Saint Paul/ Fair housing lawsuits, JOINT REPLY BRIEF OF PLAINTIFFS-APPELLANTS
JOINT REPLY BRIEF OF PLAINTIFFS-APPELLANTS
Appeals from United States District Court, District of Minnesota
Civil No. 04-CV-2632 (JNE/SRN)
Civil No. 05-CV-0461 (JNE/SRN)
Please click onto the COMMENTS for the brief.
Appeals from United States District Court, District of Minnesota
Civil No. 04-CV-2632 (JNE/SRN)
Civil No. 05-CV-0461 (JNE/SRN)
Please click onto the COMMENTS for the brief.
posted by Bob at Saturday, August 01, 2009
140 Comments:
I. Defendants’ Schemes Applicable to All Claims
A Civil Rights Case With Multiple Other State and Federal Law
Violations – Defendants’ Attempt to Rationalize By Their Claimed
Police Powers To Protecting Public Health-Safety
Defendants’ claim that Plaintiffs have not provided any evidence to
substantiate their causes of action and avoid summary judgment.
Defs.’Br.18.
Defendants have consistently proclaimed across the City of St. Paul
that Plaintiffs have no evidence, all the while Defendants and their counsel
have attempted to distract the public and the Court from Defendants’
concocted and implemented scheme to deviate from the State Building
Code, despite the State Code’s history since 1974 as having field preemption
over any municipal codes that varied from the State Code. Defendants’ and
their associates have sought to take control over the City’s rental housing
affairs and deceive the public.
It is very troubling the District Court granted summary judgment to let
the Defendants off the hook given the facts in dispute over such a scheme
with the inferences that properly could be drawn in favor of Plaintiffs. See,
e.g., U. S. v. Cianchi, 378 F.3d 71 (1stCir.2004)(scheme of Mayor to protect
power and assets of members of scheme, including municipal departments
and divisions defendants controlled as part of conspiracy); Handeen v.
2
LeMaire, 112 F.3d 1339 (8thCir.1997)(lawyers could be liable under RICO
for operating bankruptcy estate or court as a RICO enterprise). It is the
conduct, not the title of the actor that controls and here the conduct includes
the intentional violations of field preemptive State law, under exactly the
guise of the “valid” exercise of the City’s [field preempted] police powers.
Defendants’ Problem on Summary Judgment –
No Illegal or Invalid City Ordinance Can Support Their Schemes
Even When Styled as Valid Use of Municipal Police Powers
Arguably, as supported by actual admissible evidence, and as a rule of
law, the creation or exercise of municipal police powers are, as a matter of
law not nearly so expansive as the City and Defendants contend.
Defs.’Br.p.4-7.
Police powers for municipalities are a creature of State law, and such
powers can only be created or exercised within the Constitutional limits
imposed by the Legislature. If, as alleged and proffered here, a City exceeds
its authorized powers by municipal Code or practice, such excess is not
deserving of any deference and is void as a matter or law.
Such creation or exercise of ultra vires police powers and such
rationalizations are thus as a matter of law improper, and in light of the inferences to be drawn in favor of the non-moving parties, no summary
judgment arguably should have been granted by the District Court which
completely failed to address such excess ultra vires Code enforcement
policies and police powers, let alone the ultra vires significance of such
powers as implemented by policies and procedures, as submitted by
admissible evidence under oath by Plaintiffs in opposition to summary
judgment, who as non-moving parties are entitled to all proper inferences in
the favor.
Defendants’ Retaliations
Further, as part of their scheme, the Defendants decided to retaliate
against victims and witnesses, which is actionable under both Federal Fair
Housing 42 U.S.C. §3617 and for civil and criminal prosecution under
§3631 and 18 U.S.C. §1961–1962(c) and (d), as well as civil rights laws
including Sections 1981, 1982 and 1983.[APP116-291-Gallagher/Collins;
APP292-341-Allison;APP342-415-Kubitscheks;APP435-37-Osterman;
APP438-442-Jayasuriya;APP443-56;APP457-59-Jacobs;APP460-56-
Steinhauser;APP657-66-Meysembourg;APP767-827-Brisson;APP828-886-
Harrilal;APP887-1036-Johnson;APP1286-1312-Doolittle;APP1560-67-
Anderson;APP1568-73-Miller;APP1576-79-Krahn;APP1037;1039;
1075;1117;1138-HedquistReports;APP1046-48-Brisson-Meysbourg-
Steinhauser;APP1082-91-Harrilal-Vues-Johnson; APP1138,1146-Gallagher-
Collins-Allison-Kubitschek].
4
Because it is not necessary that any or every Defendant actually
receive monetary compensation to prove up such a scheme, or that the
scheme was motivated by an economic purpose, unfortunately for
Defendants, it is black letter law that passage of an ultra vires City Code or
set of codes is itself unlawful and a violation of the Constitution(s), both
federal and state, and implementing such a scheme by false code
enforcement activities, is itself also unlawful. See 42 U.S.C.§3615; United
States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)(fair
housing scheme); Boyle v. United States, 129 S.Ct. 2237 (2009)(RICO
scheme and “association in fact”); Handeen v. LeMaire, 112 F.3d 1339 (8th
Cir.1997) (RICO scheme for lawyers/family to operate bankruptcy estate as
RICO enterprise, and deceive courts); United States v. Phillip Morris USA,
Inc., 566 F. 3d 1095 (D.C.Cir.2009)(scheme to employ mail/wire fraud/false
certifications to deceive consumers and regulatory authorities); U. S. v.
Gilbert, 813 F.2d 1523 (9thCir.1987) (elements of criminal prosecution for
violating Fair Housing Act).
Under the Federal Fair Housing Act, Section 3615, “…any law of a
State, a political subdivision, or other such jurisdiction that purports to
require or permit any action that would be a discriminatory housing practice
under this subdivision shall to that extent be invalid.”
Defendants’ scheme was exposed before the District Court as
involving City Legislative Codes and enforcement policies arguably void
under the State Building Code and civil rights laws, with illegal participation
by certain judges and officials of the Ramsey County District Court,
members of the City Council and other City officials.
Hi All,
I will post this brief over several days.
BASTARDS!!!!!
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Retaliations? Could that be in the most liveable city in AMerica?
The city is penny wise - and dollar foolish. They get short-term 'gains' while losing support, credibility, friends and the lawsuits in the end.
Losers never prosper!
The city is being run by thugs and people who care no more about anyone other than themselves than they would a bug on the sidewalk.
the end of days are here
I have been told that Eva has a copy of this brief, She sais that its a sad day for St.Paul
eric,
whats up?? NO money>>>
7:07 It started out as inept mismanagement, but then the rats got into the vacuum and decided to stay. Now it's about time for them to start leaving the ship before it sinks.
This is the worst bunch of jumbled words ever for a legal brief.
It's a repeat of everything ever said before and adds nothing new.
How much have the plaintiffs payed in attorneys fees ?
This brief looks like something Sharon wrote.
What the previous commenter said. This brief is badly-written, looks like it adds nothing new to the case, and is basically the legal equivalent of saying "look, you dismissed this, but it's REALLY REALLY REALLY true."
Don't get me wrong; I hate DSI. Not dislike, not disagree with - hate. This city is fucked until the day we can get all those fuckers' badges, piss on them, and drop the off the high bridge. I, myself, would sell my house in a minute if I could, and get the hell out of this FASCIST LOONEY BIN, if only I could. I wish to heaven I'd have sold out four years ago, when I had the chance. This city if fucked up the ass with a purple dildo.
And I'm sorry to say it, but this suit isn't going to do a damn thing.
I think it will do something. Local courts are always political. It's the Appeal Courts that are the ones who turn things around and make them right with big cases that are political.I don't think the Courts are going to create case law that says the city's behavior is OK and is the model the rest of the country can start practicing. Not going to happen.
Defendants’ Problem on Summary Judgment –
No Illegal or Invalid City Ordinance Can Support Their Schemes
Even When Styled as Valid Use of Municipal Police Powers
Arguably, as supported by actual admissible evidence, and as a rule of
law, the creation or exercise of municipal police powers are, as a matter of
law not nearly so expansive as the City and Defendants contend.
Defs.’Br.p.4-7.
Police powers for municipalities are a creature of State law, and such
powers can only be created or exercised within the Constitutional limits
imposed by the Legislature. If, as alleged and proffered here, a City exceeds
its authorized powers by municipal Code or practice, such excess is not
deserving of any deference and is void as a matter or law.
Such creation or exercise of ultra vires police powers and such
rationalizations are thus as a matter of law improper, and in light of the
inferences to be drawn in favor of the non-moving parties, no summary
judgment arguably should have been granted by the District Court which
3
completely failed to address such excess ultra vires Code enforcement
policies and police powers, let alone the ultra vires significance of such
powers as implemented by policies and procedures, as submitted by
admissible evidence under oath by Plaintiffs in opposition to summary
judgment, who as non-moving parties are entitled to all proper inferences in
the favor.
Defendants’ Retaliations
Further, as part of their scheme, the Defendants decided to retaliate
against victims and witnesses, which is actionable under both Federal Fair
Housing 42 U.S.C. §3617 and for civil and criminal prosecution under
§3631 and 18 U.S.C. §1961–1962(c) and (d), as well as civil rights laws
including Sections 1981, 1982 and 1983.[APP116-291-Gallagher/Collins;
APP292-341-Allison;APP342-415-Kubitscheks;APP435-37-Osterman;
APP438-442-Jayasuriya;APP443-56;APP457-59-Jacobs;APP460-56-
Steinhauser;APP657-66-Meysembourg;APP767-827-Brisson;APP828-886-
Harrilal;APP887-1036-Johnson;APP1286-1312-Doolittle;APP1560-67-
Anderson;APP1568-73-Miller;APP1576-79-Krahn;APP1037;1039;
1075;1117;1138-HedquistReports;APP1046-48-Brisson-Meysbourg-
Steinhauser;APP1082-91-Harrilal-Vues-Johnson; APP1138,1146-Gallagher-
Collins-Allison-Kubitschek].
Because it is not necessary that any or every Defendant actually
receive monetary compensation to prove up such a scheme, or that the
scheme was motivated by an economic purpose, unfortunately for
Defendants, it is black letter law that passage of an ultra vires City Code or
set of codes is itself unlawful and a violation of the Constitution(s), both
federal and state, and implementing such a scheme by false code
enforcement activities, is itself also unlawful. See 42 U.S.C.§3615; United
States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)(fair
housing scheme); Boyle v. United States, 129 S.Ct. 2237 (2009)(RICO
scheme and “association in fact”); Handeen v. LeMaire, 112 F.3d 1339 (8th
Cir.1997) (RICO scheme for lawyers/family to operate bankruptcy estate as
RICO enterprise, and deceive courts); United States v. Phillip Morris USA,
Inc., 566 F. 3d 1095 (D.C.Cir.2009)(scheme to employ mail/wire fraud/false
certifications to deceive consumers and regulatory authorities); U. S. v.
Gilbert, 813 F.2d 1523 (9thCir.1987) (elements of criminal prosecution for
violating Fair Housing Act).
Under the Federal Fair Housing Act, Section 3615, “…any law of a
State, a political subdivision, or other such jurisdiction that purports to
require or permit any action that would be a discriminatory housing practice
under this subdivision shall to that extent be invalid.”
5
Defendants’ scheme was exposed before the District Court as
involving City Legislative Codes and enforcement policies arguably void
under the State Building Code and civil rights laws, with illegal participation
by certain judges and officials of the Ramsey County District Court,
members of the City Council and other City officials.
Errors of Law In Granting Summary Judgment
On the record, given the overwhelming admissible evidence of such
multiple schemes and retaliations, the District Court erred in granting
summary judgment as to the facts on the motive, intent, knowledge and
actual existence and operations of Defendants’ schemes, and the
Defendants’ respective roles as an association in fact. Such facts are in
dispute and reasonable inferences in favor of the non-moving Plaintiffs
could allow a properly instructed jury to find both liability and damages in
favor of Plaintiffs under one or more of these multiple legal theories.
For example, RICO schemes to operate an enterprise through a pattern
of racketeering activity were also alleged and evidence in support of such
claims was also submitted in opposition to summary judgment. [APP435-37-
Osterman;438-442-Jayasuriya;443-56;457-59-Jacobs;460-56-Steinhauser;
657-66-Meysembourg;767-827-Brisson;828-886-Harrilal;887-1036-
Johnson;1286-1312-Doolittle;1560-67-Anderson;1568-73-Miller;1576-79-
6
Krahn;1037;1039;1075;1117;1138-Hedquist-Reports;1046-48-Brisson-
Meysbourg-Steinhauser;1082-91-Harrilal-Vues-Johnson;1138,1146-
Gallagher-Collins-Allison-Kubitschek].
In short, certain Defendants decided upon a scheme by which they
would take control over the City’s deviant versions of the State Building
Code and enforce those deviant standards so as to control hundreds if not
thousands of otherwise affordable, grandfathered-in rental housing units in
the City, whether for personal gain, the financial gain of others associated
with the scheme, or the addictive “high” control of all those City affairs such
a scheme provided.
Plaintiffs’ admissible evidence and the inferences properly drawn
there from, reveal that Defendants re-wrote the City’s laws and then
gerrymandered the County’s court system, so that almost nobody could ever
get a full or fair hearing on anything having to do with the subject matter
fields preempted by those regulated in the controlling State Building Code.
Uncontested evidence also reveals the schemers even set up their own
version of Federal Fair Housing and State Building Code Courts, in which
one or more judges or hearing officers, coordinating in secret with City
officials, pre-determined who would lose, and by what margins of error, by
applying standards that deviated from those required under the field
preemption of the State Building Code and/or Federal Fair Housing. [See,
Plaintiffs’ Joint Corrected Brief herein,pp.57-58; Plaintiffs’ sworn evidence
submitted naming public officials, judicial officials and others implicated in
such schemes, also unaddressed on summary judgment even as to the proper
inferences from such sworn evidence].
The recent Boyle v. United States, supra, decision by the United
States Supreme Court, regarding the liberal definition of an “association in
fact,” further buttresses Plaintiffs’ claims the District Court erred. Case law
is replete with rulings that cities and city departments and courts and state
agencies and police departments can be “enterprises” within Title 18 U.S.C.
Section 1962 (c) and (d). 52A.L.R.Fed.818 (“Enterprise,” 18
U.S.C.A.§1961(4),§5 Public entities).
These types of schemes are historically precisely the types of
violations that are properly pled and enforced through civil rights litigation
including the Federal Fair Housing Act, which like other civil rights law and
RICO, is to be broadly construed to effectuate Congressional purposes.
This looks like the plaintiffs hailmary with no wide receiver to catch it.
Anyone who likes American and out freedoms had better hope these guys so win or you can eventually kiss every thing you have good bye. I'm dumbfounded that people are not up in arms over the crap that St. Paul is doing. Don't they really care about their freedoms?
Keywest police department
( Florida ) declared a criminal enterprise in 1984.
Deputy chief and three officers involved in cocaine ring.
Nothing new in this brief so far. The plaintiffs are getting F'ed by the city and their attorneys.
LOL....Trogen is giving away free rubbers on the front page of the blog.
Hey Carl......you are LOLing yourslef into shit for a life and it appears you are too stupid to know it. Do you really want to live in a place where they make up laws that don't exist and go after people with them? Do you want crooked courts deciding your case or someone you know based on political connections? Do you want to live under a government that thinks nothing of breaking the law and covering it up? Keep LOLing, you may get your wish.
Wonder where Chuck and Eric are? This is the stuff they support and it's funny they are not here with their spin.
nothing new here.
No stated basis for the Appeal.
Same ol' accusations brought forth in the dismissed case.
That case was dismissed by a Federal Judge, not a county judge as mentioned by someone else. Appeals don't re-try cases, that lock at the evidence that proves either:
1. Mistrial in previous case
2. Existing law is unconstitutional
Neither have been addressed.
I've never dealt with DSI,maybe because I keep my property up but, the only f*cking the plaintiffs is their attorneys.
They ought to be disbarred for deceiving any client into thinking this constitutes as a real appeal.
It bogus. Amanda, Chuck and Eric don't have to reply because all of those questions were addressed the last time this was being reviewed by a judge.
I hope most of you do not live in St Paul. Your ignorance, blatantly displayed here in your responses is frightening and reminds me of Alabama. Lots of opinion with no information.
I'm afraid this appeal is going to get shredded. Merely saying "local courts are political" is both true and irrelevant; if the plaintiffs and their lawyers can't show THE LETTER fo the law (and case law) being violated, then it is IRRELEVANT. NO court will care.
And it's a hame, because, protestations of city butt-buddies like Chuck and Eric aside, there is a HUGE problem here. The city is running a scam to give property to the city council's non-profit friends via their Vacant Building ordinance, while making it impossible to move that property on the free market. All the while, taxes are zooming up, services are bad and getting worse, taxpaying citizens are leaving, the school system is circling the drain (seriously - the SPPS sucks sucks sucks), business is leaving, tax base is shrinking. Bob Fletcher was behind much of the Gang Strike Force fiasco, and there's a new story brewing up about corruption in the SPPD and Ramsey Sheriff's office which led to a murder. THat's coming up in the next few weeks.
And five will get you ten that Eva Ng will get 40% of the vote this November. Because 60% of the city either figures "DSI hasn't come for me yet", or because they depend on the city and county for some part of their support.
I myself, a taxpaying, law-abiding citizen, am just counting the days until I can sell my house and leave Saint Paul for ANY Republican-run, honest city that respects peoples' property rights.
Fuck Saint Paul. Seriously. Fuck this city. I'm gone as soon as I can get out of here. I love the place, but I hate the government. I don't want another nickel of property taxes to go to supporting these thugs.
This comment has been removed by a blog administrator.
The Schemes of Defendants Completely Undercut Their Defenses
The affirmative and/or other defenses of the Defendants herein, as
held applicable on summary judgment by the District Court,1 are to the
contrary completely undercut as a matter of law by such defenses being
premised on ultra vires alterations and enforcements of an invalid set of City
Codes, which are demonstrably at odds with and thus void in comparison
with the subject matter field preemptive Minnesota Building Code, whose
existence, subject matter terms and field preemptive force were completely
ignored by the City Attorney and the District Court.
Ignoring key controlling State law is arguably a novel way indeed to
obtain summary judgment, as is the intentional destruction of material
electronic [e-mail and other] evidence after litigation had commenced, in a
1 The District Court erred as a matter of law in not performing the
immunity analysis, but instead seemingly prepared Plaintiffs to be
sandbagged so as to prevent the exposure of public corruption “at any costs,”
even to the reputation of the District Court.
Defendants, including the City for all purposes other than RICO, were
on actual notice that: violating field preemption of State Building Code;
violating Fair Housing including City’s affirmative duty to further fair
housing, conduct “AIs” concerning the effect of City’s building codes on
“protected classes”; violating duties to provide true certifications to HUD;
violating civil rights law; preserving evidence; violating RICO and
conspiracy law; and committing such violations while employed by or
associated with the City; would constitute knowing and intentional
violations under qualified immunity standards.
9
manner outside the usual and customary data storage practices of
Defendants. Plaintiffs respectfully submit either ignoring State law, undenied
Federal Fair Housing violations, or destroying electronic evidence, is
not a proper way to obtain summary judgment under controlling Supreme
Court and Eighth Circuit summary judgment standards.
Minnesota Supreme Court – State Building Code
Preempts Defenses and Arguably Proves the Relevance
of the Destroyed Electronic Evidence
No less an authority than the Minnesota State Supreme Court has
declared the field preemptive force of the State Building Code in an
unbroken line of decisions dating between 1975 and 2008. City of Morris v.
SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008); City of Minnetonka v.
Mark Z. Jones, 236 N.W.2d 163 (Minn.1975)(city construction ordinance,
purported to adopt more stringent fire prevention measures affecting
building design or construction – preempted by state code); Minnesota
Agricultural Aircraft Association v. Township of Mantrap, 498 N.W.2d 40
(Minn.Ct.App.1993)(“Occupying the field” preemption - it does not matter
whether local regulation coincides with, is complementary to, or opposes
State law which fully occupies the particular field of legislation” -
municipalities cannot invoke power so as to accomplish what is otherwise
preempted by state statute). This Court arguably must respect their decisions
10
as to this controlling issue of State law, which was completely ignored
below by the District Court.
Because the District Court improperly weighed and found facts,
determined credibility, omitted factual analysis of expert opinions required
as a matter of law, and completely failed to render all proper inferences in
favor of the non-moving parties as to the field preemption of the State
Building Code – not only was summary judgment not proper, no immunity
existed for any individual Defendant or the City, as ultra vires passage or
enforcement of codes that violate the subject matter field preemption of the
State Building Code cannot protect the Defendants from further discovery,
liability and trial on the merits as to damages.
Summary Judgment – Further Analysis
Under the standard announced in CBOCS West, Inc. v. Humphries,
128 S.Ct. 1951 (2008), the Plaintiffs exceeded the requirements to avoid
summary judgment by proffering substantial quantities of sworn, admissible
evidence which was either un-contested by Defendants, or if contested,
precludes summary judgment either on the contest, or by inference upon the
undisputed or contested facts.
11
The District Court managed to reach the summary judgment by
completely ignoring the multiple, uncontested expert opinions of Plaintiffs’
expert Don Hedquist and arguably erred as a matter of law.
Gate Keeping Is Not Appropriate After Laws Violated
Summary judgment is a gate keeping function with multiple
supporters and multiple critics. It is not proper where a District Court fails to
consider the evidence in a light most favorable to the non-moving party,
makes credibility findings, weighs the evidence, and rules on issues of
intent, knowledge, motive and opportunity, which are quintessential jury
issues.
While summary judgment can be used as a valid exercise in judicial
efficiency, it is not a substitute for allowing a litigant to proceed with
discovery and trial on state and federal law facts in dispute, which is why
certain presumptions are required, including all inferences to be drawn in
favor of the non-moving party.
These Are Not Issues of First Impression in
Either the State or Federal Courts
This Court has previously been confronted with many situations
where a unit of government or its agents or employees have allegedly
committed civil rights and other violations.
Hopefully, this Court is not jaded into complacency where as here the
evidence shows a City trying to escape liability for civil rights and other
violations, or lulled to affirm by the City’s legal slight of hand in spoliation
of evidence and ignoring controlling Stated law issues .
Arguably, such violations can result in criminal prosecutions, if not
civil process. See Dahlgren v. First National Bank of Holdrege, 533 F. 3d
681 (8thCir.2008)(outsider RICO liability-State law violation as torts and
predicate acts); Witzman v. Lehrman, et al., 601 N.W.2d 179 (Minn.1999).
(all who actively participate in any manner in commission of a tort, or who
procure, command, direct, advise, encourage, aid, or abet its commission, or
who ratify it, are jointly and severally liable for injury); U. S. v. Hively, 437
F.3d 752 (8thCir.2006)(RICO criminal conviction analyzed-mail fraudmailings
incident to scheme to defraud, sufficient threat of repetition).
The challenge for a District Court is to separate out legitimate
government functions from those that are illegitimate, and actually illegal or
unconstitutional. While no court should play second guesses as to a
municipality’s proper range of discretionary function decision-making, it is
almost never the case in complex civil rights cases that summary judgment
is granted where motive, knowledge and intent are at issue. Yet it was here.
13
While the presumption may be that government actions are legal, clearly
such presumption can be rebutted.
Such a gate keeping function by the District Court is not aided when
Defendants here hid and destroyed thousands of items of material e-data/email
evidence, the District court excluded expert affidavits sub silentio,
allowed Defendants to justify their own efforts to protect the public under
police powers they clearly do not have under field preemptive controlling
State law, and the Court in fact never discussed that State Law.
“Whatever one thinks of state action as a viable limiting principle on
the constitutional command of equality, it should at least be clear that
the most outrageous deprivations of equal rights are those perpetrated
by the state itself.”
City of Black Jack, 508 F.2d. 1179.
Tragic Example of Police Powers Intentionally
Gone Wrong With Undeniable Approval of City Attorney’s Office and Other Public Officials
In its defense, the City submits that it has the power to enact and
enforce certain police powers related to public safety and public health, as
subject matters under its legislative code, and besides the Plaintiffs’
buildings undeniably violated the City’s current code enforcement
provisions. Defs.Br.4-7.
14
Plaintiffs’ have countered, as the St. Paul City code does not and
cannot control:
(1) there was a prior PP2000 approach that protected residents and
afforded due process to landlords, in compliance with field
preemption of the State Building Code’s grandfathering provisions
and the City’s duties under Federal Fair Housing;
(2) the City only has police powers within limits allowed by the State;
(3) any police powers the City has granted unto itself that exceed
those allowed by the State, are void, and unconstitutional; and
(4) precisely because they violate the field preemptive force of the
State Building Code, such ultra vires police powers are an attempt by
Defendants to knowingly and intentionally exercise void powers.
Thus, when analyzing the disputed facts and all inferences to be drawn in
favor of Plaintiffs, no summary judgment was proper as Defendants’ actions
not only violated the field preemptive State Building Code, they also
violated Federal Fair Housing, civil rights and RICO, as ‘proven’ for
summary judgment purposes by the expert reports of Don Hedquist and the
15
inferences properly drawn from the City’s factually un-denied violations of
the State Building Code.2
Because Defendants’ cannot and have not defended how or why they
can violate the State Building Code’s field preemption, and further at least
de minimus any and all facts are in dispute as to such claims, no summary
judgment as a matter of law could have been granted to any Defendant.3
Arguably, under summary judgment and spoliation analysis, this case
on remand needs some additional discovery as to intentionally destroyed emails
and TISH inspection records, who was in charge of the usual and
customary City data retention policy, multiple Defendants’ knowledge and
intent, and a trial before a jury, lest a District Court be found to approve and
2 See, CJS MUNCCORP §62, CJS Municipal corporations §141
Updated June 2009 - Analysis of conflict and field preemption, dating back
years – going to actual knowledge of Defendants.
3 This includes the uncontested [completely unaddressed on summary
judgment] sworn Plaintiffs’ evidence, including Dawkins depositions
admissions and notes, implicating the local state court, City Attorney’s
Office, City Council and Dawkins in meeting to pre-determine any civil
rights, code enforcement, or Fair Housing claims before court action, in
order to fix results for Defendants, which all would have been ipso facto
violation of the State Building Code and other laws. Perhaps this evidence
could explain any pressures on the District Court and the City Attorney to
keep this case from going to trial, as somehow requiring the District Court to
violate summary judgment standards
uphold precisely the type of civil rights violations properly condemned by
this Court in Black Jack.
II. DEFENDANTS’ SPOLIATION OF EVIDENCE
District Court Abused Its Discretion By Misapplying Spoliation
Law, Finding No Prejudice and Awarding No Sanctions
In their Reply Brief, Defendants contend Plaintiffs failed to show they
were “prejudiced”. Defs.Br.58. Plaintiffs submit the District Court abused
its discretion by misapplying the law on spoliation, failing to find
“prejudice” from said destruction of evidence, refusing to hold an
evidentiary hearing, failing to order sanctions, and rewarding Defendants’
spoliation with summary judgment. It was virtually uncontested that
Defendants had:
(1) failed to place a “litigation hold” on evidence;
(2) destroyed virtually all e-data/e-mails of Defendants and other
officials/employees for 2000 through 2005; and
(3) for three years during litigation, annually destroyed 5,000 to 6,000
Truth-in-Sale of Housing inspection reports (15,000-18,000 inspection
reports) of homes inspected by licensed inspectors during 2001-2003.
Standard of Review
This Court reviews sanction decisions under the abuse of discretion
standard. Stevenson v Union Pacific Railroad Company, 354 F.3d 739, 745
17
(8thCir.2004) (citing Dillion v. Nissan Motor Co., 986 F.2d 263, 267
(8thCir.1993).
The Court will be found to have abused its discretion, “If the court
bases its ruling on ‘an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Greyhound Lines, Inc. v. Wade, 485 F.3d
1032, 1035 (8thCir.2006).
“Spoliation” has been defined consistently as “the destruction or
significant alteration of evidence, or the failure to preserve property for
another’s use as evidence in pending or reasonably foreseeable litigation.”
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2dCir.1999).
Any possible destruction of evidence is to be treated as a serious
transgression of discovery procedures in that it goes to the core of the
Court’s truth-finding mission. Dillon, at 269. “‘Purposeful impairment of
the opposing party’s ability to discover information” justifies invocation of
the Court’s inherent power and duty to insure the integrity of the judicial
proceeding.” Roberts v. Canadian Pacific Ry. Ltd, 2007 WL 118901
(D.Minn. 1-11-07) (document destruction – an attempt to suborn fact-finding
process is an affront to court that has an obligation to maintain integrity of
proceedings).
A spoliation sanction requires “a finding of intentional destruction
indicating a desire to suppress the truth.” Greyhound, 485 F.3d at 1035
(citing Stevenson, 354 F.3d at 746). Unfortunately, as this Court well
knows, “Intent is rarely proved by direct evidence.” Morris v. Union Pac.
R.R., 373 F.3d 896, 902 (8thCir.2004).
If the destruction of relevant evidence occurs after litigation is
imminent or has begun, no bad faith need be shown for sanctions.
Stevenson, at 746.
When litigation has already commenced, a party “cannot blindly
destroy documents and expect to be shielded by a seemingly innocuous
document retention policy. Id. at 750.
Moreover, once a party receives a specific document request, a party
cannot rely on its routine document retention policy as a shield. Id.
When spoliation is established, the jury may draw an inference that
the evidence destroyed was unfavorable to the party responsible for its
spoliation. E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582,
587, 589 (D.Minn.2005).
In Stevenson, this Court determined that the continued destruction of
track maintenance records after litigation was commenced and after the
19
receipt of a request for production of documents, was properly sanctioned
with an adverse inference instruction, without “bad faith”. Id. at 750.
Contrary to the twisted application of the law by the District Court in
a desperate attempt to keep Defendants afloat in the river of corruption they
have enjoyed, this Court in Stevenson applied a liberal relevancy standard
for showing “prejudice” from spoliation after litigation has commenced and
after a request for documents submitted.
Significantly, this Court stated that “track maintenance records [were]
of limited use” yet found prejudice justifying an adverse inference
instruction. Id. at 749. See Dillion, 986 F.2d at 268 (“evidence which may
have provided helpful to the defense [had] been destroyed”); Capellupo v.
FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989) (Defendants having
destroyed a significant quantity of documents, the exact extent now
indeterminable, should not be allowed to claim information contained is
irrelevant or unimportant).
In Stevenson, this Court determined that Union Pacific’s claimed
innocence under its routine document retention policy (sound familiar?) and
a lack of knowledge that the records were relevant, were unavailing as
defenses to an adverse inference instruction sanction: after the specific
document request for track maintenance records, Union Pacific could not
20
rely on its routine document retention policy as a shield. Id. at 749-50
(quoting Webb v. District of Columbia, 146 F.3d 964, 974 n.20
(D.C.Cir.1998) (adverse inference presumption is a common sanction for
spoliation). See Mastercard International, Inc. v. Moulton, 2004 WL
1393992 (S.D.N.Y. June 12, 2004) (court imposed sanctions for failing to
preserve e-mails automatically destroyed by computer server in ordinary
course of business; failure to cease customary destruction of e-mail practices
was breach of duty to preserve and sanctioned by adverse inference).
Steinhauser, et al. filed 5/4/2004 – Document Requests 11/2004
Following commencement of the Steinhauser case in May 2004,
Defendants’ failed to place a litigation hold on e-data/e-mails, TISH and
other potentially relevant evidence. ADD000056-57, 74.
Defendants destroyed e-data/e-mail and TISH Housing Inspection
Records after commencement of this action and also after receiving
Steinhauser document requests in November 2004 for such documents.
ADD000074; Ecf.114,pp.6-7[04-cv-2632].
Defendants destroyed 15,000-18,000 Truth-In-Sale-of-Housing
(“TISH”) housing inspection reports for 2001-2003 after litigation was
commenced. Ecf.143, p.2[04-cv-2632].
E-data/E-mail Communications
Steinhauser’s document requests sought production of “electronically
stored information,” “e-mails,” including, “All documents related in any
way to all communications” between the City’s code enforcement, building
permit, Planning and Economic Development, Housing and Redevelopment
Authority, and Human Rights Department, and Citizen Services offices, City
Council members, Mayor’s office, Police Department, and the Public
Housing Agency, Neighborhood Councils and individual defendants.
Ecf.114,pp.5-9-ShoemakerAff.
Steinhauser requested Defendants produce all communications
including e-data/e-mails. Ecf.114,pp.5-9(Request No.13).
The November 2004 Steinhauser document requests also sought “All
documents related in any way to the Department of Neighborhood Housing
and Property Improvement (“NHPI”) and its predecessor departments since
1994, including but not limited to, …reports, …, files, …, computer
maintained information, …, email communications,…”. Id.( Request No.9).
On January 14, 2005, Defendants responded to the Document Request
No. 13 by objecting to production of documents related to communications
defined by Steinhauser as including e-mails – Defendants must have needed
more time to ensure complete destruction of there internal communications.
22
Defendants were the first party here to acknowledge the relevancy of
TISH reports to Plaintiffs’ claims. In January 2005, Defendants responded
to Request No. 9 by describing four categories of files related to homes: (1)
code enforcement files generally retained three years; (2) vacant building
files since 1998; (3) Truth-in-Sale of Housing files [TISH inspection
reports]; and (4) Rental Registration files generally retained three years. Id.
Defendants later produced miniscule e-data/e-mails for the relevant
periods prior to December 2005. Ecf.152,EngelAff.,Ex.12-39[05-cv-
1348];Ecf.183,ShoemakerAff.,paras.68-80(evidence of e-mail destruction).
TISH Housing Inspection Records
In January 2005, as Defendants were disclosing to Plaintiffs the
existence of TISH inspection report/files within the realm of “NHPI files”
requested by Plaintiffs, Defendants were actually shredding the City’s copies
of 2001 TISH inspection reports/files; in January 2006 and January 2007,
Defendants destroyed 2002 and 2003 TISH files respectively.
Ecf.114,ShoemakerAff.paras.26,31,41[04-cv-2632].
While Defendants in 2005 through 2007, were destroying TISH
inspection reports/files of properties neighboring Plaintiffs’ properties,
Defendants’ requested Plaintiffs’ produce copies of TISH inspection records
on Plaintiffs’ properties, obtained those TISH records, provided those
23
records to Defendants’ liability expert, obtained an expert opinion that those
TISH records were relevant to the parties claims and defenses, and used
those TISH records in depositions of Plaintiffs. Ecf.114,ShoemakerAff.
pp.13-18[04-cv-2632].
Even the Court recognized the relevancy of these TISH reports.
ADD000076,fn.3.
But, the Court cleverly cited Defendants’ knowing false statement
that, “Defendants also reminded Plaintiffs that they had not even asked for
the [TISH] reports until 2007, approximately two years after they first
learned of the reports, and that the City had produced all of the reports in its
possession to Plaintiffs at that time [2007].” ADD000064. Both the Court
and Defendants knew of Defendants’ duty to maintain TISH records for
Plaintiffs’ eventual inspection and use and knew that destruction of same
would constitute spoliation. Instead, Defendants secretly shredded the TISH
records without informing Plaintiffs, until it was too late.
Ecf,114,ShoemakerAff.,paras.16,18. Prior to early 2007, Plaintiffs were
kept busy fighting Defendants’ motions to strike and for protective order
protection, as well as taking almost 50 depositions, and prioritizing which of
the many groups of documents to first inspect. Defendants’ took advantage
by using the time wisely to destroy as much evidence as possible.
24
Due to Defendants’ destruction of the TISH reports that were centrally
located at Dawkins’ office, Plaintiffs were faced with a cost and time
prohibitive hurdle of seeking TISH reports from 45 inspectors at offices
around the Twin Cities Metro Area, with no assurance the inspectors had
maintained their copies of inspection records for 5,000-6,000 inspections
each year, when the three year normal retention period applicable to both the
City and TISH inspectors had already expired.
The Court erred in determining that, “Plaintiffs never subpoenaed the
TISH evaluators. Such a failure to pursue discovery is incongruent with
Defendants’ claim of prejudice.” ADD000064. The Court had suggested
Plaintiffs seek replacement TISH reports from inspectors through subpoenas
but only requiring the minimal subpoena costs be paid by Defendants.
ADD000081. Arguably, the Court’s Order included service fees, but there
was no provision for $15,000 in copy costs of the replacement records
(15,000 reports, four pages each, at $.25/page), for $13,500 from 45
deposition transcripts ($300 each), or for Plaintiffs’ attorney fees for the
time consuming task of attempting to recreate the City’s central depository
collection of 2001-2003 TISH records, all with no guarantee the City files
could be restored. Defendants’ knew their intentional destruction would
create that additional mountain for Plaintiffs to climb. But for Defendants’
25
destruction of centrally stored TISH reports, Plaintiffs would not have been
faced with these prohibitively burdensome additional costs and fees.
Plaintiffs’ objections to the magistrate’s order were denied by the District
Court. ADD000083.
The District Court abused its discretion by misapplying the law on
spoliation as set out by this Court in Stevenson. The District Court
determined Plaintiffs had failed to demonstrate they were prejudiced by the
destruction of the e-data including e-mails and TISH housing inspection
reports. ADD000064-68;80.
The Court made the following clearly erroneous factual determination
concerning the destruction of e-data prior to December 2005: “Other than
the reasons already discussed, Defendants offer an additional reason:
because Plaintiffs’ counsel had explicitly limited the discovery request to
emails from December 2005 onward, in a letter dated June 6, 2007.”
ADD000067. This is another example of the District Court adopting a
deliberate false statement as the Court’s own finding without labeling it as
such.
Plaintiffs never limited their document request to email
communications from December of 2005 forward so as to waive their claims
of spoliation of the pre-December 2005 e-mails. One has to wonder why
26
Plaintiffs would have brought motions for sanctions if they had agreed, as
Defendant’s counsel falsely represented, to limit their e-mail requests. As
Mr. Shoemaker stated to Ms. Seeba in a letter dated May 15, 2007:
We understand from you that the electronic communications such as
emails between City departments and third parties have not been
retained for the period prior to December 2005.
Ecf.217-6,p.9[-04-cv-2632].
In Plaintiffs June 6, 2007 letter, Plaintiffs again sought emails from
1994 to present:
Emails both within the City and to and from third parties have been
relevant to the claims herein since 2002. …inspectors also testified to
use of the e-mail system in their work for the City. It certainly appears
…Defendants…did not take action to preserve the written
communications … for the time period prior to December 2005, ...
Ecf.217-7,p.6[-04-cv-2632].
Defendants’ failure to place any litigation hold on e-data/e-mails after
the commencement of litigation in May of 2004 and failure to preserve all
back-up tapes prior to December of 2005, allowed Defendants to destroy
relevant evidence for the relevant periods prior to December 2005, which
created an absence of communications between and among Defendants and
other city officials and employees and third parties, including neighborhood
councils, PHA, and HUD from 1999 through 2005.
Plaintiffs were clearly prejudiced by such destruction during this
litigation as the destroyed e-data/e-mails easily meet the definition of
“relevancy” under Rule 401, F.R.E. (“evidence having the tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable that it would be without the
evidence”).
Additionally, under Rule 26, Fed.R.Civ.P., the destroyed TISH
inspection records and e-data/e-mails were a proper subject of the
Steinhauser document requests to Defendants in November 2004, as they
were “relevant to any party’s claim or defense” and were “reasonably
calculated to lead to the discovery of admissible evidence.”
Defendant’s duty to preserve evidence arose no later than when they
were served with the Steinhauser Corrected First Amended Complaint (87
pgs) filed May 28, 2004 (Ecf.7[04-cv-2632) detailing the Plaintiffs claims
that:
(1) Defendants had selectively targeted and were continuing to target
Plaintiffs and other low-income landlords;
(2) Defendants were ignoring clearly visible code violations on
exteriors of properties in Plaintiffs’ neighborhoods so the condition of
Plaintiffs’ and surrounding properties were at issue;
(3) All inspection programs for rental homes in the City were
relevant;
28
(4) Communications between City officials and employees and third
parties were relevant;
(5) PHA had rental properties and tenants that were similar in many
respects to those of Plaintiffs and had their own inspection system;
(6) Plaintiffs considered the City’s “Problem Property 2000” initiative
to be very significant to Plaintiffs’ claims;
(7) Code enforcement conduct challenged by Plaintiffs was contrary
to the City’s federal funding; and
(8) Certain of Plaintiffs’ tenants were receiving federal Section 8
assistance and with HUD funding for housing placement services into
properties owned by Steinhauser and other landlords.
Here, as in Capellupo, Plaintiffs were “deprived of significant
amounts of potentially helpful information,” relevant evidence concerning
“claims or defenses” of the parties. Defendants’ destruction of e-data
including internal/external e-data/e-mails of City officials and employees,
and external e-data/e-mail communications with third parties, prejudiced
Plaintiffs by eliminating naturally relevant evidence related to issues of
intent and motive of Defendants on Plaintiffs’ claims that the City was
violating the State Building Code, such violations constituted a “disparate
treatment” and “disparate impact” on protected classes, constituted
intentional discrimination under Section 1981, 1982 and 1983 (equal
protection), RICO, as well as directly related to defenses raised by
Defendants, including immunity defenses and that there was no evidence of
“disparate impact” or “intentional discrimination”. City officials misused
code enforcement inspectors to placate White neighbors and deleted
smoking gun e-mails from Defendants’ e-mail production. Ecf.143,p.8[04-
cv-2632](Plaintiffs uncovered these e-mails in paper files maintained by the
Legislative Hearing Officer prior to City officials and employees’ personal
review and selection of e-mails to disclose to Plaintiffs).
Additionally, the destruction of e-data/e-mails deprived Plaintiffs of
evidence on whether the City had “affirmatively furthered fair housing” by
conducting “analysis of impediments to fair housing choice” (“AI”) required
under federal law concerning the City’s building code and code enforcement
policies applicable to “protected class” housing, taking appropriate actions,
and maintaining records on the “AIs”. 24C.F.R.§91.225 (City’s
certifications); §91.210(e)(City’s public policies, including building codes as
barriers to affordable housing – whether those policies affect cost of housing
or incentives to develop, maintain, or improve affordable housing – affect
return on investment, and act as barrier); §91.215(h)(public polices as
barriers); §91.220(j)(building codes as barriers).
The internal/external e-data/e-mail communications would have
provided evidence of the deliberations behind the scenes of the intent,
motive and opportunity of Defendants, City Council members, and others
30
concerning federally mandated “AIs” concerning City building code and
code enforcement policies and the application to “protected class” housing,
costs of same and displacement effect from such illegal application of the
City’s ultra vires police powers and code polices.
The destroyed e-data/e-mail internal/external communications for
2000 through most of 2005, covered the period that the City suddenly
abandoned its successful PP2000 code enforcement program (early 2002),
adopted and implemented a heavy-handed, “code to the max” approach
(2002-present), including aggressively designating properties as “vacant”
buildings,” dramatically increasing condemnations of homes and illegally
demanding older homes meet “present code” under the City’s Code
Compliance inspection and certification process that Defendants’ knew was
in direct violation of the State Building Code and Minnesota court decisions,
that both provided grandfathering protections to existing structures.
The destroyed e-mails deprived Plaintiffs of evidence going to
Defendants’ discussions on how to violate the State Building Code, how to
falsify HUD funding certifications without conducting the required and
legitimate “AIs,” and how to keep the public and Plaintiffs’ in the dark about
these issues, and other communications in furtherance of the schemes and
criminal conspiracy.
31
The Court failed to consider that the written, electronic
communications of Defendants and City officials and employees would have
been the best source of evidence directly bearing on all these matters and
thus directly related to the claims and defenses of the parties.
The Court denied Plaintiffs’ requests for sanctions, including costs
and attorney’s fees related to bringing its motion (ADD000055) and failed to
grant Plaintiffs’ request for an evidentiary hearing (Ecf.183,ShoemakerAff.
paras88-90[04-cv-2632].
The Court made a decision contrary to the law in failing to award
Plaintiffs’ their costs and attorney’s fees incurred as a result of Defendants’
conduct when the Court acknowledged Plaintiffs may have been harmed.
ADD000062,68. The Court erred by failing to award Plaintiffs’ their costs
and attorney’s fees incurred as a result of Defendants’ conduct. Here, as in
Capellupo, the actions of Defendants “imposed an enormous burden on
counsel for plaintiffs.” Capellupo, 126 F.R.D. at 553.
Defendants’ Bad Faith In Spoliation of Relevant Evidence
Under this Court’s ruling in Stevenson, no bad faith showing is
necessary but is relevant on the issue of what sanctions would be appropriate
to meet the policies supporting sanctions. Here, Defendants’ destruction of
evidence was so egregious that the district court abused its discretion in denying Plaintiffs any of the relief requested: judgment against Defendants
on liability and damages; monetary sanctions; dismissal of Defendants’
summary judgment motion; directing factual findings in favor of Plaintiffs;
an adverse inference jury instruction; an award of attorneys fees, expert fees
and costs from March 2, 2007 through the hearing March 2008; discovery
related to the spoliation; Ecf.183,ShoemakerAff.[04-cv-2632(Defendants’
litigation tactics caused undue expense, fees for Plaintiffspars.
17,18,27,50,88-89)].
Even though Plaintiffs were not required to demonstrate Defendants’
“bad faith,” Plaintiffs submit that Defendants conduct rose to the level of
“bad faith” thereby justifying a finding of “prejudice” because the evidence
was relevant, would have been helpful to Plaintiffs and could have led to
discovery of other evidence.
The duty to preserve evidence is imposed on counsel as officers of the
court. See 6 NO. 21 Lawyers J. 6 October 15, 2004 (Duty of preservation
and protection of electronically stored information that may be relevant to
potential or actual litigation show a clear trend to judicially impose a duty on
counsel to safeguard and preserve potentially relevant evidence.).
The substantial and complete nature of the destruction of virtually all
e-data/e-mails of Defendants, City Council members and other key players
33
for all periods prior to December 2005, the time periods relevant to
Defendants’ claims of immunity and Plaintiffs constitutional and statutory
claims, and the complete destruction of three years of TISH housing
inspection reports, all destroyed during litigation, justifies a “bad faith”
finding, a determination of “prejudice” to Plaintiffs from said destruction
and sanctions including monetary sanctions, attorney’s fees and costs,
reversal of summary judgment, and an adverse inference instruction. See
E*Trade, 230 F.R.D. at 592.
The e-data/e-mail written communications of Defendants and City
officials/employees and third parties relevant to the claims and defenses of
the parties is similar to the only recording of conversations contemporaneous
to an accident. Stevenson, 354 F.3d at 748. There is no substitute evidence.
The District Court, contrary to this Court’s holding in Stevenson,
placed too high of a burden on Plaintiffs to demonstrate “prejudice”. Courts
have warned against applying too high a standard on victim litigants of
spoliation:
“Courts must take care not to ‘hold the prejudiced party to too strict a
standard of proof regarding the likely contents of the destroyed [or
unavailable] evidence,’ because doing so ‘would subvert
the…purposes of the adverse inference and would allow parties who
have…destroyed evidence to profit from that destruction.”
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109
(2dCir.2002).
The Second Circuit Court of Appeals has stated, “[t]he task is
unavoidably imperfect, inasmuch as, in the absence of the destroyed
evidence, we can only venture guesses with varying degrees of confidence
as to what that missing evidence may have revealed.” Kronisch v. U.S., 150
F.3d 112, 128 (2dCir.1998) (Wigmore’s admonition - holding prejudiced
party to too strict a standard of proof regarding the likely contents of the
destroyed evidence would subvert the prophylactic and punitive purposes of
the adverse inference).
Moreover, as can be seen by this Courts’ decisions in Stevenson
(finding prejudice and approving an adverse inference jury instruction) and
in Dillion (finding prejudice and approving the exclusion of evidence), if the
evidence destroyed would have been helpful to the opposing party, even if
that evidence was of “limited use,” this Court will approve sanctions
including a adverse inference instruction.
Here, the District Court determined that Plaintiffs had not shown what
the missing e-data/e-mails would have contained - but Plaintiffs had
demonstrated that the missing e-data consisted of written communications of
Defendants, City officials and employees and influential third-parties on
35
subjects relevant to the parties claims and defenses but from a period after
the relevant claim/defense period. Under Stevenson, even if this e-data was
of limited use, its destruction during litigation should have resulted in a
prejudice finding and an adverse inference instruction and/or other
sanctions.
During the filings of these three lawsuits, Defendant Dawkins, a
licensed attorney, headed the main City code enforcement department
responsible for conduct challenged in these three cases. Defendants had a
large full service law firm at their disposal. Defendants were familiar with
Court rules due to experience with litigation. Yet the District Court held that
the destruction of the written communications of City officials and
employees and the housing inspection reports for the relevant time period
prior to December 2005 was not in “bad faith” and that the other related
destruction and obstructive litigation tactics, taken together with e-data/email
destruction, did not demonstrate bad faith.
Plaintiffs submit that at the very least public defendants should be
held to the same standard of preserving evidence applicable to private
corporations. When considering the important policies of honesty and
openness by government officials and employees in public matters including
federal court litigation, the Court abused its discretion in placing a heavy,
36
almost impossible burden on Plaintiffs to demonstrate they were
“prejudiced” by such destruction.
Plaintiffs submit that the Court should consider the serious public and
judicial policies implicated by the Defendants’ destruction of massive
volumes of evidence during this litigation:
Spoliation sanctions serve a remedial function by leveling the playing
field or restoring the prejudiced party to the position it would have
been without spoliation. They also serve a punitive function, by
punishing the spoliator for its actions, and a deterrent function, by
sending a clear message to the other potential litigants that this type of
behavior will not be tolerated and will be dealt with appropriately if
need be.
Mosaid Tech. v. Samsung, 348 F.Supp.332, 335 (D.N.J.2004).
Plaintiffs and their counsel strongly submit that it is imperative this
Court reverse the District Court’s rulings on spoliation, sanctions and
summary judgment, thereby correcting the false impression that violation of
state and federal laws, Court rules, including massive destruction of
evidence, and other wrongful acts, are a legitimate way of conducting
government business.
Additionally, as it currently stands, there is more than an appearance
of impropriety in the handling of these cases by the Minnesota District
Court. The District Court has from the commencement of these cases,
downplayed and soft pedaled the claims and evidence of violations of state almost impossible burden on Plaintiffs to demonstrate they were
“prejudiced” by such destruction.
Plaintiffs submit that the Court should consider the serious public and
judicial policies implicated by the Defendants’ destruction of massive
volumes of evidence during this litigation:
Spoliation sanctions serve a remedial function by leveling the playing
field or restoring the prejudiced party to the position it would have
been without spoliation. They also serve a punitive function, by
punishing the spoliator for its actions, and a deterrent function, by
sending a clear message to the other potential litigants that this type of
behavior will not be tolerated and will be dealt with appropriately if
need be.
Mosaid Tech. v. Samsung, 348 F.Supp.332, 335 (D.N.J.2004).
Plaintiffs and their counsel strongly submit that it is imperative this
Court reverse the District Court’s rulings on spoliation, sanctions and
summary judgment, thereby correcting the false impression that violation of
state and federal laws, Court rules, including massive destruction of
evidence, and other wrongful acts, are a legitimate way of conducting
government business.
Additionally, as it currently stands, there is more than an appearance
of impropriety in the handling of these cases by the Minnesota District
Court. The District Court has from the commencement of these cases,
downplayed and soft pedaled the claims and evidence of violations of state
37
and federal laws, court rules and the corruption by public officialsemployees,
and State Court personnel, has seriously abused the summary
judgment standard, dismissed the evidence that a reasonable jury could view
as supporting Plaintiffs’ claims, and has worked diligently to undermine
Plaintiffs’ ability to hold accountable before the law, a City run by those
who see the law as an inconvenience to be subverted at every opportunity no
matter what the cost to other members of society. The message heard by all
from the District Court of Minnesota through its decisions here is that
politically connected lawbreakers have immunity without worry of the
consequences. This Court must not let this message stand without challenge.
As Justice Brandeis stated in his dissenting opinion in Olmstead v.
U.S.:
Crime is contagious. If the government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto
himself; it invites anarchy.
277 U.S. 438, 485 (1929).
CONCLUSION
Plaintiffs respectfully request the Court:
(1) overturn summary judgment and remand these cases for trial on all of
Plaintiffs’ claims;
(2) determine that prior to trial, full discovery on spoliation and sanctions
with an evidentiary hearing is appropriate with Plaintiffs’ costs and
attorney’s fees during such discovery paid by Defendants;
(3) that Plaintiffs be awarded their reasonable attorney’s fees and costs due
to Defendants’ wrongful litigation conduct during 2007 and 2008;
(4) that sufficient prejudice has been established to warrant an adverse
inference jury instruction;
(5) that a federal circuit judge from outside Minnesota be appointed as the
judge responsible for these cases on remand; and
(6) such other relief that this Court determines is warranted under the
circumstances.
Respectfully submitted,
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated: July 31, 2009 By: s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
7900 International Drive
International Plaza, Suite 200
Bloomington, Minnesota 55425
(952) 224-4610
Attorneys for Plaintiffs-Appellants
Steinhauser, et al. and Harrilal, et al.
Anonymous said...
I have been told that Eva has a copy of this brief, She sais that its a sad day for St.Paul
9:53 PM
Who is EVA?
Excellant Case Law Black Jack City
The use of Foul Language demeans this Blog, undercuts the Shoemaker Law Firm when John was a Clerk for a Judge??????
I think this case ( City of Black Jack ) that Sharon posted is very signifigant.
Take Eric and Chuck who simply won't believe that this sort of thing is possible.
This case reminds me of all the little communities St.paul has set up where citizens are housed in specific areas of the city.
Again, it's segregation.
Police and city officials can keep track of Asians, Black, Hispanics and so forth.
I watched Frogtown turn into Asian town as an example.
Jeff Matiatos
Asians moved to Frogtown for cheap housing.
This comment has been removed by a blog administrator.
This comment has been removed by a blog administrator.
This doesn't appear to be the same old stuff that was said before to me. Sure it was said before but the judge screwed it up and the things it is now saying is that it got screwed up and here is why and here is how it got screwed up. With the limited knowlege I have a lawsuits and summary jugement I think the case is going to come back to the city for a trial.
This is getting very old, if you don't like things do something about it to change it, don't sit on your ass and write complaints on a blog!
You are forgetting the basics of human nature.
Even poor people don't like the idea of slumlord tenants. Most calls about 'behavior' come from some of the poorer areas of the city.
As long as Chuck and Eric can point to run down housing and ask who wants this on their block- they will win over the citizens.
As long as low-income renters and homeowners are more concerned with the properties in question, instead of their property rights, they will not care to support the landlords or see their own interest in this stuff.
As long as landlords fight for lower standards, the voters will stand against that.
This Appeal doesn't matter and neither does this case. These political people know that as long as they can keep people focused on themselves instead of their rights- they will win.
That guy who want's to run from St Paul better look at some of the ordinances of these burbs. Where I live, most of the low income rental property would have been torn down. Our low income units are less than 30 years old. I won't mention the rules for length of grass, paint colors for housing trim, garage designs, parking, lights, windows etc.
Funny that a lot of people that left St Paul a generation ago moved out these burbs and begin voting in even more stringent ordinances.
Asians moved to frogtown because the city let them move in.
Doesn't that district currently have an asian represenative ?
Nothing against Asians. They are kind people.
Just trying to point something out.
Jeff Matiatos
You idiots don't read so well do you? From what I'm reading it's not about lower property standards or even rpoperty rights for that matter. It's about a city that goes after people with so called laws that don't exist and then uses a crooked court to enforce them. How would some of you like to get ticketed for something for which there was NO LAW and then get railroaded through a crooked court to have your wallet vaccumed out?
How was your wallet vacumed out ?
If not for the attorneys fees spent by plaintiffs, there might be some money in their wallets !!!!
You forgot 1 thing 6:33:
Then the city destroyed emails and shredded inspection reports to cover it up when someone finally took them to task for it.
They've been doing this stuff for years and it's about time someone did something to stop it.
My wallet wasn't vaccumed out. I was speaking of a hypothetical, but there were people who had their wallets vacummed by the city and lots of them.
Alright frank.
Alrite Eric
I'd say it's time to pack it up for the city.
I'm Eric. This is my first post on here. I know some of you chickenshit aren't man enough to stand behind what you write or even take the time to spell correctly, however, I try to do the former and mostly able to complete the latter.
I haven't commented, Frank, because this is nothing new here. Its a total either misunderstanding, or abuse of the Appeals system.
Same ol' idiots saying the courts are corrupt. I'm wondering which ones. If the courts are crooked, that's news since it's the federal circuit that this was heard in, these judges do not have to run for their seats (life appointments by the president not elected therefore no politics needed). So now, the federal courts are corrupted, for what? For following the law?
Laws do exist governing property and nuisance activities in St Paul. The issue at hand is are these laws constitutional. That's the only thing that the Appeals court can rule on. The circuit court already ruled on these 'merits' using existing law. The Appeal process is not to hear the same shit again, its to present a case that either existing law is unconstitutional, or some kind of judicial malice was in play during that case.
Every last one you, sans two, are presenting exactly the same thing as before. Exactly. Save your breath about all of the evidence missing or present- it doesn't matter because the SAME courts examined this.
I guess as long as you keep paying an attorney, most can keep your case alive. Even convicted rapists and murderers file appeal after appeal while in prison. So Frankie, keep writing the checks, you won't change the facts. The facts are a matter of public record and no jury, no jury will ever support your actions and properties as being anything more than slums that are barely meets the habitability for humans.
We've already went through this but the population for St Paul has been going up, not down in the last eight years.
St Paul is still one of the better cities to live in America.
You want to leave? Adios. There are plenty willing to take your spot.
Eric
Wow, I love reading this stuff. The longer this goes along the more i am convinced that the lawyers on this case are Sharon and Nancy.
This brief isn't for the court, it is for your's and the plaintiffs' entertainment.
There is no there, there.
It is a bunch of wild statements but no evidence.
They say that there is a scheme. But, they have no writen evidence of a scheme nor do they have anyone that was ever a part of a scheme admitting to it. but there are thousands and thousands of these evil schemers out there.
And the most insane is that some how the city intended to rid itself of more than half of its population... all of its poor and people of color.
If it wasn't such a waste of time and money it would be funny.
JMONTOMEPPOF
Chuck Repke
What does it all mean Eric?
or Chuck and Eric know how to read. At this point, Chuck and Eric are winning. The Court has already made a ruling against the interest of the property owners. That's why they are appealing. The Appeal has nothing new and hasn't been ruled upon.
Eric and Chuck 1
Property Owners 0
That's the score.
That's the point of an appeal. It can't have anything new. The people appeal what the ruling was or wasn't with the premise that it was a wrong ruling. From the reading of this it looks like the ruling was based on politics rather than law and that happens all the time. That's why they have an appeals court. Myself I'd rather live in a society where rulings are made with respect to the law and not politics. Some here like it the other way around but I suspect only as long as they are on the right side of it. Will be interesting to see how it comes out.
But, the appeal should actually have something in it. There needs to be some meat in it.
You see we have this document that shows a conspiracy...
We had this testimony of someone who was a part of the conspiracy.
All they have ever had were people who said, they think Dawkins was motivated by this... they think the City wants to do that... they heard from someone who heard that this was what they were up to.
Hearsay, rumor, assumption.
And, this thing is even more wild accusations, attacking the district court, which has nothing to do with the case.
As I have said the only thing that ever had any hope of ever getting anyone anything was the fishing trip that was discovery. All business and governments after some period of time have to throw away the trash. They can not keep ever piece of paper that comes through the door. That is a fact and allowed. What happened in this case is that the city continued to throw out the trash on a regular basis. The court ruled that the City had to pay to have an outside firm go through its hard drive and find all of the emails that had been deleted four years before the case was filed, instead of the four years they had when the case finally went to discovery.
When not everything could be found, the plaintiffs said the facts of the case are we have no evidence of anything, but whatever was not found must be the evidence we need.
We have no smoking gun, we have no gun, we don't even have smoke, but because the City can find everything that ever came in the building either in paper by electronics you must rule for us.
The Federal Court rejected that and said, you have to have some evidence to convince the court that more evidence existed somewhere else.
That is the only real issue in front of the court of appeals. Was the bench correct when it said to show that some evidence was destroyed you first have to have some evidence that suggests there may be more evidence?
Because that is the case in a nut shell. The plaintiffs have nothing and want the court to believe having nothing is proof of an international conspiracy to hide evidence.
JMONTOMEPPOF
Chuck Repke
Chuck, everyone reads this legal brief in a different way.
I happen to be able to read and understand this better than most non attorneys.
The legal argument seems to be simply that named defendants exceeded their authority in enforcing the city codes and ordinances in a way that sought to take over the cities rental housing and get rid of non conforming landlords who wouldn't play by unwritten rules .
That several if not many, DSI employees conversed with each other and had a plan to implement the takeover through un ethical code enforcement.
I have caught you several times Chuck, and the same can be said for the District Court, ignoring the rule of law in previous case law decisions here that seem to support the landlords.
I bet you don't even bother to read the cases !
Several ( at least 5 times ) times in my court experiences I have overruled judges because I submitted higher court decisions that tied the hands of the judge.
Again, when you look at the requirements to maintain a RICO action and some of the other causes of action in the suit, there are issues of material fact that are sufficient to let this thing go to trial.
Take a good look at the Keywest Florida Police Department which in 1984 was determined to be criminal enterprise under RICO.
Understand what RICO is and read the plaintiffs cases before you pass judgement.
Better yet, let judgement be in the hands of a jury.
Jeff Matiatos
Jeff... "that sought to take over the cities rental housing..."
Damn near half of the housing units in the City of Saint Paul are rental. The premise of the case is insane. There is no way that the City intended to take over the rental housing.... but that is exactly what started as the RICO case. Now once the laughter stopped, they tried turning this into a Federal Fair Housing case.
But, to buy this as a FFH case you have to agree with their contention that people of color seek out properties that won't pass code inspection and they would rather live there then in units that pass code inspection.
That is the arguments of the RICO and the FFH case Jeff. They don't go anywhere, and there is no evidence in the world that would show that the City is so insane that it intended to by using housing code close up half of the homes in the city. Hell, the real estate market crash has given us a look into just how many homes were in small time investors that NEVER had any issues with the City when they were renting their properties.
JMONTOMEPPOF
Chuck Repke
Chuck, if it's low income rental were talking about, those tenants are more concerned with not having to pay market value rent through being subsidized as opposed to being SO concerned with the quality of housing.
I am not saying that landlords renting to those of color and poor arn't keeping their places up but, these landlords are having to compete with a PHA that gets federal funding to maintain its properties.
Since PHAs get federal dollars to keep up their properties, why can't landlords who provide the same service get that money ?
It's a fair presumption that landlords trying to provide the same services that PHAs do are going to need more time and money to keep up.
I would be all for authorizing HUD funds for landlords who provide rental services to low income as PHAs. Not just to pay rent on their behalf, but for property repairs and upgrades that conform to HUD standards with HUD money.
But I think the city has already thought this through and doesn't want to see landlords compete with PHAs that have the approval of the city.
So, the city pushes it's Nazi tactics to see that landlords don't survive the possibility that HUD someday lets private landlords reap all the benefits PHAs get.
Jeff Matiatos
It is obvious the city has adapted extremely draconian measures of code enforcement, by anybody's standards.
Also obvious is the interest generated by the landlords' lawsuits. This issue is not going to go away, short of a landlords victory on appeal.
They do have evidence of a scheme Repke. Someone on the inside is talking so keep spinning. You are going to be a fool at the end.
"Jeff... "that sought to take over the cities rental housing..."
Why don't you quote it in the proper context? I went back and read it and it says "take over control" and that's exactly what they do by demanding you only rent to certain people and a bunch of other rulea and do's and don'ts and if you don't go along with them then they come after you with made up laws that don't even exist. Even in the light of the latest Supreme Court ruling they just thumb their noses at the court and do what they want. One of the inspectors recently told a landlord I know that rental property has no grandfathering rights! Unbelievable!
9:29 well...then they better put something in to the court soon or they are going to miss the chance. All that the lawyers have said so far is useless garbage.
Read this stuff over again and looke for one detail for the court to hold up and say, that is a fact, that is evidence. NOTHING NADA, ZILCH...
You actually need evidence in order to have a case go to trial.
And, you need evidence to convince an appeal court to overturn a court.
and 9:54 do you even know what grandfathering means? A lease isn't something that is grandfathered, the use "residential" is what would be grandfathered, so, the inspector would be correct renting isn't a grandfatherable use. The only time that a residential use would be grandfathered is if you had a residence on land that was zoned industrial and was in some way restricted from otherwise be used as a residence.
JMONTOMEPPOF
Chuck Repke
Chcuk I think you are losing it. Residential DOES have grandafthering rights and the city illegaly violates them every day. Read the Morris verses Sax decision. The Supreme Court talks about it . It's in the state Building Code which means it is law.
Chuck, you've done it again.
You've laid out too much information for them to take in so, they revert back to the always comfortable response of 'nuh-uh'.
Most who actually understand, or can understand the process are either quiet or trying to change the premise. For instance:
Jeff said:
I would be all for authorizing HUD funds for landlords who provide rental services to low income as PHAs. Not just to pay rent on their behalf, but for property repairs and upgrades that conform to HUD standards with HUD money.
But I think the city has already thought this through and doesn't want to see landlords compete with PHAs that have the approval of the city.
So, the city pushes it's Nazi tactics to see that landlords don't survive the possibility that HUD someday lets private landlords reap all the benefits PHAs get.
Yet, the vast majority of landlords have no problems with city government. I'm not saying that they are in love with the city but, they are not having multiple problems. These few landlords are.
As far as putting them on par with PHA- hell no.
These guys are not providing a service first and foremost, they are investing for a profit. Its a business. They should be treated like any other business.
Every single business in the city, county, state, and country have regulations to adhere, those that can't, usually fail. That's the risk of business. The reward is you make some money.
PHA is a government service, profit is not part of the cost benefit analysis for public services. That's absurd.
Your statement would only make sense if all or most landlords were facing issues- then we'd be obligated to look at the law and examine it for changes. That's not the case here at all.
Eric
"Every single business in the city, county, state, and country have regulations to adhere, those that can't, usually fail. That's the risk of business. The reward is you make some money."
Regs are fine Eric but the city doesn't go by the Regs. They impose and enforce laws that don't exist such as the Code Compliance program for one. They can't do it. It's against the law and they are going to get a spanking for it plain and simple.
As far as most of the landlords not ahving a problem with the city, most landlords do not rent to the low income crowd. Those that do are ALL having a problem with the city over behavior issues and if these landlords win the appeal, there will be a lot more landlords coming foreward to sue because of what's been done to them. What is it with you lefties? You always think the law is what you say it is and it's never the same thing on a diferent day depending on which way your wind is blowing.
Read this stuff over again and looke for one detail for the court to hold up and say, that is a fact, that is evidence. NOTHING NADA, ZILCH...
You actually need evidence in order to have a case go to trial.
And, you need evidence to convince an appeal court to overturn a court.
JMONTOMEPPOF
Chuck Repke
Chuck, if a person is assaulted on the street and there is witnesses, the testimong of the victim and the witnesses is evidence. What do you call the testimony of all the people against the city?
Good one 1:35. Don't think Chuck can answer that.
People of reasonable minds could decide this case either way and that is what is going to send it to trial. You don't need evidence at a Summary, only facts that could be interpeted differently by different people. There's plenty of facts. The jury is coming.
1:35 but what did they testify to?
If they were a property owner they said, yes, there were things wrong with my property...but I think the City was picking on me.
If it was housing advocates, they said, yes these landlords were scumbags, but I think the City was to tough on poor folks and should have repaired the property instead of condemning it.
Or if they wear white hoods in their private lives they said, I think what Dawkins meant when he said, that you don't have to rent to pistol wielding thugs is that the City hates black people (because racists hear people suggesting you don't have to rent to active crooks and generalize onto an entire race).
But what was key that they testified to, what is it that they all have in common? They know nothing and they all THINK that they City has some evil motive...picking on them, not taking care of the poor, staining an entire race with the actions of a few. NONE of that is evidence of anything. Thinking, guessing, assuming isn't evidence. Seeing, hearing, showing is...
That is all that this case ever was. So, how do more people keep coming up with the same story? Well, if you got written up for a violation, and I have and someone says, the City only wrote you up and not the guy next door because they didn't like you and the gravy train is a coming if you sign up as a victim of the City... well sign me up... because I'm a victim too!
My favorite piece of evidence that they have used several times is my friend Jane Prince's email to someone where she cautions that she thinks someone may be trying to use code enforcement because they are racist. These clown attorneys try to paint that as that it means the enforcement is racist when CLEARLY it shows a City employee being vigilant to STOP anyone from unfair enforcement and being sensitive to racial issues. It PROVES the City's case.
So, please someone, anyone, some shred of evidence of either RICO or Fair Housing case please. Pull it up, let me see it.
Because it hasn't been posted here yet.
JMONTOMEPPOF
Chuck Repke
Chuck
We all know that there is a code about parking on lawn in our yards.
The only time they enforce it is if you are one speaking out on a issue.
We see the two face city government picks on some of us and not all.
Why is this.
If I have to abey the law, why don't all abey the same laws.
St.Paul is in control with code and their enforcement people.
That like if the city has a grip with you they use their police as if this was Germany and Hitler was still alive.
The one difference is, no Hitler and the Jews are in control of our city.
Does anyone remember Norm Coleman,
and his two face politics.
DFL to GOP.
He used Finney as the Big NAZI in charge of the city.
Chuck - West Sait Paul had a grip on Alice K.
and now they are proven wrong.
How much will they have to give Alice for wronging her. $$$$$$$
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Chuck, if this was a class action suit, maybe then we should expect everyone to get in line but the plaintiffs didn't choose that route so there.
If I was black and got pulled over by the cops and thought he discriminated or violated my civil rights during the stop, I don't expect every other black to come out of their holes ( excuse me, places of abode ) and start raising cain. But, they seem to anyways.
Same thing here, not all landlords are subject to the wrath of city code to the extent your willing to go along with unwritten rules of enforcement and not resist the whims of enforcement.
If you cross the city or question their tactics, your a target for discriminatory and malicious enforcement.
Do you think that government entitys have NEVER retaliated against those who have attempted to stand up for what they believe is right or wrong ?
My point is that you don't have to have 10-20 victims to maintain an action. That's not what RICO is. RICO is showing that a government entity should be determined to be a criminal enterprise because several governmental employees have conspired to violate the law
against one or more persons.
Eric, PHAs eventually pay off their properties with the assistance of HUD dollars that make it possible to raise the values of that property.
The higher up folks running the PHAs like John Gutzman get nice paychecks every two weeks because the Government pays.
Sure, the buildings don't belong to Gutzman but a sucsessful PHA can mean someone benefits financially because of that sucsess. Without the city behind the PHA and all the HUD funding PHAs get, Gutzman couldn't even begin to manage a dam thing.
Especially when you look at his trac record for trying to run tenants out who stand up against the PHA for trumped up bull shit.
That sounds like DSI now doesn't it ?
Jeff Matiatos
Jeff
Corruption is the norm in St.Paul,
there's that word agian "norm".
Jeff - reread your RICO requirements. You need a victim and someone that benefits and a conspiracy to have someone benefit at the expense of the victim.
No one benefited from your pretend conspiracy. Who got something out of this?
Someone has to directly profit. You can't say that the house next door went up in value because the City knocked down the hell hole you were running, without admitting to running a hell hole (which you can't do).
The non-profit PHA???? We have done that here before and it is so funny even Bob doesn't buy it. No one benefits when they get their normal paycheck. HUD isn't going to notice if a dozen landlords in Saint Paul sold their houses. It has no impact on PHA how strict or lax the city is in code enforcement.
What you guys don't get is just because you don't understand how PHA works, doesn't mean that somebody else doesn't. A judge gets that the Public Housing Agency doesn't make or lose money based on rates of other units. They always lose money, that is what they do... they lose money!
Its like City subsidized assistance in bringing a business to town or building a stadium. Of course it loses money that is what the point is. If they were good deals and made profit, banks would do the deals and cities wouldn't have to.
PHA costs more to opperate then the renters pay in rent. They lose money... the government makes up the loss.
And, Bill my poor, poor Bill. It was never my job to help you in your quest to have a non-profit redo work that they did in your house. It isn't in the job description of a council person or his staff to take one persons side against another in a contract dispute. ....and it sure wasn't Eric's job as a party staff person.
But everyone one of us tried to help you until you would go off of your nut and threaten people.
Remember I was told by the City Attorney to stop talking to you because you were threatening to hurt female staff people in other offices.
JMONTOMEPPOF
Chuck Repke
"If they were a property owner they said, yes, there were things wrong with my property...but I think the City was picking on me."
Wrong Chuck,
What they said was yes there was SOME things wrong with my property as there is with every pther property in the city, but the city lied about the more serious violations. Those violations didn't exist, got it? The city then went on to use the more serious violations to condemn the place and then require a Code Compliance certification from the owner that they had no right either under local ordinance or State law to require. Got it? They were wrong, they broke the law, they violated people's civil rights and they are going to pay for it.
All the required elements of the case are there Chuck. You and Eric just don't see them cause you're lefties. You guys don't see anything in the light of reality. To you the ends justify the means and if anyone gets in the way of your ideology you just slander them with things taken out of context.
The city better hope this doesn'y go to trial because if it does and the landlords win then there will probably be a criminal investigation and charges levied stemming from that. It's a good thing you are not a housing inspector Chuck. We are going to need you around to try and spin the inspectors out of criminal charges later on. Can we count on ya?
1:08 ...and they took this lie to district court and what happened? Either they never took these "lies" to court or they lost in court. Because not one of these guys that are suing in Federal Court have a successful state court case.
1:19 ...and on your planet what are those elements of the case? You read the stuff here, its the same info I have. Pick one thing out of it and say this is a fact.
2:05 ... OMG, this is it! Got it?This is to determine if anyone did anything to anyone that was RICO or a violation of FFH and the first judge that looked at all of the boxes and boxes of garbage that the lawyers had said, there was nothing there that any reasonable person would view as evidence of anything criminal. Not only was there not enough to think that someone could be convicted of anything there wasn't anything there at all.
So, we shall see... But I am sure all of you will blame it on the Liberal George Bush appointing Judges that actually know the laws that are causing all the trouble and letting the city off of the hook.
JMONTOMEPPOF
Chuck Repke
Bsuh appointed a traitor to the court Chuck and she should be disbarred.
Bet it would have cost less to fix up them properties then what the lawyer fee's are costing, then you would still be collecting an income and be in business too!
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Bill Dahn said:
The one difference is, no Hitler and the Jews are in control of our city.
---
Bill, Bill, Bill. Can't you make a point without going all anti-Semitic on us?
Jeff said:
If I was black and got pulled over by the cops and thought he discriminated or violated my civil rights during the stop, I don't expect every other black to come out of their holes ( excuse me, places of abode ) and start raising cain. But, they seem to anyways.
---
Ignoring your slight, the question should be why don't all Americans raise cane about it? Last I checked, there is one constitution and a violation of those rights, is not an assault on the individual but an assault on the constitution that governs us all.
Its actually people like you, who don't see it as their problem- or, see it as a 'black' problem (if you see it as a problem at all) that encourage that kind of illegal activity to continue.
Every single case study has shown that racial profiling is real and a problem for some segments in society. Yet, as long as its only blacks who 'raise cane' about it, whites (like you) can sit back be somewhat dismissive of it.
If you don't support constitutional right for the least among us, then you're a phony hypocrite to stand up when it happens to others, especially those who have the money and influence to take it to court.
I of course exclude this phony landlord case from any of this as civil rights were not violated. Their privileged of running a business was interrupted by existing laws. Big difference.
Eric
This comment has been removed by a blog administrator.
"I of course exclude this phony landlord case from any of this as civil rights were not violated. Their privileged of running a business was interrupted by existing laws. Big difference"
Hey asshole - show us the law where they can require a code compliance.You're about as phony as a 3 dollar bill.
If the andlord lawsuit was phony the city would not have destroyed evidence.
You all backed Norm Coleman while he was a DFL'er, when he stabbed his own party in the back everyone turn against him.
Wrong again Dahn.
Norm Coleman ran against the DFL candidate both times all the way to the general election.
So, we did not support him for mayor.
Your reasoning for maligning Jews is just retarded and do nothing but, to dig yourself in deeper. It has nothing to do with being German or whatever your heritage may be, its your thoughts about groups of people that seem to come out over and over when your not being careful about what you say.
You're an anti-Semite. You have provided your own evidence over and over on here. Your 'good friends' who are Jewish should inform you or beat you.
Eric
This Blog started as Legal Document and is ending in the Gutter by crude,rude,rotgut.
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Hate to say it Eric but Chapter 42 & 45 don't say a thing about authority to order a property owner to do a code compliance. Wanna try again before before assigning me as being dimber than you?
Just fix up your dump or give up and move!
What if he likes living in a dump?
Hate to say it Eric but Chapter 42 & 45 don't say a thing about authority to order a property owner to do a code compliance. Wanna try again before before assigning me as being dimber than you?
5:10 PM
You have no idea what you're asking. Another example of why its a waste of time to try an engage most of you in an informative exchange. Its only one way.
What is it you're trying to say?
Elected officials, law makers, do not have the authority to make and enforce laws?
Again, your gripe has to be with the structure of American government (the people's will is exercised through its elected officials)and you should be arguing with the U.S. Constitution.
Let me guess, you're a Bill Dahn fan.
Eric
To Eric
What is it I am trying to say?
What someone said opreviously is that the city is acting illegaly in requiring code compliance from property owners.
After that I asked you to tell us where the law is that allows the city to do this.
You came back and said it was Chapter 42 and 45.
Now you want to know what I am trying to say? You are dumber than I thought. I told you that Chapter 42 & 45 doesn't say anything about the city being able to require the code compliance which was the original question to you.
The city didn't have any authority to require code compliances and that is one of the things the landlord lawsuits are about. It's been printed here over and over and all you do is spin about violations people may have had.
And my gripe is with the structure of the Government. I don't think they should be breaking the law. I also don't think they should violating people's civil rights when they break those laws.
What am I trying to say? Simple! Just tell us where in the law it said that the city could require a property owner to do a code compliance?
Although I am no fan of Bill Dahn, I sudpect we'd get a more meningful answer out fo him that we get out of you.
So Mr. know it all - where's the law? You can't tell us can you?
Maybe Bill could help Eric answer the questions since Eric appears to be at a disadvantage in this field.
Cat got your tounge Eric?
Since eric cannot answer the question maybe Jeff could! We would probably get the right answer too!
Chapter 42. Certain Nuisance Dwellings*
__________
*Editor's note: Ord. No. 17417, § 1, adopted Dec. 11, 1986, repealed Ch. 42 in its entirety. Former
Ch. 42, substantive provisions of which consisted of § 42.01, pertained to the filling of cesspools and
septic tanks and was derived from § 18.12 of the city's 1956 Code. Subsequently, C.F. No. 97-1421, §
1, adopted Dec. 22, 1997, added a new Ch. 42 as herein set out.
__________
Sec. 42.01. Definitions.
Unless otherwise expressly stated, the following terms shall, for the purposes of this Chapter
42, have the meanings indicated in this section.
(1) Dwelling. Any one- or two-family rental dwelling which is not occupied by the owner
thereof. Dwelling includes both the building or structure and the land upon which it is located.
(2) Nuisance dwelling. Any dwelling which has been found, upon inspection by the fire chief,
to be in violation of any provision of any applicable safety code on four (4) separate dates in any
twelve-month period.
(3) Fire chief. Fire chief includes the said chief, as well as the official appointed as fire
marshal, and also any inspector under his or her supervision and control, and also includes any
city officer or employee charged with responsibility for the enforcement of a safety code.
(4) Safety code. Safety code includes any fire, housing, health, safety or other similar code,
law and ordinance, promulgated or enacted by the United States, the State of Minnesota, the
County of Ramsey and the City of Saint Paul, or any lawful agency or department thereof, which
are applicable to a dwelling in such city. Safety code includes, without any limitation of the
foregoing sentence as a result of this specification, the provisions of Chapters 33, 34, 43, 45,
49, 55, 56 and 58 of the Legislative Code.
(5) Owner. The owner is the person, firm, corporation or other entity listed in the records on
file in the recorder's office as holding fee title to the dwelling, or if not so listed, then as a
purchaser by contract for deed. If no such person is so listed, the owner for the purposes of this
Chapter 42 shall be any adult occupant of the dwelling.
(6) Recorder's office. The recorder's office is the Ramsey County Department of Property
Records and Taxation, or its division which maintains title and property records, and any
successor agency or department thereof.
(7) Substantial violation of a safety code. A substantial violation of a safety code is one which
presents a distinct hazard to life or property.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.02. Registration of a nuisance dwelling.
(a) Registration. Any dwelling meeting the definition of a nuisance dwelling shall be deemed
on the date of the fourth inspection in such twelve-month period to be registered as a nuisance
dwelling, and subject to the additional provisions of this chapter, including the payment of a
registration fee.
Chapter 42. Certain Nuisance Dwellings* Page 1 of 3
http://library4.municode.com/4472/DocView/10061/1/56/67 8/5/2009
Such registration shall remain in effect for a twelve-month period beginning on the date of
registration as a nuisance building.
(b) Additional requirements. Any dwelling deemed registered as provided in subsection (a)
above shall also be subject to the requirements of section 33.05 of the Legislative Code relating
to occupancy so long as it is registered and for a period of twelve (12) months after registration
terminates. Such registered nuisance dwelling shall be required to have a certificate of
occupancy issued by the fire chief within twelve (12) months after the date on which it is
deemed registered.
Failure to have such certificate issued within such twelve (12) months shall
subject such dwelling and its owner to all enforcement and remedial measures which may be
applicable under law or ordinance.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.03. Multiple dwellings.
If the owner of a registered nuisance dwelling also owns other dwellings in the City of Saint
Paul, each other dwelling so owned shall be deemed to be a nuisance dwelling and registered as such
on the same date as the first, but only if such building has within the same twelve-month period been
found upon inspection to be in violation of any applicable safety code. All of such dwellings which are
deemed to be additional nuisance dwellings shall be subject to all of the provisions of this chapter, and
to the payment of a separate registration fee for each. Such additional registrations shall also remain in
effect for a twelve-month period as provided in section 42.02. The additional requirements in section
42.02(b) above shall also apply to such other dwellings as are deemed under this section to be
nuisance dwellings.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.04. Registration fee.
(a) Initial payment. The owner of a nuisance dwelling shall be obligated to pay two hundred
fifty dollars ($250.00) to the City of Saint Paul, payable within fifteen (15) days following the date
of mailing of written notice to the last known address of the owner that such dwelling is a
nuisance. Failure to do so shall be a misdemeanor.
(b) Recover actual costs. The fee shall be used for recovery of the city's actual costs in
enforcement of this chapter. The fire chief shall from time to time determine whether such fee
fully reimburses the city for its costs in responding to complaints, costs of inspections and
administration, as well as costs of enforcement including inspectors and attorneys, for the
period of time covering the four (4) violations and the succeeding twelve-month period of
registration as a nuisance dwelling.
(c) Additional fee for multiple dwellings. An additional two hundred fifty dollars ($250.00) fee
shall be paid by the owner of a nuisance dwelling for each other dwelling owned by such owner
which has within the same twelve-month period been found upon inspection to be in violation of
any applicable safety code. Such sum shall be used by the city to pay for inspections of such
other dwellings together with the legal, administrative and other enforcement costs incurred by
the city in so doing.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.05. Violations during period of registration.
(a) Continuance of registration. If the fire chief finds, upon one (1) or more inspections, that
Chapter 42. Certain Nuisance Dwellings* Page 2 of 3
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any registered nuisance dwelling has one (1) or more violations of a safety code, the registration
shall be continued for an additional consecutive twelve-month period of registration, and the
owner shall pay an additional two hundred fifty dollars ($250.00) registration fee as provided in
section 42.04 above.
(b) Nuisance abatement procedures. If the fire chief finds, upon one (1) or more inspections,
that any registered nuisance dwelling:
(i) Has one (1) or more substantial violations of a safety code; or
(ii) While registered has a documented and confirmed history as a blighting influence
on the community; or
(iii) Has persistent and continuous violations of the provisions of any applicable safety
code even though not substantial; or
(iv) During the second twelve-month period of registration, has any violation of a safety
code;
then such dwelling shall be i) deemed to be a nuisance under Chapter 45 of the Legislative Code, and
subject to all enforcement and abatement procedures provided thereunder, and (ii) subject to all
enforcement and remedial measures which may be applicable under law or ordinance, including
acquisition by eminent domain to the extent authorized by law.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.06. No violations during period of registration.
If the fire chief does not find, during any twelve-month period of registration as a nuisance
dwelling, any violations of a safety code, then the dwelling shall no longer be deemed to be registered
at the end of such twelve-month period.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.07. Public list.
The fire chief shall maintain a current list, updated weekly, of the addresses of all registered
nuisance dwellings, together with, if available, the name of the owner thereof, his or her address and
telephone number. Such list shall be public information as and to the extent provided by law.
(C.F. No. 97-1421, § 1, 12-22-97)
Sec. 42.08. Alternative procedures.
Nothing in this chapter shall be deemed to supersede, amend or modify any other provision of
the Legislative Code or any safety code. This chapter is supplementary and in aid of existing law, and is
not intended to provide an exclusive remedy.
(C.F. No. 97-1421, § 1, 12-22-97)
Chapter 42. Certain Nuisance Dwellings* Page 3 of 3
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Eric, what 9:58 is questioning is the basic police powers of the country-state-city regulating health and safety that have been a part of this country from its inception and before that English civil law.
What these "property rights advocates," "radical capitalists," think is that when they purchase property that they have become their own independent country and that the government should have no control over them.
That just flat out isn't the case and stating the constitution gives the power to the states and that the state gives land use powers to municipalities just doesn't mean anything to them.
They live in a world where Adam Smith founded the US and that title transfers sovereignty.
JMONTOMEPPOF
Chuck Repke
"What these "property rights advocates," "radical capitalists," think is that when they purchase property that they have become their own independent country and that the government should have no control over them. "
That's exactly right Repke. If there is no law allowing the government to do something or require something from the people then the government DOES NOT have any control over you. The city required code compliances from property owners illegaly. No law means no control.
We all know there is nothing fair in St.Paul, complaints on some type of housing problems, eletions, or just living without people like Chuck and Eric saying we are all bigots just for voicing our view on the subject up on A Democracy.
This is not E-Democracy where they ban people for speaking against the Democratic Party.
Don't most of you realize that this is a free country and the freedom of speech is our right, the freedom to protest is also our right.
We all seen in last falls Republican Convention that it was so one sided, Dave Thune protested and was not hassled by the Democratic rule police force like others were.
We need to elect the police chief so we can hold him or her accountable, the mayor or the city council run the policies of police control.
St.Paul has a strong political history of a Democratic political system, they run the people and their thoughts.
Like OBOMA said we need a "change"!
Bill Dahn
Bill's opion doesn't count here!
talking about being pushed out a your housing, Dorothy Day Center will be pushed out of downtown.
They plan to build a new one next to the mission.
who owns that property now.
there one for Sharon to look into.
then who will pat to build it, the tax payers or who.
10:15 its the constitution both the Federal and the State that transfers local land use issues and basic health/safety issues to the lowest/local level of government.
It is what it is.
When the title to the land you own was originally transferred from the government to the first buyer, the government maintained its powers of eminent domain and police (health/welfare/land use) powers. The government never gives those powers (rights to land) away.
It is what it is. It is true everywhere in the United States except for your imaginations.
JMONTOMEPPOF
Chuck Repke
The reason I couldn't understand what he was trying to say is that, well its so damn basic.
The government can do whatever the people ask it to do. They write, interpret and enforce the laws. They overstep their authority, we kick them out of office.
Your real gripe are with the citizens of St Paul who not only voted for these people making the laws BUT, asked that they do something about the slum properties in their neighborhoods.
The reason your movement gets no traffic from the East Side areas of St Paul to the river, from Battle Creek and back to Crocus Hill is because no one, wants your business in their neighborhood. You are not on the side of the people.
You DO NOT have a civil right to run a business. Its not a violation of anyone civil rights to enforce the law, and bring your properties UP to a MINIMUM standard. The city decides the standards and rules businesses and enforce those rules. You don't like it? Change the law, or move.
You've got as much of a right to run a rental business in St Paul as TGIF has to run a restaurant. If their food or kitchen doesn't pass inspection, its shut down and fined. At least landlords get multiple times to address the problems, while their tenants continue to live below minimum human standards for living units.
Eric
Bill,
You're anti-Semite bigot. You show your true colors every time you go on a rant about Norm Coleman.
If you weren't mentally ill you'd remember that. You've done the same thing about gays over and over mostly when talking about a certain judge, cop or former city employee.
I don't put those words in your head and tell you type them on the internet for all to see. You chose to do that. You chose to show the world what you think about Jews and gays.
You'll complain now but, if we wait a few weeks you'll be back at it again. Should I bring it up from the archives?
Eric
"You DO NOT have a civil right to run a business. Its not a violation of anyone civil rights to enforce the law, and bring your properties UP to a MINIMUM standard. The city decides the standards and rules businesses and enforce those rules. You don't like it? Change the law, or move."
You are right Eric but as usual you are spinning shit just like the lefties do. While you MAYBE right about not having a right to run a business, people DO HAVE A RIGHT to be treated within the law. When your darling littel city decide their standards and rules, they damn well better decide them in a way that complies with the law and the Constitution and it doesn't mean jack what the people want if what they want is against the law. Code Compliances are against the law and the Minn Supreme Court has said so because the State Building Code says so. I don't have to change the law either because there is no law.
This Eric is starting to sound like one of these very short men with a hangup of some sort over his height. How tall are you Eric? All of 5'1' maybe?
Since Eric can't answer the question I proclaim Jeff the winner because he could answer it and would answer it except he must be tied up on another project and hasn't checked to see what's going on. You lose Eric - Jeff wins!
1:54 where in the world do you get that the Supreme Court said the code compliance were against the law.
Morris v Sax made a special effort to say that NOTHING in their ruling was to interfere with any inspections concerning the health, safety and welfare of the community.
Of course code compliance are legal. The issue in Morris v Sax was that the City of Morris had set up building code standards beyond the state building code.
The City enforces the state building code. The State Fire Marshall has assigned those duties to the cities of the first class.
Its the law.
JMONTOMEPPOF
Chuck Repke
You must be new here 1:58. I'm 6'2" and right on this. How little are you, we already know how wrong you are.
I've answered both the questions. There is no state court ruling against code enforcement and this case was in the Federal Court system anyway.
Eric
Read Morris vs Sax. The city cannot make you do anything which effect the systems or components of a property. That mean code compliance. They can't even make you put in a GFI in the bathroom. They're not supposed to anyways. St. Paul just ignores it and does what it wants.
Alright, here it is as taken from Morris vs. Sax :
" The specific issue here is whether the state building code, as currently written, leaves room for enforcement of four inspection standards contained in the rental liscensing ordinance "..........
Generally, " Municupalities have no inherent powers and possess only such powers as are expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred " ..........
" State law may limit the power of a city to act in a particular area "......................
" For example, a city cannot enact local legislation that conflicts with state law "................
So thats it folks. I think they have you Eric.
Jeff Matiatos
2:46 a.m. you have been up to long and need to go to bed.
To say they can't do a code compliance, is in direct contradiction of the express authority the legislature gave cities. Morris vs.Sax only confirmed to what extent a code compliance can consist of.
If the state statute doesn't even mention GFI requirement, the city can't impose requirements that require GFI.
5:51 is spot on.
The issue Jeff in Morris is that the city of Morris had a "special" code for rental property that went beyond the building code in issues that the state building code discussed.
Cities, can do code compliance... the code is the state building code that they enforce.
They can also inspect for health and safety issues not addressed or limited by the building code.
Like... the building code wouldn't say anything about trash six feet high in the house, since people don't pile up trash as a part of building a home. The City can site you for having a pile of trash six fee high as a health violation.
JMONTOMEPPOF
Chuck Repke
I might agree with you partially Chuck about the city using "Department of Health" regulations to enforce health and safety issues for residential rental property.
But Morris vs. Sax decision wasn't a part of this brief was it ?
Anyways, I agree with the decision in Sax and if the plaintiffs can apply it here, so be it and they should.
But, there are no laws preventing the city from doing a code compliance so long as the codes don't exceed state law or violate the spirit of that law where the powers to enforce the code have been expressly conferred in conjunction with the state code.
Jeff Matiatos
To Jeff
Just because there are no laws stopping a city from doing something does not mean they can do anything they want. If they want to start doing code compliances on properites then they need to pass a law saying that they can do it and when they will do it. There is no law and even if they had one it would be void because the state building code says that properties are allowed to maintained in accordance with the code they were built under and continue as a non conforming use.
No law = no code compliance
I think the mere existence of the state code, which came to be in 1972, gives cities the right to enforce that code.
Just like cities can enforce state statutes concerning all crimes and so on.
The same legislature that creates criminal codes creates building, state health and safety regulations.
The Supreme Court said cities can enforce these codes and regulations so long as the ordinances cities create dont exceed that code or add to them that the legislature didn't intend.
Thats why grandfather laws have been upheld and some properties are exempt. Am I right ? Correct me where I'am wrong. Thank you.
Jeff Matiatos
11:01 - the state assigns enforcement of the state building code to the local municipalities. That is why the City does building permits instead of going to the state to get a building permit.
That is the law.
Law = code compliance inspections
JMONTOMEPPOF
Chuck Repke
Jeff, you said:
-
So thats it folks. I think they have you Eric.
-
You were referring to my statement above it saying:
-
There is no state court ruling against code enforcement...
-
Yet, you come back and say:
-
But, there are no laws preventing the city from doing a code compliance so long as the codes don't exceed state law or violate the spirit of that law where the powers to enforce the code have been expressly conferred in conjunction with the state code.
-
Your basic premise, is the exact same as mine. You can run them together it makes a complete thought:
There is no state court ruling against code enforcement. But, there are no laws preventing the city from doing a code compliance so long as the codes don't exceed state law or violate the spirit of that law where the powers to enforce the code have been expressly conferred in conjunction with the state code
Either, I'm right, or 'they' got both of us. We're making the same point against the person who says the city has not right to enforce the codes.
Welcome to the club, Chuck will send your papers and club jacket.
Eric
The state law that you cherish so much also says that building get to be maintained according to the code they were built under and continue as a non confroming use. Yes the city can enforce the codes. What they cannot do is require a code compliance which is essentially bringing the house up to modern day codes. There are a few exceptions if the place is empty for a year and has violations, etc.
Law as written = NO code compliance!
Got it Chucky boy?
Go read it so you can at least sound inteligent when you speak.
When you are done then come on back and we'll give you another ass whoopin on something else.
2:50 p.m. ,
You are the Bozo at 2:46 a.m. saying the city can't do a code compliance.
Now your ass is getting tanned and now you say the city can ?
Know your facts or beat it !
2:50 - if you even understood the basics of land use you wouldn't say the stupid things you do.
First a house in a residential area will never be a "non-conforming use." The use is a house, the zoning is residential... and you are an idiot... get it?
Use means what is a structure's "use" not what codes it was built under.
As to code compliance, that has nothing to do with "use." The issue that was in Morris was could the City of Morris require, during a code compliance check, a building to be upgraded to current code? The court said no. If the city can't show where it is a health or safety issue you have to allow the building to pass the code compliance if it safe.
Morris allows code compiance because the code is the state building code. It just doesn't allow you to go beyond the code or to require buildings be brought up to current code for non-health safety issues.
JMONTOMEPPOF
Chuck Repke
I guess he beat it Chuck.
At least he is a whole lot smarter now (not that he ever was) and is taking his licks like he should.
Hall, police chief selection committe co-chairs B. Todd Jones and Gloria Bogen, right, laugh after joking with the media during a press conference where they announced John Harrington as their choice for chief. 5/5/4 photo: Ben Garvin
http://www.twincities.com/politics/ci_13015224
Sounds like some wishful thinking for 6:20 and 7:12. You won't sound so certain after the city gets sheared.
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