IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Appeal No. 09-1528
FRANK J. STEINHAUSER, III, ET AL.,
CITY OF ST. PAUL, ETC., ET AL.,
Appeal From United States District Court
For the District of Minnesota
Civil No. 04-CV-2632 (JNE/SRN)
BRIEF WITH ADDENDUM
John R. Shoemaker, Esq.
SHOEMAKER & SHOEMAKER, P.L.L.C.
7900 International Drive
International Plaza, Suite 200
Bloomington, Minnesota 55425
ATTORNEYS FOR PLAINTIFFS-APPELLANTS
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.
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
c. RICO ........................................................................... 55
IV. District Court Erred in Denying Plaintiffs Motion for Sanctions for
Spoliation of Evidence ............................................................... 59
CONCLUSION ........................................................................................................ 61
CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND
CERTIFICATION OF WORD PROCESSING PROGRAM ......................... 62
TABLE OF AUTHORITIES
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,
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
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
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
18 U.S.C. § 1962(c), (d) ..................................................................... 56
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.
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
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.
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
E*Trade Securities, LLC v. Deutsche Bank AG, 230 F. R. D. 582 (D. Minn.
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)
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
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.
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.
The City stated that The Metropolitan Council had determined that Cities
regulations, ordinances and fees as well as administrative practices may exceed
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;
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
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
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.
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.
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
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
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
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
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
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
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
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)
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
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
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
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.
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
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.
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
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.
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,
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).
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-
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).
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
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
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
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
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.
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
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. §
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
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
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
transitional housing indicating that they were most likely to be without any housing at
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
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
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
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
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
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
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.
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
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
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
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.
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
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-
Successful program PP2000 and City's continuing the working
relationship with Problem Property owner PHA is evidence of intentional
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
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;
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
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
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
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.
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
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.
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.
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.
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).
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).
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).
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
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.
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
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.
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.
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
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.
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
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
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.
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
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).
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
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
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
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
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
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.
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
Attorney for Plaintiffs-Appellants
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.