IN THE UNITED STATES COURT OF APPEALS/ Steinhauser Fair Housing Lawsuit
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posted by Bob at Monday, June 08, 2009
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64 Comments:
There is copy errors
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 09-1528
FRANK J. STEINHAUSER, III, ET AL.,
Plaintiffs-Appellants,
v.
CITY OF ST. PAUL, ETC., ET AL.,
Defendants-Appellees,
Appeal From United States District Court
For the District of Minnesota
Civil No. 04-CV-2632 (JNE/SRN)
PLAINTIFFS-APPELLANTS
BRIEF WITH ADDENDUM
STATEMENT OF THE CASE
Plaintiffs filed suit in 2004 after Defendants' "forced the sale" of Plaintiffs'
older rental homes through illegal code enforcement and other retaliatory tactics
including repeated false claims of code violations, illegal condemnations of homes and
removals of "grandfathering" protections through forced renovations to present code
under "Code Compliance Certifications" and fraudulent notice and fee schemes, all
resulting in economic losses to Plaintiffs and displacement of "protected class" tenants.
During this litigation, Defendants destroyed written communications and other electronic documents for the relevant periods, destroyed over 15,000 relevant housing
inspection records and consistently played "hide the ball" during discovery. Despite
the shocking spoliation of evidence, including evidence related to Defendants' "motive
and intent," Plaintiffs' motions for spoliation were denied by the District Court and summary judgment entered against Plaintiffs for their claimed failure to produce
sufficient evidence. Plaintiffs' subsequent Rule 59(e) motion was denied.
REQUEST FOR ORAL ARGUMENT - 45 minutes
This case is one of three related cases consolidated on appeal from summary judgment. This Court's de novo review requires detailed review and analysis of the
facts and oral argument is critical to a full understanding the facts.
STATEMENT OF FACTS BEFORE THE DISTRICT COURT
City Recipient of Federal Low Income Housing Funds - Affirmative Duty to Further Fair Housing Act and Fair Housing Choice
As a recipient of federal Community Development Block Funds "CDBG," the
City must continually certified to the U.S. Department of Housing and Urban Development that the City will "affirmatively further fair housing" (AFFH) as well as
identify "impediments barriers to fair housing choices" within its jurisdiction and take appropriate action. APP1471; generally, APPI442-1447.
The City certifies each year to HUD that "The jurisdiction will ... conduct an
analysis of impediments to fair housing choice with the jurisdiction, take appropriate
actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard." Id "City's obligation to [AFFH} applies to all housing activities in its jurisdiction whether
publicly or privately funded." APP1447.
City Duty to Conduct Analysis of Impediments
and Barriers to Fair Housing Choice
As part of the HUD required "Analysis ofImpediments to Fair Housing (AI),
the City claims that it "continually evaluates its housing policy and housing practices to
determine whether the City has deliberately or inadvertently prevented people from
living where they choose." APP 14 70 (emphasis added); 1471. The City claims that it
3
promotes "fair housing choice for all persons." APP1468.
CDBG funds are provided to Block Clubs, District Councils, and
Neighborhood Development Corporations. APP 1517 -18. Caty, Royce testified that
these non-governmental organizations working closing with and being provided
funds from the City, each took part in selecting rental homes for inclusion on
"problem properties" lists for heavy code enforcement under the direction of Kelly
and Dawkins. APP1253.
The City's 2003 Consolidated Plan Update states that the CDBG funds City
"code enforcement" efforts, City activities related to "rental rehabilitation," "vacant
buildings," "demolition" of housing, and other fair housing related activities.
APP1520-23.
City regulatory policies and building code are barriers to fair housing
In 2000, the City acknowledged that its regulatory policies, including what some may consider "above standard' development requirements, can pose a barrier to affordable housing - the City cited its own building code as one such barrier.
APP1525.
The City stated that The Metropolitan Council had determined that Cities
regulations, ordinances and fees as well as administrative practices may exceed
reasonable protection of public health and safety and contribute to housing costs. Id.
Saint Paul promised that it "will continue examine its enforcement of the building code to assess whether new construction or housing maintenance standards are
most appropriate for houses being moved to a new site." APP1525.
City knew older homes not compliant with code but still habitable Councilmember Mike Harris stated the proposed ordinance "would impose
overly strict standards for aging properties that may be adequate, if not up to code."
APPII73.
The City long ago acknowledged that, "There are few properties in Saint Paul where a determined inspector could not find a violation of some City ordinance.
APPl175 (City's Chronic Problem Property Case Study, 2002).
Starting in the fall of 2002, the City began to require owners of older rental homes to renovate their homes to "present code" under a program the City called,
"Code Compliance Certification," a process whereby the City illegal removed grandfathering protections applicable to the older properties under the State Building
Code. APPI037,1039,1075,1117,1138 (affidavit and four written reports and qualifications of Don Hedquist, a Certified State Building Official, Plaintiffs' liability expert).
Abandonment of Inner City Older Homes
There is significant evidence of wholesale abandonment of inner city homes due to the increase in costs to own such homes to meet the City's heightened standards.
On March 31, 2003, there were 367 listed vacant homes in the City of Saint Paul.
APPl176. By November 1,2007, the number of vacant homes had dramatically risen to 1466. APPll77. Don Hedquist reviewed the City's records and voluminous other
evidence and concluded in his June 2, 2008 report, that "Mandatory renovations under the City's "code compliance inspection" process, significantly increased the costs to providers of housing to the point where forced sales and abandonment occurred. The
heightened code standard has contributed to the high number of vacant properties currently in the City." APPl120.
City knew heavy code enforcement would lead to wholesale abandonment
Dawkins, as Director of Code Enforcement, and former state representative from
the inner city who focused on housing related legislation at the State Capitol from 1987
to 2002, acknowledged that "in most cities a balance has to be struck between aggressive enforcement to preserve livability and over-zealous enforcement potentially leading to wholesale abandonment of properties or the inner-city." Docket 211-21, p.
1; 211-22, p. 17 [05-cv-01348]. "All I know is that! read a study that was in ajournal
about stepped up code enforcement in Baltimore and that it had tipped the scales so that there was more abandonment of properties than the city had thought or wanted to have happen."
I will post the rest of this appeal over the next 3 days.
Again folks the missing element here is data. Wild accusations, no data.
Bazaar links between CDBG monies being used to fund some neighborhood groups and selected properties being targeted for demolition. No facts, no evidence, nothing in discovery that showed even an inkling that somehow district councils or crime watch groups have magical powers over the City government.
Community Development Block Grant (CDBG) monies being used to facilitate the organizing and development of the community by funding individual non-profit development groups... WOW what a concept! Sounds like exactly what the Fed created the monies for doesn't it? C O M M U N I T Y
D E V E L O P M E N T get it?
And, yet one of the three appeals would lead off their appeal by suggesting that the use of Federal dollars to do EXACTLY what the monies were intended for is some how a violation of the Fair Housing Act.
District councils and crime watch groups have no more power than a sewing circle. Yet, here we have these lawyers trying to spin this as relevant.
Please, this guy should have hired Sharon and Nancy they would have come up with a better case for less money.
JMONTOMEPPOF
Chuck Repke
Same ol' broken record of spin for Chuck. It's going to be interesting to watch the appeal.
Leave it to Chuck to spin the community deal to distract the focus from teh rest of it. I don't think this is the whole case Chuck. I noticed how you conveniently don't say anything about the first paragraph.
It also says the community funds pay for code enforcement. I wonder if HUD is OK with the city using federal money for illegal code enforcement?
Did you mean this:
The City's 2003 Consolidated Plan Update states that the CDBG funds City
"code enforcement" efforts, City activities related to "rental rehabilitation," "vacant
buildings," "demolition" of housing, and other fair housing related activities.
APP1520-23.
- snip -
See that is the lawyer spin in the first line. The "code enforcement" isn't DSI like you would think it is by how they wrote it, it is the rest of the stuff on the list that the spinning lawyers want their client to believe is "code enforcement" efforts."
The City activities related to "rental rehabilitation," "vacant
buildings," "demolition" of housing, is what the CDBG monies go to.
So, the City HRA might give a low interest loan of CDBG monies to rehab a property for affordable rental, or acquire a vacant property for affordable housing, or might buy it for demo. Those UNRELATED TO CODE ENFORSEMENT activities are what their spinning lawyers want their clients and you to think some judge will buy as "code enforcement efforts."
Once you actually take the time to READ what they WROTE you begin to realize how much bull shit it is.
So, the Fair Housing issue based on anything to do with CDBG monies is a joke.
And, then don't forget the rest of the page is devoted to how the City inspections in Saint Paul caused the housing bubble to burst nation wide.
JMONTOMEPPOF
Chuck Repke
Didn't they say an expert testified as to how the city caused the housing problem Chuck?
Yes if you pay someone enough they will swear to anything. We have seen the evidence here that the Saint Paul housing inspections has almost destroyed Las Vegas and Miamii. It is just awful how those inspections have driven down the price of real estate in Southern California and almost bankrupted the state.
That Magner is such an ass. I'm guessing Arnold is going to come and "terminate" him.
The percentage of vacants here is nowhere near what is going on in those markets and not even one in ten of the vacants would have ever been writen up before they were vacant.
If they had any facts, that would be what they would use. This many houses got wrote up by the City and then when vacant. Since they don't have that they spin garbage.
JMONTOMEPPOF
Chuck Repke
City Minimum Maintenance Code Chapter 34 and Section 8 standard
In 1994, the City proposed to PHA, a long term partner, that the City's
Property Maintenance Code (City Code) be substituted for the federally minimum
Housing Quality Standards (HQS) applicable to federally subsidized, Section 8
"low income" housing in the City. Docket 224-12, p. 11 [05-cv-OI348}. During
this process, the City and PHA discovered that the City's code was actually "more
stringent" 82% of the time when compared to the federal code. Docket 224-12, p.
4-10.
In 1995, the City was informed that BUD tightly controls the variations in
HQS by local jurisdictions due to the adverse effect a higher local housing code can
have on the availability of affordable housing. Docket 224-12, p.II. Al Hester of
PHA informed City personnel on the City's Housing Coordination Team that
"[L J ocal HUD staff feared more stringent standards would reduce the supply of
affordable housing for Sec 8 holders. Id.
7
Defendants' "Code Compliance Certification" to
"Present Code" in Violation of State Building Code
Don Hedquist's Expert Testimony
In opposition to summary judgment, Plaintiffs' presented the Court with four
reports from liability expert Don Hedquist, a certified Minnesota Building Official
since 1973. APPl037,1039,1075,1117,1138. Mr. Hedquist is qualified to provide
his opinions based upon his significant experience since 1975, including as a former
Minneapolis building inspector and supervisor, carpenter, construction company
owner, college instructor, owner and manager in the low-income housing market,
and Truth in Housing inspector. APPl099-l116. Hedquist, has issued four reports
since 2006 in the consolidated cases before this Court. APPI039,1075,1117,1138.
Hedquist's opinions were unopposed by the Defendants at summary
judgment and the District Court failed to discuss Mr. Hedquists reports. Hedquist's
supplemental report June 2, 2008 (APPll17) stated that "The City required
Plaintiffs and many other landlords to make substantial changes to their rental
properties that were not mandated by the State Building Code or by the City's
minimum maintenance code." APPlll8. Hedquist stated that the City's "code
compliance" certification process was a "mandatory renovation process where
8
grandfathering protections were eliminated and current codes were applied."
APPll18. Hedquist also opined that "Mandatory renovations under the City's
"code compliance inspection" process significantly increased the costs to providers
of housing to the point where forced sales and abandonment occurred. The
heightened code standard has contributed to the high number of vacant properties
currently in the City." Appl120.
City Inspector Michael Kalis admitted City Code Compliance Certification
process was to "present code". APP. 887-1036. Johnson called inspector Kalis to
inquire why Johnson's 469 Whitall home was posted by Kalis as "vacant" when the
home was in fact occupied. Kalis told Johnson, "Too bad" and stated that Johnson would need a "full code compliance" - he would need to "complete an upgrade of
the home to current building standards in order to reoccupy the home." Id.
After Meysembourg's duplex was condemned in early 2003, and a Code
Compliance Certification demanded, he was told by City LIEP officials that "code
compliance" inspections were to present or current codes, which required all major
systems in a rental building to be brought up to current code requirements, thereby
removing grand-fathering protections of state law. APP657-766.
There ya have it Repke! The experts opinions werte unapposed by the city. That menats they are taken as gospel and ya know what that means Repke? Straight to trial for these boys. Those reports have top be taken as fact. Fact you say doesn't exist chump! See ya at the trials.
"Kalis told Johnson, "Too bad" and stated that Johnson would need a "full code compliance" - he would need to "complete an upgrade of....."
Yes it was to bad Mr. Kalis. Too bad you screwed the wrong guy!
It sure looks to me like the city was pursuing an illegal code enforcement policy. How the hell they were able to get a dismissal against the plaintiffs is sure puzzling to me.
"Johnson called inspector Kalis to
inquire why Johnson's 469 Whitall home was posted by Kalis as "vacant" when the
home was in fact occupied. Kalis told Johnson, "Too bad"
Hmmmm.........
A Democracy Town Hall information on Mike Kalis.
There maybe copy errors.
NHPI Rules and Procedures August
1, 2002 adopted by Dawkins with
authority of the City Council provided inspectors with authority to issue condemnation
orders on homes in the City as follows:
"When Do We Condemn A Building" ... "Whenever a structure is deemed
dangerous or unfit for human habitation, we will order the structure vacated, sometimes immediately, but usually after a short compliance period has
expired and the occupants are given 1 to 30 days to find alternative shelter.
Condemnation occurs when life-safety violations exist, such as fire hazards, unsanitary conditions, severe rodent and pest infestation, lack of basic
facilities, faulty construction or dilapidation. If principal violations are corrected prior to the vacation date, the order to vacate will be lifted. If
principal violations are corrected after the vacate date, once corrected the dwelling can be reoccupied. "
APP. 1179; Docket226-48, p. 36 [2002 NHPl Rules, Docket 226-48, p. 27-38]; see
also Docket 226-47, pp.1-3 for Steve Mark Aff. and Exh. "B" documents produced to Steve Mark by City of Saint Paul, Bates050023-050369, with Andy Dawkins
assistance.
The 2002 NHPI Rules did not provide authorization for Dawkins, Lippert, Martin, Magner, and other inspectors to condemn homes for less than "severe rat
and pest infestation, or to add additional conditions for removal of the "vacate order" upon condemnation including keeping the property off-line following
correction of the "principal items" for extended periods of time for a forced renovation to "present code" under the Code Compliance Certification" process.
Docket226-48, p. 36. The Rules failed to state that "due to the number of violations" a Code Compliance Certification" process may be required of the
owner, or that under such a process, the Defendants would illegally remove the
owner's grandfathering rights, keep the property off-line for extended periods of
time while the owner had to arrange for contractors to renovate the home to
"present code". Id.
The City responded to Steve Marks' Request for Admissions, admitted that the NHPI Rules were official NHPI policy and Dawkins did not need City Council
approval. Docket 226-48, pp.14.
The City adopted the State Building Code as referenced in Chapter 34 of
Legislative Code [Sec.34.07] a chapter titled, "Minimum Property Maintenance Standards for all Structures and Premises" (hereinafter "City Minimum Standards").
Docket 226-13, pp. 6-9 (Chapter 33 - adoption); APP. 1189. The City recognized in many specific references in its "Minimum Property Maintenance Standards" the
State Building Code grandfathering protections, which the City phrases as, "maintained in accordance with the Building under which it was originally
constructed." APP. 1189 [e.g., Sec. 34.09(2); 34.10(2)(3)].
Senior inspector Harold Robinson explained "grandfathering" protections as only requiring an existing owner to meet current codes "When they remodel."
APP1206,1211. Robinson testified that if an inspector condemned a building and did not refer it right away to vacant buildings, the owner could get the permits,
complete the repairs and reoccupy the building quicker and not have a "Code
Compliance". APP1210.
There maybe copy errors.
Bill Cullen, a realtor, real estate investor and Section 8 housing provider,
testified that he had considerable experience in purchasing homes in the City and
had experienced the City's "Code Compliance" Certification process, a very
expensive process that he expected to cost him at least $40,000 depending on what
was written up by inspectors. APP1214-1216.
Cullen testified that in his discussions with Dawkins that Dawkins knew that
the Code Compliance Certification process was a substantial renovation of an older
home and at times would have a significant financial effect in an adverse way on
rental property owners. Cullen 212-13.
Catv Royce, a tenant advocate from Community Stabilization Project
testified that most homes in the City could not meet pass the onerous City's "Code
Compliance" requirements. APP1217. Royce opined that the Code Compliance
requirement on older homes was very problematic in loss of affordable housing due
to the costs ofthe rehabilitation not being economically viable. APP1229. Royce
with considerable experience in low-income housing, believes that some of the
12
vacant rental homes in the City are a result of the Code Compliance requirement
and landlords not being able to cash flow the rentals due to the costs of the Code
Compliance. APPl229-30. Royce testified that Code Compliances were having
harmful effects on tenants. Id. Royce testified that she knew of no source of
funding assistant made available to the low-income landlords to meet the Code
Compliances Id. Royce testified that the City's code compliance renovation
requirement for older rental homes "requires additional costs that frequently push it
over the edge of economic viability, essentially for the small rna-and pa guys and
gals." APP1235. Royce said that she had seen examples of tenants she was
representing lose their housing in homes subject to the City's Code Compliance
renovation requirement. Id. While the rental property was being renovated, the
home was unavailable for the families for significant time periods and that the code
compliance renovation decreased the number of available rental units in the market.
Id. Royce was against demanding a Code Compliance renovation requirement in
City civil actions against landlords because a significant number of rental properties
that would normally be at safe and decent, became economically unviable and
leading to abandonment APP1248. Royce was in favor of simply requiring the
landlord to repair the principal code violations. "The rather recent (five years)
13
strategy of requiring the highest level of rehab, I think they call it code compliance,
on a vacant building, even if it's only been vacant for a short amount of time is not
a policy conducive to preserving our existing stock of housing. It is [a] policy that
should be analyzed as people look over this issue in general. Not many of our
homes, including mine, could withstand the level of scrutiny created by this code
compliance inspection." APP1254. Royce testified that Dawkins knew ofthese
concerns and that Dawkins knew the code compliance inspection requirement was a
higher level of rehabilitation to an older property and that Royce informed Dawkins
of her concerns. APP1254
...and this last bunch of stuff were all issues for DISTRICT COURT or the STATE court of appeals.
Even if everything that was said above was true, there would be no way for a Federal judge to know it without any of those cases being successfully appealed to STATE court.
The problem that this case has is that the judges know the law and the plaintiffs don't. For any of the things the plaintiffs claim to have been true, they should have appealed the orders. IF the City was issuing illegal orders and making them do thing they weren't suppose to do, why didn't they appeal the order and take it to the City council and from there to court?
Why? One reason... its pure bullshit.
There is no one that believes in any serriousness that even after Morris v Sax that the City would be using 1887 Code to inspect my duplex. If you think a Federal judge is going to you're nuts.
JMONTOMEPPOF
Chuck Repke
Chuck Repke
10:21 AM
What do you get out of the sewage Chuck, you are never for the people.
Chuck, your starting to smell like the people you suck up to.
You worm.
I am always for the people. The people that live in Saint Paul and either would live in or live near these DEATH TRAPS that you would have people live in.
This case if successful would say that it is criminal for the City to require that properties have hard wire smoke detectors. That it is criminal to require that there be fuse boxes or breaker switches. That the staff of the City of Saint Paul should go to jail because the required a functioning toilet in a residence.
And because of those criminal violations the City of Saint Paul should pay millions of dollars to these blood suckers.
Those are "the people" that are supported on this list. The people who want poor people to live in fire traps and vermin infested rat holes.
Well, the case is a joke. It has been thrown out of court once and it will be again.
JMONTOMEPPOF
Chuck Repke
Are you doubting that the things said are true Repke? It seems as though they are citing to the documents that verify what they are saying to the court. There has been testimony by the citys own officials that verify what they say is true. What more do you want? Why do these conversations always have to start from the beginning of your bull shit regarding this lawsuit. There's been plenty of irefutable facts and testimony in this case that shows the city was wrong, but yet you always discount them as nothing and start in will your BS. It's obvious who's side you are on here and it's not the people.
12:55 almost nothing that was listed on this response was a "fact." Everything that Bill Cullen says is Bill Cullen's opinion. Everything that Caty Royce said is Caty Royce's opinion.
I know Bill and Caty and I like both of them a lot. But, Bill's opinion of George Bush is 100% the opposite of my opinion of George Bush. And Caty and I might agree on George Bush, I doubt that she and Bill would agree about Rent withholding.
So what?
Neither one of them gave one scrap of evidence about the City's intent with code enforcement because they don't know and weren't in the room. And neither one of them gave anything but an opinion about the marketability of rehab'ed buildings.
I like and respect them both but as far as evidence of a Fair Housing case, they could have both read the Gettysburg Address and made as much impact. There was no evidence there.
JMONTOMEPPOF
Chuck Repke
My point is read this:
"Royce testified that she knew of no source of funding assistant made available to the low-income landlords to meet the Code
Compliances Id. Royce testified that the City's code compliance renovation requirement for older rental homes "requires additional costs that frequently push it
over the edge of economic viability, essentially for the small rna-and pa guys and
gals."
When you read it there are two facts: Caty doesn't know about funding sources and Caty who does not own any rental property in Saint Paul and never has doesn't think "ma and pa" can afford to rehab.
Great facts. That will bring the house down on the City. This one person doesn't know something and suspects something else.
Great.
JMONTOMEPPOF
Chuck Repke
...and again...if they would have asked Bill if he knew of any funding sources he might have said yes. Because I know he knows of some...
Chuck Repke
Save it for the post trial spin show Chuck. This guy says one thing and the other guy says that thing. They could both be right, just like both you opinion and Bills could be right about Bushy. So.....BINGO.......it goes to trial for people with reasonable minds to decide. That would ummm....exclude you.
Why don't you describe what a death trap is for us Chuck? Just so we know what we are talking about.
Senior Inspector Lippert Dick sometimes required "Code Compliance
inspections" conducted by the City's LIEP office before re-occupancy was allowed,
and at other times, he either not require a "Code Compliance" inspection, or he
waived the requirement. APP1257-1285. In all examples, Lippert testified that life
safety issues were present to justify the condemnations, but in some cases he only
required the "principal violations" to be corrected before re-occupancy, when in
other cases, with fewer number of violations, he added a requirement that the owner
obtain a LIEP Code Compliance Certification inspection. APP1258-60. Plaintiffs'
counsel presented multiple exhibits to Lippert during his deposition from his
14
condemnations between May and August 2001 and between 2002-2003 and
inspector notes and legislative hearing notes. APPI257-1285.
Defendants Martin, Dawkins and Lippert demanded Steinhauser,
Meysembourg, Brisson and Johnson complete the Code Compliance Certification
process. APP460-656 (Steinhauser); APP 657-766 (Meysembourg); APP767-827
(Brisson); APP887-1 036 (Johnson). Plaintiffs detail in their affidavits the false
claims made by Defendants as part of the scheme to strip rental properties of the
grandfathering protections of the State Building Code and to in many other ways
increase Plaintiffs' costs, harass and displace their protected class tenants, force
Plaintiffs from the low-income rental business and obtain the properties or vacant
lots following demolition. Id.
There's so much misconduct by the city I can't hardly stand to read it all at once. How can some think it is OK? But more importantly how could a court think it's OK and dismiss charges against the city. Is this the type of Government anyone would want to live under? I think not!
"See that is the lawyer spin in the first line. The "code enforcement" isn't DSI like you would think it is by how they wrote it, it is the rest of the stuff on the list that the spinning lawyers want their client to believe is "code enforcement" efforts"
What it means Chuck is that the money funds code enfocement in addition to the other things mentioned. Why is it that you seem to interpret everything in exactly the opposite way it is written?
Royce may not own any rentals but she does have a years long reputation of working with tenants and rentals with code problems and also with the affordable housing issue so I think that may qualify her to have more than just an opinion Chuck. When she says that there are no homes in the city that could withstand the scrutiny of a code compliance and she also says that tenants have lost their homes because of the code compliance induced higher cost how can you try to just dismiss that?
Adverse impact on Plaintiffs' tenants - not just the cost to Plaintiffs
LaChaka Cousette, an African-American tenant renting from Steinhauser
experienced displacement from her home and losses after Martin, Keohnen and
Dawkins condemned her unit for minor issues. APPI556-59. She recalls Martin
and Keohnen nitpicking things and that she was happy living there and there was no
reason to condemn her unit. They created a big list of problems out of nothing
during their inspection. rd. She and her two minor children were forced out of their
home and experienced great difficulties finding replacement housing. Id. After
losing her permanent home with Steinhauser, Cousette had to live in more than ten
different places including shelters, an experience she recalls as a nightmare. Id.
Debbie Doolittle and her disabled boyfriend were renting 941 Cypress from
Mr. Baudette when Steve Johnson purchased the property in late 2002. APP1286-
87. Ms. Doolittle had two teenage children also living with her at the time
Inspector Lippert condemned the home for minimal items. APP1288. Lippert
arrived at the home after City police raided the home, arrested Doolittle's boyfriend
and took him away. APP1291. No charges were filed against and he was released.
APPI288,1296. Doolittle described the raid and the rough treatment she and her
disabled boyfriend and children received by the police. APP 1289-91,1294-96.
Doolittle testified that her home was clean and picked up and that there were no
access problems or over storage problems in the basement on the night of the raid
[APPI291-95], contrary to Lippert's Condemnation Order on the home. APPI033.
Prior to the raid nothing was piled next to the furnace or water heater. APP1300.
Doolittle described how the police tore the whole home apart and then Lippert
condemned the home giving her family 24 hours to vacate the home. APP1296-
7;1298-9;1300-02. After the raid Doolittle found the basement a mess from the
16
police opening her boxes-it took her about 3 hours to repack. APP1301-02.
Doolittle then had to move in with her boyfriend's mother for over three
weeks in cramped conditions. APP 1302-03. Doolittle was able to obtain another
rental home from Johnson about 3 weeks later. APP1303. Doolittle said there was a
weedwacker in the kitchen her boyfriend was working on just before the raid but it
was not apart. Id. By the time the inspector arrived, Doolittle was confused and
shook and police officers were still present. APP1304. Just before the raid, there
were no excessive storage in the home and if someone wanted to inspect every
room they would have had access contrary to Lippert's claims. Id. Doolittle said
there was no reason for condemning the home; "they were just interested in getting
us out of our home." APP 1305.
Johnson located a place for Doolittle and her family to rent at 390 Sherburne
and after she and her disabled boyfriend moved in, City inspectors towed three cars
with current tabs that were operable and Martin and Keohnen were nitpicking
everything at the property; Johnson stood up to the inspectors for her family.
APP1306-10. Code inspectors were harassing Doolittle and her boyfriend but
ignoring poor conditions in neighboring properties. Id. Doolittle says that she had
excellent experience with Johnson as a landlord. API3ll-l2.
8:01 said... What it means Chuck is that the money funds code enfocement in addition to the other things mentioned. Why is it that you seem to interpret everything in exactly the opposite way it is written?
Because there is zero, none, no, nada, nothing of CDBG monies funding code enforcement in the City's budget or ever has been in the 36 years there has been CDBG. CDBG monies fund the other things on the list, rehab, or demo of vacant buildings. Not one nickel of CDBG monies have gone to fund the staff or office or paper or pens in Code enforcement. That is just a fact. What you wrote is a lie. What the lawyer said would make you think what you said was true, but it wasn't.
The lawyer said code enforcement activities...rehab, demo... true if you take it that rehabbing or demo is a "code enforcement activity" but it doesn't have a damn thing about actually inspecting a building.
Cute lawyer bullshit.
JMONTOMEPPOF
Chuck Repke
I think those lawyers are going to turn the city inside out Chuck. Who knows, with all the traffic they'll get from St. Paul's victims after they win, you may be sweeping the floors over in their offices just to survive. Wouldn't that be funny!
If they can prove half of what I've read here the city is going to have some problems. Big problems!
Leo Sider, a Section 8 disabled tenant of Brisson received approval to reside
in Brisson's 297 Burgess duplex in April 2003 following a Section 8 HQS
inspection. APP1313-17. About three months later, Martin, Koehnen and Dawkins
condenmed the home and he lost his home there when there was no reason for the
condemnation. Docket 217-7, p.11-13. Sider described the condition of his unit in
positive mauner the entire time he lived there. APP. 1314-22. Sider experienced
difficulties and frustrations in losing his home from July to September 2003.
Docket 217-7, p.11-13. He was able to move back into 297 Burgess after the City
sent Brisson notice of approval. APP 1314-22.
Caty Royce testified that minorities from outside Minnesota were having an
extremely difficult time locating affordable housing in the City. APP1217, 1236.
The Saint Paul Public Housing Agency (PHA) has admitted that any loss of federally subsidized housing would adversely affect the availability of affordable
housing. APP1323-25 ["Attachment N" to PHA Five Year Plan]. PHA staff
notified HUD that "none oJthe PHA 's developments are appropriateJor conversion
because any such conversion would adversely affect the availability of affordable
housing in St. Paul." APP 1323. PHA states that even conversion of 1 or 2 units
in scattered site homes would "adversely affect the availability oj affordable
housing" in the community". APP1325PHA provides the statistics 10-21-04 on waiting lists for protected class and lists African-Americans
(61 %), Whites 26%, for PHA housing with limited turnover with 91 % in the extremely low income level. Docket 226-40, p14.
Section 8 housing as 10-21-04, with 62% Blacks and 30% Whites with 86% at extremely low income, and low turnover with Section 8 list closed as of 11-2002.
Docket 226-40, p.15.
In 2005, PHA listed the strategies for addressing the shortage of affordable housing such as (1) maximize the number of units by minimizing the number of
units off-line; (2) reducing the time to renovate PHA units, (3) maintaining or increasing Section 8lease-up rates by marketing to owners, (4) apply for additional
Section 8 units. Docket 226-40,p.16[PHA Five Year Plan].
652,
St. Paul's already got BIG PROBLEMS. This sleaze has weasled in due to a complete vacuum in leadership.
And city 'leaders' are listening to the wrong people, although some of them are the wrong people already.
They city is looking at more big legal problems in addition to the freaky problems they have already created.
They listen to the squeaky wheels and the squeaky wheel gets the grease.
This comment has been removed by a blog administrator.
SUMMARY OF THE ARGUMENTS
The District Court's Order granting summary judgment to the City shows a total
disregard for the summary judgment standard. Throughout the Order, the Court takes
the place of the jury, weighs the evidence, selects which evidence will assist the
Defendants in what certainly appears to have been a "predetermined" decision, and
which evidence to simply ignore, and then dismisses every claim of Plaintiffs.
19
The Court mischaracterizes and misstates the evidence, and often times sets
forth completely false conclusions. In light of the abuse by the Court at this stage of
the proceeding, Plaintiffs have no confidence that the Court will ensure a fair trial of
their claims.
If the standard for summary judgment would have been properly applied, the
facts presented by Plaintiffs, with all inferences drawn in favor of Plaintiffs, would
have resulted in this case proceeding to trial. Plaintiffs presented evidence from which
a reasonable jury could conclude that Defendants violated the Minnesota State
Building Code, Federal Fair Housing Act, Sections 1981 and 1983 and the RICO Act,
by their illegal schemes to wrongfully deprive Plaintiffs oftheir property and tenants of
their homes, through a combination of illegal removal of "grandfathering" protections
on older rental homes through unjustified condemnations, illegal demands for
renovations to "present code," application of other heightened standards and illegal
notice schemes, all predictably resulting in disparate impact on "protected class"
tenants and hanning Plaintiffs.
9:12, it looks like coleman and some of the city council members have sold their souls to the devil in order to get two dimensional 'results'.
"The Court mischaracterizes and misstates the evidence, and often times sets
forth completely false conclusions."
Where's Jeff M. I'll bet he could wiegh in all day long on this type of stuff. He's seen it first hand!
..."through a combination of illegal removal of "grandfathering" protections
on older rental homes through unjustified condemnations, illegal demands for
renovations to "present code," application of other heightened standards and illegal
notice schemes, all predictably resulting in disparate impact on "protected class"
tenants and hanning Plaintiffs."
There you have it the landlords case pretty well summed up. If my house was built in 1887, the City can't require me to have a fuse box or working plumbing and everyone knows that "protect class"/people of color don't need toilets or electricity...
Because that is what the above means, the City has to use the code for 1887 when it inspects my house or it is a part of a criminal enterprise.
That folks is why the case is going nowhere.
JMONTOMEPPOF
Chuck Repke
I have taken a break from posting here while I reconsider the extent and manner to which I will participate here.
Not giving up my core beliefs, just toning it down a bit.
When plaintiffs can produce evidence in the form of affidavits and depositions, that the defendants do not contradict for purposes of a summary judgement motion, and those affidavits and depositions support a theory of law as to a claim, then summary judgement must be denied.
A judge cannot act as jury in this instance and the court must permit the plaintiffs to prove their case to a court.
Now even affidavits and deposition testimony can be contradicted at trial. The purpose of getting the affidavits and deposition during discovery is to permit the court to view the case in the light most favorable to the moving party. That would be the plaintiffs.
City employees alleged to have been involved in the conduct alleged by plaintiffs must be judged by a jury.
Their demeanor and testimony during depositions sure raises serious guilt with respoct to the claims alleged.
Not to mention the behind the scenes colluding and shredding of documents and e-mails that create issues of material fact that support a denial of summary judgemnet in favor of plaintiffs.
You are just a lay person Chuck.
I understand how these things work and your opinion about the direction this case is going is simply that. It's biased.
Tell me how a panel of appellate court judges could not reverse any particular case before it and then the Supreme Court goes ahead and does it ?
You have little faith in our Federal Appellate Court system and you are a visionary in denial when it comes to matters that only concern you and the city.
Jeff Matiatos
"There you have it the landlords case pretty well summed up. If my house was built in 1887, the City can't require me to have a fuse box or working plumbing and everyone knows that "protect class"/people of color don't need toilets or electricity..."
When did anyone say people don;t need toilets and electric Chuck. You just spin everything to the extreme. Kind of like the city does with it's interpretation of the codes. It's no wonder you think so much alike.
You try to make it sound like the landlords are the ones saying the city can't do this and can't do that, and it's just a damn lie and you know it.
The Supreme Court says the city can't do those things Chuck. They can't mandate the updating of the "systems and components" of properties and there's a granfathering statute on the books that says so too. Like the egress windows the city is now requiring. They are breaking the law and they are going to pay very soon no matter what you say. So just keep spinning your shit buddy. In the end you are going to look like the fool you are.
Oh abd by the way Cuckie boy......with regards to your statement about the electric? No more GFI outlets. The Supreme Court says so asshole.....or do you consider what they say as having some self serving BS to it. The city tried to get a law passed this year that says they can go above the State Building Code and the Legislature said NO. Got it Bud? NO.....period. The city is stuck honoring the law which happens to be the state building code.......that is on the rare days the city feels like following the law. That would probably be when they're not busy siezing and selling people's cars who have done nothing wrong.
I wonder where Eric is? He seems to like to stick up for the things the city is doing. It seems a shame for him to let an good opportunity go by. Looks like you are stuck carrying all the water Chuck!
ARGUMENT
I. Summary Judgment Is Reviewed De Novo.
This Court reviews a district court's summary judgment order de novo. See,
Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003); Zakrweski v. Fox, 87 F.3d
1011, 1012 (8thCir.2003).
II. "Reasonable Minds" Standard
Summary judgment may not be granted if "reasonable minds could differ as to the import of the evidence." Anderson v Liberty Lobby, Inc., 477 U.S. at 250,
251 (1986).
District Court's Misapplication of the Summary Judgment Standard
The movant for summary judgment "bears the initial responsibility of informing
the district court of the basis for its motion," and must identify "those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Ifthe movant satisfies its burden,
the nonmovant must respond by submitting evidentiary materials that "set out specific
facts showing a genuine issue for trial." Fed.R.Civ.P.56(e)(2).
Where a moving party fails to meet its initial burden, "the onus never
passe[s]" to the non-moving party. Handeen v. Lemaire, 112 F.3d 1339, 1346-7
(8th Cir. 1997).
In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the
nonmovant. Anderson, 477 U. S. at 255; Enterprise Bank v. Magna Bank of Missouri,
92 F.3d 743, 747 (8th Cir. 1996).
A genuine issue of material fact exists if: (1) there is a dispute offact; (2) the
disputed fact is material to the outcome of the case; and (3) the dispute is genuine in
that a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The issue of material fact required to proceed to trial, is not required to be
resolved conclusively in favor of the non-moving party; rather, all that is required is
that sufficient evidence supporting the claimed factual dispute be shown to require a
jury to resolve the parties' differing versions ofthe truth. See, Anderson, 477 U.S. at
248-49 citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-
89 (1968).
The United States Supreme Court has many times reiterated that the trial court's
sole function on summary judgment is to determine whether disputed fact issues exist;
it may not weigh the evidence and determine the truth ofthe matter. See Anderson. 477
U.S. at 2510-11; United States v. Diefold, Inc., 369 U.S. 654 (1962).
The District Court ignored the summary judgment standard on all of Plaintiffs'
claims, and without exception on each of Appellants' claims, the Court weighed the
evidence, draw conclusions from the evidence always in favor of the Defendants. The
Court in selecting certain statements of Plaintiffs and third parties for discussion,
analyzed the "context" of the statements and in each example drew all inferences in
favor of the Defendants. The degree to which the Court used this approach against
Plaintiffs in direct violation of the standard set by the U.S. Supreme Court is absolutely
shocking.
Unfortunately for Plaintiffs and other members of the public who necessarily enter the federal court system in search of justice and accountability for abuses of
power by state and local public servants, this kind of disregard for the standard at summary judgment has become so common that it endangers the very fabric of our
democratic society and certainly deprives plaintiffs of their right to a trial by jury under
the United States Constitution.
An example of the misuse of the standard here can be found upon brief review of the actual facts available for a jury. The Court makes passing reference to Plaintiffs' claims that the City'S demands for "Code Compliance Certifications"
are illegal "At times, properties not in compliance with the housing code were required to undergo a "code compliance" inspection by the City's Office of License,
Inspections, and Environmental Protection, which would evaluate the building's
structure, plumbing, electrical condition, and mechanical condition. "
The Court also admitted that "Bringing a property up to the current housing
code rather than the "as built" housing code would increase the cost of compliance.
The Court then states, "Plaintiffs rely on Meysembourg's affidavit as
a 'particularly egregious example' of the City's intent to 'force as many illegal code compliances as possible". At that point, the Court begins to misstate the
evidence and abuse the summary judgment standard in order to isolate Meysembourg's experience and claims, and then dismiss the evidence of Defendants direct violation of State law; the Court footnotes its incorrect assertion
that "Plaintiffs offered no facts specific to Steinhauser and Brisson."
Steinhauser and Brisson, like Meysembourg and Johnson, presented detailed affidavits on personal knowledge with supporting exhibits buttressing their sworn
statements (uncontested by the Defendants in their Reply) detailing Defendants
illegal demands that Plaintiffs' properties undergo a code compliance inspection
certification process to "current code" or "present code". Steinhauser Aff.,
APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887-1036. Each of these Plaintiffs detailed the facts of Defendants' violation of the State Building Code and City Minimum Maintenance Standards of Chapter 34 of the Legislative
Code by "Code Compliance" to "current" or "present" code" that removed
grandfathering" protections provide by State law and City code for existing
buildings. Plaintiffs' Joint Memorandum of Law opposing summary judgment
included numerous arguments of Plaintiffs claims concerning the Defendants
violation of State law through the "Code Compliance" certification process. Docket
258,p.2,38,39,41,56-7[04-cv-2632]. The Defendants' Reply Memorandum and its
counsel's oral argmnent, failed to mention or contest these claims and evidence.
Docket 263 [04-cv-2632].
Moreover, the Court completely ignored the uncontested testimony with four
expert reports by a Minnesota State Building Official who has spent over three
years looking at Plaintiffs' evidence and has concluded that the actions of
Defendants challenged by Plaintiffs related to the "Code Compliance Inspection
Certification" process, is in violation the State Building Code.
The Court dismissed Meysembourg's "Code Compliance" inspection claims based
on an apparent exhaustion of remedies requirement that is not required under the
Fair Housing Act. ADD000040.
Another egregious example of the Court turning the summary judgment
This looks like absolute shit. How the hell is the city going to get out of this? The city doesn't even disute the facts and Chuck and Eric think the landlords should lose? What a joke! I don't think that's the way lawsuits work in the real world.
Where do you guys get that "the City doesn't dispute the facts."
The City asked for and got Summary Judgement that there wasn't ANY FACTS or ANY EVIDENCE that would even suggest that this was worthy of going to trial.
That is now being appealed and what you have here is the plaintiffs argument why the court of appeals should remand it back to court for trial.
So, Bob is printing up their side of the case and has been the case from the begining it has little or no evidence and a lot of accusations. Like I pointed out earlier, statements lke this:
The City's 2003 Consolidated Plan Update states that the CDBG funds City "code enforcement" efforts, City activities related to "rental rehabilitation," "vacant
buildings," "demolition" of housing, and other fair housing related activities.
- snip -
See that is the lawyer spin in the first line. The "code enforcement" isn't DSI like you would think it is by how they wrote it, it is the rest of the stuff on the list that the spinning lawyers want their client to believe is "code enforcement" efforts."
The City activities related to "rental rehabilitation," "vacant
buildings," "demolition" of housing, is what the CDBG monies go to.
So, this entire line which appears to have some substance is nothing fluff pure B.S. No judge is going to take it seriously because it only take 2 seconds on the internet to find the City budget and see that the Plaintiff lawyers are full of shit.
Now if you guys and their clients think there is something there, then that means the lawyers will keep getting paid, and isn't that the point of a good law suit anyway?
JMONTOMEPPOF
Chuck Repke
"Hedquist, has issued four reports
since 2006 in the consolidated cases before this Court. APPI039,1075,1117,1138.
Hedquist's opinions were unopposed by the Defendants at summary
judgment and the District Court failed to discuss Mr. Hedquists reports."
There ya go Repke. Unopposed means what the guy says is now taken as a fact. Automatic trial. The judge screwed up.
The point of a lawsuit is to punish the wrong doer and send a message to others not to even think about doing the same thing to someone else.
standard on its head is the way the Court looked at the evidence in a light most
favorable to Defendants on Plaintiffs claims that the City had continued a working
relationship with PHA after abandoning that same working relationship with so
called "problem landlords" under PP2000, a City code enforcement program
inspectors called successful. The Court claiming to have reviewed the record,
dismissed Plaintiffs claims that evidence showed the City had closed inspection
files for PHA properties without appropriate action or follow-up inspection.
ADD000029.
Inspector Seeger testified while reviewing extensive City inspection records
of PH A properties that City inspectors repeatedly failed to conduct interim and final
safety inspections on permits for replacements of gas lines, furnaces, roofs and
other components in PHA homes. Docket 220-6,p.l, 220-7,pp17-25. Plaintiffs
also presented substantial evidence from City records, that PHA was slow to take
action when its tenants made complaints of mold, mice and rats and PHA frequently
had serious issues of non-compliance with City codes including multiple reinspections,
frequently requiring third and fourth re-inspections. APP 115 8-1172.
The Court also failed to consider Plaintiffs' submissions of City's Truth-inSale
of Housing (nSH) inspection reports for PHA scattered site homes showing PHA rental homes had numerous deficiencies under the City's Minimum
Maintenance Standards. APP23-105. The Court again twisted the evidence in
favor of the Defendants.
Because of space limitations here and many other matters necessary for
discussion, Plaintiffs conclude that these are mere examples of the abuse of the
summary judgment standard by the Court.
III. Did the District Court err in granting summary judgment to Defendants
in light of evidence creating genuine issues of material fact for trial?
a. FAIR HOUSING ACT CLAIMS
Plaintiffs have presented evidence of disparate impact
due to Defendants' violation of the Fair Housing Act
Section 3604 of the Fair Housing Act (FHA) makes it unlawful to refuse to
sell or rent to any person or discriminate in the terms, conditions, or privileges of
sale or rental of a building on the basis of race, color, religion, sex, familial status,
or national origin. 42 U.S.C. §3604(a)-(b). The FHA also makes it "unlawful to
coerce, intimidate, threaten, or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or enjoyed, or on account of his
having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protected by" section 3604. Id. §3617. See CBOCS West, Inc. v
Humphries, 128 S. Ct. 1951 (2008) (summary judgment analysis under 42 U.S.C. §
1981 which encompasses an action claiming retaliation, involving post-contract and
also parallel to property rights). Plaintiffs claim that in many cases Defendants
retailitated against them for renting to "protected classes," for challenging the
Defendants' heavy-handed code enforcement, abuses of power, and violations of
law, and for bringing claims in this Court to vindicate their rights and hold
Defendants accountable for their abuse of public trust and authority.
Plaintiffs have shown a per se unlawful policy facially neutral policy results
in, or can be predicted to result in, a disparate impact on protected classes compared
to a relevant population. See Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous.
Auth., 417 F.3d 898, 902 (8th Cir. 2005). If Plaintiffs make that showing,
Defendants must demonstrate that the objected-to policy has a "manifest
relationship" to legitimate, nondiscriminatory policy objectives and "is justifiable
on the ground it is necessary to" the attainment of those objectives. rd. If
Defendants make that showing, the burden shifts back to Plaintiffs to show that a
viable alternative means is available to achieve the legitimate policy objectives
without discriminatory effects. Id. at 902-03. See also Trafficante v. Metropolitan
Life Insurance Co., 409 U. S. 205 (1972); U. S. v. City of Black Jack, MO, 508 F.
2d 1179 (8th Cir.l974)(rehearing and rehearing en banc denied 1975); Huntington
Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988); Otero v.
New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977).
In 215 Alliance, et al. v. Andrew Cuomo. et aI., (Minnesota District Court
No. 98-64, 1999), Judge Donovan Frank determined that "in light ofthe general
crisis in availability of housing and the more-acute specific crisis of these
disadvantaged demographic groups," HUD's approval of a low-income landlord's
termination of project-based Section 8 contracts was contrary to federal
requirements APP1390, 1407. Judge Frank noted that "HUD has recognized that a
disproportionate number oflow-income tenants are minority, elderly, or disabled"
and "minority, elderly, and disabled tenants fact significant hurdles in locating
housing above and beyond the mere shortage oflow-income housing. Despite the
nominal protection of federal laws, minority tenants continue to experience
discrimination by landlords and hostility from non-integrated communities .... Any
policy which results in the displacement of low-income tenants will
disproportionately affect these particular low-income citizens whose housing
options are especially constrained." APP1407 (citing Affidavit ofJohn Cann and
HUD position papers - see APP 1409.
In its Five Year Plan for 2005, PHA admitted that there would be an adverse
29
affect on the availability of affordable housing in the community from conversion
of only 1 or 2 units in scattered site housing. APP 1325.
Plaintiffs presented the affidavits and deposition testimony of their tenants
displaced by Defendants' illegal code enforcement showing that the basis of
Plaintiffs' disparate impact claims were not merely "cost" driven, but actually were
based on the tenants' right to housing choice.
Caty Royce testified that minorities from outside Minnesota were having an
extremely difficult time locating affordable housing in the City. APP1236.
City Admissions of disparate impact
The City stated, "While the City does not collect data related to the race or
ethnicity of those households with identified housing needs, it would not be surprising
if those data revealed a disproportionate impact on persons of color." APP 1442-43.
"The number of new immigrants ... coupled with historic settlement patterns that find
racial and ethnic communities more heavily concentrated in central cities and the
reality of racial and ethnic bias in the housing market all contribute to such a
differential impact." APP 1443.
In 2000, the City acknowledged that African-Americans were disproportionately
represented in emergency shelters (A-A 52%; Hispanics 16%, Whites 33%) and transitional housing indicating that they were most likely to be without any housing at
all. APP1446.
Protected class members tend to have lower incomes, less expensive rental
units/homes - more likely to be renters. APP 1449.
HUD CHAS Data
HUD's 2000 Census "CHAS" data for St. Paul showed that among renters in
the City, 37.1 % of White renters had housing problems (cost burdens of greater than
30% of income and/or overcrowding or without complete kitchen or plumbing
facilities) while 53.9% of Blacks had such problems, and Hispanics had 57.5% Black
family households had 59.3% and Hispanics families had 64.9%. APP1326-1332.
PHA provides the statistics 10-21-04 on waiting lists for protected class and
lists African-Americans (61 %), Whites 26%, for PHA housing with limited
turnover with 91 % in the extremely low income level. Section 8 housing as 10-21-
04, with 62% Blacks and 30% Whites with 86% at extremely low income, and low
turnover with Section 8 list closed as of 11-2002. Docket 226-40, p2,14-15.
PHA listed the strategies for addressing the shortage of affordable housing as
(1) maximize the number of units by minimizing the number of units off-line; (2)
reducing the time to renovate PHA units, (3) maintaining or increasing Section 8
lease-up rates by marketing to owners, (4) apply for additional Section 8 units.
These strategies of PH A, a partner of the City, demonstrate that Defendants knew
that every low-income rental unit in the city was significant in meeting the needs of
protected class tenants especially those like African-Americans disproportionately
disadvantaged in housing.
While Defendants knew PHA was trying to reduce turnover and renovation
time to get empty units back on-line, Defendants were coordinating to get
Plaintiffs' homes off-line for extended periods of time with the goal of permanent
closure. While PHA was striving to encourage the private market to invest in
Section 8, Defendants were doing everything they could to create huge
disincentives to the private housing providers for extremely low-income "protected
class" members, all contrary to the City's affirmative duty to further fair housing
choice.
The testimony of Royce, Cullen, Dawkins and others demonstrate that there was
a clear understanding by Defendants that their aggressive code enforcement would
have the predictable result it did in disparately impacting minorities, especially the
many African-Americans Plaintiffs served.
The City acknowledged the need but failed to provide the assistance Plaintiffs needed to meet the City's insistence on higher and higher standards and
predictably Plaintiffs were forced to sell their properties (a result Defendant
Dawkins admitted was his goal) and tenants were forced to leave their homes.
Steinhauser Aff., APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887-
1036; Harrilal Aff., APP828-886; Docket 226-48, p.39 [05-cv-1348] [forced sale
policy].
Defendants Failed to Produce Analysis of Impediments
to Fair Housing Choice and Destroyed Electronic Communications
and Other Key Documents Related to Impact
In over four years of discovery herein, Defendants failed to produce any
evidence that Defendants ever conducted a required Analysis of Impediments to
Fair Housing Choice (AI) for disclosure to the U.S. Department of Housing and
Urban Development and the public on whether the "protected class" was adversely
impacted by the City's application of its illegal policy of removing "grandfathering
rights" and application of "present code" to older homes through the City's "Code
Compliance Certification" process.
FAIR HOUSING ACT CLAIMS
Plaintiffs have presented evidence of disparate treatment
due to Defendants' violation of the Fair Housing Act
The Court in looking at the "Disparate Treatment" standard, once again
choose which evidence to ignore. There was considerable evidence going to
intentional discrimination to meet the summary judgment standard and send
Plaintiffs' claims to the jury.
Disparate treatment, which occurs when some people are treated less favorably
than others because of their race, color, religion, sex, or national origin, "is the most
easily understood type of discrimination." Int'l Bhd. of Teamsters v. United States, 431
U.S. 324, 335 n.15 (1977). Proof of discriminatory motive is crucial to a disparate
treatment claim. Id. Plaintiffs may survive summary judgment on their disparate
treatment claims by presenting either "direct evidence" of discrimination or "creating
the requisite inference of unlawful discrimination" under the framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Griffith v. City
of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); East-Miller v. Lake County
Highway Dept., 421 F.3d 558, 563 (7th Cir. 2005) (distinguishing between "direct
evidence" and McDonnell Douglas framework in FHA context).
In the context of Plaintiffs' disparate treatment claim, "direct evidence" is not
the opposite of circumstantial evidence. See Griffith, 387 F .3d at 736. Rather, the tenn
"direct" refers to the causal strength of the proof. Id. "[D]irect evidence is evidence
'showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated'" the adverse action. See id.
A plaintiff with direct evidence that illegal discrimination motivated the adverse
action does not need the three-part McDonnell Douglas analysis to survive surmnary
judgment, even if the strong evidence is circumstantial. See Griffith, 387 F.3d at 736.
A plaintiff who lacks evidence that clearly points to the presence of an illegal motive,
however, can only avoid swnmary judgment by creating the requisite inference of
unlawful discrimination under the McDonnell Douglas framework. Id. Under the
McDonnell Douglas framework, once the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. See Gilbert v. Des Moines Area Cmty. ColI.,
495 F.3d 906, 914 (8th Cir. 2007). If the defendant offers a legitimate,
nondiscriminatory reason, the burden shifts back to the plaintiff to put forth evidence
showing the defendant's proffered explanation is a pretext for unlawful discrimination.
Id.
Although Plaintiffs did not cite the McDonnell Douglas case until their analysis
under their §1981 analysis, Plaintiffs still provided a three-part McDonnell Douglas
analysis in their discussion of the Fair Housing claims: the City operates with a
discriminatory environment and attitude in housing code enforcement, the City claims
that the actions are legitimate to achieve their policy objectives, and there is a
reasonable alternative in the PP2000 program to achieve those policy objectives
through non-discriminatory means.
But there is another ground for Plaintiffs challenge here to Defendants' illegal
conduct: Plaintiffs have uncontested direct evidence that illegal discrimination
motivated the adverse action as Defendants violation of the State Building Code shows
a discriminatory intent on it face. Defendants did not contest the opinions of Plaintiffs
expert Don Hedquist, a State Building Officials, wherein he asserted that Defendants
were in violation of State law in removing grandfathering protections for existing
buildings through the Code Compliance Certification process. Applying an illegal
policy is per se discriminatory. See City of Morris v SAX Investments, Inc., 749
N.W.2d 1, 7 (Minn.2008) (the relevant language ofthe State Building Code expresses
the legislature's specific intent to supersede municipal building codes; legislature
recognized a single, unifonn set of building standards was necessary to lower costs and
make housing more affordable); see also Minnesota Statute Section 16B.62 - State
Building Code - "The State Building Code applies statewide and supersedes the
building code of any municipality. A municipality must not by ordinance ... require building code provisions regulating components or systems of any residential structure
that are different from any provision of the State Building Code").
Under the three-part McDonnell Douglas test, Plaintiffs have established
under a traditional approach a prima facie case of discrimination through the
testimony and documentation from many sources.
However, and most importantly, the Court here should seriously consider
whether there should have been a shifting of the burden at all once Plaintiffs'
presented uncontested evidence that Defendants' code compliance certification
"
policy is in direct violation to the State Building Code. How can the City's "code
compliance certification" policy not have a predictable disparate impact on
"protected classes" when it is in direct violation of State law, and Defendants failed
to contest that evidence or argument?
Even if the Court were to shift the burden to Defendants, how can the
Defendants show "bona fide government interest" in an policy that is in direct
violation of State law and in violation oflegislative intent that uniformity and fair
housing policies are promoted by the State Building Code?
In turning now to look at the prima facia requirement, Plaintiffs presented
substantial evidence to meet their initial burden.
Steve Johnson questioned Martin and Koehnen why they were issuing so many orders on his rental properties; "Martin and Koehnen would frequently reply
with derogatory terms to describe my Black tenants, calling them "trouble makers,"
"out oftowners," "low life tenants," "bottom ofthe barrel," undesireable tenants,
and "The black plague come like roaches." APP 887, 893-4. Johnson was deeply offended by these derogatory names and racist attitudes since most of his tenants
were Black Americans, it was clear to him what Martin and Keohnen meant by the
"black plague" comment. APP894.
Where is Eric now !
After reading what Martin and Koehnen have said, it would appear to be that the words speak for themselves.
Definatley a motive for retaliation against the landlords for renting to them.
What about it Chuck ?
All these people who do not know each other..........
And then some certain others who are all connected to the same political parties and leaders.....
11:16 - I have no idea if the person or person accused of saying it said it. If they are a City staff person and a racist I would like them dismissed...but what in the world does that have to do with a Federal Fair Housing claim against the City?
The City showed and the witnesses for the plaintiffs regularly agreed that it made no difference what was the color of the skin of the landlord or tenant. There were as many times that the landlord was bitching about where the tenant was white, black, brown what ever... The only thing in common in ALL of the cases is that the properties had something physically wrong with them and the property owner did not appeal the case to a higher state court.
So, what you have here is the City writes up thousands of orders and most people just do the work and be done with it but in these cases where the City issued orders, the owner got time to repair, and then more time and then more time and then either they made the repair, or the City shut them down... these landlords well after the fact say even though we were treated the same way that everyone else was, it must have been a conspiracy to get us (RICO).
Then when it becomes clear that is totally insane, they say even though there is no statistical data to show, and many example of the City trying to protect against prejudice since some of the people that we rent to were black, if we selectively discuss those cases that will some how prove motive on the City to discriminate against blacks.
So, the Fair Housing Case becomes one of our properties are in disrepair, many of our clients are black, the City is trying to force us to repair our properties, and we don't want to, therefore the City must hate black people....
And that follows logically some how?
Well it follows logically if you believe that somehow black people want to live in bad housing.
I don't buy that and neither will the court.
Remember all the City ever told anyone to do was FIX THE PROPERTY.
JMONTOMEPPOF
Chuck Repke
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