Saint Paul Housing Lawsuits Update/ PLAINTIFFS-APPELLANTS JOINT RESPONSE TO APPELLEES’ PETITION FOR EN BANC HEARING
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 09-1209
Appeal No. 09-1528
Appeal No. 09-1579
THOMAS J. GALLAGHER, ET AL.,
FRANK J. STEINHAUSER, III, ET AL.,
SANDRA HARRILAL, ET AL.,
Plaintiffs-Appellants,
v.
STEVE MAGNER, ET AL.,
CITY OF ST. PAUL, ET AL.,
STEVE MAGNER, ET AL.,
Defendants-Appellees,
Appeal From United States District Court
For the District of Minnesota
Civil No. 05-CV-1348 (JNE/SRN)
Civil No. 04-CV-2632 (JNE/SRN)
Civil No. 05-CV-461 (JNE/SRN
LINK TO RESPONSE HERE
FOR THE EIGHTH CIRCUIT
Appeal No. 09-1209
Appeal No. 09-1528
Appeal No. 09-1579
THOMAS J. GALLAGHER, ET AL.,
FRANK J. STEINHAUSER, III, ET AL.,
SANDRA HARRILAL, ET AL.,
Plaintiffs-Appellants,
v.
STEVE MAGNER, ET AL.,
CITY OF ST. PAUL, ET AL.,
STEVE MAGNER, ET AL.,
Defendants-Appellees,
Appeal From United States District Court
For the District of Minnesota
Civil No. 05-CV-1348 (JNE/SRN)
Civil No. 04-CV-2632 (JNE/SRN)
Civil No. 05-CV-461 (JNE/SRN
LINK TO RESPONSE HERE
posted by Bob at Tuesday, October 12, 2010
31 Comments:
enforcement behavior to find a prima facie case of disparate impact in support of
Appellants’ action for violation of the Fair Housing Act:
The City favored owner-occupied housing over rental housing and the City
increased the level of housing code enforcement targeted at rental properties.
Op. 5.
Furthermore, the City raised inspection standards by directing DNHPI
inspectors to “code to the max.” Op. 6.
The City instituted a system for easier reporting of Housing Code violations.
Id.
The new Housing Code enforcement system was expected to generate an
additional $500,000 in revenue. Id.
The City increased Housing Code Enforcement directed at so-called
“problem properties” seeking to compel compliance or force changes in
ownership. Id.
The City employed a variety of strategies for renter-occupied dwellings,
including orders to correct or abate conditions, condemnations, vacant
building registration, fees for excessive consumption of municipal services,
tenant evictions, real-estate seizures, revocations of rental registrations,
tenant-remedies actions, and if necessary, court actions. Id.
The City used a procedure known as “Code Compliance Certification” to
require rental properties to meet current housing and building standards and
this allegedly forced property owners to undertake expensive renovations,
especially with regard to older properties, like Appellants’ properties, that
were exempt from current building codes under Minnesota law. Op. 6-7.
The City’s explanation is that it targeted properties for code enforcement
occupied mostly by low-income tenants, and that racial minorities were
disproportionately represented as tenants. (Op. 13).
Dawkins made statements that demonstrate his desire and intent to reduce
the amount of low-income tenants in the City. Op. 11-12.
5
The Panel noted that the common denominator in Appellants’ affidavits,
allegations, and briefs is that the City issued false Housing Code violations
and punished property owners without prior notification, invitations to
cooperate with the City, or adequate time to remedy Housing Code
violations. Punishment included fines, evictions, condemnations, revocation
of rental registrations, and the financial burden of Code Compliance
Certification. Op. 14.
Appellants produced at least six affidavits [this is incorrect, as ten affidavits
of owner-Appellants were presented] describing the increase in costs to
operate their low-income rental properties due to the City’s aggressive code
enforcement policies and adverse effect of forced sales and evictions of
tenants. Op. 15.
The Panel concluded that it was the aggressive manner in which the City
enforced its housing and building codes that was at the heart of the Fair Housing
claim by Appellants and was the trigger for the adverse impact on protected class
tenants.
The City argues that rehearing en banc is necessary to maintain uniformity
of decisions regarding prima facie findings of adverse impact and this proceeding
involves a question of exceptional importance because it creates confusion for all
municipalities seeking to enforce housing codes. However, the City of St. Paul did
not simply enforce its housing code to provide safe housing - it enforced the code
in an aggressive manner that created a disparate impact on racial minorities. The
Panel’s decision and opinion should not confuse the City here or other
6
municipalities in the 8th Circuit. A municipality may enforce its housing and
building codes in a lawful manner but it cannot target rental properties with
increased inspection standards and increased enforcement operations, including
aggressive “code to the max” policies and practices, so as to force ownership
change and “protected class” tenant displacement when the municipality has
knowledge that a disproportionate number of those targeted rental properties are
occupied by racial minorities who are already burdened in their housing choice.
II. The Panel’s Finding of a Prima Facie Case of Disparate Impact Is
Supported By Statistical Evidence.
Appellants claim that Appellants failed to support their disparate impact
claim with any statistical evidence and that the Panel’s opinion is a significant
departure from rulings in other Circuits. Pet. 12. The City fails to acknowledge
the significant statistical evidence cited by the Panel, including from the City’s own
studies, reports and other documents, and from HUD’s studies and statistics, all
supporting the Panel’s prima facie findings. The Panel cited statistics including but
not limited to the following:
1. 27.6% of Saint Paul’s lower income residents cannot find affordable
housing in the City.
7
2. 32% of the households in St. Paul had unmet housing needs in 2005, as
estimated by the City (cost burdens, overcrowding, etc.).
3. 11.7% of the City’s population was African-American in 2000, whereas
data from October 2004 showed that 61% and 62% of those on waiting lists
for public housing and Section 8 assistance, respectively, were African-
American.
4. 52% of minority-headed renter households were in the bottom bracket for
household adjusted median family income, compared to 32% of all renter
households.
5. The City’s housing code was more strict than HQS in regards to 82% of
examined categories1.
6. The number of vacant buildings in the City rose from 367 to 1,466
between March 2003 and November 2007, which was a nearly 300%
increase.
The Panel stated that a before and after cost of rent comparison is one way to
show that African-Americans experience a disproportionate adverse effect;
however, it is not the only way. Further, the Panel noted that Appellants are not
required to provide a particular statistical comparison - statistics to prove
discrimination come in infinite variety and their usefulness depends on all of the
surrounding facts and circumstances. Op. at 19.
8
1 In its Petition, on two occasions the City misstates the nature of the 1995 City
Report comparing the City’s Code to the federal Section 8 Housing Quality
Standards (“HQS”). On pages 9 and 10, the City incorrectly states that HQS
standards are more strict 82% of the time in examined categories when in fact the
opposite was found by the City to be true – the City’s own study demonstrated the
City Code was more strict than federal Section 8 standards 82% of the time.
Well Eric it doesn't appear they have lost "every step of the way" to me. What it does look like is that the city is about to get their lunch handed to them.
The pompous bureaucrats in city hall still have to learn that they can't break a large number of laws and treat people like cattle. That is not a professional operation.
Hats off to the landlords for their courage and valor.
Bob G.
Dumb Dee Dumb Dumb John Choi was the St.Paul City Attorney apparantly you did no listen to the Ramsey Co. Video of Candidates Choi and Schultz http://www.scribd.com/doc/39283413/Steinhauser-v-CityST-Paul-8thCir09-1209Response-12Oct2010
John Choi is unfit for County Attorney based on his RICO City Attorney wilful failure to address the Landlords Complaints.
Looks to me like the racist St. Paulites are about to pay for the party they thought was so cool.
Hmmm, just a little get to know information about the wonderful Federal Judge Joan Ericksen, who tossed out many of the landlords claims against the city for corrupt or otherwise malicious conduct.
legalectric.org/weblog/5677/
And according to this page, Judge Ericksen has a habitual way of tossing lawsuits against the cities of both Minneapolis and St.Paul.
She is probably a fair and non biased person out in public though ;)
Jeff Matiatos
Sorry, I was out of town and didn't see the response....
And, there response is back to all of the issues that were already thrown out of court.
These guys don't even have the basic understanding of what was the charge that they won.
They argue that the reason why their one charge that the panel left to them should stick is because of all of the reasons that they lost on all of the other charges. What this is clearly telling the bench is that if the one charge does get to move forward to court it is their intention to bring up all of the charges that have been dropped as often as possible, because they have nothing to support the one charge that is left. In fact in their response the make no effort to discuss disparate impact or play up any evidence they had.
Amazing...
Please let me go forward, so that I can waste the court's time with all of the issues that the panel has thrown out.
JMONTOMEPPOF
Chuck Repke
"because they have nothing to support the one charge that is left. In fact in their response the make no effort to discuss disparate impact or play up any evidence they had."
Are you an idiot Chuck. Their response says nothing other than what the court already found and used as facts to send it to trial.
What's up with you?
Chuck, the plaintiffs will be able to use all the evidence of the defendant employees aggressive manner, in which they enforced the housing code .
Just because that same evidence didn't give rise to the other claims that were not permitted, that apparent fact has no bearing on the disparate impact cause of action.
Plaintiffs get to use any evidence to date that supports the disparate impact claim.
Plaintiffs attorneys should now be thinking about the order witnesses and partys will be called and preparing exhibits for their admission into trial evidence and establishing foundation etc.
I hope their is enough room in the courtroom for all of the plaintiffs supporters.
Jeff Matiatos
hi. this is a blog about your county?
lovely idea.
my blog is www.olhardireito.blogspot.com
i have a american member that talks about politics
take a look and give a opinion
regards
I'll tell you whats up with Chuck. His side is losing bad on this one and all he can do is spin and play the same ol same ol.
Same ole same ole is not going to cut it any longer. Jeff is whooping Chuck's butt and the landlords are whopping the citys butt. I'm afraid Chuck's rants have become nothing more than wishful thinking now that the appeals court has found so many facts in this lawsuit after so many months of Chuck and that other fool saying there were none.
Jeff....
It isn't about tactics its about policy. It does not matter if the code enforcement guys showed up with a white hood on.... the issue is was did the City's code enforcement policy have an adverse impact on people of color? So, if the staff were rude, said mean things, hated people of color that means nothing... that was thrown out.. it is down to what was the policies impact on people of color? So, evidence is about just that and nothing else.
You are proving the City's point that the other side has nothing and intends to do a show..
JMONTOMEPPOF
Chuck Repke
Ok Chuck, you need to stop dwelling on the citys brief and read more carefully the Federal Courts brief.
The Federal Court here has ruled out disparate treatment but sustained a prima facia case for disparate impact. ( See page 14 ).
Evidence Chuck wants to ignore is on pages 15 and 16.
So Chuck, the last paragraph on pages 16 and 17........ > should propel you to new heights and cause you to drastically reform your mind to finally understand how this court came to the conclusion you habitually deny.
Jeff Matiatos
The city will want to settle this case once and for all to avoid the embarassment of having numerous city employees marched up to the witness stand and torched over hot coals about all the corrupt activities of it's DSI program.
Their should be firing of those employees and resignations.
Whether or not any of the remaining claims are disposed of, any evidence obtained in the case that shows certain defendant city
employees acted in a discriminatory way in the performance of their duties, like Like Lisa Martin and copper Koehnen allegedly saying
" The Black Plague Cometh like Roaches ", should be regarded as highly justifiable reason of these employees being terminated.
Any third party candidate running for mayorship or city council should use the actions of the current and past city administrations as grounds to remove those in place that supported such a scheme.
Jeff Matiatos
I don't suppose Eric minds much about Martins alleged comments about blacks. As far as he his concerned, the landlords made that up.
I just figured it out. The reason Chuck and Eric just don't get it is because they don't know how to read a legal draft such as a Judges order or a legal brief.
I'll bet they can still read comic books though !!!
Sure is hard to comment when you have to deal with people acting like immature kids! I don't blame Chuck or Eric for not participating here much anymore. Then you have people that think they know it all like Jeff! Jeff's attitude and ignorance makes it a waste of time to comment on here.
Who is it that is acting imature? Jeff knows what he is talking about most of the time and calls things the way he sees them. The other 2 clowns cannot even read an opinion from a court and understand the plain meaning of it but yet they want to talk down to everyone like they are the pros. I would say that the attitude and ignorance are over on Chuck and Erics side of the sheet.
Well Jeffs attitude seems to be very supportive of a very important issue for many citizens who's lives have been adversely affected by the attitude and ignorance of the city.
I would say that the poster at 1:30p.m. has it all wrong and is probably just Eric.
Eric envys Jeff because Jeff is just plain smarter when it comes to sorting out all the confusion both Chuck and Eric seem to have.
I mean when someone comments here that they think Jeff is a know it all, that comment would lead one to believe that the person saying that, doesn't feel good about themself and is simply envious of Jeff.
If the poster at 1:30 p.m. won't comment here because they think Jeff just steals the show with his abilities, I would say that the poster at 1:30 p.m. has been beat and feels deflated.
Well have a good life Mr.poster at 1:30 p.m. because Jeff is staying put.
I'm not the poster at 1:30. I am not a coward. I sign every single post. I rarely argue with anonymous posters too. So, there is no reason for me to post much.
Jeff is wrong. I've laid out why and Chuck has laid out why. Going back and forth saying 'uh-uh I'm right' is getting old. The facts of the matter is that the landlords have lost on every claim every step of the way. This last one is about policy. Its not a door to open and bring everything back on the table. There has been a ruling already on that.
So after five or six years this is it. However, people like Jeff, are bending over backwards to construct a scenario which is not congruent with the law, judicial procedures or precedence. Explaining that would take or three things that are missing from here:
1. Legal background
2. Some kind of understanding of judicial procedures
3. The contemplation that the plaintiffs could be wrong.
Without two of those, you get wishful thinking and garbage.
I have said over and over that there are more than likely some rogue individuals within city government. Its no different than the greater society. Root them out and bounce them out of a job. What I haven't agreed with or seen any evidence forth is that there is a conspiracy by a group on another group- ie landlords. That's where this all began, RICO.
So, even with losing every step of the way and having cases thrown out and being refused a hearing because of the severe lack of evidence, Jeff can come here and say that there is hope and you are winning. And, they'll be a bunch of you bellying up to the counter to eat that crap sandwich because you are willing to be into bs instead of questioning what you've been fed.
Therefore, I post much, much less nowadays.
Eric
Your part right Eric, it's is about policy and the aggressive manner that it was enforced.
It's that simple and anyone who can read the Judges order will tell you the same thing.
It's always possible that a higher court could decide differently but until then, the city is going to be subjected to trial.
The only thing I am constructing is a verbatim recital of the judges order which the likes of Eric and Chuck simply refuse to accept.
Half of America doesn't accept the decisions of our Supreme Court regarding some of the most controversial issues like abortion and gun control.
So your free to disagree Eric and I am not going to lambaste you for doing so. But I question your ability to understand the simple logic of the panels order.
Maybe just ignoring it would be easier for you, but ok then.
Jeff Matiatos
Eric and Chuck do not understand anything that doesn't fit therri agenda. It's much easier for them to just start slandering people amnd taking things out of context. Classic DFL all the way....ignore the facts for what they are and call the other side a schmuck.
The unequal treatment by DSI staff is really something. One citizen can get away with lots of stuff (Thune) and Joe Blow is held to a different standard. You can't fight city hall, but I know the what goes around comes around and times out of 10 they do it to themselves.
Jeff - you say that Eric and I can't read the brief but it is clearly you that misses the forest for the trees. The panel agrees with the district court on almost every issue and if you read pages 9-12 it throws out the comments of all of the city employees, their personal motivations or interests in discrimination. Those charges are dead, over done with. You can't bring them back and expect that if this does go to court and if the plaintiff raises the issue again they will be thrown out again.
What is meant by "aggressive code enforcement" isn't my friend Andy breaking into your house with a white hood on...or Lisa Martin belonging to the John Birch society, it is about a policy of writing up violations on properties where the public has been making complaints about the properties.
What is left of the case is the suggestion from the plaintiffs that under PP2000 - things were wonderful in Saint Paul and there was no disparate treatment (no evidence is offered to show that but that claim is to be relied on) and that once the code was actually enforced that put them out of business and had a damaging effect on minority tenants.
The City is saying that to make that charge stick the plaintiffs needed to have more than 6 depositions... they needed at least some statistical data. That is what the En Banc hearing is about.
If this goes to trial, that is the one issue allowed them. Did the City's racial neutral policy have a disparate impact on minorities?
JMONTOMEPPOF
Chuck Repke
Chuck, the law presumes a non discriminatory policy.
How do you show that the city turned a presumed non discriminatory policy into one that had a disparate impact on minoritys and destroyed the landlords buisness ?
Simply put, the actions and statements of the various employees named as defendants can be used to support the remaining claims of disparate impact.
Granted that the court would not accept this evidence to support the other claims that were thrown out, it's still evidence for the remaining claim and the panel used that evidence as a basis to allow this final claim to stand.
The plaintiffs can bring up anything they choose during trial and it will be for the trial judge to determine whether that evidence or arguements will be admissible or relevent.
If you think that a judge is not going to permit questioning of the defendants regarding derogatory statements made against blacks your kidding yourself.
Any statements or evidence to support a claim that blacks or minorities were targeted for disparate treatment will be allowed. The rules of evidence will permit this kind of questioning.
So, your friends at city hall are still on the hot seat and are going to either settle this case or be subjected to a harsh line of questioning and I assure you it will be some spectacle getting to watch and hear the ensuing interrogation by the plaintiffs attorneys.
It's the kind of Perry Mason and Matlock drama we can expect but this is for real.
Jeff Matiatos
Sorry Jeff you are just wrong.
Read pages 9-12...slowly... its pretty clear that part of the case is done.
So when you are done taking that in go to page 21 and you will find what is left to be debated...
-snip-
There is also evidence that PP2000 generated a cooperative relationship with property owners,
achieved greater code compliance, and resulted in less financial burdens on rental property owners. It is reasonable to infer from these facts, viewed most favorably to Appellants, that PP2000 would significantly reduce the impact on protected class members. Thus, there is a genuine dispute of fact regarding whether PP2000 was a
viable alternative to the City’s aggressive Housing Code enforcement practices.
-snip-
That is what you got... were things warm and fuzzy in 2000 and were minorities not losing their housing then? Or, were things pretty much the same?
And, is there any evidence that there was a significant number of houses put on the vacant building list because of code issues that would not have been if we were using PP2000?
That is it Jeff.
The rest of the case is dead.
JMONTOMEPPOF
Chuck Repke
Chuck, until some other court says otherwise, I respect the courts decision to have disposed of the other claims, but that doesn't mean I agree that any of the so named defendants haven't violated the code of decency of their jobs and therefore should be fired or otherwise disiplined.
You want me to acknowledge that part of the judges order that already speaks for itself. 9-12 simply gives reasons why the other claims don't survive.
So the panel says the plaintiffs contention of how the policy was aggressivley enforced vs. the cities viable alternative is what has created a genuine issue of factual dispute warranting a trial.
Now at this trial, the plaintiffs will be able to present witness testimony and evidence of the aggressivness of the defendant's enforcement vs. the city bringing evidence of a viable alternative that shows it did not impact and discriminate.
Because the city rested on the mere contention of a contended viable alternative that seemed to show some positive qualities but the city could not refute many of the plaintiffs discovery that shows otherwise, a trial is needed to validate both sides position and only one side will prevail.
Your only picking and choosing what you want to read Chuck and
nobody here is buying your version.
Again, when there are genuine issues of material facts where we have two competing theorys of culpability and defence, summary Judgement must be denied and the issues tried.
Jeff Matiatos
If this goes to trial, that is the one issue allowed them. Did the City's racial neutral policy have a disparate impact on minorities?
It also happens to be the issue with the big money attached to it!
"
What is meant by "aggressive code enforcement" isn't my friend Andy breaking into your house with a white hood on...or Lisa Martin belonging to the John Birch society, it is about a policy of writing up violations on properties where the public has been making complaints about the properties.
This is what you want the agressive enforcement to be Chuck but in reality it was the illegal code compliances required by the city and the fabricated violations they wrote up with the legitimate violations in order to get to the condemnation and code compliance scheme. Nice try but not good enough.
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