Steinhauseretalv Cityof Saint Paul Appeal Brief


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Steinhauseretalv Cityof Saint Paul Appeal Brief

  1. 1. IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Appeal No. 09-1528 FRANK J. STEINHAUSER, III, ET AL., Plaintiffs-Appellants, v. CITY OF ST. PAUL, ETC., ET AL., Defendants-Appellees, Appeal From United States District Court For the District of Minnesota Civil No. 04-CV-2632 (JNE/SRN) PLAINTIFFS-APPELLANTS BRIEF WITH ADDENDUM John R. Shoemaker, Esq. SHOEMAKER & SHOEMAKER, P.L.L.C. 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 ATTORNEYS FOR PLAINTIFFS-APPELLANTS
  2. 2. STATEMENT OF THE CASE Plaintiffs filed suit in 2004 after Defendants' quot;forced the salequot; of Plaintiffs' older rental homes through illegal code enforcement and other retaliatory tactics including repeated false claims of code violations, illegal condemnations of homes and removals of quot;grandfatheringquot; protections through forced renovations to present code under quot;Code Compliance Certificationsquot; and fraudulent notice and fee schemes, all resulting in economic losses to Plaintiffs and displacement of quot;protected classquot; tenants. During this litigation, Defendants destroyed written communications and other electronic documents for the relevant periods, destroyed over 15,000 relevant housing inspection records and consistently played quot;hide the ballquot; during discovery. Despite the shocking spoliation of evidence, including evidence related to Defendants' quot;motive and intent,quot; Plaintiffs' motions for spoliation were denied by the District Court and summary judgment entered against Plaintiffs for their claimed failure to produce sufficient evidence. Plaintiffs' subsequent Rule 59(e) motion was denied. REQUEST FOR ORAL ARGUMENT - 45 minutes This case is one of three related cases consolidated on appeal from summary judgment. This Court's de novo review requires detailed review and analysis of the facts and oral argument is critical to a full understanding the facts.
  3. 3. TABLE OF CONTENTS STATEMENT OF THE CASE .............................................................. .i REQUEST FOR ORAL ARGUMENT ..................................................... .i TABLE OF CONTENTS .......................................................................................... .ii TABLE OF AUTHORITIES ................................................................................... .iii JURISDICTIONAL STATEMENT.. ...................................................................... 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW ..................................... 2 FACTS BEFORE THE DISTRICT COURT.. .......................................................... 3 SUMMARY OF THE ARGUMENT .................................................................... 19 ARGUMENT ........................................................................................................... 21 I. Summary Judgment Reviewed De Novo .......................................... 21 II. Reasonable Minds Standard ......................................................... 21 III District Court erred in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial... ......... 27 a. Fair Housing Act -Disparate Impact and Disparate Treatment - Section 3617 Retaliation ......................... 33 Constitutional Rights I Equal Protection ................................... 52 b. c. RICO ........................................................................... 55 IV. District Court Erred in Denying Plaintiffs Motion for Sanctions for Spoliation of Evidence ............................................................... 59 CONCLUSION ........................................................................................................ 61 ii
  4. 4. CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM ......................... 62 TABLE OF AUTHORITIES CASES Federal cases: Abels v. Farmers Cooperative Corp .• _259 F. 3d 910 (8th Cir. 2001) ................... 56 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................... 21, 22 Atlas Pile Driving v. Dicon Financial, 886 F. 2d 986 (8th Cir. 1989) ................. 56 CBDCS West, Inc. v Humphries, 128 S. Ct. 1951 (2008) .............................. 27 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................... .21 Costello v. Mitchell Pub. School Dist. 79,266 F.3d 916, 921 (8th Cir. 2001) ........................................................................... 54 Darst-Webbe Tenant Ass 'n Bd v. St. Louis Hous. Auth., 417 F.3d 898, 902 (8th Cir. 2005) ......................................................... 28 Dirden v. Dep 't ofHousing and Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996) ............................................................ 54 East-Miller v. Lake County Highway Dept., 421 F.3d 558,563 (7th Cir. 2005) ................................................................................ 34 E*Trade Securities, LLC v. Deutsche Bank AG, 111
  5. 5. 230 F. R. D. 582 (D. Minn. 2005) .......................................................... 2 First National Bank ofArizona v. Cities Service Co., 391 U.S. 253 (1968) ............................................................. 22 Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 747 (8th Cir. 2007) ......................................................... 53 Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 914 (8th Cir. 2007)....................................................................... ... 34,35 Griffithv. City ofDes MOines, 378 F.3d 733 (8thCir. 2004) ................................... 35 Handeen v. Lemaire, 112 F.3d 1339 (8th Cir. 1997) ................................ 21,56 Huntington Branch NAACP v. Town ofHuntington, 844 F. 2d 926 (2nd Cir. 1988) ............................................................................ 28,29 Int 'I Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) 990 F.2d 1051 (8th Cir. 1993)................................................................................... 34 Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007) .................................... 53 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................... 34 Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977) .............. 29 RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995) ........................................................... 22 IV
  6. 6. Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003) ....................................... 21 Shrum v. Kluck, 249 F.3d 773,777 (8th Cir. 2001) ..................................... 52 Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972) ................ 28 U S. v. City ofBlack Jack, MO, 508 F. 2d 1179 (8th Cir.197 4) (rehearing and rehearing en banc denied 1975) ......................................... .28 United States v. Diebold, Inc., 369 U.S. 654 (1962) ............................................... 22 Us. v. Leyden, 842 F. 2d 1026 (8th Cir. 1988) .......................................... 56 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) ...................... 53,54 Zakrweski v. Fox, 87 F.3d 1011 (8 th Cir.2003) ........................................... 21 Zubulake v. UBS Warburd LLC, 220 F. R. D. 212 (SDNY 2003) ..................... 2 2922 Sherman Ave. Tenants' Ass 'n v. District of Columbia, 444 F.3d 673 (D.C. Cir. 2006) ............................................................. 55 State cases City of Morris v SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008) ................ .36 215 Alliance, et al. v. Andrew Cuomo, et al., (Minnesota District Court No. 98-64, 1999) ............................................. 29 Statutes 18 U.S.C. § 1962(c), (d) ..................................................................... 56 v
  7. 7. 42 U.S.C. § 1981 ...................................................................................................... 56 42 U.S.C. § 1982 ............................................................................. 56 42 U.S.C. §1983 .............................................................................. 52 42 U.SC. §3604(a)-(b) ....................................................................... 27 Minnesota Statutes §16B.62 ............................................................... 36 Saint Paul Legislative Code Chapters 33 and 34 ......................................... 11 Rules Fed.R.Civ.P.56( e)(2) ......................................................................... 21 VI
  8. 8. JURISDICTIONAL STATEMENT The District Court had original jurisdiction over Appellants' claims under Title VIII ofthe Fair Housing Act, as amended, 42 U.S.C. Sections 3601, et seq., 42 U.S.C. Section 3613, under the Civil Rights Act of 1866,42 U.S.c. Sections 1981, 1982 and 1983, and under 18 U.S.C. Section 1964 (c) jurisdiction was therefore appropriate under 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over Appellants' appeal as a matter of right, under Fed. R. App. P. 3. The lower court granted summary judgment in an order dated December 18,2008 and entered final judgment on December 19, 2008. Appellants timely filed their Rule 59(e) motion to alter or amend the judgment on January 6, 2009. The District Court denied Appellants' Rule 59(e) motion by Order dated January 30, 2009. On March 2,2009, Appellants timely filed their Notice of Appeal under Fed. R. App. P. 4(a)(4), and served their Notice of Appeal on Respondents. This appeal is from a final Judgment of the Court. 1
  9. 9. STATEMENT OF ISSUES PRESENTED FOR APPEAL 1. Did the District Court err in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial? a. Fair Housing Act / Disparate Treatment / Disparate Impact / Section 3617 Retaliation Most apposite cases: Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972) U. S. v. City of Black Jack, MO, 508 F. 2d 1179 (8th Cir.1974) (rehearing and rehearing en banc denied 1975) Huntington Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988) Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977) b. Constitutional Rights Claims / Equal Protection c. RICO, 18 U.S.C. Section 1961, et seq. Most apposite cases: Handeen v. LeMaire, 112 F. 3d 1339(8th Cir. 1997) Atlas Pile Driving v. Dicon Financial, 886 F. 2d 986 (8th Cir. 1989) Abels v. Farmers Cooperative Com., 259 F. 3d 910 (8th Cir. 2001) U. S. v. Leyden, 842 F. 2d 1026 (8th Cir. 1988) 2. Did the District Court err in denying Plaintiffs' original and renewed motions for sanctions? E*Trade Securities, LLC v. Deutsche Bank AG, 230 F. R. D. 582 (D. Minn. 2005) Zubulake v. UBS Warburd LLC, 220 F. R. D. 212 (SDNY 2003) Kobrin v. University of Minnesota, 34 F. 3d 698 (8th Cir. 1994) Reeves v. Sanderson Plumbing, Products, Inc. 530 U. S. 133 (2000) 2
  10. 10. STATEMENT OF FACTS BEFORE THE DISTRICT COURT City Recipient of Federal Low Income Housing Funds - Affirmative Duty to Further Fair Housing Act and Fair Housing Choice As a recipient of federal Community Development Block Funds quot;CDBG,quot; the City must continually certified to the U.S. Department of Housing and Urban Development that the City will quot;affirmatively further fair housingquot; (AFFH) as well as identify quot;impediments [barriers1to fair housing choicesquot; within its jurisdiction and take appropriate action. APP1471; generally, APPI442-1447. The City certifies each year to HUD that quot;The jurisdiction will ... conduct an analysis of impediments to fair housing choice with the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard.quot; Id quot;City's obligation to [AFFH} applies to all housing activities in its jurisdiction whether publicly or privately funded.quot; APP1447. City Duty to Conduct Analysis of Impediments and Barriers to Fair Housing Choice As part of the HUD required quot;Analysis ofImpediments to Fair Housing (AI), the City claims that it quot;continually evaluates its housing policy and housing practices to determine whether the City has deliberately or inadvertently prevented people from living where they choose.quot; APP 14 70 (emphasis added); 1471. The City claims that it 3
  11. 11. promotes quot;fair housing choice for all persons.quot; APP1468. CDBG funds are provided to Block Clubs, District Councils, and Neighborhood Development Corporations. APP 1517 -18. Caty Royce testified that , these non-governmental organizations working closing with and being provided funds from the City, each took part in selecting rental homes for inclusion on quot;problem propertiesquot; lists for heavy code enforcement under the direction of Kelly and Dawkins. APP1253. The City's 2003 Consolidated Plan Update states that the CDBG funds City quot;code enforcementquot; efforts, City activities related to quot;rental rehabilitation,quot; quot;vacant buildings,quot; quot;demolitionquot; of housing, and other fair housing related activities. APP1520-23. City regulatory policies and building code are barriers to fair housing In 2000, the City acknowledged that its regulatory policies, including what some may consider quot;above standard' development requirements, can pose a barrier to affordable housing - the City cited its own building code as one such barrier. APP1525. The City stated that The Metropolitan Council had determined that Cities regulations, ordinances and fees as well as administrative practices may exceed 4
  12. 12. reasonable protection of public health and safety and contribute to housing costs. Id. Saint Paul promised that it quot;will continue examine its enforcement of the building code to assess whether new construction or housing maintenance standards are most appropriate for houses being moved to a new site.quot; APP1525. City knew older homes not compliant with code but still habitable Councilmember Mike Harris stated the proposed ordinance quot;would impose overly strict standards for aging properties that may be adequate, if not up to code.quot; APPII73. The City long ago acknowledged that, quot;There are few properties in Saint Paul where a determined inspector could not find a violation of some City ordinance. APPl175 (City's Chronic Problem Property Case Study, 2002). Starting in the fall of 2002, the City began to require owners of older rental homes to renovate their homes to quot;present codequot; under a program the City called, quot;Code Compliance Certification,quot; a process whereby the City illegal removed grandfathering protections applicable to the older properties under the State Building Code. APPI037,1039,1075,1117,1138 (affidavit and four written reports and qualifications of Don Hedquist, a Certified State Building Official, Plaintiffs' liability expert). 5
  13. 13. Abandonment of Inner City Older Homes There is significant evidence of wholesale abandonment of inner city homes due to the increase in costs to own such homes to meet the City's heightened standards. On March 31, 2003, there were 367 listed vacant homes in the City of Saint Paul. APPl176. By November 1,2007, the number of vacant homes had dramatically risen to 1466. APPll77. Don Hedquist reviewed the City's records and voluminous other evidence and concluded in his June 2, 2008 report, that quot;Mandatory renovations under the City's quot;code compliance inspectionquot; process, significantly increased the costs to providers of housing to the point where forced sales and abandonment occurred. The heightened code standard has contributed to the high number of vacant properties currently in the City.quot; APPl120. City knew heavy code enforcement would lead to wholesale abandonment Dawkins, as Director of Code Enforcement, and former state representative from the inner city who focused on housing related legislation at the State Capitol from 1987 to 2002, acknowledged that quot;in most cities a balance has to be struck between aggressive enforcement to preserve livability and over-zealous enforcement potentially leading to wholesale abandonment of properties or the inner-city.quot; Docket 211-21, p. 1; 211-22, p. 17 [05-cv-01348]. quot;All I know is that! read a study that was in ajournal 6
  14. 14. about stepped up code enforcement in Baltimore and that it had tipped the scales so that there was more abandonment of properties than the city had thought or wanted to have happen.quot; Id. City Minimum Maintenance Code Chapter 34 and Section 8 standard In 1994, the City proposed to PHA, a long term partner, that the City's Property Maintenance Code (City Code) be substituted for the federally minimum Housing Quality Standards (HQS) applicable to federally subsidized, Section 8 quot;low incomequot; housing in the City. Docket 224-12, p. 11 [05-cv-OI348}. During this process, the City and PHA discovered that the City's code was actually quot;more stringentquot; 82% of the time when compared to the federal code. Docket 224-12, p. 4-10. In 1995, the City was informed that BUD tightly controls the variations in HQS by local jurisdictions due to the adverse effect a higher local housing code can have on the availability of affordable housing. Docket 224-12, p.II. Al Hester of PHA informed City personnel on the City's Housing Coordination Team that quot;[LJocal HUD staff feared more stringent standards would reduce the supply of affordable housing for Sec 8 holders. Id. 7
  15. 15. Defendants' quot;Code Compliance Certificationquot; to quot;Present Codequot; in Violation of State Building Code Don Hedquist's Expert Testimony In opposition to summary judgment, Plaintiffs' presented the Court with four reports from liability expert Don Hedquist, a certified Minnesota Building Official since 1973. APPl037,1039,1075,1117,1138. Mr. Hedquist is qualified to provide his opinions based upon his significant experience since 1975, including as a former Minneapolis building inspector and supervisor, carpenter, construction company owner, college instructor, owner and manager in the low-income housing market, and Truth in Housing inspector. APPl099-l116. Hedquist, has issued four reports since 2006 in the consolidated cases before this Court. APPI039,1075,1117,1138. Hedquist's opinions were unopposed by the Defendants at summary judgment and the District Court failed to discuss Mr. Hedquists reports. Hedquist's supplemental report June 2, 2008 (APPll17) stated that quot;The City required Plaintiffs and many other landlords to make substantial changes to their rental properties that were not mandated by the State Building Code or by the City's minimum maintenance code.quot; APPlll8. Hedquist stated that the City's quot;code compliancequot; certification process was a quot;mandatory renovation process where 8
  16. 16. grandfathering protections were eliminated and current codes were applied.quot; APPll18. Hedquist also opined that quot;Mandatory renovations under the City's quot;code compliance inspectionquot; process significantly increased the costs to providers of housing to the point where forced sales and abandonment occurred. The heightened code standard has contributed to the high number of vacant properties currently in the City.quot; Appl120. City Inspector Michael Kalis admitted City Code Compliance Certification process was to quot;present codequot;. APP. 887-1036. Johnson called inspector Kalis to inquire why Johnson's 469 Whitall home was posted by Kalis as quot;vacantquot; when the home was in fact occupied. Kalis told Johnson, quot;Too badquot; and stated that Johnson would need a quot;full code compliancequot; - he would need to quot;complete an upgrade of the home to current building standards in order to reoccupy the home.quot; Id. After Meysembourg's duplex was condemned in early 2003, and a Code Compliance Certification demanded, he was told by City LIEP officials that quot;code compliancequot; inspections were to present or current codes, which required all major systems in a rental building to be brought up to current code requirements, thereby removing grand-fathering protections of state law. APP657-766. NHPI Rules and Procedures August 1, 2002 adopted by Dawkins with 9
  17. 17. authority of the City Council provided inspectors with authority to issue condemnation orders on homes in the City as follows: quot;When Do We Condemn A Buildingquot; ... quot;Whenever a structure is deemed dangerous or unfit for human habitation, we will order the structure vacated, sometimes immediately, but usually after a short compliance period has expired and the occupants are given 1 to 30 days to find alternative shelter. Condemnation occurs when life-safety violations exist, such as fire hazards, unsanitary conditions, severe rodent and pest infestation, lack of basic facilities, faulty construction or dilapidation. Ifprincipal violations are corrected prior to the vacation date, the order to vacate will be lifted. If principal violations are corrected after the vacate date, once corrected the dwelling can be reoccupied. quot; APP. 1179; Docket226-48, p. 36 [2002 NHPl Rules, Docket 226-48, p. 27-38]; see also Docket 226-47, pp.1-3 for Steve Mark Aff. and Exh. quot;Bquot; documents produced to Steve Mark by City of Saint Paul, Bates050023-050369, with Andy Dawkins assistance. The 2002 NHPI Rules did not provide authorization for Dawkins, Lippert, Martin, Magner, and other inspectors to condemn homes for less than quot;severe rat and pest infestation, or to add additional conditions for removal of the quot;vacate orderquot; upon condemnation including keeping the property off-line following correction of the quot;principal itemsquot; for extended periods of time for a forced renovation to quot;present codequot; under the Code Compliance Certificationquot; process. Docket226-48, p. 36. The Rules failed to state that quot;due to the number of violationsquot; a Code Compliance Certificationquot; process may be required of the 10
  18. 18. owner, or that under such a process, the Defendants would illegally remove the owner's grandfathering rights, keep the property off-line for extended periods of time while the owner had to arrange for contractors to renovate the home to quot;present codequot;. Id. The City responded to Steve Marks' Request for Admissions, admitted that the NHPI Rules were official NHPI policy and Dawkins did not need City Council approval. Docket 226-48, pp.14. The City adopted the State Building Code as referenced in Chapter 34 of Legislative Code [Sec.34.07] a chapter titled, quot;Minimum Property Maintenance Standards for all Structures and Premisesquot; (hereinafter quot;City Minimum Standardsquot;). Docket 226-13, pp. 6-9 (Chapter 33 - adoption); APP. 1189. The City recognized in many specific references in its quot;Minimum Property Maintenance Standardsquot; the State Building Code grandfathering protections, which the City phrases as, quot;maintained in accordance with the Building under which it was originally constructed.quot; APP. 1189 [e.g., Sec. 34.09(2); 34.10(2)(3)]. Senior inspector Harold Robinson explained quot;grandfatheringquot; protections as only requiring an existing owner to meet current codes quot;When they remodel.quot; APP1206,1211. Robinson testified that if an inspector condemned a building and 11
  19. 19. did not refer it right away to vacant buildings, the owner could get the permits, complete the repairs and reoccupy the building quicker and not have a quot;Code Compliancequot;. APP1210. Bill Cullen, a realtor, real estate investor and Section 8 housing provider, testified that he had considerable experience in purchasing homes in the City and had experienced the City's quot;Code Compliancequot; Certification process, a very expensive process that he expected to cost him at least $40,000 depending on what was written up by inspectors. APP1214-1216. Cullen testified that in his discussions with Dawkins that Dawkins knew that the Code Compliance Certification process was a substantial renovation of an older home and at times would have a significant financial effect in an adverse way on rental property owners. Cullen 212-13. Catv Royce, a tenant advocate from Community Stabilization Project testified that most homes in the City could not meet pass the onerous City's quot;Code Compliancequot; requirements. APP1217. Royce opined that the Code Compliance requirement on older homes was very problematic in loss of affordable housing due to the costs ofthe rehabilitation not being economically viable. APP1229. Royce with considerable experience in low-income housing, believes that some of the 12
  20. 20. vacant rental homes in the City are a result of the Code Compliance requirement and landlords not being able to cash flow the rentals due to the costs of the Code Compliance. APPl229-30. Royce testified that Code Compliances were having harmful effects on tenants. Id. Royce testified that she knew of no source of funding assistant made available to the low-income landlords to meet the Code Compliances Id. Royce testified that the City's code compliance renovation requirement for older rental homes quot;requires additional costs that frequently push it over the edge of economic viability, essentially for the small rna-and pa guys and gals.quot; APP1235. Royce said that she had seen examples of tenants she was representing lose their housing in homes subject to the City's Code Compliance renovation requirement. Id. While the rental property was being renovated, the home was unavailable for the families for significant time periods and that the code compliance renovation decreased the number of available rental units in the market. Id. Royce was against demanding a Code Compliance renovation requirement in City civil actions against landlords because a significant number of rental properties that would normally be at safe and decent, became economically unviable and leading to abandonment APP1248. Royce was in favor of simply requiring the landlord to repair the principal code violations. quot;The rather recent (five years) 13
  21. 21. strategy of requiring the highest level of rehab, I think they call it code compliance, on a vacant building, even if it's only been vacant for a short amount of time is not a policy conducive to preserving our existing stock of housing. It is [a] policy that should be analyzed as people look over this issue in general. Not many of our homes, including mine, could withstand the level of scrutiny created by this code compliance inspection.quot; APP1254. Royce testified that Dawkins knew ofthese concerns and that Dawkins knew the code compliance inspection requirement was a higher level of rehabilitation to an older property and that Royce informed Dawkins of her concerns. APP1254. Senior Inspector Lippert Dick sometimes required quot;Code Compliance inspectionsquot; conducted by the City's LIEP office before re-occupancy was allowed, and at other times, he either not require a quot;Code Compliancequot; inspection, or he waived the requirement. APP1257-1285. In all examples, Lippert testified that life safety issues were present to justify the condemnations, but in some cases he only required the quot;principal violationsquot; to be corrected before re-occupancy, when in other cases, with fewer number of violations, he added a requirement that the owner obtain a LIEP Code Compliance Certification inspection. APP1258-60. Plaintiffs' counsel presented multiple exhibits to Lippert during his deposition from his 14
  22. 22. condemnations between May and August 2001 and between 2002-2003 and inspector notes and legislative hearing notes. APPI257-1285. Defendants Martin, Dawkins and Lippert demanded Steinhauser, Meysembourg, Brisson and Johnson complete the Code Compliance Certification process. APP460-656 (Steinhauser); APP 657-766 (Meysembourg); APP767-827 (Brisson); APP887-1 036 (Johnson). Plaintiffs detail in their affidavits the false claims made by Defendants as part of the scheme to strip rental properties of the grandfathering protections of the State Building Code and to in many other ways increase Plaintiffs' costs, harass and displace their protected class tenants, force Plaintiffs from the low-income rental business and obtain the properties or vacant lots following demolition. Id. Adverse impact on Plaintiffs' tenants - not just the cost to Plaintiffs LaChaka Cousette, an African-American tenant renting from Steinhauser experienced displacement from her home and losses after Martin, Keohnen and Dawkins condemned her unit for minor issues. APPI556-59. She recalls Martin and Keohnen nitpicking things and that she was happy living there and there was no reason to condemn her unit. They created a big list of problems out of nothing during their inspection. rd. She and her two minor children were forced out of their 15
  23. 23. home and experienced great difficulties finding replacement housing. Id. After losing her permanent home with Steinhauser, Cousette had to live in more than ten different places including shelters, an experience she recalls as a nightmare. Id. Debbie Doolittle and her disabled boyfriend were renting 941 Cypress from Mr. Baudette when Steve Johnson purchased the property in late 2002. APP1286- 87. Ms. Doolittle had two teenage children also living with her at the time Inspector Lippert condemned the home for minimal items. APP1288. Lippert arrived at the home after City police raided the home, arrested Doolittle's boyfriend and took him away. APP1291. No charges were filed against and he was released. APPI288,1296. Doolittle described the raid and the rough treatment she and her disabled boyfriend and children received by the police. APP 1289-91,1294-96. Doolittle testified that her home was clean and picked up and that there were no access problems or over storage problems in the basement on the night of the raid [APPI291-95], contrary to Lippert's Condemnation Order on the home. APPI033. Prior to the raid nothing was piled next to the furnace or water heater. APP1300. Doolittle described how the police tore the whole home apart and then Lippert condemned the home giving her family 24 hours to vacate the home. APP1296- 7;1298-9;1300-02. After the raid Doolittle found the basement a mess from the 16
  24. 24. police opening her boxes-it took her about 3 hours to repack. APP1301-02. Doolittle then had to move in with her boyfriend's mother for over three weeks in cramped conditions. APP 1302-03. Doolittle was able to obtain another rental home from Johnson about 3 weeks later. APP1303. Doolittle said there was a weedwacker in the kitchen her boyfriend was working on just before the raid but it was not apart. Id. By the time the inspector arrived, Doolittle was confused and shook and police officers were still present. APP1304. Just before the raid, there were no excessive storage in the home and if someone wanted to inspect every room they would have had access contrary to Lippert's claims. Id. Doolittle said there was no reason for condemning the home; quot;they were just interested in getting us out of our home.quot; APP 1305. Johnson located a place for Doolittle and her family to rent at 390 Sherburne and after she and her disabled boyfriend moved in, City inspectors towed three cars with current tabs that were operable and Martin and Keohnen were nitpicking everything at the property; Johnson stood up to the inspectors for her family. APP1306-10. Code inspectors were harassing Doolittle and her boyfriend but ignoring poor conditions in neighboring properties. Id. Doolittle says that she had excellent experience with Johnson as a landlord. API3ll-l2. 17
  25. 25. Leo Sider, a Section 8 disabled tenant of Brisson received approval to reside in Brisson's 297 Burgess duplex in April 2003 following a Section 8 HQS inspection. APP1313-17. About three months later, Martin, Koehnen and Dawkins condenmed the home and he lost his home there when there was no reason for the condemnation. Docket 217-7, p.11-13. Sider described the condition of his unit in positive mauner the entire time he lived there. APP. 1314-22. Sider experienced difficulties and frustrations in losing his home from July to September 2003. Docket 217-7, p.11-13. He was able to move back into 297 Burgess after the City sent Brisson notice of approval. APP 1314-22. Caty Royce testified that minorities from outside Minnesota were having an extremely difficult time locating affordable housing in the City. APP1217, 1236. The Saint Paul Public Housing Agency (PHA) has admitted that any loss of federally subsidized housing would adversely affect the availability of affordable housing. APP1323-25 [quot;Attachment Nquot; to PHA Five Year Plan]. PHA staff notified HUD that quot;none oJthe PHA 's developments are appropriateJor conversion because any such conversion would adversely affect the availability oj affordable housing in St. Paul.quot; APP 1323. PHA states that even conversion of 1 or 2 units in scattered site homes would quot;adversely affect the availability oj affordable 18
  26. 26. housingquot; in the communityquot;. APP1325. PHA provides the statistics 10-21-04 on waiting lists for protected class and lists African-Americans (61 %), Whites 26%, for PHA housing with limited turnover with 91 % in the extremely low income level. Docket 226-40, p14. Section 8 housing as 10-21-04, with 62% Blacks and 30% Whites with 86% at extremely low income, and low turnover with Section 8 list closed as of 11-2002. Docket 226-40, p.15. In 2005, PHA listed the strategies for addressing the shortage of affordable housing such as (1) maximize the number of units by minimizing the number of units off-line; (2) reducing the time to renovate PHA units, (3) maintaining or increasing Section 8 lease-up rates by marketing to owners, (4) apply for additional Section 8 units. Docket 226-40,p.16[PHA Five Year Plan]. SUMMARY OF THE ARGUMENTS The District Court's Order granting summary judgment to the City shows a total disregard for the summary judgment standard. Throughout the Order, the Court takes the place of the jury, weighs the evidence, selects which evidence will assist the Defendants in what certainly appears to have been a quot;predeterminedquot; decision, and which evidence to simply ignore, and then dismisses every claim of Plaintiffs. 19
  27. 27. The Court mischaracterizes and misstates the evidence, and often times sets forth completely false conclusions. In light of the abuse by the Court at this stage of the proceeding, Plaintiffs have no confidence that the Court will ensure a fair trial of their claims. If the standard for summary judgment would have been properly applied, the facts presented by Plaintiffs, with all inferences drawn in favor of Plaintiffs, would have resulted in this case proceeding to trial. Plaintiffs presented evidence from which a reasonable jury could conclude that Defendants violated the Minnesota State Building Code, Federal Fair Housing Act, Sections 1981 and 1983 and the RICO Act, by their illegal schemes to wrongfully deprive Plaintiffs oftheir property and tenants of their homes, through a combination of illegal removal of quot;grandfatheringquot; protections on older rental homes through unjustified condemnations, illegal demands for renovations to quot;present code,quot; application of other heightened standards and illegal notice schemes, all predictably resulting in disparate impact on quot;protected classquot; tenants and hanning Plaintiffs. 20
  28. 28. ARGUMENT I. Summary Judgment Is Reviewed De Novo. This Court reviews a district court's summary judgment order de novo. See, Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003); Zakrweski v. Fox, 87 F.3d 1011, 1012 (8 th Cir.2003). II. quot;Reasonable Mindsquot; Standard. Summary judgment may not be granted if quot;reasonable minds could differ as to the import of the evidence.quot; Anderson v Liberty Lobby, Inc., 477 U.S. at 250, 251 (1986). District Court's Misapplication of the Summary Judgment Standard The movant for summary judgment quot;bears the initial responsibility of informing the district court of the basis for its motion,quot; and must identify quot;those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.quot; Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Ifthe movant satisfies its burden, the nonmovant must respond by submitting evidentiary materials that quot;set out specific facts showing a genuine issue for trial.quot; Fed.R.Civ.P.56(e)(2). Where a moving party fails to meet its initial burden, quot;the onus never passe[s]quot; to the non-moving party. Handeen v. Lemaire, 112 F.3d 1339, 1346-7 (8th Cir. 1997). 21
  29. 29. In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmovant. Anderson, 477 U. S. at 255; Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). A genuine issue of material fact exists if: (1) there is a dispute offact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine in that a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The issue of material fact required to proceed to trial, is not required to be resolved conclusively in favor of the non-moving party; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury to resolve the parties' differing versions ofthe truth. See, Anderson, 477 U.S. at 248-49 citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288- 89 (1968). The United States Supreme Court has many times reiterated that the trial court's sole function on summary judgment is to determine whether disputed fact issues exist; it may not weigh the evidence and determine the truth ofthe matter. See Anderson. 477 U.S. at 2510-11; United States v. Diefold, Inc., 369 U.S. 654 (1962). 22
  30. 30. The District Court ignored the summary judgment standard on all of Plaintiffs' claims, and without exception on each of Appellants' claims, the Court weighed the evidence, draw conclusions from the evidence always in favor of the Defendants. The Court in selecting certain statements of Plaintiffs and third parties for discussion, analyzed the quot;contextquot; of the statements and in each example drew all inferences in favor of the Defendants. The degree to which the Court used this approach against Plaintiffs in direct violation of the standard set by the U.S. Supreme Court is absolutely shocking. Unfortunately for Plaintiffs and other members of the public who necessarily enter the federal court system in search of justice and accountability for abuses of power by state and local public servants, this kind of disregard for the standard at summary judgment has become so common that it endangers the very fabric of our democratic society and certainly deprives plaintiffs of their right to a trial by jury under the United States Constitution. An example of the misuse of the standard here can be found upon brief review ofthe actual facts available for a jury. The Court makes passing reference to Plaintiffs' claims that the City'S demands for quot;Code Compliance Certificationsquot; are illegal (ADD00005): quot;At times, properties not in compliance with the housing code were required to 23
  31. 31. undergo a quot;code compliancequot; inspection by the City's Office ofLicense, Inspections, and Environmental Protection, which would evaluate the building's structure, plumbing, electrical condition, and mechanical condition. quot; The Court also admitted that quot;Bringing a property up to the current housing code rather than the quot;as builtquot; housing code would increase the cost of compliance. ADD000039. The Court then states, quot;Plaintiffs rely on Meysembourg's affidavit as a 'particularly egregious example' of the City's intent to 'force as many illegal code compliances as possiblequot;'. Id. At that point, the Court begins to misstate the evidence and abuse the summary judgment standard in order to isolate Meysembourg's experience and claims, and then dismiss the evidence of Defendants direct violation of State law; the Court footnotes its incorrect assertion that quot;Plaintiffs offered no facts specific to Steinhauser and Brisson.quot; ADD000039. Steinhauser and Brisson, like Meysembourg and Johnson, presented detailed affidavits on personal knowledge with supporting exhibits buttressing their sworn statements (uncontested by the Defendants in their Reply) detailing Defendants illegal demands that Plaintiffs' properties undergo a code compliance inspection certification process to quot;current codequot; or quot;present codequot;. Steinhauser Aff., APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887-1036. Each of these Plaintiffs detailed the facts of Defendants' violation of the State Building 24
  32. 32. Code and City Minimum Maintenance Standards of Chapter 34 of the Legislative Code by quot;Code Compliancequot; to quot;currentquot; or quot;presentquot; codequot; that removed grandfatheringquot; protections provide by State law and City code for existing buildings. Plaintiffs' Joint Memorandum of Law opposing summary judgment included numerous arguments of Plaintiffs claims concerning the Defendants violation of State law through the quot;Code Compliancequot; certification process. Docket 258,p.2,38,39,41,56-7[04-cv-2632]. The Defendants' Reply Memorandum and its counsel's oral argmnent, failed to mention or contest these claims and evidence. Docket 263 [04-cv-2632]. Moreover, the Court completely ignored the uncontested testimony with four expert reports by a Minnesota State Building Official who has spent over three years looking at Plaintiffs' evidence and has concluded that the actions of Defendants challenged by Plaintiffs related to the quot;Code Compliance Inspection Certificationquot; process, is in violation the State Building Code. APPll17-18,133-34. The Court dismissed Meysembourg's quot;Code Compliancequot; inspection claims based on an apparent exhaustion of remedies requirement that is not required under the Fair Housing Act. ADD000040. Another egregious example of the Court turning the summary judgment 25
  33. 33. standard on its head is the way the Court looked at the evidence in a light most favorable to Defendants on Plaintiffs claims that the City had continued a working relationship with PHA after abandoning that same working relationship with so called quot;problem landlordsquot; under PP2000, a City code enforcement program inspectors called successful. The Court claiming to have reviewed the record, dismissed Plaintiffs claims that evidence showed the City had closed inspection files for PHA properties without appropriate action or follow-up inspection. ADD000029. Inspector Seeger testified while reviewing extensive City inspection records of PH A properties that City inspectors repeatedly failed to conduct interim and final safety inspections on permits for replacements of gas lines, furnaces, roofs and other components in PHA homes. Docket 220-6,p.l, 220-7,pp17-25. Plaintiffs also presented substantial evidence from City records, that PHA was slow to take action when its tenants made complaints of mold, mice and rats and PHA frequently had serious issues of non-compliance with City codes including multiple re- inspections, frequently requiring third and fourth re-inspections. APP 115 8-1172. The Court also failed to consider Plaintiffs' submissions of City's Truth-in- Sale of Housing (nSH) inspection reports for PHA scattered site homes showing 26
  34. 34. PHA rental homes had numerous deficiencies under the City's Minimum Maintenance Standards. APP23-105. The Court again twisted the evidence in favor of the Defendants. Because of space limitations here and many other matters necessary for discussion, Plaintiffs conclude that these are mere examples of the abuse of the summary judgment standard by the Court. III. Did the District Court err in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial? a. FAIR HOUSING ACT CLAIMS Plaintiffs have presented evidence of disparate impact due to Defendants' violation of the Fair Housing Act Section 3604 of the Fair Housing Act (FHA) makes it unlawful to refuse to sell or rent to any person or discriminate in the terms, conditions, or privileges of sale or rental of a building on the basis of race, color, religion, sex, familial status, or national origin. 42 U.S.C. §3604(a)-(b). The FHA also makes it quot;unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected byquot; section 3604. Id. §3617. See CBOCS West, Inc. v Humphries, 128 S. Ct. 1951 (2008) (summary judgment analysis under 42 U.S.C. § 27
  35. 35. 1981 which encompasses an action claiming retaliation, involving post-contract and also parallel to property rights). Plaintiffs claim that in many cases Defendants retailitated against them for renting to quot;protected classes,quot; for challenging the Defendants' heavy-handed code enforcement, abuses of power, and violations of law, and for bringing claims in this Court to vindicate their rights and hold Defendants accountable for their abuse of public trust and authority. Plaintiffs have shown a per se unlawful policy facially neutral policy results in, or can be predicted to result in, a disparate impact on protected classes compared to a relevant population. See Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 902 (8th Cir. 2005). If Plaintiffs make that showing, Defendants must demonstrate that the objected-to policy has a quot;manifest relationshipquot; to legitimate, nondiscriminatory policy objectives and quot;is justifiable on the ground it is necessary toquot; the attainment of those objectives. rd. If Defendants make that showing, the burden shifts back to Plaintiffs to show that a viable alternative means is available to achieve the legitimate policy objectives without discriminatory effects. Id. at 902-03. See also Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972); U. S. v. City of Black Jack, MO, 508 F. 2d 1179 (8th Cir.l974)(rehearing and rehearing en banc denied 1975); Huntington 28
  36. 36. Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988); Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977). In 215 Alliance, et al. v. Andrew Cuomo. et aI., (Minnesota District Court No. 98-64, 1999), Judge Donovan Frank determined that quot;in light ofthe general crisis in availability of housing and the more-acute specific crisis of these disadvantaged demographic groups,quot; HUD's approval of a low-income landlord's termination of project-based Section 8 contracts was contrary to federal requirements APP1390, 1407. Judge Frank noted that quot;HUD has recognized that a disproportionate number oflow-income tenants are minority, elderly, or disabledquot; and quot;minority, elderly, and disabled tenants fact significant hurdles in locating housing above and beyond the mere shortage oflow-income housing. Despite the nominal protection of federal laws, minority tenants continue to experience discrimination by landlords and hostility from non-integrated communities .... Any policy which results in the displacement of low-income tenants will disproportionately affect these particular low-income citizens whose housing options are especially constrained.quot; APP1407 (citing Affidavit ofJohn Cann and HUD position papers - see APP 1409. In its Five Year Plan for 2005, PHA admitted that there would be an adverse 29
  37. 37. affect on the availability of affordable housing in the community from conversion of only 1 or 2 units in scattered site housing. APP 1325. Plaintiffs presented the affidavits and deposition testimony of their tenants displaced by Defendants' illegal code enforcement showing that the basis of Plaintiffs' disparate impact claims were not merely quot;costquot; driven, but actually were based on the tenants' right to housing choice. Caty Royce testified that minorities from outside Minnesota were having an extremely difficult time locating affordable housing in the City. APP1236. City Admissions of disparate impact The City stated, quot;While the City does not collect data related to the race or ethnicity ofthose households with identified housing needs, it would not be surprising if those data revealed a disproportionate impact on persons ofcolor.quot; APP 1442-43. quot;The number ofnew immigrants ... coupled with historic settlement patterns thatfind racial and ethnic communities more heavily concentrated in central cities and the reality of racial and ethnic bias in the housing market all contribute to such a differential impact.quot; APP 1443. In 2000, the City acknowledged that African-Americans were disproportionately represented in emergency shelters (A-A 52%; Hispanics 16%, Whites 33%) and 30
  38. 38. transitional housing indicating that they were most likely to be without any housing at all. APP1446. Protected class members tend to have lower incomes, less expensive rental units/homes - more likely to be renters. APP 1449. HUD CHAS Data HUD's 2000 Census quot;CHASquot; data for St. Paul showed that among renters in the City, 37.1 % of White renters had housing problems (cost burdens of greater than 30% of income and/or overcrowding or without complete kitchen or plumbing facilities) while 53.9% of Blacks had such problems, and Hispanics had 57.5% Black family households had 59.3% and Hispanics families had 64.9%. APP1326-1332. PHA provides the statistics 10-21-04 on waiting lists for protected class and lists African-Americans (61 %), Whites 26%, for PHA housing with limited turnover with 91 % in the extremely low income level. Section 8 housing as 10-21- 04, with 62% Blacks and 30% Whites with 86% at extremely low income, and low turnover with Section 8 list closed as of 11-2002. Docket 226-40, p2,14-15. PHA listed the strategies for addressing the shortage of affordable housing as (1) maximize the number of units by minimizing the number of units off-line; (2) reducing the time to renovate PHA units, (3) maintaining or increasing Section 8 31
  39. 39. lease-up rates by marketing to owners, (4) apply for additional Section 8 units. These strategies of PHA, a partner of the City, demonstrate that Defendants knew that every low-income rental unit in the city was significant in meeting the needs of protected class tenants especially those like African-Americans disproportionately disadvantaged in housing. While Defendants knew PHA was trying to reduce turnover and renovation time to get empty units back on-line, Defendants were coordinating to get Plaintiffs' homes off-line for extended periods of time with the goal of permanent closure. While PHA was striving to encourage the private market to invest in Section 8, Defendants were doing everything they could to create huge disincentives to the private housing providers for extremely low-income quot;protected classquot; members, all contrary to the City's affirmative duty to further fair housing choice. The testimony of Royce, Cullen, Dawkins and others demonstrate that there was a clear understanding by Defendants that their aggressive code enforcement would have the predictable result it did in disparately impacting minorities, especially the many African-Americans Plaintiffs served. The City acknowledged the need but failed to provide the assistance 32
  40. 40. Plaintiffs needed to meet the City's insistence on higher and higher standards and predictably Plaintiffs were forced to sell their properties (a result Defendant Dawkins admitted was his goal) and tenants were forced to leave their homes. Steinhauser Aff., APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887- 1036; Harrilal Aff., APP828-886; Docket 226-48, p.39 [05-cv-1348] [forced sale policy]. Defendants Failed to Produce Analysis of Impediments to Fair Housing Choice and Destroyed Electronic Communications and Other Key Documents Related to Impact In over four years of discovery herein, Defendants failed to produce any evidence that Defendants ever conducted a required Analysis of Impediments to Fair Housing Choice (AI) for disclosure to the U.S. Department of Housing and Urban Development and the public on whether the quot;protected classquot; was adversely impacted by the City's application of its illegal policy of removing quot;grandfathering rightsquot; and application of quot;present codequot; to older homes through the City's quot;Code Compliance Certificationquot; process. FAIR HOUSING ACT CLAIMS Plaintiffs have presented evidence of disparate treatment due to Defendants' violation of the Fair Housing Act The Court in looking at the quot;Disparate Treatmentquot; standard, once again 33
  41. 41. choose which evidence to ignore. There was considerable evidence going to intentional discrimination to meet the summary judgment standard and send Plaintiffs' claims to the jury. Disparate treatment, which occurs when some people are treated less favorably than others because of their race, color, religion, sex, or national origin, quot;is the most easily understood type of discrimination.quot; Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Proof of discriminatory motive is crucial to a disparate treatment claim. Id. Plaintiffs may survive summary judgment on their disparate treatment claims by presenting either quot;direct evidencequot; of discrimination or quot;creating the requisite inference of unlawful discriminationquot; under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); East-Miller v. Lake County Highway Dept., 421 F.3d 558, 563 (7th Cir. 2005) (distinguishing between quot;direct evidencequot; and McDonnell Douglas framework in FHA context). In the context of Plaintiffs' disparate treatment claim, quot;direct evidencequot; is not the opposite of circumstantial evidence. See Griffith, 387 F .3d at 736. Rather, the tenn quot;directquot; refers to the causal strength of the proof. Id. quot;[D]irect evidence is evidence 'showing a specific link between the alleged discriminatory animus and the challenged 34
  42. 42. decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated'quot; the adverse action. See id. A plaintiff with direct evidence that illegal discrimination motivated the adverse action does not need the three-part McDonnell Douglas analysis to survive surmnary judgment, even if the strong evidence is circumstantial. See Griffith, 387 F.3d at 736. A plaintiff who lacks evidence that clearly points to the presence of an illegal motive, however, can only avoid swnmary judgment by creating the requisite inference of unlawful discrimination under the McDonnell Douglas framework. Id. Under the McDonnell Douglas framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. See Gilbert v. Des Moines Area Cmty. ColI., 495 F.3d 906, 914 (8th Cir. 2007). If the defendant offers a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to put forth evidence showing the defendant's proffered explanation is a pretext for unlawful discrimination. Id. Although Plaintiffs did not cite the McDonnell Douglas case until their analysis under their §1981 analysis, Plaintiffs still provided a three-part McDonnell Douglas analysis in their discussion of the Fair Housing claims: the City operates with a 35
  43. 43. discriminatory environment and attitude in housing code enforcement, the City claims that the actions are legitimate to achieve their policy objectives, and there is a reasonable alternative in the PP2000 program to achieve those policy objectives through non-discriminatory means. But there is another ground for Plaintiffs challenge here to Defendants' illegal conduct: Plaintiffs have uncontested direct evidence that illegal discrimination motivated the adverse action as Defendants violation of the State Building Code shows a discriminatory intent on it face. Defendants did not contest the opinions of Plaintiffs expert Don Hedquist, a State Building Officials, wherein he asserted that Defendants were in violation of State law in removing grandfathering protections for existing buildings through the Code Compliance Certification process. Applying an illegal policy is per se discriminatory. See City of Morris v SAX Investments, Inc., 749 N.W.2d 1, 7 (Minn.2008) (the relevant language ofthe State Building Code expresses the legislature's specific intent to supersede municipal building codes; legislature recognized a single, unifonn set of building standards was necessary to lower costs and make housing more affordable); see also Minnesota Statute Section 16B.62 - State Building Code - quot;The State Building Code applies statewide and supersedes the building code of any municipality. A municipality must not by ordinance ... require 36
  44. 44. building code provisions regulating components or systems of any residential structure that are different from any provision of the State Building Codequot;). Under the three-part McDonnell Douglas test, Plaintiffs have established under a traditional approach a prima facie case of discrimination through the testimony and documentation from many sources. However, and most importantly, the Court here should seriously consider whether there should have been a shifting of the burden at all once Plaintiffs' presented uncontested evidence that Defendants' code compliance certification quot; policy is in direct violation to the State Building Code. How can the City's quot;code compliance certificationquot; policy not have a predictable disparate impact on quot;protected classesquot; when it is in direct violation of State law, and Defendants failed to contest that evidence or argument? Even if the Court were to shift the burden to Defendants, how can the Defendants show quot;bona fide government interestquot; in an policy that is in direct violation of State law and in violation oflegislative intent that uniformity and fair housing policies are promoted by the State Building Code? In turning now to look at the prima facia requirement, Plaintiffs presented substantial evidence to meet their initial burden. 37
  45. 45. Steve Johnson questioned Martin and Koehnen why they were issuing so many orders on his rental properties; quot;Martin and Koehnen would frequently reply with derogatory terms to describe my Black tenants, calling them quot;trouble makers,quot; quot;out oftowners,quot; quot;low life tenants,quot; quot;bottom ofthe barrel,quot; undesireable tenants, and quot;The black plague come like roaches.quot; APP 887, 893-4. Johnson was deeply offended by these derogatory names and racist attitudes since most of his tenants were Black Americans, it was clear to him what Martin and Keohnen meant by the quot;black plaguequot; comment. APP894. Sara Anderson, a housing advocate from Project Hope recalls City Official Dawkins telling her that City officials and employees quot;don't want low-income people renting in the Cityquot;. APP1560-67. Bill Cullen, former president ofSt. Paul Association of Responsible Landlords (SP ARL) testified that Dawkins suggested to landlords that maybe the solution for the city was to try and increase the quality of properties to the point that the lower tier of less qualified tenants would not have places to rent - how would the landlords like it of they didn't have to deal with tenants at the bottom ofthe market - quot;if all those tenants that are at the bottom ... were no longer in St. Paulquot;. Docket 217-25,p.l;217-26,pp.7- 9;217-27,p.14. Cullen remembers being quot;shockedquot; by Dawkins' comments. Docket 38
  46. 46. 217-27,p.14. Defendants knowledge of Minority Concentration in Inner City Kelly and Dawkins were finally able to implement their 1995 quot;Change of Ownershipquot; strategy in the inner city of Saint Paul by adopting the quot;heightened standard,quot; applying quot;code to maxquot; (Ex. 298, 3rd Shoemaker Aff.,50147-50158) and bringing quot;heavy enforcementquot; (Ex. 84 ,3'd Engel Aff) down on i=er city property owners, primarily low-income landlords with so called, quot;problem properties,quot; a definition that varied from neighborhood to neighborhood. Docket 218-17, p.17. Caty Royce testified concerning the history of City's discriminatory demolition of protected class housing in the Lakewood and the many examples of where neighbors used code enforcement to get rid of her Blacks tenants. APP1217- 1256. Successful program PP2000 and City's continuing the working relationship with Problem Property owner PHA is evidence of intentional discrimination The City Police worked with PHA on criminal behavior issues. Both the City and PHA considered PHA rental properties to fall within the definition of quot;problem properties.quot; However, Defendants penalized private landlords for alleged bad behavior, and abused their code enforcement authority in their claimed 39
  47. 47. attempt to address bad behavior, all resulting in predictable disparate impact on protected class tenants. APP 1117 [Hedquist Report]. City Abandoned successfully PP2000 program in Retaliation Defendants suddenly decided to abandon the successful PP2000 Program with private rental property owners that the inspectors called quot;successfulquot;. APP428, 429-431. However the City continued its separate working relationship with PHA, a program similar in many respects to PP2000. The abandonment of a successful program (APP33-36) that reduced complaints, satisfactorily addressed the interests oftenants, landlords, neighbors and the City, and the adoption of a heavy-handed, forced sale policy surely could be viewed by a reasonable person as retaliation against the PP2000 landlords and those who purchased their properties, because Plaintiffs and other such landlords continued to rent to the same class of tenants, the quot;protected classquot;. The Court also ignored the evidence that not one of the Plaintiffs received and assistance or other resources from the City or federal government to assist them in renovations or repairs to my older rental properties. No one from the city, including the inspectors, ever identified for them any programs that would provide resources needed to continue to provide affordable housing in the City. APP460; 40
  48. 48. 657; 767; 828; 887. City's Destruction of Written Communicatious Related to Intent, Motive After this litigation commenced, Defendants destroyed virtually all of their written internal and external cOlmnunications - these written communications naturally were relevant to Plaintiffs' claims and Defendants claims of immunity. Moreover, the destroyed written communications clearly related to intent and motive under the disparate treatment analysis. Frank Steinhauser: Frank Steinhauser owned 15 rental homes with 23 rental units providing housing primarily to very low-income women with children that were placed through the assistance of Project Hope, a low-income tenant housing agency promoting permanent housing options for the homeless, with partial funding from the Department of APP460. More than ninety (90) percent of Housing and Urban Development. Steinhauser's tenants were African-American women and children and other members of the quot;protected classquot;. Id. Steinhauser was a long-time participant in the federal Section 8 program and during 2002 through 2004, he had three Section 8 tenants. Id. In 1999, Steinhauser was assigned a code inspector to work with him on reducing complaints under the City's major initiative called, quot;Problem Properties 2000quot; or quot;PP2000quot;.APP.460. Complaints against Steinhauser's properties dropped 41
  49. 49. off considerably during and after the PP2000 program due to the working relationship between Steinhauser and City inspectors Jeff Hawkins and later Joel Essling. rd. During the PP2000 program, Steinhauser continued monitoring his rental properties on a daily basis. rd .. During 2001 through 2004, Steinhauser did not change his successful approach to providing low-income housing under quot;PP2000quot;; he continued to frequently monitor his rental homes, timely respond to requests from tenants, worked with City inspectors and City police on all issues brought to his attention, and continued to invest in his properties where necessary to maintain all properties to City codes. rd. Councilmember Kathy Lantry has known since 1998 that Steinhauser rented primarily to low-income African-Americans and prior to fall 2002 Lantry would frequently call Steinhauser to inform me that neighbors of his rental properties were complaining about his tenant; she stated that he was single handedly destroying the property values in the neighborhoods where those rental properties were located. rd. Starting in about the fall of2002, the City suddenly increased its code enforcement activity on five of Steinhauser's fifteen rental homes. rd. The increased code enforcement attention directed against his rental homes and business included exterior and interior inspections, fabricated correction orders, shortening 42
  50. 50. of time lines for fixing any claimed deficiency, false condemnations and the illegal requirement of quot;Code Compliance certificationsquot; on two homes, two civil lawsuits, a retaliation against Steinhauser after he commenced suit in this case through criminal charges by Martin and fellow PPU member Maureen Dolan for claimed failure to complete exterior painting during an extremely wet spring 2004. Id. Dawkins created a quot;Distressed Propertiesquot; and published the list on his City website - the list included Steinhauser's 910 6th st., 1024 Euclid, 719 Sherburne, 118 Litchfield and 953 Wilson. APP460. Steinhauser's rental properties were not distressed in any sense as they were all occupied by African-Americans, or mixed race couples except for one unit, were well-maintained, were cash-flowing prior to Defendants commencement of targeting, taxes, mortgage and contract for deed payments were current and all City charges were paid. Id. Dawkins' action injured Steinhauser's business. Id. LaChaka Cousette testified that Martin and Koehen made statements that other properties of Steinhauser's were going to be condemned. APP1556-1559. This show a predetermined outcome by PPU and Dawkins carrying Lantry's water. Martin encourage Cousette to sue Steinhauser. Id. Cousette and her children were displaced, having an adverse impact on the family. Id. 43
  51. 51. Martin, Keohen and Dawkins issued false code violations claims on Steinhauser's 910 6th street and 1024 Euclid, when most of demanded repairs had already been completed by time Martin Dawkins condemn duplexes. APP460. Dawkins and Martin then demanded code compliances on both properties saying the code compliance would be to existing code in order to reoccupy. Steinhauser agreed to the code compliance only to learn the City would only allow re- occupancy when a Code Compliance Certification to quot;present codequot; was completed. That removed the grandfathering protections and resulting in significant costs. APP460. Steinhauser commenced suit in federal court and within a few weeks Martin issued two criminal tags for failure to paint the outside of homes during wet spring. A pp460. Steinhauser was required to hire attorney to defend himself at considerable expense. Id. On the day of trial, the City simply dismissed the action. Martin stated on a probable cause worksheet quot;This is the PO that has sued us in federal court for harassment!!! APP460. Mark Meysembourg: In November 2002, Meysembourg received correction orders on his duplex at 970 Euclid St. after Martin and Keohnen forced entry to both units. APP657-766. The lower unit was rented by African-Americans. Id. 44
  52. 52. 657. Martin then issued orders to Meysembourg which included false claims of code violations. Id. When Meysembourg challenged the entry and false orders at a City hearing with assistance from his tenants, quot;Koehnen stood up and stepped into the isle in direct line with the tenant, spread his feet, folded his arms and glared at each tenant, all in an attempt I believe to intimidate my tenant witnesses. Id. Koehnen continued this intimating conduct through the testimony of my tenants.quot; APP. Keohen has a history of using his quot;sizequot; to influence situations at properties. APP15. Martin, Magner and Koehnen and Dawkins retaliated even though Meysembourg had completed many of ordered repairs. APP657. Magner, Martin and Dawkins falsely claiming the duplex had no boiler relief valve, and on that false basis, condemned the duplex, prohibiting Meysembourg from renting the duplex to protected class tenants. APP657. Magner, Martin and Dawkins required a Code Compliance Certification, represented to Meysembourg quot;as builtquot; when in fact the City was using a quot;present codequot; with removal of grandfathering protections. APP657. As a result the duplex was removed from the market for months and Meysembourg sustained significant costs to meet the illegal demands. Id. 45
  53. 53. Inspector Seeger testifies that the Code Compliance did not require any work to the boiler. Docket 220-8,p.7-8. Hedquist reported that the claim by Defendants was false as there were relief valves on the boiler as required by code. APPI037. Hedquist also opined that the claimed violations for the February 3, 2003 condemnation did not rise to the level of a condemnable structure. APPI037 (page 19-10 report). Kelly Brisson: Robinson condemned Brisson's entire duplex on October 9, 2003, for five claimed code violations related solely to the upper unit; he did not have access to the first floor unit. APP1206-1213 (pp.203, 212, 219-222, 237-238). Robinson's 10-9-03 Condemnation Notice was copied to PHA - Section 8 - so he and NHPI inspectors did know at the time of condemnation that the lower unit was federally subsidized. Id. At the time ofthe Condemnation, the City considered Brisson's duplex remodeling project to be 95% complete. APP767 (Exh 12 Brisson Aff., pg 7); APP1206-1213 (pp. 229-230). Brisson appealed Robinson's condemnation but the City denied his appeal and Robinson had sent it to vacant buildings and they had made it a category 2 vacant building requiring a code compliance inspection. APP 1206-12l3 (p.218). 46
  54. 54. Leo Sider, Brisson's Section 8 tenant testified that shortly after Robinson and Dawkins condemned the entire duplex, Sider's disabled girlfriend moved in to the lower unit, Sider then moved to the upstairs unit, as both units were inspected and approved for HQS Section 8 payments. Docket 217-5, pp7-9. Earlier in August 2003, Magner was seeking to have Brisson's rental duplex stay in condemned status, order to vacate stay in place and building referred to vacant buildings and a code compliance required. APP 1206-12l3 (pp.23 8-39. Martin, Koehnen and Dawkins notices of condemnations of 297 Burgess in July and August 2003 had stated that due to the number of violations, a code compliance was required. APP 1206-1213. Brisson stated that many of the items claimed by Martin and Dawkins as code violations in the summer 2003 were actually false. APP767; APPI037(pp8-9). Sandra Harrilal In 2003, Harrilal purchased 704 Lawson from Ray Hessler. APP828. Thereafter, Martin, Dawkins, Magner and Koehnen continued to consider the 704 Lawson property a quot;problem property long after Hessler had sold the home. APP885. Harrilal's tenants in 704 Lawson were African-Americans. APP828. She registered her property with the City. Id. Harrrial also had a second rental property 47
  55. 55. with a Section 8 African-American from 2003-2004. Although Martin and Dawkins had access to Harrilal' s rental registration - her Charles Street home address - Martin and Dawkins coordinated a scheme of deliberately failing to use proper notice methods on important code orders, civil suits, and excessive consumption claims. APP828. The first code notice from Martin was mailed to the rental property not Harrilal's home and predictably Harrilal received no notice. rd. Martin and Dawkins then prepared a civil suit against Harrilal for failure to correct claimed deficiencies. rd. CSP posted a flyer on Harrilal's rental home showing that Dawkins office had informed CSP that the Code Enforcement was considering condemning the home because the City considered it to be a nuisance problem property. Docket 212-4, p3. Harrilal had not had any nuisance activity at her rental property since she purchased it. APP828. Dawkins and Martin orders and civil suit papers included false claims of code violations. rd. Harrilal was forced to defend herself in Ramsey County District and hired an attorney to protect her interests. APP828. Harrilal made observations of her neighborhood that there were many homes and garages in similar condition to her rental property and homes and garages in bad condition, not like her home. rd. 48
  56. 56. During the civil suit, Martin continued to write orders on Harrilal's 704 Lawson rental property and then she and Dawkins used a delayed mailing scheme whereby postmarking and mailing of important code orders, excessive consumption of city services and rental registration appeal information were delayed 15 or more days. Id. The delayed mailings came after Harrilal's attorney was forced to aggressively defend Harrilal before fellow Problem Property Unit member Maureen Dolan, a City Prosecutor. Id. Dawkins and Martin's delayed mailing were in retaliation for Harrilal defending her tenants and her properties interests. Although Harrilal had been able to work with Section 8 and had passed HQS inspection on her second rental property, as a receipt of the City's heavy enforcement and illegal notice and false claims tactics, loss of rental income from extended code fights with Martin and Dawkins, she was forced to sell her so-called quot;Problem Propertyquot; just as Dawkins had pla=ed. APP828. Hedquist opined that based upon his review of the evidence, both of Harrilal's rental properties were well maintained and managed. APPI075. Hedquist stated that his opinions were also based upon his inspections of the properties of Harrilal and Plaintiffs, as well as visual inspection of properties of the neighbors of Plaintiffs included Harrilal, review of photographs of homes in the City owned by 49
  57. 57. PHA, City officials and employees and others and his professional experience. Hedquist stated that based upon the continued code enforcement actions from the City, the City's lawsuit against her and related costs, the costs of time and required repairs, and interference with her rental business, Harrilal was force to sell both her rental properties. Id. Steve Johnson: Johnson's owned over 40 low-income rental properties consisting of primarily single family and duplex rental homes located in the neighborhoods adjacent to the City's inner core in the neighborhoods with heavy concentrations of minorities. APP887. During 2002 through 2004, Johnson's tenants included a majority ofquot;people of colorquot; and included a high percentage of Section 8 recipients. Id. Following the illegal posting by Inspector Kalis of Johnson's 469 Whitall in early 2003 as quot;vacant buildingquot; and requirement that he go through a quot;code Compliance Certification, Johnson attempting to defend his rental business from targeted and coordinated attacks on his properties and tenants through appeals. Id. Debbie Doolittle deposition -Ms. Doolittle testified that due to Lippert's condemnation and immediate order to vacate, she and her disabled partner were displaced from their home they were renting from Plaintiff Steve Johnson. 50
  58. 58. Defendants targeted Johnson and his tenants for illegal code enforcement through a number of coordinated schemes with corresponding illegal fees. APP887. The evidence shows the schemes were not only illegal, but also designed to deprive Johnson of his properties and displace large numbers of quot;protected classquot; tenants. Defendant Kalis unlawfully declared one of his homes quot;vacantquot; when in fact it was occupied, then demanded a quot;code compliancequot;. APP887. Later Martin and Dawkins unlawfully condemned that same home and demanded a quot;code compliancequot; inspection certification. APP887. Defendant Lippert also unlawfully condemned the rental home occupied by Ms. Doolitte and then demanded a quot;code compliancequot; in violation of State law. APP887. Johnson's Affidavit details at length the harassment and false code claims by various Defendants including Kalis, Martin, Dawkins, Lippet and Seeley. APP887, When Johnson attempted to appeal these abuses of power to City officials, the harassment increased and costs of attempting to meet the Defendants unjustified and illegal demands mounted, all raising the costs of Johnson who was providing a valuable and necessary service to the community - providing extremely low-income with housing. rd. The Defendants' coordinated their illegal tactics against Johnson and his African-American tenants, and forced Johnson to sell building after 51
  59. 59. building to cover his increased costs from the illegal demands. rd. Johnson's tenants also suffered through displacement from their homes. Due to Defendants actions in repeatedly issuing false notices and orders of code violations, Johnson and his family were forced to expend much time in defending against these illegal actions, and thus had less time to attend to the needs of their tenants, or to meet with and rent to other quot;protected classquot; tenants in need of housing. APP887. Johnson details the terrible experience he went through in trying to protect his tenants' housing rights and his property interests. rd. Defendants' quot;forced salequot; policy was successful against Johnson and his tenants and clearly had a disparate impact on the protected class renting his homes. The evidence also shows that Defendants intended to target Johnson with their illegal schemes and unlawful conduct. b. Constitutional Rights. §1983 Plaintiffs make claims under 42 U.S.C. §1983 for alleged violations of their rights under the Fourteenth Amendment to the United States Constitution. Success on a §1983 claim requires a showing of: quot;(1) [a] violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right.quot; Shrum v. Kluck, 249 F.3d 773,777 (8th Cir. 2001). Plaintiffs allege violations of their Fourteenth Amendment right to equal 52
  60. 60. protection as a result of the City's code enforcement policies. The Equal Protection Clause of the Fourteenth Amendment requires state actors to treat similarly situated people alike and permits state actors to treat dissimilarly situated people dissimilarly. Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 747 (8th Cir. 2007). As a threshold matter, Plaintiffs must establish that Defendants treated them differently from similarly situated landlords. Id. In addition to unequal treatment, Plaintiffs must also show intentional or purposeful discrimination. See Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007). The facts and evidence submitted in support of discriminatory intent to prove their FHA claims also supports Plaintiffs § 1983 claims. The City's discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. Plaintiffs make a quot;class of onequot; equal protection argument based on the City's preferential treatment of the St. Paul Public Housing Agency. The purpose of a class- of-one equal protection claim is quot;to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.quot; Vill. of 53
  61. 61. Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, Plaintiffs presented considerable evidence that demonstrated at the summary judgment stage, that they may prevail on their class-of-one claim before a jury through the evidence that can reasonably be seen as proving Plaintiffs were quot;intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.quot; rd.; see also Costello v. Mitchell Pub. School Dist. 79,266 F.3d 916, 921 (8th Cir. 2001). §1981 and §1982 Plaintiffs are required to show discriminatory intent to prevail on their claims under 42 U.S.C. §§ 1981, 1982. See Dirden v. Dep't of Housing and Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996). The facts and evidence submitted in support of discriminatory treatment to prove their FHA claims also supports Plaintiffs §1981 and §1982 claims. The City's discriminatory environment and attitude in housing code enforcement, quot;forced ownership changequot; strategy, eviction strategy, most importantly, illegal scheme and policy to violate the State Building Code protections for existing building, were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. 54
  62. 62. Plaintiffs cited and the District Court discussed 2922 Sherman Ave. Tenants' Ass'n v. District of Columbia, 444 F.3d 673 (D.C. Cir. 2006), where the District of Columbia's lack of explanation for how it narrowed a list of seventy-five properties recommended for closure that were evenly distributed across the city down to five apartment buildings located in neighborhoods having an average Hispanic population 4.4 times that of the city as a whole supported an inference of intentional discrimination. 444 F.3d at 684. The District Court isolated Plaintiffs' maps and failed to consider the evidence from the FHA analysis - that the City's discriminatory environment and attitude in housing code enforcement, force ownership change strategy and eviction strategy were known by the City to eliminate affordable housing and to have a disproportionate impact on protected class members. The discriminatory enviromnent Plaintiffs refer to includes animus toward rental properties (Andy Dawkins' own statements), a complaint based code enforcement system that has a problem with targeting people of color (Jane Prince's email and Dawkins' memo) ,and getting rid ofthe bottom tier of tenants and low income people in the City (Cullen's and Anderson's testimony. c. RICO claims Plaintiffs brought RICO claims against Defendants claiming violations of 18 55
  63. 63. U.S.C. § 1962(c), (d). Plaintiffs who bring claims under 18 U.S.C. § 1962(c) must show that defendants engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Handeen v. Lemaire, 112 F.3d 1339,1347 (8th Cir. 1997). th See also Atlas Pile Driving v. Dicon Financial, 886 F .2d. 986 (8 Cir. 1989); Abels v. Farmers Cooperative Corp., 259 F. 3d 910 (8 th Cir.2001); U.S. v. Leyden, 842 F2d. 1026 (8 th Cir 1988) quot;Racketeering activityquot; is defined in 18 U.S.C. § 1961(1), and lists as quot;predicate actsquot; certain state law crimes, conduct that is quot;indictablequot; under various federal provisions, and numerous other offenses. Handeen, 112 F.3d at 1353. Plaintiffs based their RICO claims in their Complaint on seven predicate acts: mail fraud, bank fraud, wire fraud, the Hobbs Act, tampering, bribery, and interstate travel or transportation in aid of racketeering enterprises. In Plaintiffs' brief, Plaintiffs added facts obtained through discovery to their RICO claims against Defendants based upon their fraudulent scheme to illegally deprive Plaintiffs oftheir properties and their tenants of their homes, including illegal actions in furtherance of that scheme such as making false claims of housing code violations, intentionally sending important City notices to wrong addresses, delaying mailings in order to prejudice Plaintiffs, intentionally condemning buildings without a 56
  64. 64. basis in City codes or under State law, illegally removing quot;grandfatheringquot; protections applicable to Plaintiffs' existing buildings under of the State Building Code, and corresponding unlawful application of quot;present codesquot; to Plaintiffs properties, with fees and other benefits flowing to Defendants. From the period of 2002 and thereafter, Defendants have, through a joint enterprise, participated in conduct which qualifies as racketeering activity. Defendant Magner engaged in excessive code enforcement and targeting properties with the intent of forcing property owners to sell their properties. In each case, Magner enforced numerous code violations which required thousands of dollars in rehabilitation work. Prior to completion of the rehabilitation work, Magner approached property owners offering to arrange for each to sell their property to either Magner or someone of Magner's choosing. In both cases, Magner presented the property with an offer that was grossly below market value. Moreover, Plaintiffs have shown through uncontested testimony and other evidence that Defendants were running a fraudulent scheme to deprive Plaintiffs of their properties and tenants of their housing rights through Defendants use of false code violations claims, illegal mailings that intentionally were designed by Defendants to avoid due process notice to plaintiffs, illegal condemnations with 57
  65. 65. trumped up charges of code violations, illegal removal of quot;grandfatheringquot; protections and forced renovations to quot;present code,quot; and intimidation and retaliation against Plaintiffs and tenants who dared standup to Defendants abuses of their public trust and powers or take their claims to court for protection. City interference with the independence of the State District Court The Defendants illegal activities went so far as to quot;fixquot; the State District Court in their favor through secret meetings to discuss City policy, quot;Court buy-in, selection of judges to preside over City prosecution against property owners Defendants labeled as quot;problem propertyquot; owners. Council President Bostrum and the City Attorney met with Chief Judge Mott regarding Mayor Kelly's quot;problem propertiesquot; priority. The City Attorney was bringing Police and Code staff to meet the Judge. Early in 2002, Dawkins was questioning quot;How pull off' a quot;crackdownquot;. The City needed the District Court to quot;buy-inquot; to ensure victory. Dawkins-City Attorneys held further private meetings with Chief Judge. City Attorney Dolan had a private meeting with housing Referee Yanish who later presided over City initiated-promoted Tenant Remedy Cases by Dolan against Steinhauser, Meysembourg, Brisson, Harrilal and others. After the civil litigation proceeded to the point that Dawkins and the City were quot;9 for 9quot; in 58
  66. 66. court before Referee Yanish, Dawkins returned to Judge Mott in private for a quot;Thanksquot; and to run further City-Kelly-Dawkins plans for property owner crackdown by Mott for approval. IV. Spoliation Motions It was uncontested that Defendants destruction of relevant evidence occurred long after commencement of litigation and continued over a number of years of litigation. What is shocking is the scope of the destruction and the fact it was carried out under the eye of Dawkins a member of the Bar. When questioned whether he directed his staff to preserve evidence following commencement of the Staeinhauser case in May 2004, he claims he did yet virtually all internal and external communications of code officials, inspectors, and council members for the relevant time periods were thereafter destroyed. Dawkins depo 20. When one reviews the e-mails between White neighbors and Councilmember Lantry and her staff concerning the 321 Bates Avenue four plex occupied by protected class tenants and then reviews the 2004 letter from legal aid attorney de Stefano to the City Council its no wonder Defendants destroyed their written communications. The destruction ofthe electronic and paper copies of written communications of Defendants and other key officials deprived Plaintiffs of relevant evidence going 59
  67. 67. to the issues of Defendants' claims of immunity, defendantsquot; motive and intent, Defendants' decisions to violate the State Building Code grandfathering protections, and the City's certifications and responsibilities under FHA to conduct analysis of impediments to fair housing, actions taken to remove said impediments and records keeping required by HUD. Defendants destroyed 15,000 TISH records of homes in the City including those surrounding Plaintiffs' homes and failed to timely produce a 2006 TISH Study by City Code Enforcement of 2005 TISH reports showing 60% of City homes had violations and 35% with serious deficiencies. Defendants destroyed the 2001-2003 TISH reports that would show where those homes were located and the nature of the deficiencies then claimed Plaintiffs could recreate the data by seeking those records from over 40 TISH inspectors with the tremendous expense of same. HUD regulations require the City to conduct a full and fair analysis of impediments to fair housing in the City, to identify those impediments, including those based on the City'S legislative code, rules, procedures and practices related to fair housing and quot;protected classes,quot; its illegal demands to the private market landlords in the City to meet expensive quot;code compliancequot; inspections and its creation of other barriers to fair housing, and to maintain records regarding those City actions. The 60
  68. 68. City's illegal quot;Code Compliancequot; requirements subverting grandfathering protections for older buildings in violation of the State Building Code, brings into question whether the City falsified its certifications to HUD through material non-disclosures. CONCLUSION Nowhere in the District Court's Order granting summary judgment did the District Court draw inferences in favor of Plaintiffs, nor consider whether a reasonable juror could view the evidence differently. This disregard for the summary judgment standard and this kind of quot;trial on the paperquot; violates Plaintiffs' Constitutional right to trial by jury. Plaintiffs ask this Court to reverse the District Court's grant of summary judgment and remand the case for trial. SHOEMAKER & SHOEMAKER, P.L.L.C. Dated: May 6, 2009 By: s/ John R. Shoemaker John R. Shoemaker (Attorney Lic. #161561) 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 Attorney for Plaintiffs-Appellants 61
  69. 69. CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM Counsel for Plaintiffs-Appellants-prepared its brief using Microsoft Word 2003 for its word processing program. This brief contains 12,081 words. Counsel also certifies that the attached CD has been scanned for computer viruses and there are no viruses on the CD. The only document contained on this CD is the Appellant's Briefin the PDF file format. Dated: May 6, 2009 By: s/ John R. Shoemaker John R. Shoemaker, Esq. 62