States Constitution; (2) demonstrate that Defendants
acted under color of state law in violating those rights; and (3) establish that Defendants’
acts damaged Plaintiffs. Rinker v. Sipler, 264 F. Supp.2d 181, 186 (M. D.Pa. 2003).
A. Fourth Amendment: Unreasonable Search & Seizure
The Fourth Amendment guarantees individuals the right to be secure in their houses
and free from unreasonable searches and seizures. Plaintiffs claim Defendants violated
their Fourth Amendment rights to be free from unreasonable searches and seizures when
the City’s code enforcement officers (specifically Defendants Magner, Koehnen and
Martin) entered Plaintiffs’ properties without their consent. Defendants are entitled to
judgment on Plaintiffs’ Fourth Amendment claims because Plaintiffs lack standing to
assert Fourth Amendment claims with respect to properties they owned but did not live in,
Defendants obtained consent to enter the properties at issue, and Plaintiffs failed to allege
any unconstitutional conduct as to several Defendants.5
1. Plaintiffs Lack Standing
Fourth Amendment rights are personal rights which may not be vicariously
asserted. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425 (1978). Fourth
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Amendment rights are not limited or defined by the law of property. United States v.
Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993 (1974). Property ownership alone is
insufficient to confer standing to contest a search under the Fourth Amendment. See
DiBlasi v. Borough of E. Rutherford, No. 05-1890, 2006 U.S. Dist. LEXIS 54236 (D.N.J.
Aug. 4, 2006) (Exhibit 47). Instead, a plaintiff asserting a Fourth Amendment violation
must show that he/she had a reasonable expectation of privacy in the premises searched.
In this case, Plaintiffs fail to show that they had a reasonable expectation of privacy
in any of the properties inspected. Plaintiffs did not reside in the properties and have
provided no evidence, besides their ownership of the properties, that they maintained a
legitimate expectation of privacy in any of the properties at issue. See Godshalk v.
Borough of Bangor, No. 03-1465, 2004 U.S. Dist. LEXIS 7962 (E.D. Pa. May 5, 2004)
(Exhibit 48) (holding that plaintiffs lacked standing to challenge borough officer’s
inspection of plaintiffs’ property for building code violations because plaintiffs were mere
legal owners of the property and did not reside at the property); Rozman v. City of
Columbia Heights, 268 F.3d 588, 591 (8th Cir. 2001) (landlord lacked standing to assert
tenant’s Fourth Amendment rights).
2. Defendants Obtained Consent
Even if Plaintiffs had standing to challenge the inspections of their properties,
Defendants did not violate their Fourth Amendment rights. A search is per se
unreasonable under the Fourth Amendment if it is conducted without a warrant issued
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35
upon probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041
(1973). However, searches conducted with the voluntary consent of persons possessing
authority are exceptions to the warrant requirement. Id.
In this case, the respective tenants of the properties gave consent for the City’s code
enforcement officers to enter and inspect the properties. As residents, these individuals
had the requisite authority to consent to an inspection of their living areas. See Illinois v.
Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793 (1990) (an individual who has or reasonably
appears to have common authority over premises, but has no property interest in the
premises searched, has sufficient authority to consent to a search of the premises).
3. No Unconstitutional Conduct or Policies
Plaintiffs’ Fourth Amendment claims center on allegations that Defendants Martin,
Koehnen and Magner entered Plaintiffs’ property without consent. Plaintiffs have not
alleged or presented evidence that any of the other named defendants engaged in such
conduct or that the City maintained an unconstitutional policy, custom or practice
authorizing such conduct. See Sanders v. United States, 760 F.2d 869 (8th Cir. 1985)
(limiting liability to instances of personal administrative involvement, personal
knowledge, or breach of a legal duty that proximately causes the injury). Absent evidence
of individual action, unlawful conduct by the other individually named Defendants or an
unconstitutional policy, custom or practice by the City, Plaintiffs’ Fourth Amendment
claims against Defendants Kelly, Dawkins and the City fail as a matter of law.
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6 As a threshold matter, it should be noted that Plaintiffs have had the opportunity
to litigate violations of the various building codes as referenced in their Complaints.
Plaintiffs have pleaded guilty to a number of violations which constitute an admission of
fault which may not be relitigated here. To the extent that they have failed to pursue their
state court remedies by appeal, Plaintiffs have similarly waived their right to contest those
violations in a later proceeding.
36
B. Equal Protection and the Fourteenth Amendment
Plaintiffs claim Defendants, did wrongfully deprive Plaintiffs and their tenants of
rights secured by the Constitution and laws of the United States, including the right to
equal protection of the laws. Specifically, Plaintiffs asserts civil rights violations under 42
U.S.C. § 1983 and the Fourteenth Amendment by following an unconstitutional city
policy, custom and practice of discriminatory code enforcement.6
The Equal Protection Clause of the Fourteenth Amendment commands that no state
shall “deny to any person within its jurisdiction the equal protection of the laws”. U.S.
Const. Amend. XIV, 1. Generally, this provision proscribes government action that treats
one group of individuals less favorably than others similarly situated. City of Cleburne,
Tex. V. Cleburne Living Center, 105 S.Ct. 3249, 3254 (1985). The Fourteenth
Amendment does not require perfectly equal treatment for every individual. See Kahn v.
Shervin, 416 U.S. 351, 355-56 (1974). In order to establish an Equal Protection violation,
a plaintiff must prove that he was treated differently from other similarly-situated people.
See Bogren v. Minnesota, 236 F. 3d 399, 408 (8th Cir. 2000). A plaintiff must also
produce evidence of a racially discriminatory intent or purpose. Village of Arlington
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37
Heights v. Metropolitan Housing Dev. Corp., 97 S.Ct. 555, 563 (1977) (overruled on other
grounds at Chapman v. Nicholson, 579 F. Supp. 1504 (N.D. Ala. 1984)). The
discriminatory purpose must be the motivating factor in an Equal Protection Claim.
Regarding Plaintiffs’ alleged cause of action for violation for equal protection of
the law under the Fourteenth Amendment, the Federal Civil Rights Statute as interpreted
provides that municipalities cannot be held liable solely because of the discriminatory
actions of one of its employees. Back v. Hastings on Hudson Union Free School District,
365 F.3d 107, 128 (2nd Cir. 2004). Defendants can only be held liable if Plaintiffs prove
that Defendants’ policy or custom inflicted the claimed injury pursuant to Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978).
To prevail on a selective enforcement equal protection claim pursuant to § 1983,
Plaintiffs must show that: 1) the person compared with others similarly situated was
selectively treated and 2) the selective treatment was motivated by an intention to
discriminate on the basis of impermissible considerations such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent
to injure the person. Zahra v. Town of Southhold, 48 F.3d 674, 683 (1995). Plaintiffs
have alleged that as landlords they have been subjected to Defendants’ discriminatory code
enforcement policy. Fatally lacking from Plaintiffs’ equal protection claim is any evidence
from which a reasonable person could conclude that the Defendants were motivated by
discrimination and acted pursuant to some widespread policy or custom.
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38
In Berry v. City of Little Rock, 904 F. Supp. 940 (U.S.D.C Ark. 1995), plaintiffs,
landlords and tenants brought an action against a municipality alleging that the City’s
ordinance that provided for inspection of residential rental housing units violated the
Equal Protection Clause. The Court dismissed plaintiffs tenants’ claims for lack of
standing and dismissed plaintiff landlords’ claims on the merits. The Court found that the
City’s use of its ordinance to “target rental properties for the enforcement of minimal
standards of maintenance and repair of dwellings” is not cause for complaint, and
plaintiffs landlords’ claims that they have been denied equal protection should be
dismissed. Berry, 904 F. Supp. At 949. It was not a violation of the Equal Protection
Clause to effectively utilize the City’s limited enforcement resources by concentrating
enforcement activities where they are needed most. Id.
In the present case, Plaintiffs are landlords claiming a violation of the Equal
Protection Clause based on the allegation that they were targeted because of the protected
class status of their tenants. In an effort to support this claim, Plaintiffs allege facts that
actually support Defendants. Plaintiffs admit that all of their properties were not targeted
although all their properties had the same class of tenants. Plaintiffs admit that many of
the correction orders were valid and Plaintiffs had to correct the deficiency in their rental
properties. Brisson actually admits that the identity of his tenant (an allegedly disabled
white individual) had absolutely nothing to do with the City’s code enforcement and
condemnation. In support of his claim, Meysembourg identifies a neighbor who rents to
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39
protected class tenants who was not subject to City code enforcement that he should have
been subjected to. Meysembourg also admittedly cannot recall the race of the tenants at
970 Euclid, the only property in which he alleges illegal code enforcement based on the
race of his tenants. Likewise, Steinhauser claims 118 Litchfield was illegally targeted
because of the race of his tenants but he does not recall who the tenant was. (Exhibit 19,
pp. 206-208). He later claims illegal code enforcement based on enforcement at 118
Litchfield of a unit occupied by a white tenant. (Exhibit 19, p. 502 Exh. 20, p. 6). He also
claims that the PHA, who has the same tenant base, was not subject to illegal code
enforcement. Like the City in Berry, the City of St. Paul legitimately used its resources on
code enforcement where it was needed most. There is absolutely no evidence that the
code enforcement was based on the protected class status of the tenants. In fact, all
evidence (and even the evidence provided by Plaintiffs) confirms that code enforcement
did not consider (or necessarily even know) the protected class status of Plaintiffs’ tenants
when applying the City’s code. Plaintiffs’ Equal Protection Claims should therefore be
dismissed as a matter of law.
C. Substantive Due Process
Plaintiffs claim Defendants have deprived them of their due process rights under
the Fifth Amendment of the Constitution, specifically asserting the right to be free of
deprivation of property without due process of law. As a preliminary matter, the Fifth
Amendment is only applicable to violations of due process committed by federal officials.
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40
Dusenbery v. United States, 534 U.S. 161 (2002). The Dusenbery court noted that the due
process clause of the Fifth Amendment prohibits the United States from depriving any
person of property without due process of law whereas the due process clause of the
Fourteenth Amendment prohibits the states from depriving persons of property without
due process of law. Based on this, Plaintiffs’ Fifth Amendment due process claim is
defective and must be dismissed.
Assuming Plaintiffs have preserved a claim for substantive due process under the
Fourteenth Amendment, Plaintiff must demonstrate that Defendants engaged in conduct
that shocks the conscience or interferes with rights implicit in the concept of ordered
liberty. Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998). Because the doctrine of
substantive due process does not protect individuals from all governmental actions that
infringe upon liberty or injure property, to establish a claim a plaintiff must demonstrate an
abuse of governmental power that shocks the conscience or action that is legally irrational
in that it is not sufficiently keyed to any legitimate state interest. PFZ Properties, Inc. v.
Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991). Where discretionary administrative action
is involved, the class of cases which meets this constitutional threshold is narrowly
limited. See Baker v. Coxe, 230 F.3d 470 474 (1st Cir. 2000). Even the outright violation
of state law by local officials in denying a permit or license does not automatically raise a
federal claim. Roy v. City of Augusta, 712 F.2d 1517, 1523 (1st Cir. 1983). It is apparent
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41
from the record that Plaintiffs cannot demonstrate conduct on the part of Defendants
which “shocks the conscience”.
The Second Circuit Court of Appeals in Zahra v. Town of Southold, 48 F.3d 674
(2nd Cir. 1995), noted the general rule in regard to substantive due process claims, federal
courts should not become zoning boards of appeal to review local legislative and
administrative agencies, citing Sullivan v. Town of Salem, 805 F.2d 81, 82 (2nd Cir. 1986).
Here, Plaintiffs are in effect asking the federal court to act as a local government board
reviewing whether Defendant’s state court-related actions were appropriate. Plaintiff’s
Fifth Amendment due process claim should be dismissed for the reasons stated above.
D. Taking Property Without Just Compensation
Plaintiffs assert that Defendants have taken their property without just
compensation in violation of the Fifth Amendment of the Constitution. Plaintiff’s claim is
based upon allegations that they suffered expenses because of Defendant’s code
enforcement. Plaintiffs are not alleging they have lost permanent use of their properties.
Further, while Plaintiffs allege they have been required to engage in “forced sales” of their
property, they have not alleged that the properties were taken over by Defendants.
In Minnesota Industrial Ventures LLC v. City of Roseville, No. 05-2488, 2006 U.S.
Dist. LEXIS 13421 (D. Minn. Mar. 24, 2006) (Exhibit 49), plaintiff property owner
brought suit against the municipality alleging that it had taken real property in violation of
the Federal Constitution. The Court noted that under the Fifth Amendment of the United
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42
States Constitution, private property shall not be taken for public use without just
compensation. The City of Roseville argued that plaintiff had not exhausted state
compensation procedures as required by the case of Williamson v. County Regional
Planning Commission, 473 U.S. 172 (1985). In Williamson, the Supreme Court held that
if a state provides an adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the just compensation clause until it has used the
procedure and been denied just compensation. The Court found that the federal court
claims were not ripe for adjudication and dismissed plaintiff’s lawsuit. A similar result is
mandated in the present case where Plaintiffs have had the opportunity to seek state court
remedies and have failed to do so.
The Minnesota Court of Appeals in Arcadia Development Corp. v. City of
Bloomington, 552 N.W.2d 281 (Minn. App. 1996) reviewed the situation where plaintiffslandowners
of a mobile home park challenged the constitutionality of a city ordinance
requiring landowners to pay relocation costs to mobile home park residents upon closure
of the park. Plaintiffs asserted there was a regulatory taking without just compensation.
The court noted that statutes and local ordinances are presumed valid and will not be
declared unconstitutional unless clearly shown to be so, citing City of St. Paul v.
Kekedakis, 199 N.W.2d 151 (1972).
Because there has been no taking of property without compensation and the
ordinances are presumed valid, Plaintiffs’ claims lack merit and should be dismissed.
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43
E. Ninth Amendment
Plaintiffs allege Defendants violated the Ninth Amendment, which provides that
“the enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.” U.S. Const. Amend. IX. Plaintiffs Ninth
Amendment claim against Defendants lacks merit and should be dismissed.
The Ninth Amendment has not been recognized as independently securing any
constitutional right, for purposes of pursuing a civil rights claim. Strandberg v. City of
Helena, 791 F.2d 744, 748-49 (9th Cir. 1986); Ramirez v. Butte-Silver Bow County, 298
F.3d 1022, 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because
plaintiff may not “double up constitutional claims”) aff’d sub nom; Groh Ramirez, 540
U.S. 551, 124 S. Ct. 1284 (2004). “This amendment has never been used as a solid basis
for any decision from the Supreme Court.” National Assoc. of Property Owners v. United
States, 499 F.Supp. 1223(D. Minn. 1980). Instead, a civil rights claim must be based on a
specific constitutional guarantee. Strandberg, 791 F.2d at 749. Because courts have
rejected the Ninth Amendment as independently securing constitutional rights, Plaintiffs’
Ninth Amendment claim fails as a matter of law.
F. Qualified Immunity Bars Plaintiffs’ §1983 Claims Against the
Individually Named Defendants
Even if the individually named Defendants’ conduct violated Plaintiffs’ rights
under the Fourth, Fifth, Ninth, or Fourteenth Amendments, the doctrine of qualified
immunity would bar Plaintiffs’ claims. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
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44
Under the doctrine of qualified immunity, government officials performing discretionary
tasks are shielded from liability for civil damages unless their conduct violates clearly
established constitutional rights of which a reasonable person would have known. In other
words, the right allegedly violated must have been “clearly established” such that the
contours of the right are sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Id. at 202 (internal quotes omitted). If the law did not
put the official on notice that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate. Id.; See also Malley v. Briggs, 475 U.S. 335,
341 (1986).
A right is not clearly established unless the official has “fair warning” that his
conduct would violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002).
An official has fair warning if a general constitutional rule applies “with obvious clarity to
the specific conduct in question.” Id. at 740-41.
Each Defendant in this case is a government official performing discretionary
duties. They are entitled to qualified immunity because their conduct was objectively
reasonable and did not violate any clearly established constitutional or statutory rights.
“There was no clearly established constitutional right of a rental property owner to be free
from a series of building inspections [or] citations.” Myrosek v. Kraatz, 178 F. Supp. 2d
104, 106 ( 2001). The record in this case contains no evidence to suggest that a reasonable
official, acting in the Defendants’ capacity, would have believed that he or she was acting
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unlawfully by enforcing the requirements of the housing code against the properties owned
by Plaintiffs. Cf. Melek v. Kohler, No. 93-56131, 1995 U.S. App. LEXIS 25185, (9th Cir.
Feb. 9, 1995) (Exhibit 50) (granting qualified immunity to housing code enforcement
officers because reasonable official would have believed it lawful to cite plaintiff for
housing code violations).; 10:03 PM
Anonymous said...: No Bill, again you have nothing that would be a part of the suit.

There are two potential Federal issues RICO which is a conspiracy to hurt someone to help someone else and there is no evidence of anything that remotely resembles that. The second is a class action case where the City is accused of targeting poor and minority clients.

If what you just said was true that the City was targeting loud, noisey, unruley or tenents involved in criminal activity that would not be a class action, because they aren't targeting poor or minority. You are the one assuming minority or poor tennants are the ones who have behavior problems not the City.

Their is nothing inharintly discriminitory in a complaint based system, but the City admits that it has the potential to be and attempted to address those concerns through object inspections.

JMONTOMEPPOF

Chuck Repke; 10:19 PM
Anonymous said...: To Eric

My money is on Steinhauser. You do not kow him the way I know him. You'll see! Think I'll give him a call and find out what the real deal is. Be back soon.

4:01; 10:25 PM
Anonymous said...: A number of the city's employees resemble sociopaths in the way they conduct their work. Then they are backed to the utmost by city officials, the city council, and the city attorney in WHATEVER these idiots have done.

If the city is so on the level, then why haven't other cities done the same thing? The city's demands for extreme costly remedies, the uncertainty of the inspections, the focus of the inspections, and the inhuman aspects all point to racketeering.; 10:52 PM
Anonymous said...: Chuck,

It is the city that says a problem property has “intolerable” behavior. Not me. I have asked before if someone can tell us how the city defines “intolerable.” No one ever speaks up and it makes me wonder why. What occupant actions should target the problem property definition? I know the city didn’t set the threshold at criminal – it was well below that.

Makes me wonder if “intolerable” might have a disparate impact…

Bill Cullen.; 10:56 PM
Anonymous said...: Bill, what the City said is that a house is a problem property if it has multiple code violations and multiple police calls. You, Bill Cullen and the guys in the RICO suit make the jump that means the City is out to get minorities and the poor.

No, it means that the City isn't going to tolarate that kind of behavior and any landlord that does and doesn't take care of his property is going to find agressive code enforcement and few breaks. It is just like having an agressive policy against tagging. It is trying to improve the quality of life in the City.

Nothing the City has done has ever been shown to be directed against people of one race or another and that is what is spelled out in this request for summary judgement. It is the RICO men who say if you are a crook and stupid enough to live in one of my places then you must be poor and a minority. They're the racist not the City!

The facts that the City didn't target all of the poor or all minorities or people with good behavior is a defence and one that the RICO men have no answer too.

Their entire case is they picked on me so they must be evil and it must be a conspiracy because liberal government are commies and they hide under peoples beds at night if you don't keep a loaded gun with you.

The case is over soon.

JMONTOMEPPOF

Chuck Repke; 8:58 AM
Anonymous said...: Bobby Blog must force the city to put files online in pdf format
We the taxpayers have the Right to know, Further A State and or Federal Jury must be convene

As a victim of Thune,Lanty etc. We also donate time, work product, etc. to help expose the corruption in the City Easier Read and to print one page at a time
http://www.scribd.com/doc/4382395/Steinhauser-et-al-v-City-StPaulMagner-; 9:05 AM
Anonymous said...: How does it feel to be beaten down by a smart beautiful woman rico boy's?

pepi la pu; 1:06 PM
Anonymous said...: Repke if the city sits in frog town and pulls people over for shinny rims, tinted windows and boom boom music that is called profiling for the fact that most people pulled over would be minorities.If who the citys policies were affecting minorities,which they were that would be called a deperate impact on people of color no matter if it was targeting or not.Just like profiling is against the law.

Jim; 1:34 PM
Anonymous said...: Chuck,

I respectfully disagree with: “The fact that the City didn't target all of the poor or all minorities or people with good behavior is a defense”.

It is as much a defense as a landlord saying that because they rented to one (or some) protected class residents, they don’t discriminate. That defense is laughed out of court. I encourage the city to try it! :)

The issue becomes “disparate impact.” All the plaintiffs need to show is that the cities actions had a disparate impact on people of color and the burden of proof shifts to the city. The city must then prove their actions had “good business reason.” It is hard to assess “good business reason” when the city refuses to discuss the behavior they find intolerable.

But, now the city has confirmed that their actions required “intolerable behavior” and the policy was “possibly” racist.

You might be right – the case may soon be over. With folk like Johnny Howard echoing the ricoman claims, who do we want to win?

Bill Cullen.; 2:02 PM
Anonymous said...: Fiannly someone "gets it." Wanna take one final swing Check and Eric?; 5:14 PM
Bob said...: There maybe copy errors.

G. Plaintiffs Have Failed to Establish a Viable § 1983 Claim Against the
City of St. Paul
Plaintiffs allege the City is liable for Plaintiffs’ damages under 42 U.S.C. § 1983
because the individually named Defendants and other employees of the City deprived
Plaintiffs of their rights while “following an unconstitutional City policy, custom and
practice of discriminatory code enforcement.” (Complaint, § 265). A city cannot be held
vicariously liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v.
Dept. of Social Servs., 436 U.S. 658, 694 (1978). A city may be held liable for the
unconstitutional acts of its officials or employees when those acts implement or execute an
unconstitutional policy or custom of the city. Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999). Only where the constitutional injury is caused by the execution of
city policy or custom will section 1983 liability lie. City of Canton v. Harris, 489 U.S.
378, 385 (1989).
A “policy” is an official policy, a deliberate choice of a guiding principle or
procedure made by the city official who has final authority regarding such matters. See
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Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir.1998). To establish liability based
upon city custom, the plaintiff must show:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the city’s employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the city’s
policymaking officials after notice to the officials of that misconduct; and,
(3) The plaintiff’s injury by acts pursuant to the governmental entity's custom,
i.e., proof that the custom was the moving force behind the constitutional
violation.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
The City is entitled to summary judgment on Plaintiffs’ § 1983 claim because
Plaintiffs have failed to produce evidence of any constitutionally deficient policy or
custom, let alone evidence that such a policy or custom was the “moving force” behind the
code enforcement actions at issue. Absent evidence of a policy or custom of unlawful
code enforcement action, indifference to citizen complaints, failure to discipline code
enforcement officers for unconstitutional conduct, Plaintiffs’ claim cannot prevail.
V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CONSPIRACY CLAIMS UNDER 42 U.S.C. § 1985
At Count VII of Plaintiffs’ Complaint, Plaintiffs allege the individually named
Defendants and other employees for the City conspired together and with other unknown
parties “to deny Plaintiffs and their tenants their federal civil rights.” (Complaint, ¶ 274).
42 U.S.C. § 1985 does not confer rights or provide an independent basis for
liability. Like §1983, it is a remedial statute which affords remedies for violations of
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constitutional rights conferred elsewhere. See Chambers v. Omaha Girls Club, 629 F.
Supp. 925, 933 (D. Neb. 1986), aff’d 834 F.2d 697 (8th Cir. 1986).
In order to establish that Defendants violated Plaintiffs’ rights under 42 U.S.C. §
1985, Plaintiffs must prove: (1) the existence of a conspiracy; (2) that the purpose of the
conspiracy was to deprive the Plaintiffs of their civil rights; (3) that a conspirator did an
act in furtherance of the object of the conspiracy; and (4) damages, shown by
demonstrating either injury to person or property or the deprivation of a civil right. See
Andrews v. Fowler, 98 F3d 1069, 1079 (8th Cir. 1996), citing Griffin v. Breckenridge, 403
U.S. 88, 102-03, 91 S.Ct. 1790 (1971).
A conspiracy is not established from the mere fact that it is alleged. Speculation
and conjecture are not enough to prove a conspiracy exists. See Hinkle v. City of
Clarksburg, 81 F.3d 416, 421-22 (4th Cir. 1996) Allegations of a conspiracy must be
pleaded with sufficient specificity and factual support to establish a meeting of the minds.
Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992), cert denied, 510 U.S. 831 (1993)
Allegations of a conspiracy, absent supporting facts, do not establish a claim upon which
relief may be granted. Holbird v. Armstrong-Wright, 949 F.2d 1019, 1020 (8th Cir.1991).
Here, the Plaintiffs’ allegations of a conspiracy are bald and conclusory. There are
no facts in the record identifying the existence of an intent to violate Plaintiffs’ civil rights.
Plaintiffs do not even allege that Defendants engaged in any conduct that would establish
there was a meeting of the minds or conduct in furtherance of any alleged conspiracy.
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Plaintiffs have not shown damages by demonstrating either an injury to themselves, their
property, or the deprivation of a civil right due to the alleged conspiracy.
Plaintiffs’ §1985 claim against Defendants and the City should be dismissed.
IV. PLAINTIFFS’ STATE LAW CLAIMS FAIL AS A MATTER OF LAW
A. Count VIII - Abuse of Process
Plaintiffs claim an abuse of process in Defendants’ alleged coordinated effort to rid
the City of “bottom of the barrel” and “low income” individuals and target Plaintiffs’
properties for illegal code enforcement. To prove an abuse of process action, the plaintiff
must show that there was an ulterior purpose and that the defendant used the process to
achieve something not within the scope of the proceedings. Nutter v. Messerli & Kramer,
P.A., 500 F. Supp. 2d 1219, 1224 (D. Minn. 2007), citing Kellar v. VonHoltum, 568
N.W.2d 186, 192 (Minn. Ct. App. 1997). The plaintiff must also demonstrate that the
abuse of process resulted in injury to person or property, whereas a showing of direct
injury to business or good name is not sufficient. Kittler & Hedelson v. Sheehan Props
Inc., 295 Minn. 232, 239, 203 N.W. 2d 835 (1973). Plaintiffs fail to satisfy the elements
of their abuse of process claim and accordingly, such allegation should be dismissed.
Plaintiffs have not identified an ulterior motive behind the City’s code enforcement
process. They allege the City coordinated an “illegal scheme” of targeting their properties
and created false entries in City code enforcement documentation. However, the record
fails to reflect the City had an “illegal scheme” in place as Plaintiffs readily admit in many
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instances Defendants legally enforced the code. (Exhibit 23, pp. 132, 137, 268-269;
Exhibit 19, pp. 206-208, 210-211, 360-362). In contrast, the record reflects that Defendant
City created the code enforcement policy for a legal purpose. (See Statement of the Facts
above.) Plaintiffs have not established an ulterior motive and without such, there are no
grounds supporting Plaintiffs’ abuse of process allegation. Accordingly, Plaintiffs’ claim
should be dismissed.
Further, there is no evidence supporting Plaintiffs’ contention that Defendants used
the process to achieve something outside the scope of the proceedings. See Nutter, 500
F.Supp.2d at 1224. Plaintiffs cannot prove Defendants used enforcement of the city
housing code to accomplish an unlawful end. See Kittler & Hedelson, 295 Minn. at 239
(the test for abuse of process is whether the process was used to accomplish an unlawful
end for which the process was not intended, or to compel a party to do a collateral act
which he or she is not legally obligated to do). Plaintiffs allege Defendants created false
entries in City code enforcement documentation and used such in court filings against
them. However, there is no evidence in the record supporting these allegations and,
without more, Plaintiffs have no proof Defendants used code enforcement to achieve
something outside of its original and legal purpose. In short, there is no evidence
Defendants illegally misapplied the code and, therefore, Plaintiffs’ abuse of process claim
should be dismissed.
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B. Count IX - Tortious Interference with Contract
Plaintiffs claim Defendants tortiously interfered with the contracts between them
and their respective tenants for lease of private housing in the City. To establish a claim
for tortious interference with a contract, a plaintiff must prove the following elements: (1)
existence of a contract; (2) alleged wrongdoer’s knowledge of the contract; (3) his or her
intentional causation of its breach; (4) without justification; and (5) damages resulting
therefrom. Storage Technology Corp. v. Cisco Systems, Inc., 395 F.3d 921, 924 (8th Cir.
2005), citing Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn. 1982).
A successful claim requires proof of all five elements. Dyrdal v. Golden Nuggets, Inc.,
672 N.W.2d 578, 580 (Minn. App. 2003).
Plaintiffs have not alleged any material facts, or elicited evidence, to support a
tortious interference of contract claim against any of the Defendants. Plaintiffs have not
identified any evidence that Defendants intentionally procured breach of the contracts and,
in fact, Plaintiffs admit that many leases were breached because of tenant issues, not
anything to do with Defendants enforcing the housing code. (Exhibit 23, pp. 112, 126,
127, 197, 199; Exhibit 22, pp. 175-177; Exhibit 19, pp. 207, 302, 416-419). It is
Plaintiffs’ poor housing stock and neglect of their properties which caused any breach of
an alleged lease. Even if Plaintiffs’ tenants breached a lease because of code enforcement,
Plaintiffs, as landlords, are the individuals responsible to keep their properties up to code
and consequently, are the cause of tenants breaking leases. In short, Defendants are
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entitled to summary judgment because Plaintiffs have not raised a genuine issue of
material fact with respect to any of the tortious interference with a contract elements.
C. Count X - Tortious Interference with Plaintiffs’ Business Expectancy
Plaintiffs allege Defendants tortiously interfered with the business expectancy they
had in their rental business in the City. To prevail on a claim for tortious interference with
business expectancy, a plaintiff must show: (1) the existence of a reasonable expectation
of economic advantage or benefit belonging to the plaintiff; (2) that the defendant had
knowledge of that expectation of economic advantage; (3) that the defendant wrongfully
and without justification interfered with the plaintiff’s reasonable expectation of economic
advantage or benefit; (4) that in the absence of the wrongful act of the defendant, it is
reasonably probable that the plaintiff would have realized his or her economic advantage
or benefit; and (5) that the plaintiff sustained damages as a result of this activity.
Lamminen v. City of Cloquet, 987 F. Supp. 723, 731 (D. Minn. 1997), citing United Wild
Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-633 (Minn. 1982).
Plaintiffs have not alleged any material facts to support the elements of a tortious
interference with a business expectancy claim against any of the Defendants. Brisson
cannot prove the existence of a reasonable expectation of economic advantage because he
purchased the property knowing it needed substantial renovation and consistently failed to
cure such violations because of lack of money. (Exhibit 23, pp. 99, 251). His property
was eventually condemned due to his inability to meet deadlines in the correction and
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abatement orders on account of his financial situation, a problem apart from Defendants’
conduct. (Exhibit 23, pp. 127, 254, 268-269). Further, there is no evidence indicating
Defendants interfered with any alleged business expectations and, in contrast, Plaintiffs
readily admit that at times code enforcement was good for their business. (Exhibit 23, pp.
126, 127, 197, 220-222; Exhibit 22, pp. 190, 191). Finally, any economic loss suffered by
Plaintiffs is either non-existent or Plaintiffs have brought such loss upon themselves
because of their failure to remedy valid code violations. (Exhibit 23, p. 126, 127, 254).
Steinhauser cannot prove he sustained damage as a result of Defendants’ alleged
interference because he explicitly admits that he realized substantial profits from the sale
of his properties. (Exhibit 20, p. 15). In sum, Plaintiffs allege a skeletal claim of tortious
interference with a business expectancy without establishing grounds for such claim.
Without more, the Court should conclude that there are no genuine issues of material fact
and dismiss Plaintiffs’ allegation.
D. Statutory and Official Immunities Bar Plaintiffs’ State Law Claims
Plaintiffs have not met the burden of proof to establish viable claims for abuse of
process, tortious interference with contract, or tortious interference with business
expectancy. Plaintiffs’ admissions contradict the notion that Defendants acted with intent
to abuse their authority or intent to interfere with Plaintiffs’ contracts or business
expectancy. Instead, Plaintiffs’ contentions seem to challenge the underlying City policies
and procedures and the discretionary decisions used by Defendants to enforce the St. Paul
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Housing Code. In this regard, Defendants are immune from liability pursuant to the
statutory immunities provided by the Minnesota Municipal Tort Claims Act and common
law official immunity.
E. Statutory Immunities
The City is immune from liability for “any claim based upon the performance or the
failure to exercise or perform a discretionary function or duty, whether or not the
discretion is abused.” Minn. Stat. §466.03, subd. 6 (2006). To the extent Plaintiff is
challenging the City’s housing code policies and procedures for enforcement, i.e., planning
level decisions regarding the timing and allocation of resources to enforcement actions,
statutory immunity bars Plaintiffs’ claims. Planning level decisions are those involving
questions of public policy, that is, the evaluation of factors such as the financial, political,
economic, or social effects of a given plan or policy. Holmquist v. State, 425 N.W.2d 230
(Minn. 1988). The policies and procedures followed by Defendants are based upon
planning level decisions which balanced economic, political, and social factors. (Exhibit
7). Minnesota courts have reasoned that statutory immunity exists to prevent the courts
from conducting an after-the-fact review which would second guess planning and policy
making activities that are legislative or executive in nature. Conlin v. City of St. Paul, 605
N.W.2d 396 (Minn. 2000); Angell v. Hennepin County Regional Rail Authority, 578
N.W.2d 343 (Minn. 1998); Christopherson v. City of Albert Lea, 623 N.W.2d 272 (Minn.
Ct. App. 2001).
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To the extent Plaintiffs’ state law claims challenge Defendants’ execution of the St.
Paul Legislative Code or other laws, Defendants are immune from liability. The
Minnesota Legislature created a limitation on municipal tort liability for acts committed in
accordance with a statute, where the municipality has been sued for “any claim based upon
an act or omission of an officer or employee, exercising due care, in the execution of a
valid or invalid statute, charter, ordinance, resolution or rule.” Minn. Stat. 466.03, subd. 5
(2006). Where there is no conflicting evidence on the issue of due care in the execution of
a statute, summary judgment is appropriate. Landview Landscaping, Inc., v. Minnehaha
Creek Watershed Dist., 569 N.W.2d 237, 241 (Minn. Ct. App. 1997) (summary judgment
proper where due care in watershed district's issuance of conditional license according to
rule was not disputed factually).
F. Official Immunity
The doctrine of official immunity "provides that ‘a public official charged by law
with duties which call for the exercise of judgement or discretion is not personally liable to
an individual for damages unless he is guilty of a willful or a malicious wrong.’" Elwood
v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988), quoting Susla v. State, 247 N.W.2d
907, 912 (Minn. 1976).
The record is devoid of facts establishing that any of the Defendants intentionally
engaged in conduct that he/she knew was prohibited. Official immunity bars Plaintiffs’
state law claims against the individual Defendants.
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Vicarious official immunity must be extended to the City to preserve code
enforcement officer’s discretion and protect it from liability for the acts of its individual
employees. See Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992), see also Watson v.
Metropolitan Transit Commission, 553 N.W.2d 406, 415 (Minn. 1996) (stating public
policy underlying official immunity is to prevent threat of liability from inhibiting use of
discretion).
CONCLUSION
Based on the arguments set forth above and all the files, records, evidence, and
documents of record, the Defendants respectfully request that summary judgement be
entered in its favor and that the plaintiffs claims be dismissed with prejudice.
Dated: July 29, 2008 JOHN J. CHOI
Saint Paul City Attorney
s/ Louise Toscano Seeba
Louise Toscano Seeba (#292047)
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
(651) 266-8772
Attorneys for Defendants; 1:11 AM
Anonymous said...: ms. Seeba you are so beautiful and inteligent. the rico guys should be so pleasured being beaten by such a beautiful woman!; 11:48 PM
Anonymous said...: APPARANTLY THE CITY - MAGNER ARE GUILTY IN A "PATTERENED ENTERPRISE" TO CONFISCATE ALL PROPERTYS RICO 18USC

THANKS SEEBA, CASE LAW USED AGAINST THE CITY AND YOU AS AN ATTORNEY FOR THE CITY.
INDICTMENTS AGAINST THE CITY MUST ISSUE:
http://biotech.law.lsu.edu/cases/RICO/northwestern_bell.htm

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, which is Title IX of the Organized Crime Control Act of 1970 (OCCA), imposes criminal and civil liability upon persons who engage in certain "prohibited activities," each of which is defined to include, as a necessary element, proof of a "pattern of racketeering activity," § 1962. "Racketeering activity" means "any act or threat involving" specified state-law crimes, any "act" indictable under specified federal statutes, and certain federal "offenses." § 1961(1). A "pattern" requires "at least two acts of racketeering activity" within a 10-year period. §; 8:37 AM
Anonymous said...: Civil No.: 05-461 JNE/SRN
Frank J. Steinhauser, III, et al.,
please search the web, city has no idea how vast this case is
if nothing else, Steinhauser must implement the city to post files online for public Amicus Curie

http://www.justia.com/search.py?cx=001017683474852908061:ghxovtgkt-8&q=Steinhauser+et+al+v.+St+Paul%2C+City+of+et+al+more%3Alegalweb&cof=FORID%3A11#1219
You bet we back up the TRUTH
Legal Search engines, Cullen an Repke as Licensed Realestate Agents
this case is relevant to ALL; 9:55 AM

A DEMOCRACY TOWN HALL

Wednesday, July 30, 2008

Saint Paul RICO UPDATE/ If this isn't

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