Saint Paul/ Leroy Smithrud vs City of Saint Paul
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posted by Bob at Tuesday, September 22, 2009
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Tuesday, September 22, 2009
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30 Comments:
There maybe copy errors.
This opinion will be unpublished and may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
A08-2003
Leroy Smithrud,
Appellant,
vs.
City of St. Paul,
Respondent.
Filed September 15, 2009
Affirmed
Stoneburner, Judge
Ramsey County District Court
File No. 62CV089147
Leroy Smithrud, 7356 Rosewood Lane, Maple Grove, MN 55369 (pro se appellant)
John J. Choi, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400
City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for
respondent)
Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and
Wright, Judge.
U N P U B L I S H E D O P I N I O N
STONEBURNER, Judge
Appellant challenges the dismissal of his complaint, asserting numerous claims
relating to respondent city’s decision to demolish two of appellant’s rental properties to
abate nuisances. Because appellant’s claims all challenge the city’s quasi-judicial
2
decision, the district court did not err by dismissing the complaint for lack of jurisdiction.
Therefore, we affirm.
FACTS
Appellant Leroy Smithrud filed a 20-page pro se complaint in Ramsey County
district court asserting numerous claims that all arise out of the decision of respondent
City of St. Paul (the city) to demolish two of Smithrud’s rental properties to abate
nuisances.
Smithrud’s complaint contains eight counts. Count one asserts that the city
violated its own legislative code and failed to follow its own procedural requirements for
notice, hearing, due process, and identification of code provisions enforced. Count one
also asserts that the city “heighten[ed]” minimal standards for inspection and code
enforcement for “older housing stock.” No specific acts or violations of code or statutory
provisions are identified.
Count two is titled “Declaratory Judgment as to the City’s Violations of its Own
Legislative Code” and asserts that, under the Uniform Declaratory Judgments Act, the
district court has jurisdiction to determine that the city “cannot heighten” its code
“beyond that of the State Building Code” and that “the City is in violation of its own
Legislative code as to Notice and Hearing.”
Count three is titled “Declaratory Judgment as the State Building Code Cannot be
Heightened by the City.” This count again asserts that the district court has jurisdiction
to determine that city “has heightened its Legislative Code above that determined by and
adopted in the State Building Code, and that such heightened Code is illegal as enforced
against Smithrud.”
Count four asks for a determination that, at all times material, Smithrud is
disabled.
Count five is titled “Violations of Federal Fair Housing Law.” This count asserts
that the city has violated the “Federal Fair Housing Laws” as to both of Smithrud’s
properties and as to Smithrud. Smithrud seeks attorney fees, costs, and other damages as
may be just and equitable, to be determined by a jury trial. The complaint does not
identify specific provisions alleged to have been violated or describe how the federal law
was allegedly violated.
Count six, titled “False or Failed Certifications Under HUD and the Code of
Federal Regulations,” asserts that the city has not provided any evidence that it has
complied with HUD rules and regulations “especially as to certifications that are
mandatory as [to] analysis of impediments and affirmative duties to further the goals of
federal fair housing as related to grandfathering older housing stock and as to protected
class members.” Smithrud asserts that failure to perform analysis of impediments or to
protect older, grandfathered-in housing stock is actionable by him under “42 U.S.C.
§ 3604 et seq.” because Smithrud is trying “to protect that type of housing on behalf of
protected class members.” Smithrud asserts that he and his protected-class tenants have
been damaged by the city’s violations of the Federal Fair Housing Act and the Code of
Federal Regulations, 24 C.F.R. §§ 91.210, 570.904, 982.401. Smithrud seeks damages
for “such misconduct.”
4
Count seven asserts that the city is retaliating against Smithrud for his attempts to
sell or rehabilitate his properties, and has caused him to lose rental properties, rents, and
will reduce the supply of older, affordable federal fair housing stock that should be
grandfathered in. Smithrud seeks damages for this claim.
Count eight seeks a temporary restraining order to preserve the status quo,
asserting irreparable harm and that Smithrud meets all five Dahlberg factors. See
Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274–75, 137 N.W.2d 314, 321–
22 (1965) (setting forth factors to be considered in determining whether the issuance of a
temporary injunction can be sustained on appeal).
The district court dismissed the complaint for lack of subject-matter jurisdiction,
concluding that all of the claims challenge the city’s quasi-judicial decision and could
only be pursued by writ of certiorari to this court. This appeal followed.
D E C I S I O N
“The existence of subject matter jurisdiction is a question of law, which this court
reviews de novo.” Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190
(Minn. App. 1999), review denied (Minn. July 28, 1999). A city’s decision to abate a
nuisance property is a quasi-judicial decision, and when city or state legislation does not
otherwise provide, jurisdiction for review of such a decision rests exclusively in the court
of appeals by writ of certiorari. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171
(Minn. App. 2000). In this case, the city’s ordinance does not provide for district court
review of its quasi-judicial nuisance abatement decisions. See St. Paul, Minn.,
Legislative Code ch. 45 (2008) (containing no provision for district court review).
Smithrud argues that the district court has jurisdiction over his claims for
declaratory judgment. See Minn. Stat. § 555.01 (2008) (providing that courts of record
have power to declare rights, status, and other legal relations whether or not further relief
is or could be claimed). “Declaratory judgments permit determination of a controversy
‘before obligations are repudiated or rights are violated,’ essentially allowing one who
walks in the dark to turn on the light before—rather than after—one steps in a hole.”
Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273–74 (Minn. App. 2001) (quoting A.L.
Loyd v. City of Irwinton, 236 S.E.2d 889, 890 (Ga. Ct. App. 1977)).
In Connor v. Chanhassen Twp., the supreme court treated a constitutional
challenge to a township ordinance in a declaratory judgment action as a challenge to a
legislative act and rejected the township’s assertion that complainant had not exhausted
administrative remedies by seeking review by writ of certiorari from a prior zoning
decision that triggered application of the challenged ordinance. 249 Minn. 205, 208–10,
81 N.W.2d 789, 793–94 (1957).1 Smithrud relies on Connor to assert that he can proceed
with a declaratory judgment action without having pursued review of the demolition
decision by writ of certiorari. But Connor is distinguishable because Smithrud is
asserting that his rights have been violated by the city’s quasi-judicial action and is not
making an independent challenge to any legislative action by city.
1 The only constitutional issue raised by Smithrud is an allegation that his due process
rights were violated by city’s failure to follow its own procedures. Such a challenge
could have been addressed by writ of certiorari. See Minn. Stat. § 14.69 (2008)
(permitting reversal or modification of an agency decision “made upon unlawful
procedure”).
6
Smithrud argues that despite the city’s adoption of the state building code, the city
unlawfully applied more stringent requirements to his properties than those called for
under the state building code.2 Smithrud correctly argues that the state building code
supersedes municipal building codes, and “[a] municipality must not by ordinance or
through development agreement require building code provisions regulating components
or systems of any residential structure that are different from any provision of the State
Building Code.” City of Morris v. Sax Investments, Inc., 749 N.W.2d 1, 7 (Minn. 2008)
(quoting Minn. Stat. § 16B.62, subd. 1 (2006)). But Smithrud is asserting that the city
made its quasi-judicial decision in excess of its statutory authority, an argument properly
addressed on certiorari review. See Minn. Stat. § 14.69 (2008) (codifying the standard of
review of agency decisions in contested case proceedings and providing that this court
may reverse or modify a decision that, among other reasons, is made in excess of the
agency’s statutory authority).
Courts should construe pleadings liberally and judge them by their substance to
determine if they give fair notice of the facts and legal theories to the adverse party.
Basich v. Bd. of Pensions, 493 N.W.2d 293, 295 (Minn. App. 1992). But we are unable
to conclude from Smithrud’s pleadings that he has cited any valid claim under the
Uniform Declaratory Judgments Act over which the district court could have exercised
jurisdiction.
2 Despite Smithrud’s repeated assertion that the city is applying more stringent
requirements, Smithrud has not identified in his complaint or in his brief on appeal a
citation to any section of the building code and has not explained in what manner more
stringent requirements were applied to him.
Smithrud also asserts that the district court had jurisdiction over claims raised
under various federal statutes that he cited, including the Judiciary Act of 1789, the Fair
Housing Act (FHA), the Civil Rights Act (CRA), and the Americans with Disabilities
Act (ADA).3 But we have held that merely cloaking a challenge to a quasi-judicial
decision in the mantle of a different claim does not change the jurisdictional analysis.
Meldahl, 607 N.W.2d at 172. In Meldahl, we rejected the assertion that the district court
had jurisdiction over an inverse-condemnation claim contained in a complaint
challenging demolition of a building for nuisance because the takings claim was “not
separate and distinct from the city’s quasi-judicial decision to demolish the structure.”
Id. We stated that, where an inquiry into the facts surrounding a taking’s claim would
involve an inquiry into the city’s decision, jurisdiction is by writ of certiorari alone. Id.
Smithrud’s references to federal statutes do not assert violations of those statutes
separate from the city’s demolition orders and involve inquiry into the demolition
decisions, making certiorari alone his avenue of review. Likewise, Smithrud’s assertion
that his claims involve matters of public interest and implicate public corruption and
fraud with regard to fair, affordable housing, do not avoid the jurisdictional issue.
Affirmed.
3 Smithrud also argues that a conclusion by this court that the district court did not have
jurisdiction would be an unconstitutional violation of federal law by preventing the
exercise of concurrent subject-matter jurisdiction and by preventing the district court’s
exercise of original jurisdiction over state claims. Because Smithrud had not asserted any
state or federal claims that are independent of his challenge to the city’s quasi-judicial
decisions, we find no merit in this unsupported assertion.
...you got to love it.
It has been clear for some time that when a case goes in front of the council for a demo hearing they are acting as if they were the district court and their decisions are appealed directly to the court of appeals.
...sad.
It appears they told him that and he continued on his merry way...
JMONTOMEPPOF
Chuck Repke
FYI Bob
Smithrud was the guy that we had a debate a long time ago about a property he owned on Case.
He's the guy as I recalled claimed he was fixing it up to live in but had a gimpy leg and nobody would help him out...
Turns out he lives in Maple Grove and owned a bunch of crap.
JMONTOMEPPOF
Chuck Repke
Bob this was your post on Smithrud when they proposed to demo his property on Case - May of last year.
---snip---
Hi All,
Many of you know I was sent these photos by someone else. We all know this because we were on the same email list of these photos.I didn't have time to go and look at the house and someone volunteered.
NOW, I have seen the house and in light of this con mans sob story to the city council, and the condition of the house, I wouldn't feel one bit sorry if this guy's house was demolished.
I will do my own feild work in the future.
Thanks Chuck..
And some of you wonder why I want Chuck and Eric to stick around.
"The Truth Always Prevails At A Democracy"
"We are on a truth seeking mission"
8:33 AM
---snip----
JMONTOMEPPOF
Chuck Repke
REpke your so happy that the city exploits the elderly I think Smithrud is in his 70's with Bad Heart, http://www.google.com/search?hl=en&source=hp&q=Sharons+Wm+Smithrud+v.+City+St.Paul+MN&btnG=Google+Search&aq=f&oq=&aqi=
Smithrud doesn't have the Stamina to fight the System Bill and I do.
Been so Busy Leroy Smithrud Sorry for TypoSharon has another Web Site
www.wordpress.com/sharon4anderson
Leroy cannot go as a Pauper IFP Bill and I can http://taxthemax.blogspot.com
Chuck Repke Where are your web sites I did find you on facebook tho Peterson Proud, To fight the System YOU BETCHA
Set up another www.sharon4anderson.wordpress.com Electonic Filings are here 4 State Supreme Courts. If you notice an UNPUBLISHED OPINION is not worth the paper its written on.
Sharon and 2 other people requested this topic.
I think this crowd is hungry for housing topics. :)
Thank you for recalling this guys past here Chuck.
So yet another landlord is victimized by the city corruption machine. Really sucks.
another landlord wasting time and money on a lawsuit he had no chance in hell of winning. Why? Because having a 'gimpy' leg is no excuse for letting your building rot.
This is small potatos compared to my insulation story. Repke I think you and Eric owe me reparations for the damage caused me by your inability to help me.
Bill Dahn
Bill Dahn
1:56 AM said...
This is small potato's compared to my insulation story. Repke I think you and Eric owe me reparations for the damage caused me by your inability to help me.
If Jesse Ventura and Dean Barkley help Bill as much as they did and Eric and Chuck said they help him, why was nothing done on that home.
The Dumb DFL people covered for some one making money off this insulation.
Bill change your color to Homg?
Sharon - Leroy is a con man. Leroy owns property all over the twin cities, he just isn't very good at taking care of them. He's the guy that gives landlords a bad name.
Scroll down on Bob's archives to the story on 5-4-08, when the house on Case came up for demo.
Its a classic.
JMONTOMEPPOF
Chuck Repke
1:56 is not Bill Dahn.
There are too many big words, correct spelling and its written coherently. Hell no, that's not Bill.
5:58- now that's the Bill we all know and, well, the one we all know anyway.
So Bill, what color is homg and how do you change to it? Is it close to the color moran?
Chuck,
I've learned the game around here. Facts don't matter, even their own words don't matter. The only thing that matters is that if you (or me) are for it, then they are against it.
To say they are not playing with full deck around here is not enough. They're not even playing with a full hand in these parts.
Eric
The only thing that matters is that if you (or me) are for it, then they are against it.
That's right, Eric! It's all about you and Repke!
Why, if a white, non-party-hack activist were to suggest that our city...:
1) Empanel a bureaucracy that obeys no due process and is answerable to nobody, and...
2) ...use it to give the city and the police an end-run around conventional due process, and...
3) ...also essentially ban the "Fixer-Upper" market (the one genuinely economically healthy source of the "affordable housing" that everyone constantly yaps about) while...
4) turning the "affordable housing" market over to a bunch of non-profits who deliver "affordable" housing at a price vastly higher than the free market, but which directly benefits the non-profits to whom the City Council and Mayor owe so very very many chits...
...then, sure! I'd say "HECK Yeah! The whole policy is a recipe for disaster - but as long as it's not Repke and Mitchell, I'll support it!
Dagnabbit, Eric, ya got me.
None of it which Chuck or I support. So go back under your rock and look through three years of archives and find one of hundreds of my posts where I support the above.
Or, pull something else out of your butt.
Only the latter will bring you success.
Eric
find one of hundreds of my posts where I support the above
The guards at Auschwitz may not have been on public record as supporting genocide - but by their actions they were fully complicit.
So too with you.
You support (without question or apparent thought) the current regime in Saint Paul. Whether you explicitly say it or not, you support their policies, which are *exactly* as I noted.
If you don't support the current regime and its crimes against due process, property rights and decency, then speak out. Use that keen, "Masters in Public Policy" mind to dish some smack against the regime!
Or quit protesting so much and cop to supporting a corrupt government that makes shit up as it goes along.
Your attempts at insults and talking "tough" are amusing, but contribute not much. Do try to do better.
Bill Dahn
1:56 AM This is mine.
This isn't mine
Bill change your color to Homg?
5:48 AM
People do change their color.
Look at Micheal Jackson.
Eric what is up yours, my shoe size is 11 1/2.
Go find the right person.
Billy D.
Bill
Chuck in answer to Leroy Smithrud, who lost Pro Se in the Appellate Court, UNPUBLISHED OPINIONS ARE NOT WORTH THE PAPER WRITTEN ON,Currently I'm having the same problem with all the records that I paid the property Taxes,
http://opinions-unpublished.blogspot.com
JUST SPENT OVER 10 HRS RESTORING PC AOL,VISTA ETC. READY TO ROLL,
ISSUES: Demo Buildings without "due process" Access to the Seats of Government, "takings without compensation" disparate treatment, etc.
This comment has been removed by the author.
Umm Stryker, I appreciate the choices you gave me but, since both are based the assumption that there some corrupt regime leading a conspiracy through the city, its pretty bogus.
You say I support a corrupt regime but choose not to back it up with any proof. You say the city government is corrupt, as a whole yet, refuse to back it up.
So you use the very tired, and insulting to some, reference of the guards at Auschwitz. Those guards were SS officers and by being such, they signed on to the program hook, line and sinker.
Can we get an example of anything relevant please? Or, some proof behind those accusation? I can wait until you stop beating your wife.
Bill, you may be fooling yourself or Bob but, we're not stupid. Anyone can see the bad grammar pattern is evident in the two that you penned. You're not smart enough to see that little basic mis-step?
Eric
You say the city government is corrupt, as a whole yet, refuse to back it up."
It's been proven here over and over again Eric. You are just living in denial.
Eric
More people at A Democracy knows that You and Chuck are just points men.
When do you plan running for office.
Your smarter then Jesse and Dean combined and if they became Gov. and U S Sen., You can be the next Pres. and Chuck can be your V.P.
Billy D.
Umm Stryker, I appreciate the choices you gave me but, since both are based the assumption that there some corrupt regime leading a conspiracy through the city, its pretty bogus.
Only if it's not true.
You say I support a corrupt regime but choose not to back it up with any proof. You say the city government is corrupt, as a whole yet, refuse to back it up.
I've backed it up repeatedly. Our city government runs a department that makes up rules as they go along, in order to:
1) Allow the city to circumvent du process in law enforcement. The cops use DSI as an end-run around due process, constantly. DSI's behavior in the Osterman case - which was pretty uncontestably a case of police retaliation - is pretty damning evidence. Or it would be, in a two-party city with actual accountability.
2) Serve as muscle for city council initiatives; DSI is the input phase of a process that is turning hundreds of units of property over to the city to distribute among the sitting council's non-profit benefactors.
So you use the very tired, and insulting to some, reference of the guards at Auschwitz. Those guards were SS officers and by being such, they signed on to the program hook, line and sinker.
Get the vapors if you'd like, Eric, but the analogy stands; you are signed hook, line and sinker onto the DFL's program. At any rate, my point was that claiming ignorance is no excuse. You, like the guards (mostly not "officers", by the way; most of them were enlisted), are complicit in something that's *wrong*; if you do not speak out against it, you are no better than the instigators.
Can we get an example of anything relevant please?
Asked and answered.
Eric, I know you're not stupid - which means the only option left is that you're the St. Paul regime's Baghdad Bob.
Eric, I know you're not stupid - which means the only option left is that you're the St. Paul regime's Baghdad Bob.
Let me be frank with you. You all have issues with the eight people that make up the council and the mayor. All are DFLers. I'm a DFLer and support the platform and therefore the candidates who adhere to the party. That's where it ends. I don't work in the city or for city candidates.
Most of those people don't know me and we don't talk. I call my council member when I have questions, or the mayors office with questions. The others I know through various activities but for the most part, they would choke on their own tongue if you were to tell them that I'm speaking for them. I just don't interact with them that much on the governing side of things.
As a former District Council leader, several commissions i sit/sat on, and general loud mouth, I am not looked at as a sure voice of support on every issue. I have parted with them as a whole and as individuals. Several of them don't exactly see me as playing on their team, certainly not as much you people on here try to tag me as being.
In saying all of that, they are absolutely right when it comes to code enforcement and could be a little more strict. Citizens of st Paul, rich and poor, black and white, feel the same.
You, and Leroy Smithruds and the Frank Steinhausers may feel different but, none of you live here or around the property you own.
Eric
Well I do, Its alittle "boring" when persons libel with malice others, busy working tying for the public good to force the courts to pdf electronically files.
Rambling Chatter Eric and Chuck your better than that, request your help file 62cv09-1163 Judge Vandenorth Affiant has accused of a Felony Case Fixing re: www.taxthemax.bogspot.com and now wordpress.com The city cannot steal our cars, then charge against the property.unabatd by Attorneys,Judges to coverup the Ponzi Scheme of the City, Please help make accountable for You and Your Familys..
Eric,
You were doing so well. Answering rationally, civilly, and with facts that a rational person could accept - question, but accept.
But then...
You, and Leroy Smithruds and the Frank Steinhausers may feel different but, none of you live here or around the property you own.
Er, I live in Saint Paul. In my property. I pay taxes (way too many of them) here. Not quite sure what's behind that bit of presumption, but you're wrong.
And the demonization of landlords (notice how you and chuck NEVER rfer to them as anythign but "slumlords") kinda tips us off as to your approach to things.
And your judgement on DSI and the peoples' reactions to them depends on...:
a) being somehow appointed as a spokesman for "the people" (I dont' think so!), and ...
b) the people being genuinely aware of what DSI does and how they do it. Your excuse for them sounds perilously close to "they make the trains run on time". Fine, if all you care about is catching the train - but if the people of the city of Saint Paul can excuse the wholesale trampling on due process and civil rights that DSI does, perhaps the people of Saint Paul deserve what's going to eventually come to them.
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