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Wednesday, August 12, 2009

Saint Paul/ Fair Housing Lawsuits

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 09-1209
THOMAS J. GALLAGHER, ET AL.,
Plaintiffs-Appellants,
v.
STEVE MAGNER, ET AL.,
Defendants-Appellees,
Please click onto the COMMENTS for the story.

49 Comments:

Anonymous THE BRIEF said...

INTRODUCTION
Courts are not permitted to weigh evidence at the summary judgment stage. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). And yet, the District Court routinely draws conclusions as to defendant’s “desires” with respect to admissions, determines whether a defendant’s statement is “race-neutral”, and routinely “discerns” the evidence and asks whether the evidence presented is “sufficient” to withstand summary judgment. See, e.g., McCollough v. University of Arkansas for Medical Sciences, 559 F.3d 855, 860-61 (8th Cir. 2009); Roberts v. Park Nicollet Health Servs., 528 F.3d 1123 (8th Cir. 2008). Judging the “sufficiency” of evidence necessarily requires a determination of whether the evidence is persuasive enough to carry the ultimate burden of proof, and such determinations are the exclusive purview of the jury. In this case, the District Court at every question determined whether the evidence was sufficient to persuade the Court as to what motivated the City’s conduct. When viewed according to the proper standard, it is clear that the District Court’s grant of summary judgment must be reversed.
I. City Of St. Paul’s Brief Ignores Summary Judgment Standard.
Meeting a burden of proof to show discrimination is a burden Plaintiffs must overcome at trial, after a jury has heard the evidence, not one a plaintiff bears at the summary judgment stage. This confusion of the court’s role with the role of the jury has progressed so far as to require a plaintiff to try the case “on paper” at summary judgment. Justice Brennan warned against this result in his dissenting opinion in Anderson v. Liberty Lobby, 477 U.S. at 266-67 (Brennan, J., dissenting).
The inquiry for the Court at summary judgment is whether there is evidence in the record to support a claim. In order to grant summary judgment, there must be a “complete failure of proof concerning an essential element of the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). A determination of whether evidence is strong or weak requires assessing its weight, its credibility and its persuasive force. These tasks are reserved solely for the jury, and are not for the District Court or this Court to make.
The District Court’s use of “Context” to Weigh the Evidence
On two occasions, the District Court considered the “context” of the discriminatory statements contained in the record and found them not to be evidence of discrimination. See ADD 000020, 21, 22.
The word “context” is defined as follows:
the parts of a sentence, paragraph, discourse, etc. immediately next to or surrounding a specified word or passage and determining its exact meaning; the whole situation, background, or environment relevant to a particular event, personality, creation, etc.

Webster’s New World Dictionary Third College Edition 1988.

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Anonymous Brief continued said...

Consideration of context is the exercise of determining the exact meaning of the evidence. Determining the meaning of evidence is exclusively the purview of the jury. Yet the District Court in this case openly decided what comments made by City officials meant.
For example, in an effort to show that Dawkins knew that over-aggressive code enforcement can lead to abandonment of properties and elimination of affordable housing, Plaintiffs quoted the following section of Dawkins deposition transcript:
I used the example of Baltimore where the aggressive enforcement had tipped the scale so that there was a start of abandonment of properties more than the city had hoped for in Baltimore. And I wanted to make sure that everyone understood that using whatever levers or rules or policies the city has, that we need to make sure that we didn't hit a tipping point. ADD 000020.

Consider some of Dawkins’ other testimony provided to the District Court about code enforcement, which belie his statement above regarding “making sure we didn’t hit a tipping point:”
• I think that it’s better to have a neighborhood that has more owner occupied housing in it than has rental property in it for the sake of the neighborhood. ADD 85.
• And then Cervantes & Mott, get those meetings going, have an aggressive housing court, [lawsuit] city initiate city Tenant Remedy actions strategy, the force ownership change strategy, the eviction strategy. ADD 86.
• Aggressive code enforcement was the key from the first day that we needed to have a more aggressive consistent stepped-up code enforcement department. That's what everybody told me. That's what was in the city's chronic problem property report. They said, that's your mission, Dawkins, go do it. ADD 87.
• I had complaints about every inspector in my department applying too much pressure. ADD 88.
• Yeah, do code enforcement to the max, do aggressive, consistent stepped-up code enforcement, don't cut down and shorten the time lines for compliance, and a lot of others. ADD 89.
Despite Dawkins’s above testimony before the District Court, when the District Court considered Dawkins statements regarding aggressive code enforcement and the tipping point leading to abandonment, the District Court looked at the evidence drawing inferences in favor of Defendants, rather than the Plaintiffs. The District Court stated, “When considered in context, Dawkins's statements illustrate his desire to avoid wholesale abandonment of properties and his belief that the City's policies did not cause wholesale abandonment. Dawkins's statements do not suggest any discriminatory animus. Further, no evidence suggests that the City designed and enforced its housing code with the intent of reducing the availability of affordable housing.” ADD 000020.

2:24 PM  
Anonymous Brief continued said...

Based on Dawkins’s testimony above about aggressive code enforcement, a force ownership change strategy, and Dawkins’s knowledge of the Baltimore study, when you draw all reasonable inferences in favor of Plaintiffs, it appears more than clear that Dawkins knew the result of aggressive “code enforcement to the max” to the “tipping point” was abandonment of properties.
In another “context” example, Plaintiffs claim a statement Dawkins made to Bill Cullen, a real estate investor, is evidence of discrimination. Cullen testified that Dawkins had asked a group of landlords “how would [the landlords] feel if all those tenants that are at the bottom of the box were no longer in St. Paul?” The District Court stated, “Dawkins's statement is facially neutral with respect to race but Plaintiffs suggest that this statement reveals a racially discriminatory mindset. The Court therefore considers the statement's context.” ADD 00021. The District Court used the following reasoning to discern, weigh, and make a inferences in favor of the Defendants, and not the Plaintiffs:
Cullen drew a box for the meeting participants showing the "best" tenants as those with the most income, best credit, and least criminal history. The "bottom of the box" tenants were those having poor credit scores, criminal records, poor rental histories, and lower incomes. Race was not one of the attributes discussed. Cullen interpreted Dawkins's statement as a statement that Dawkins was trying to get rid of the “bottom of the box” tenants. Even if the Court assumes Cullen's interpretation is correct, Plaintiffs ask the Court to then conclude that Dawkins's desire to exclude “bottom of the box” tenants from the City meant that Dawkins was trying to exclude persons of color specifically, African-Americans-from the City. While the Court must draw all reasonable inferences in favor of Plaintiffs on Defendants' motion for summary judgment, the Court shall "do so without resort to speculation." See Twyman, 462 F.3d at 934. Dawkins's race-neutral statement made in the context of a discussion about improving the conditions of the Payne/Phalen neighborhood reveals no discriminatory animus. See id. (facially race-neutral statements, without more, do not demonstrate racial animus). ADD 000021-22.

The Court supplied a non-discriminatory motive to Dawkins, in the complete absence of any supporting evidence, concluding that his statement was race-neutral in a discussion about improving the conditions of the Payne/Phalen neighborhood.
The Plaintiffs are not asking the District Court make a “conclusion” on this single piece of evidence of Dawkins’s statement about getting rid of the “bottom of the box tenants.” The Plaintiffs are asking the District Court to draw all reasonable inferences in favor of Plaintiffs on Defendants’ motion for summary judgment. In light of all of Dawkins’s other testimony, Dawkins’s experience in the Minnesota House for 16 years representing the St. Paul’s Frog Town area where a high percentage of protected class reside (Docket, 226, 045402 – 045410), and undisputed evidence before the District Court regarding the racial make-up of low income renters, a reasonable fact finder could conclude that getting rid of the bottom of the box tenants is not race neutral and reveals discriminatory animus (it is undisputed that non-whites make up a disproportionate percentage of [PHA] waiting lists (Appellee’s Brief p. 8), the parties agree that African-Americans make up a disproportionate percentage of

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low income tenants in both private and PHA housing (ADD 000012)).
Further, the Court fails to consider the rest of Bill Cullen’s testimony about his reaction and the reaction of the other members present at the meeting with Dawkins. Cullen testified that they were all “dumbfounded” by Dawkins’s comment about getting rid of the bottom of the box tenants, and, “That’s how I remember it. Let’s gentrify the city to the point that none of these individuals with historical behavior would be in the city at all.” ADD 000095. If Bill Cullen and the rest of the group were “dumbfounded” by Dawkins’s statement, and drew an inference or made a conclusion that getting rid of the bottom of the box tenants would gentrify the City, couldn’t a jury make the same conclusion based upon the same evidence?
The City Ignores the Force Ownership Change and Eviction Strategy
The City ignores the evidence with respect to their discriminatory attitude and environment of aggressive code enforcement, illegal condemnations and code compliance certifications, City initiated lawsuits, a force ownership change strategy, and eviction strategy. The City states that “the Landowners simply string these phrases together from Andy Dawkins’ deposition exhibits (his handwritten notes) and pass them off as a strategy of discrimination. Appellee’s Brief p. 11.
According to the City, “the “eviction strategy” that the Landowners claim is evidence of discrimination is the Minnesota law that allows a landlord who is intimidated by a particular problem tenant to assign the eviction to the City. Appellee’s Brief p. 12.
However, the evidence shows that the eviction strategy is not something the City is using to “allow a landlord to assign the eviction to the City.” To the contrary, the evidence shows that it is the City’s intent to remove the tenants from the property by any means necessary. In a police training bulletin about “How to Work with the Code Enforcement Problem Property Unit,” co-writers Andy Dawkins and Assistant Police Chief T. Reding discuss “how to eliminate nuisance properties” and use the following language:
THIS INFORMATION IS ESPECIALLY IMPORTANT IF YOU GET INSIDE THE PREMISES because this will allow Code Enforcement to get an administration search warrant that could lead to condemnation of the property. eviction of the occupants and boarding-up the property. ADD. 92-93.

The police training bulletin further emphasizes that “A single nuisance incident, either a public nuisance incident or criminal nuisance incident, is enough to revoke a landlord's rental registration certificate; enough to start an eviction; enough to trigger a §45.04 letter [to] cease and desist or face criminal charges (emphasis added). Id.
The intent of Mr. Dawkins writings certainly does not seem to be to “allow a landlord to assign an eviction to the City,” as the City states in their brief. The City’s intent is to get rid of the tenants, by condemning the property, evicting the occupants,

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or revoking the landlord’s rental registration certificate.
According to the City, “Dawkins explained that ‘the force responsible ownership strategy I have said several times was to make sure that we stay with the property, to either get the property owner to get it into compliance, or get the property owner to sell the property to someone who could get the property into compliance.” Appellee’s Brief p. 12. Further, the City states, “The “force responsible ownership change strategy” is not evidence of discrimination, but rather efforts by the City to make sure that landlords are responsible owners who keep their properties in safe condition for renters.” Id.
Contrary to the City’s contention in their brief that the force ownership change strategy relates to “efforts by the City to make sure that landlords are responsible owners who keep their properties in safe condition for renters,” Mr. Dawkins documented his approach to code enforcement in a flow chart he developed related to complaints and so called “problem properties,” in which he used force ownership change terms. ADD 000090. Dawkins continued the City’s illegal and discriminatory elimination of low income rental properties by promoting “targeting of teetering neighborhoods or redeveloping areas,” “force sales,” “or eviction” (top right of chart), and “Goal: force sale to responsible owner” (bottom right of chart). Id. Not only did Dawkins have meetings with Chief Judge Mott and City Attorney Cervantes to get “buy in” to his aggressive, force ownership change and eviction strategies, Dawkins goals for 2004 included getting “buy-in” from the Police Department, City Attorney, and Courts. ADD 000091.
Why would Dawkins need to target teetering neighborhoods and redeveloping areas, or get “buy-in” from the Police Department, City Attorney and Courts, to make sure that landlords are responsible owners who keep their properties in safe condition for renters? He wouldn’t, he needed “buy-in” from the Police Department, City Attorney and Courts to eliminate Plaintiffs’ rental properties and their “bottom tier of tenants” and the “down trodden.” Mr. Dawkins used the City’s discriminatory attitude and environment of aggressive code enforcement, illegal condemnations and code compliance certifications, City initiated lawsuits, a force ownership change strategy, and eviction strategy, even though he knew that his custom and practice could force abandonment of properties in the City of St. Paul and eliminate affordable housing, which includes the result of a disparate impact on protected class members.
This is exactly what Mr. Kessler was referring to when he stated in his memo to Human Resources that civil service protection was needed to “withstand the pressure to bend the rules to achieve a particular end that is inconsistent with the code and/or past practices.” ADD. 84. The City again ignores the evidence by failing to address in their brief Mr. Kessler’s memo and the City admissions regarding “bending the rules to

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achieve a particular end/certain outcomes.” Id.
To sum up their argument about the force ownership change and eviction strategy, and despite Mr. Dawkins deposition testimony, notes, flow charts, and lists of goals, the City continues the trend of weighing the evidence in the face of the summary judgment standard by stating “the facts do not support this and nothing could be further from the truth.” Appellee’s Brief p. 12.
The City Ignores the Code Compliance Certification
Starting in the fall of 2002, the City began to require owners of older rental homes to renovate their homes to "present code" under a program the City called "Code Compliance Certification," a process whereby the City illegally removed grandfathering protections applicable to the older properties under the State Building Code.
Even as the City prepared their brief for this Court, they failed to identify in their code the authority for requiring a code compliance certification. The City states, “At times, properties not in compliance with the housing code were required to undergo a “code compliance” inspection by the City’s Office of License, Inspections, and Environmental Protection, which would evaluate the building’s structure, plumbing, electrical condition, and mechanical condition.” Appellee’s Brief pp. 6-7.
At times properties were required to undergo a code compliance inspection? At what times? The City’s citation following this statement directs the court to three pages of deposition transcript of a city employee where a brief reference to code compliance can be found, not the City’s code. This is another example of the City ignoring the Plaintiffs’ claims that the City illegally removed grandfathering protections applicable to the older properties under the State Building Code by requiring code compliance inspections to current code.
The City Ignores the Housing Statistics Provided by Plaintiffs
To prove a fair housing disparate impact claim statistics or some other analytical method is invariably used. Appellee’s Brief p. 2. The City not only ignores evidence citied by Plaintiffs, but ignores evidence cited by the District Court, and evidence presented in its own brief when it claims that Plaintiffs have provided no data to support their disparate impact and disparate treatment claims. The City states, “In the present case, however, Gallagher Landowners provide no statistical proof or any other sort of analytical method demonstrating the City enforced the housing code more aggressively against them as compared to other landowners who have non-protected class tenants.” Id.
Undisputed housing data cited by the District Court and the City itself include the following:
• According to Jon Gutzmann, Executive Director of PHA, there is a shortage of

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affordable housing in the City. Appellee’s Brief p. 8.
• About 6000 households are on the waiting list for PHA public housing. Approximately 3000 households are on the HCV [Housing Choice Voucher] program’s waiting list, which is closed. Appellee’s Brief p. 8.
• [I]t is undisputed that non-whites make up a disproportionate percentage of these waiting lists. Appellee’s Brief p. 8.
• The parties agree that African-Americans make up a disproportionate percentage of low income tenants in both private and PHA housing. ADD 000012.
• Foreclosed properties are or were disproportionately renter-occupied. ADD 000014.
• According to PHA documents, the scattered site properties' tenant base is about 32% African-American and 58% Asian / Pacific Islander. ADD 000006.
• HUD’s 2000 Census “CHAS” data for St. Paul showed that among renters in the City, 37.1 % of White renters had housing problems (cost burdens of greater than 30% of income and/or overcrowding or without complete kitchen or plumbing facilities) while 53.9% of Blacks had such problems, and Hispanics had 57.5% Black family households had 59.3% and Hispanic families had 64.9%. Docket, 226-17, 045701-045707.
• In 1995, the City Fire Department compared the City's housing code to the HQS and concluded that the housing code was stricter than the HQS for seventy-seven of the ninety-four items compared, or 82% of the items. ADD 000007.
• The City rarely, if ever, condemns a PHA scattered site property, declares a PHA scattered site property a vacant building, or subjects a PHA scattered site property to a code compliance inspection. ADD 000006.
Contrary to the City’s claim that the Gallagher Plaintiffs have provided no statistical proof, Plaintiffs remind the City of the above mentioned statistics, as well as the race/ethnicity breakdown of Public Housing Households. See Docket, 224-23, PHA 016836 (also found in Appellee’s appendix at A66), PHA 016837.
For the purpose of the discrimination analysis, the Gallagher Plaintiffs look at statistics related to all protected class members. “Protected class members” is the term used in their complaint, as stated by the District Court (ADD 000009-10), and “protected class” is the language used by the Fair Housing Act and the supporting case law – “To succeed on their disparate impact claim, Plaintiffs must show that a facially neutral policy results in, or can be predicted to result in, a disparate impact on protected classes compared to a relevant population. See Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous. Auth., 417 F .3d 898, 902 (8th Cir. 2005). ADD 000011.
The District Court states that “Plaintiffs must do more” than show that the housing code increases the cost of low-income housing and that minorities tend to have

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Anonymous Brief continued said...

lower incomes. See Reinhart v. Lincoln County, 482 F .3d 1225, 1230 (10th Cir. 2007) ("It is not enough for the [plaintiffs] to show that (l) a regulation would increase housing costs and (2) members of a protected group tend to be less wealthy than others. It is essential to be able to compare who could afford the housing before the new regulations with who could afford it afterwards."). The Court continued, “To make a prima facie case of disparate impact and withstand Defendants' motion for summary judgment, Plaintiffs needed to offer evidence establishing what rents are under the City's housing code, what rents would be under the HQS, and the percentages of African-Americans and non-African-Americans who could not afford to rent in the City because the City enforced the housing code rather than the HQS. See id at 1230-31. Plaintiffs offered no such evidence.” ADD 000012-13.
How can the Plaintiffs show a statistical analysis of the cost and rents after complying with HQS and the City Code, and percentages of African-Americans (or all protected class members) who could not afford to rent because of the City enforced housing code, when Plaintiffs were put out of business because of the City’s illegal method of enforcing the housing code against them? The evidence and statistics provided by Plaintiffs shows that Plaintiffs were able to provide decent, affordable housing prior to the City’s change in method of enforcing the housing code 2002-2003. The evidence shows the City’s intent, discriminatory attitude and environment in enforcing the housing code by implementing a code to the max, force ownership change and eviction strategy. The statistics show that a disproportionate number of non-whites (protected class members) make up affordable housing waiting lists. The statistics show, and the parties agree, that African-Americans make up a disproportionate percentage of low income tenants in private and PHA housing. The statistics show that protected class members have a higher rent burden than whites. The evidence shows that the City’s code is 82% more strict than HQS. The evidence shows that rarely, if ever, are PHA scattered site properties condemned, declared a vacant building, or required to complete a code compliance certification.
The evidence provided by Plaintiffs shows that their costs increased as a result of the City’s conduct. APP 00116-415 (Plaintiffs’ Affidavits and Exhibits). The evidence provided by Plaintiffs shows that the majority of their tenants were low income, protected class members. The Plaintiffs had to comply with HQS (PHA inspections) to receive their federal rent subsidy checks (Housing Choice Voucher payments), and the City’s code. Again, it wasn’t until the City implemented their code to the max, force ownership change and eviction strategy that Appellants were forced out of business due to the City’s claimed “aggressive, stepped-up” housing burden. The evidence provided by Plaintiffs is that the undue increase in code enforcement increases the costs, which in turn will increase the rents. In the meantime, the income

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Anonymous Brief continued said...

and rent burden (shown in the CHAS data listed above) of the protected class members stays the same, and the amount of affordable housing goes down. The evidence presented showed that PHA itself would not adopt the City’s 82% more strict code because the increase in cost would eliminate the amount of affordable housing (“I repeated that local HUD staff feared more stringent standards would reduce the supply of affordable housing for Sec 8 holders). APP 116. Why? Because increased code enforcement equals increased costs, increased costs equals increased rents, and increased rents means less affordable housing. These are the facts and evidence before the Court. The District Court, in requiring a statistical analysis of the percentages of African-Americans and non-African-Americans who could not afford to rent in the entire “City” is an unreasonable burden that no Plaintiff would ever be able to achieve, and imparts an insurmountable burden on any Plaintiff to surviving summary judgment.
In the District Court’s order, the Court states that “at oral argument, counsel for Plaintiffs clarified that the key to Plaintiffs' FHA claims is that Plaintiffs rent to a higher percentage of African-Americans than PHA does. The Court therefore analyzes Plaintiffs' FHA claims in the context of disparate impact on African-Americans and disparate treatment of African-Americans.” ADD 000010.
However, the preceding sentence in the District Court’s order states, “In their Complaints, Plaintiffs identified not only African Americans, Hispanics, Asians, American Indians, families with children, individuals with disabilities, [and] those receiving state and federal financial assistance," but a broad category they termed "others less fortunate."
The Plaintiffs from the Gallagher, et al. case do not limit their discrimination analysis strictly to African American, although this protected class makes up the biggest percentage of the Gallagher Appellant’s tenant base. The Gallagher Plaintiffs have had tenants that are or were Hispanics, Asians, American Indians, families with children, individuals with disabilities, and those receiving state and federal financial assistance.
Plaintiffs identified the City's former Problem Properties 2000 (PP2000) program as a viable alternative in their brief. The PP2000 program focused on communicating with landlords of properties having a history of repeated or unresolved code violations to formulate a better plan for compliance rather than simply imposing punishment. ADD 0000015. The District Court states, “Plaintiffs offered no evidence showing that the PP2000 program would achieve the DNHPI's objectives without discriminatory effect. Id.
Plaintiffs did provide evidence that the PP2000 program would achieve DNHPI’s objectives without discriminatory effect. Jeff Hawkins, a member of the

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PP2000 inspector group, stated, “the idea with PP2000 is that you communicate with the landlords and see what problems they were having so that you could formulate a better plan for compliance instead of just constant punishment for it. [W]e wanted to work towards compliance and towards everybody having a good working relationship instead of the constant enforcement, enforcement, enforcement. PP2000 inspectors thought the City could obtain better housing stock with a cooperative relationship with owners. PP2000 had an overall positive effect. From discussions with the PP2000 landlords, Hawkins observed that there needed to be a balance between the costs of doing repairs on properties in relation to attempts to keep rents affordable especially with the older rental properties. Hawkins recalls that owners informed the City that if code enforcement pushed too hard, there would be abandonment of the low-income properties.” APP. 422-427.
In another example of the District Court weighing the evidence, the City at one point in their brief cites the District Courts’ decision as to whether an email is evidence of discrimination or even establishes an inference of discrimination: “As the district court correctly decided, the Prince email is not evidence of discriminatory animus on the part of the City. Nor does the Prince email establish the requisite inference of unlawful discrimination under the McDonnell Douglas framework. Appellee’s Brief p. 29.
In an email from December of 2005, Jane Prince, legislative aide to council member Jay Benanav, sent an email to a constituent regarding the issue of the City’s code enforcement system unfairly targeting people of color:
“The issue of how a complaint-based system may unfairly target people of color is a huge one, and I'm not sure what we do to get at it. A new mayor and Toni's and Jay's influence in a new administration can sure help” (emphasis added). APP. 7.

Once again, in weighing the evidence, and failing to make all reasonable inferences in favor of the Plaintiffs, the District Court stated, “Prince also wrote that her office would set up a block meeting with the neighbors to address this concern. The e-mail chain demonstrates that the resident was concerned about the neighbors, not the City, targeting her on the basis of race. Further, it is clear from the e-mail chain that the City took the resident's concerns seriously and sought to resolve the issue. The Prince e-mail chain is not evidence of discriminatory animus on the part of Defendants. ADD 000017-08. Keep in mind that the City enforces this complaint-based system, performs inspections based on “internal referrals,” and also conducts “sweeps” of targeted neighborhoods.
In a memorandum written by Mr. Dawkins to his staff in November of 2004, Mr. Dawkins discusses the impact that the excessive consumption system has on people of color:

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“Perhaps a disproportionate number of folks getting EC bills are people of color; but if this is so, then maybe it's because a disproportionate number of families living in poverty are people of color” (emphasis added). APP. 8.

Once again, in weighing the evidence, and failing to make all reasonable inferences in favor of the Plaintiffs, the District Court stated, “Plaintiffs claim Dawkins's statement that "[p]erhaps a disproportionate number of folks getting [excessive consumption] bills are people of color, but if this is so, then maybe it's because a disproportionate number of families living in poverty are people of color" is evidence of discriminatory animus. The fact that Dawkins continues "[a]nd if this is so, then maybe we should seriously move forward on hiring someone to ... help this group find the resources to get the job done" belies Plaintiffs' argument. Rather than showing discriminatory animus, this memorandum is evidence of Dawkins's desire to reduce excessive consumption fees imposed on people of color by helping them find the resources to repair their properties.” ADD 000020. Once again, the District Court makes its own conclusion about the evidence based upon a single “maybe” statement by Dawkins to “help this group.” The District Court should have asked, why would this group need help? Why would a disproportionate number of folks getting excessive consumption bills be people of color? And finally, did Dawkins take any action to help this group? Did Jane Prince or the new administration help the concerned neighbor or take any action? “The smallest deed is better than the greatest intention - Anonymous.”
Once again, in weighing the evidence, and failing to make all reasonable inferences in favor of the Plaintiffs, the District Court stated, “Plaintiffs also offer a statement Dawkins made to Sara Anderson, a housing advocate. According to Anderson, Dawkins said that he "didn't want low-income individuals renting in the City." Dawkins made this statement during a meeting to discuss Steinhauser's properties attended by Dawkins, Steinhauser, and Anderson. No evidence suggests that this facially race-neutral statement arose from racial animus on the part of Dawkins.” ADD 000022. Again, keep in mind that, in the District Court’s own words, “The parties agree that African-Americans make up a disproportionate percentage of low income tenants in both private and PHA housing.” ADD 000012.
On August 11, 2004, housing law attorney Perry DeStefano, on behalf of Southern Minnesota Regional Legal Services, gave notice to the City about its discriminatory housing code enforcement by sending a letter to the city council president, Kathy Lantry, and cautioned the city about its discriminatory environment and attitude in housing code enforcement: “I was concerned that the City was using the Building Inspection Department to vacate a building of disabling and minority people. Every person in this building was a person in a protected class. They were either minorities or disabled people. Vacating the building by using the inspection

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department in this manner did have a disparate impact…I thought you should know that as a practicing housing law attorney who knows about discrimination law that there is exposure to a discrimination claim on this matter due to the way it was handled (emphasis added). “I would hate to lose the opportunity to collaborate together on this case as it does appear that we have got the owner's attention and were making great progress despite the “hide the ball" tactics that were being played by the inspector’s office.” APP. 9-11.
In Mr. DeStefano’s deposition, he was questioned about other instances, which Mr. DeStefano numbered at greater than ten, in which the City displayed its illegal and discriminatory environment and attitude in housing code enforcement. APP. 12-13.
Rather than focusing on Mr. DeStefano’s notice to the City Council of the discriminatory “hide the ball tactics” he witnessed and Mr. DeStefano’s opinion of the code enforcement process itself, the District Court focused on the specific details in the letter to the City Council, weighed that evidence, and determined that there was no discriminatory animus. ADD 000024.
Finally, the District Court weighs all of the evidence, with all reasonable inferences made in favor of the City, and not the Plaintiffs, by stating, “Much of Plaintiffs' evidence does not support a conclusion of racial animus toward African-Americans, and none of the evidence shows a specific link between the alleged racial animus and any challenged decision sufficient to support a finding by a reasonable finder of fact that an illegitimate criterion actually motivated a challenged decision. For these reasons, Plaintiffs have not supported their claims of disparate treatment using direct evidence.” ADD 000026.
On the Plaintiffs class of one argument, the District Court states, “Plaintiffs first contend that the City routinely closed housing code inspection files for PHA properties without action or a follow-up inspection. Plaintiffs cited a number of inspection records in support of this claim. The Court's review of the inspection records reveals that they fail to support Plaintiffs' allegation of inaction or no follow-up inspections.” ADD 000029.
In weighing and determining that certain inspection records fail to support Plaintiffs’ allegations, the District Court ignores the City’s inspection records provided by Plaintiffs of PHA properties that show no enforcement action taken by the City inspector upon learning that the property was owned by PHA: “Refer complaint to PHA – city owned” (Docket, 222-24, Ex. 121, STP 020037), “Appears vacant – close file” (Docket 222-24, Ex. 119, STP 020037), “this is PHA – complaint should be referred to them” (Docket 222-24, Ex. 121, STP 020056), “CSO referred this to PHA” (Docket, 222-26, Ex. 139, STP 020374), “Called B. Day, she’ll refer to Pub. Hsg. – Close” (Docket, 222-26, Ex. 139, STP 020375).

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II. City’s Brief Ignores Law Applicable to Spoliation of Evidence.
At the April 14, 2008, hearing on Plaintiffs renewed motion for sanctions the Court acknowledged that no showing of “bad faith” was required because the subject documents had been destroyed by Defendants after litigation was commenced. Nevertheless, the Court applied the “bad faith” standard in its Order. Docket, 192, pp. 7-10, 13, 14.
The Eighth Circuit’s decision in Stevenson v. Union Pacific, 354 F.3d 739, 745 (8th Cir. 2004) is directly on point. The Court in Stevenson determined that the district court’s order for an adverse inference instruction sanction based upon the ongoing destruction of records during litigation was supported by the court's inherent power even absent an explicit bad faith finding. 354 F.3d at 750. See E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 589 (D.Minn 2005) (no “bad faith” needed to sanction defendants where computer hard drives wiped clean after defendants aware of potential for litigation).
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. See Dillon v. Nissan Motor Co., 986 F.2d 263, 269 (8th Cir. 1993).
Here, after being sued by Plaintiffs, Defendants and other public officials and employees destroyed written communications related to their policies and actions and multiple years of housing inspection records. The Court made an egregious mistake in treating these shocking violations of the law and Court rules in such a light manner.
Plaintiffs submit that at the very least public defendants should be held to the same standard of preserving evidence applicable to private corporations before this Court. When considering the sophisticated and litigious nature of the Defendant City and the important policies of honesty and openness by government officials and employees in public matters, the Court seriously erred in not sanctioning Defendants for destruction of relevant evidence while these cases were before the Court.
Defendants had a duty at the commencement of the Steinhauser lawsuit in May 2004, to place a litigation hold on all relevant evidence that might be useful to Plaintiffs. Defendants failed to do so then or thereafter when they were sued in Harrilal and Gallagher in 2005. Discovery requests in Steinhauser were served on Defendants in November of 2004 requesting all inspection reports, records and “emails” of all officials and City agencies. Defendants continued to destroy e-data/e-mails and TISH reports thereafter until sometime in January 2007. How could that have happened without being intentional? During the filings of these three lawsuits, Defendant Dawkins was a lawyer who headed the main code department of the City. Defendants had a large full service law firm at their disposal. Defendants were familiar with Court rules due to the City’s vast experience with state and federal court

2:30 PM  
Anonymous Brief continued said...

actions. Yet the Court has held that such a failure to preserve the written communications of City officials and employees and housing inspection reports for the relevant time period prior to December 2005 was not in “bad faith”.
Even though Plaintiffs were not required to demonstrate Defendants’ “bad faith,” Plaintiffs submit that Defendants conduct rose to the level of “bad faith” or at least “gross negligence” 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. Defendants having “destroyed a significant quantity of documents, the exact extent of which is now indeterminable,” should not now be allowed to “claim that the information contained is irrelevant or unimportant.” Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn. 1989). Here, as in Capellupo, Plaintiffs were “deprived of significant amounts of potentially helpful information” especially evidence going to the issues of Defendants’ claimed immunity defenses and Plaintiffs’ claims requiring a showing of “intentional discrimination.” Id. at 552.
Magistrate Nelson determined that “sanctions for improper document destruction may not be imposed until ‘the moving party can demonstrate that they have suffered prejudice as a result of the spoliation’” (citing E*Trade, 230 F.R.D. at 592; and Stevenson, 354 F.3d at 745.
Plaintiffs submit that the Court improperly applied a heavy burden on Plaintiffs to demonstrate prejudice when the Court should have found prejudice from the nature and volume of the documents destroyed and from the time period the destruction took place (May 2004 – December 2005). Equally as important, the Court failed to account for the necessity of Plaintiffs showing intentional discrimination in support of many of their claims, which would best be shown by the written, electronic communications of City officials and employees – e-data/e-mails that were destroyed for all relevant time periods prior to December 2005.
The Court also 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 their claimed immunity defenses. The e-data/e-mails destroyed for the time periods prior to December 2005 relate directly to the knowledge, motive and conduct of Defendants on the issues of immunity. The nature and volume of destruction justifies a prohibition against Defendants’ motion for summary judgment.
The substantial and complete nature of the destruction of three years of TISH housing inspection reports and the e-data/e-mails of Defendants, City Council members and other key players for all periods prior to December 2005, the time periods relevant to Defendants’ claims of immunity and Plaintiffs constitutional and statutory claims, justifies a finding of “prejudice” to Plaintiffs from said destruction.

2:30 PM  
Anonymous Brief continued said...

See E*Trade, 230 F.R.D. at 592. The written communications of Defendants and City officials/employees on the issues of immunity defenses and intentional discrimination is similar to the only recording of conversations contemporaneous to an accident. Stevenson, 354 F.3d at 748. There is no substitute evidence available.
The District Court, contrary to the Court in Stevenson, placed too high of a burden on Plaintiffs to demonstrate prejudice. “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 (2d Cir. 2002).
The Eighth Circuit in Stevenson held that even though the destroyed track maintenance records were of limited use, where those documents had been destroyed after litigation was commenced, Plaintiffs had suffered sufficient prejudice to warrant an adverse inference instruction sanction. Id. at 749-50. Here, the 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, including e-mails regarding the complaint based system targeting people of color (APP 7), and the Bob Kessler memo to Human Resources about bending the rules of code enforcement to achieve certain outcomes (ADD 84). 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.
Because Plaintiffs’ provided evidence to the Court that during the course of this litigation that Defendants destroyed documents relevant to the claims of Plaintiffs and defenses raised by Defendants, including immunity defenses, made egregious misrepresentations concerning the destruction and therefore unavailability of other relevant evidence, and delayed and failed to produce large volumes of other “City documents” relevant to Plaintiffs’ claims, and this abusive conduct prejudiced Plaintiffs, Plaintiffs’ requests for sanctions should be granted, including an award of costs and attorney’s fees.
CONCLUSION
Summary judgment is supposed to be seldom granted in discrimination cases. Courts are not to weigh evidence at summary judgment. Yet, in order to grant summary judgment in this case, the District Court expressly interpreted comments and actions of City officials to be non-discriminatory. In encouraging the Court to affirm this “trial on the paper,” the City encourages this Court to make factual findings in its

2:30 PM  
Anonymous Brief conclusion said...

favor. Summary judgment practice in this jurisdiction has strayed so far from the standard articulated by the Supreme Court that de novo review of the record has come to mean a weighing of evidence to determine whether any particular judge is persuaded that the plaintiff should win at trial, even when facing a dissent on the panel. This case is filled with evidence from which a jury could conclude, as did Perry DeStefano, a long time St. Paul housing law attorney, and Bill Cullen, a long time St. Paul real estate investor, that discrimination occurred in the City’s code enforcement. Appellants ask the Court to reverse the grant of summary judgment and let the jury decide.

AASE, ENGEL & KIRSCHER, PLLC
Dated: July 31, 2009 By: s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
180 East 5th Street, Suite 255
Saint Paul, Minnesota 55101
T: (651) 209-6884

Attorney for Plaintiffs-Appellants Gallagher, et.al.

2:32 PM  
Anonymous Reposted due to copy errors said...

I corrected the copy errors in the brief. These are the comments I moved forward.

Anonymous said...
Put me on the jury!

10:11 AM

Anonymous said...
So it looks like if you call the police for help they will have a 2nd agenda when they get to your home. So much for helping people any more. They are there to help the political agenda of the city and the mobsters who run it.

10:17 AM

Anonymous said...
The first one was very good I thought and this convinces me far beyond any doubt whatsoever that the city acted illegaly. I hope they get their hats handed to them by the court.

10:42 AM

Anonymous said...
These writings are just consistent with everything that has been said by so many for so long. It will be great to see justice served in this case after it has been delayed for so many years.

1:01 PM

Anonymous said...
Well, we finally have the main argument from the plaintiffs concerning the summary judgment and why they think it should be reversed. It boils down to their belief that the court should not make any determination about if something is evidence or not. It appears to be the plaintiffs argument that just saying something is evidence makes it evidence and... because they say it is evidence they should be able to go to trial.

That is pretty much that brief in a nut shell.

Remember the Federal bench has listened to everything that the plaintiffs had and said, that isn't evidence. The plaintiffs admit that they take statements out of context to use as evidence and argue that the court should not put the statement in context.

So, if Dawkins would have said, "You think I am a racist?" The plaintiff would have presented the "evidence," that Dawkins said, ..."I am a racist." and wanted that used as evidence.

The court said, "no, if the entire statement is available we will look at the entirety," and these guys are saying you should not do that.

So, that is the bottom line.

They are asking the appeals court to basically say that you can't ever give summary judgement in favor of the government if anyone accuses it of anything without any evidence.

JMONTOMEPPOF

Chuck Repke

1:40 PM

2:41 PM  
Anonymous Anonymous said...

I think this shows Dawkins to be a hypricrite and a phony.

For years he claimed that he was a champion of the poor and downtrodden. Now he gets involved in 'code to the max' and removal of the 'lower tier' of people.

It shows the only thing Dawkins has ever been concerned about is personal political power, since that is the only common denominator.

4:04 PM  
Anonymous Anonymous said...

I guess one could think that what these people are saying is evidence but it appears from the documentation they have that they are referencing to facts rather than evidence and facts are for a jury to decide not a judge. It becoomes evidence after being presented and wieghed by a jury.

Also I never say anywhere in this or the previous papers posted here where the plaintiffs admit to taking statements out of context. They are complaining that the judge and city do this.

This doesn't look like and up and up summary judgement hearing and I don't blame them for wanting to appeal. If the next court is honest and fair I think it will go to trial as it should where a jury can decide what is evidence and what is not. That's not the job of the judge.

4:54 PM  
Anonymous Anonymous said...

"It shows the only thing Dawkins has ever been concerned about is personal political power, since that is the only common denominator."

and uhmmm....duh.....how long did it take you to figure that out? That's all the Democrats ever have cared about is power and control.

4:58 PM  
Anonymous Anonymous said...

And the federal bench is always right huh Chuck? They never ever do anything ploitical or make any mistakes do they? If that's the case why is there 2 layers of appeals over and above this particular federal bench? Federal whitewash is more like it.

5:11 PM  
Anonymous Anonymous said...

Nobody cares about a losing battle.
Give it up Frank !

6:03 PM  
Anonymous Anonymous said...

4:04
Dawkins has over 25 years of service helping and representing the disenfranchised and poor.
You must think that those people like living around filth and dangerous individuals. Forcing landlords to clean up their act, affects those who live right around them first. They are served first by code to the max. If you ever been to community meeting especially after a tragedy, you'd know that this is exactly what people are asking for-and more.

4:54
If you are going to comment on this, you should understand the process. The court of appeals makes its decision based on the record of the case established by the trial court. It does not receive additional evidence or hear witnesses. There is NO jury. Its a three judge panel.

4:58
You missed the lying us into war, illegal wiretapping of Americans, and the near bankrupting of the country by the Republicans right? You forgot how they used fear to stay in control until someone came along and gave the people HOPE to voter for? Not surprising.

5:11
Are you from this country or any Western country? WTF?
The courts have been set up like this since the beginning. Read the Judiciary Act of 1789 and Article III of the U.S. Constitution, you may find it enlightening.

6:03
Let him keep wasting their money. Better than him investing it in more property.


Eric

8:13 PM  
Anonymous Anonymous said...

Doesn't make any difference what people are asking for. They can't ask the city to go out and violate people's rights and have the city do it. I guess they can because the city did it but they are going to pay for it in the end.

8:17 PM  
Blogger Bob said...

Anonymous said...
Nobody cares about a losing battle.
Give it up Frank !

6:03 PM

My response;
Frank who? Frank Stienhauser? His case was last week!

8:44 PM  
Anonymous Anonymous said...

"Nobody cares about a losing battle."

You are either an idiot of the first class or a city employee. If the city is able to get away with the things they do to people it'll set case law in the entire country and send a signal to government and big business everywhere that civil rights laws are dead and they have the green light to destroy evidence any time they get sued. I know many people who care a lot about this losing case. You are just too dense to realize the implications of your stupid statement.

9:33 PM  
Anonymous Anonymous said...

Running a rental property business is not a civil right you bum.

However, living in units that are up to code in a structural and health manner IS a civil right.

You're weak in your spin.


Eric

10:14 PM  
Anonymous Anonymous said...

4:54 - my comment about the out of context is pulled right from their brief.

They object to the court putting their "evidence" in context.

"Consideration of context is the exercise of determining the exact meaning of the evidence. Determining the meaning of evidence is exclusively the purview of the jury. Yet the District Court in this case openly decided what comments made by City officials meant."

...get it?

This lawyer is suggesting like I said that if Dawkins said, "You think I am a racist?" And, the plaintiffs quoted it at "..I am a racist." That should be taken as "evidence" and should assist in moving the case towards the expence of a trial.

The court said, no you can't deliberately take things out of context and call it evidence when it isn't evidence.

Justice is suppose to be blind, not stupid.

JMONTOMEPPOF

Chuck Repke

11:05 PM  
Anonymous Anonymous said...

No one's saying it's a civil right you fool. What they're saying is that the government is violating the law in the way they enforce the housing code. And that dope you have for a buddy here flapping his jaw isn't much better than you. He can't even figure out "context" in the correct way. Why don't you guys go back to school and learn something about life and common sense and the common meaning of words?

11:44 PM  
Anonymous Anonymous said...

Eric said,

However, living in units that are up to code in a structural and health manner IS a civil right.

But that is only according to St. Paul's version of code interpretation, which is far more fanatical and political than code interpretation anywhere else.

6:08 AM  
Anonymous Anonymous said...

Whats your point Bob ? Franks case was last week, last year, the year before that and he still hasn't won a dam thing.
How does he pay all those attorneys fees ? Credit card ?

8:49 AM  
Anonymous Anonymous said...

11:44 - that is exactly what is meant by context - simplified so that even you can understand it, or so I thought.

This is not a case about legal or illegal code enforcement you boob. It is a RICO and a Federal Fair Housing Case. At least have some clue what we have been talking about for 4 years.

The court said in summary judgement that the plaintiffs didn't produce any evidence of anything that could remotely be seen as a RICO case or a Federal Fair Housing case.

This brief is saying that the court erred because the random out of context statements that they had from Dawkins and others that they tried to weave into an insane portrait of Dawkins as a rabid racist should be viewed only that way and that the court shouldn't actually look at entire statements when reviewing their "evidence."

They are saying that even if they have no evidence at all except for rumors and false claims, that the case should go to trial.

I don't think the appeals court will buy it.

It is pretty clear that there was only one motive for this case, and it was to try to cost the city money by wasting its time in court.

JMONTOMEPPOF

Chuck Repke

9:18 AM  
Anonymous LeagueWomenVoter said...

This comment has been removed by a blog administrator.

10:13 AM  
Anonymous Anonymous said...

You are the one that does not understand it Chuck but you will understand it very soon.

1:19 PM  
Anonymous Anonymous said...

To
JMONTOMEPPOF
Chuck Repke
He knows every judge and how they consider evidence.
Remember statements by Chuck at one time about the way they can treat a affair pointing at the city.
Now lets turn around bribes, and excepting a bribe for covering up a bribe by local county attorney
Would Chuck say, "that statement is out of context"?
Some days that could be true, but in the next governors race in 2010 will bring out every little nitch.

9:19 PM  
Anonymous Anonymous said...

9:19 - you know anyone who got a bribe for anything, go get them.

Nothing bothers me more than corruption in government.

Look, I am the guy that believes that government should be there to protect the little guy (as long as he doesn't threatened to hurt the secretaries, Bill).

This case isn't about corruption, its about a bunch of rich bullies that are use to getting their way and have enough money to throw around that they are willing to use to have the courts stop the city from protecting poor people.

So, I hope that the Court stands up for those vulnerable citizens and tells these clowns they should have put their money into repairing their property instead of their lawyers pockets.

JMONTOMEPPOF

Chuck Repke

8:11 AM  
Anonymous Anonymous said...

Hey no it all Eric how are those Nobama numbers at?And I thought you knew it all.What a failure as a president!



You far leftys are beginning to see that theres not to much support on your side and when people see what you guys really belive they run.



I'll predict this Obama done in 4 and in 2010 democrats will swept out of office in record numbers.



Brian

8:38 AM  
Anonymous Bill Dahn Voted said...

Bill Dahn 1st to Vote for St.Paul Mayor, calling for the Resignation of Chris Coleman and abolish DSI.

9:15 AM  
Anonymous Anonymous said...

You are one sick freak Chuck.

9:15 AM  
Anonymous Anonymous said...

It's all going to show that the 'end justifies the means' thinking of these politicos is bankrupt.

10:47 AM  
Anonymous Bill Dahn said...

This comment has been removed by a blog administrator.

12:29 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

5:40 PM  
Anonymous Sheriff Lori Kratze said...

This comment has been removed by a blog administrator.

7:34 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

5:57 AM  
Blogger Bob said...

THIS TOPIC IS "NOT" ABOUT BILL DAHN!

11:53 AM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

8:58 AM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7:28 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

8:17 PM  
Anonymous Comment Deleted said...

I beat you to it Bob ;)

Eric

9:39 AM  

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