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  1. 1. No. 1fn tbe �upreme QCourt of tbe mnitett �tate� ST EVE MAG NER , ET AL., Petitioners, v. T HO MAS J. G AL LAG HER , ET AL., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth CircuitPETITION FOR WRIT OF CERTIORARI SARA R . GREWING City Attorney LOUISE TOSCANO SEEBA Counsel of Record K . MEGHAN KiSCH Assistant City Attorneys 750 City Hall and Court House 15 West K ellogg Boulevard Saint Pau l, MN 55 102 (65 1) 266-8772 us Counsel for PetitionersFebruary 14, 2011 Becker Gallagher • Cincinnati, OH • Washington, D.C. 800.890.5001
  2. 2. 1 QUESTIONS PRESENTED The Fair Housing Act makes it unlawful " [t]orefuse to sell or rent after the making of a bona fideoffer . .. or otherwise make unavailable or deny, adwelling to any person because of race, color, religion,sex, familial status, or national origin." 42 U.S.C.§ 3604(a). Respondents are owners of rental propertieswho argue that Petitioners violated the Fair HousingAct by "aggressively" enforcing the City of Saint Paulshousing code. According to Respondents, because adisproportionate number of renters are Mrican­American, and Respondents rent to many Mrican­Americans, requiring them to meet the housing codewill increase their costs and decrease the number ofunits they make available to rent to Mrican-Americantenants. Reversing the district courts grant ofsummary judgment for Petitioners, the Eighth Circuitheld that Respondents should be allowed to proceed totrial because they presented sufficient evidence of a"disparate impact" on African-Americans. The following are the questions presented:1. Are disparate impact claims cognizable under the Fair Housing Act?2. If such claims are cognizable, should they be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test?
  3. 3. 11 PARTIES TO THE PROCEEDING A list of all parties to the proceedings in the courtwhose judgment is the subject of this petition is asfollows:No. 09-1209 Defendants-Appellees and Petitioners: ST EVEMAGNER, individually and as a su pervisor of the Cityof Saint Pauls Department of Neighborhood Housingand Property Improvement, MICHAEL CASSIDY,JO E L ESSLING, ST EVE SCHILLER, JO EYANNARELLY, DENN IS SENTY , individually and ascode enforcement officers of the City of Saint Paul,MICHAEL URMANN, individually and as a fireinspector of the City of Saint Paul, ANDY DAWKINS,individu ally and as Director of the City of Saint PaulsDepartment of Neighborhood Hou sing and PropertyImprovement, RAN DY KELLY, individually and asMayor of the City of Saint Paul, JO HN DO E andJANE DO E, individu ally and in their official capacitiesas code enforcement officers, law enforcement officers,or other officials or employees of the City of Saint Pau l,and the CITY OF SAINT PAUL, a mu nicipalcorporation. Plaintiffs-Appellants and Respondents: THOMA SJ. GALLAGHER, JO SEPH J. CO LLINS, SR.,DADDERS PRO PERT IES, LLC, DADDERSEST AT ES, LLC, DADDERS EN TERPRISES, LLC,DADDERS HOLDINGS, LLC, TROY AL LISO N, JEFFKUB IT SCHEK and SARA KUB ITSCHEK.
  4. 4. 111No. 09-1528 Def endants-Appellees and Petitioners: CITY OFSAINT PAUL, a municipal corporation, RANDYKELLY, individually and as Mayor of the City of SaintPaul, ANDY DAWKINS, individually and as Directorof the City of Saint Pauls Department ofNeighborhood Housing and Property Improvement,LISA MARTIN, individually and as a code enforcementofficer of the City of Saint Paul, STEVEN MAGNER,individually and as a supervisor of the City of SaintPauls Department of Neighborhood Housing andProperty Improvement, DEAN KOEHNE N ,individually and a s a law enforcement officer of theCity of Saint Paul, JOHN DOE and JANE DOE,individually and in their official capacities as codeenforcement officers, law enforcement officers, or otherofficials or employees of the City of Saint Paul. Plaintif s-Appellants and Respondents: FRANK J. fSTEINHAUSER, III, MARK E. MEYSEMBOURG,KELLY G. BRISSON.No. 09-1579 Defendants-Appellees and Petitioners: STEVEMAGNER, individually and as a supervisor of the Cityof Saint Pauls Department of Neighborhood Housingand Property Improvement, MICHAEL KALIS, DICKLIPPERT, KELLY BOOKER, JACK REARDON,PAULA SEELEY, LISA MARTIN, individually and ascode enforcement officers of the City of Saint Paul,DEAN KOEHNEN, individually and as a lawenforcement officer of the City of Saint Paul, ANDYDAWKINS, individually and as Director of the City ofSaint Pauls Department ofNeighborhood Housing and
  5. 5. IVProperty Improvement, RAN DY KE LLY, indivi duallyand as Mayor of the City of Saint Paul, JOHN DOEand JANE DOE, individually and in their officialcapacities as code enforcement officers, lawenforcement officers, or other offici als or employees ofthe City of Saint Paul, and the CITY OF SAINTPAUL, a municipal corporation. Plaintiffs-Appellants and Respondents: SANDRAHARRILAL, STEV EN R. JOHNSON, d/b/a MarketGroup and Properties. Plaintiffs: BEE V UE , LAMENA VU E .
  6. 6. v TABLE OF CONTENTSQUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . iPARTIES TO THE PROCEEDING . . . . . . . . . . . . 11TABLE OF CONTENTS . . . . . . . . . . . . . . . .. . . . . vTABLE OF AUTHORITIES . . . . . . . .. . .. . . . . . viiiPETITION FOR A WRIT OF CERTIORARI . . . .. 1OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 .RELEVANT STATUTORY PROVISION . . . . . . . . 2STATEMENT OF THE CASE . . . . .... . . . . . . . . 2REASONS FOR GRANTING THE WRIT . . . . . . . 8I. THIS COURT SHOULD DECIDE THE ISSUE OF WHETHER DISPARATE IMPACT ANALYSIsApPLIES To FAIR HOUSING ACT CLAIMS . . . . . . . . .. . . . . 8 A. The Text Of The Fair Housing Act Does Not Support A Cognizable Disparate Impact Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B . The Fair Housing Act Does Not Reach Every Event That Might Conceivably Affect The Availability Of Housing. . . . . . . . . . . . . . . . 12
  7. 7. VIII. THE COURTS OF APPEALS ARE D MDED As To WHAT TEST APPLIES To A FAIR HOUSING ACT CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. Balancing Factors Approach. . . . . . . . . . . . 16 B. Burden Shifting Approach. . . . . . . . . . . . . 19 C. Hybrid Burden Shifting And Balancing Test. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 . .ill. THIS CASE PROVIDES THE IDEAL VEHICLE FOR RESOLVING I MPORTANT ISSUES REGARDING THE SCOPE OF THE FAIR HOUSING ACT . . . . . . . . 2 1 . . A. This Case Presents Purely Legal Questions That Should Be Determined By This Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 B. The Application Of Disparate Impact Analysis To A Fair Housing Act Claim Was Raised Below. . . . . . . . . . . . . . . . . . . . . . . . . 22 C. The Lack Of Uniformity In The Circuits Nationwide Leads To Confusion About Cities Ability To Enforce Their Housing Codes. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 24CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
  8. 8. VllAPPENDIXAppendix A: Opinion and Judgment, United States Court of Appeals for the Eighth Circuit (September 1, 2010) . . . . . . . . . . 1aAppendix B: Order re Summary Judgment, United States District Court, District of Minnesota (December 18, 2008) . . . . . . . . 48aAppendix C: Order re Rehearing, United States Court of Appeals for the Eighth Circuit (November 15, 20 10) . . . . . . . 1 16a
  9. 9. Vlll TABLE OF AUTHORITIESCASES2922 Sherman Ave. Tenants Assn v. Dist. of Columbia, 444 F.3d 673 (D.C. Cir. 2006) . . . . . . . . . . . . . 16Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . 1 1Arthur v. City of Toledo, Ohio, 782 F.2d 565 (6th Cir. 1986) . . . . . . . . . . . 17, 18Bangerter v. Orem City Corp ., 46 F.3d 149 1 ( 10th Cir. 1995) . . . . . . . . . . . . . 18Banks v. Perk, 341 F. Supp. 1 175 (N.D. Ohio 1972), affd in part and revd in part without opinion, 473 F .2d 9 10 (6th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . 13Betsey v. Turtle Creek Assocs. , 736 F .2d 983 (4th Cir. 1984) . . . . . . . . . . . . . . 17Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263 F.3d 627 (6th Cir. 2001), revd in part, vacated in part sub nom. 538 U.S . 188 (2003) . 18Cox v. City ofDallas, Tex., 430 F .3d 734 (5th Cir. 2005) . . . . . . . . . . . . . . 16Darst-Webbe Tenant Assn Bd. v. St. Louis Hous. Auth., 417 F.3d 898 (8th Cir. 2005) . . . . . . . . . . . . . . 19
  10. 10. IXGriggs v. Duke Power Co. , 401 U.S. 424 (1971) . . . . . . . . . . . . . . . . . . 10, 13Harris v. Itzhaki, 183 F.3d 1043 (9th eire 1999) . . . . . . . . . . . . . 1 9Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d eire 1988) . . . . . . 16, 18, 20, 2 1Intl Broth. of Teamsters V. United States, 43 1 U.S. 324.15 (1977) . . . . . . . . . . . . . . . . . . . . 9Jersey Heights Neighborhood Assn v. Glendening, 174 F.3d 180 (4th eire 1999) . . . . . . . . . . . 14, 15Langlois V. Abington Hous. Auth., 207 F.3d 43 ( 1st eire 2000) . . . . . . . . . . . . . . . 2 1Lebron V. Natl R.R. Passenger Corp., 513 U.S. 374 (1995) . . . . . . . . . . . . . . . . . . 22, 23Mackey V. Nationwide Ins. Cos. , 724 F.2d 419 (4th eire 1984) . . . . . . . . . . . . . . 14McDonnell Douglas Corp. V. Green, 41 1 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . 1 7Medimmune, Inc. V. Genentech, Inc., 549 U.S. 1 18 (2007) . . . . . . . . . . . . . . . . . . . . . 24Metro. Hous. Dev. Corp. V . Ville of Arlington Heights, 558 F.2d 1283 (7th eire 1977) . . . . . . . 13, 16, 18
  11. 11. xMitchell v. Forsyth, 472 U.S. 5 1 1 ( 1985) . . . . . . . . . . . . . . . . . . . . . 22Mountain Side Mobile Estates Pship v. Secy of Hous. & Urban Dev., 56 F.3d 1243 ( 10th eire 1995) . . . . . . . . . . . . . 18Nixon v. Fitzgerald, 457 U.S. 731 ( 1982) . . . . . . . . . . . . . . . . . . . . . 22Oti Kaga, Inc. v. S. Dakota Hous. Dev. Auth., 342 F.3d 87 1 (8th eire 2003) . . . . . . . . . . . 19, 20PGA Tour, Inc. v. Martin, 532 U.8 . 66 1 (2001) . . . . . . . . . . . . . . . . . . . . . 23Reinhart v. Lincoln Cnty., 482 F.3d 1225 ( 10th eire 2007) . . . . . . . . . . 5, 18Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d eire 1977) . . . . . . . . . 16, 19, 20Schwarz v. City of Treasure Island, 544 F.3d 1201 (1 1th eire 2008) . . . . . . . . . . . . 16Smith u . City ofJackson, Miss., 544 U.8 . 228 (2005) . . . . . . . . . . 2, 10, 1 1, 12, 25Smith v. Town of Clarkton, N. C., 682 F.2d 1055 (4th eire 1982) . . . . . . . . . . . . . 1 7Southend Neighborhood Imp. Assn v. St. Clair Cnty., 743 F.2d 1207 (7th eire 1984) . . . . . . . . . . . . . 14
  12. 12. XlTown of Huntington, N.Y. v. Huntington Branch, NAA CP, 488 U.S. 15 ( 1988) . . . 0 10 • • • • • 0 0 • 0 0 • • 0 • 0 0 • 0United States V o City ofBlack Jack, Missouri, 508 F.2d 1 179 (8th C r 1974) i o 0 0 0 • 0 • • • • • • • • 13Vill. ofBelle Terre v. Boraas, 416 U.S. 1 ( 1974) . . 0 • • • • • • • • • • • • • • • • • • • • 13Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 ( 1991) . . . . . . . . . . . . . . . . . . o . 23Washington v.Davis, 426 U.S. 229 ( 1976) . . .. . . . . . . .. . . .. 0 • • • • 17Yee v. City ofEscondido, Cal. , 503 U.S. 519 ( 1992) . . . . . . . . . 0 • • • • • • • • • • • 23STATUTES20 U.S.C. § 168 1 . . . . . . . . . . . . . . . .. . . . 0 • • • • • 114 2 U.S.C. § 2000d . . . .. . . .. . . 0 • • • • • • • • • • • • • 114 2 U.S.C. § 360 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 U.S.C. § 3604(a) . . . . . . . . . . . . . .. . . . . i, 2, 9, 1242 U.S.C. § 3604(b) . . . . . . . . . . . . . . . 0 • • • • • • • 2, 9St. Paul, M nn. , Leg slat ve Code § 34.01 . . . . . . . 3 i i i
  13. 13. 1 PETITION FOR A WRIT OF CERTIORARI Petitioners respectfully petition for a writ ofcertiorari to review the opinion and judgment of theUnited States Court of Appeals for the Eighth Circuitin this case. OPINIONS BELOW The district courts order granting summaryjudgment in favor of Petitioners dated December 18,2008, is published at 595 F. Supp. 2d 987. Pet. App.48a-1 15a. The opinion of the United States Court ofAppeals for the Eighth Circuit reversing the districtcourt on the issue of disparate impact and datedSeptember 1 , 2010, is published at 619 F. 3d 823. Pet.App. 1a-42a. The order of the United States Court ofAppeals for the Eighth Circuit denying Petitionerspetition for rehearing en bane was fi led onNovember 15, 2010. Pet. App. 1 16a-125a. JURISDICTION The judgment of the Court of Appeals was enteredon September 1 , 2010. Pet. App. 43a-47a. OnNovember 15, 2010, the Court of Appeals opiniondenying Petitioners request for rehearing en bane wasentered. This Court has jurisdiction pursuant to 28U. S. C. § 1254( 1).
  14. 14. 2 RELEVANT STATUTORY PROVISION The Fair Housing Act provides in relevant part:[I] t shall be unlawful -- (a) To refuse to sell or rent after the making ofa bona fi de offer, or to refuse to negotiate for the saleor rental of, or otherwise make unavailable or deny, adwelling to any person because of race, color, religion,sex, familial status, or national origin. (b) To discriminate against any person in theterms, conditions, or privileges of sale or rental of adwelling, or in the provision of the services or facilitiesin connection therewith, because of race, color,religion, sex, familial status, or national origin.42 U.S.C. § 3604(a)-(b). STATEMENT OF THE CASE The issue of whether disparate impact analysisapplies to the Fair Housing Act has been percolatingamong the circuits for two decades. In 2005, thisCourt provided guidance to the question in Smith u.City ofJackson, Miss. , 544 U.S. 228 (2005). In Smith,a disparate impact theory of liability was foundcognizable under the Age Discrimination inEmployment Act (ADEA) based on the "identical text"found in § 70 3(a)(2) of Title VI I and § 4(a)(2) of theADEA. In the case at bar, the petition for rehearing enbane was denied, but the five judge dissent recognizedthis important and timely issue and found that thetext in both the ADEA and Title VII containstriggering language for a disparate impact analy sis
  15. 15. 3application based on "a prohibition on limiting,segregating, or classifyi ng employees in any way whichwould . . . adversely affect [an individuals] status asan employee, because of such individuals race or age."Pet. App. 122a. The en bane dissent recognized thatthis language is not part of the applicable FairHousing Act language and instead recognized thelanguage similarities between Title VI, which does notallow a disparate impact claim, and the Fair HousingAct. Only two circuits have applied a disparate impactanalysis since Smith; in addition there has been"virtually no discussion of the matter by any court ofappeals since the Court in Smith explained how thetext of Title VII justifi ed the decision [applyi ngdisparate impact analysis in the Griggs Title VIIcase] ." Pet. App. 123a. Because there has beenvirtually no discussion, and because this Court has notdecided the issue, the circuits that have founddisparate impact analysis applies have used conflictingtests with differing results. This case is the perfectvehicle to decide these important and impactful issues. Respondents collectively are owners or formerowners of approximately 120 rental properties withinthe City of Saint Paul. All properties in the City,whether owner occupied, renter occupied, publiclyowned, or privately owned, are subj ect to the Cityshousing code. The code was enacted "to protect thepubl ic health, safety and wel fare in all structures andon all premises." St. Paul, Minn. , L egislative Code§ 34.01. The Citys housing code requires thatproperties meet minimum maintenance standardssuch as requiring the property be free from rodentinfestation, have an operable toilet and a safely
  16. 16. 4maintained heating facility. If the properties do notmeet the housing code, owners are subject to the Cityscode enforcement wherein owners are required to bringtheir properties into compliance with the housing code.Respondents claim that the Citys aggressive housingcode enforcement has a disparate impact on African­Americans. The aggressive code enforcement that Respondentschallenge has a purposeful, positive impact on thoseliving in neglected rental homes; concentratingservices on those properties that are in most disrepair.Respondents seek to use the Fair Housing Act tothwart City enforcement of its housing code andtherefore to prevent the City from protecting thoseresidents who need it most. Respondents seek to avoidfixing up their properties to meet the minimumhousing code because it will cut their profits andprevent them from renting out dilapidated homes.This defeats the goal of the Fair Housing Act. Below, the district court granted Petitionersmotion for summary judgment under a disparateimpact claim by applying a three part burden shiftingtest. The court found that Respondents must showthat a facially neutral policy results in, or can bepredicted to result in, disparate impact on protectedclasses compared to a relevant population. IfRespondents make that showing, Petitioners must beable to show that the objected to policy has a "manifestrelationship" to legitimate, common, non­discriminatory policy objectives and "is justifiable onthe ground it is necessary to" the attainment of thoseobjectives. Pet. App. 61a. If Petitioners make thatshowing, the court stated the burden shifts back toRespondents to show that a viable alternative means
  17. 17. 5is a vailable to achie v the legitimate pol i y objecti v e c ewithout discriminatory i pact. Pet. App. 61a. m The d i tr i t court found that Respondents did not s cshow that the Citys aggressi v code enforcement had ea disparate impact on Mrican -Americans. The distr i tccourt, relying on the Tenth Circui t, found"[Respondents ] must do more than show that thehousing code increases the cost of low-income housingand that minorities tend to ha v lower incomes."l Pet. eApp. 63a. Furthermore, the district court found, e v enhad Respondents made a prima facie case of disparateimpact, the City put forth e vi ence that enforcement dof the housing code had a manifest relationship to alegitimate, nondiscriminatory policy objecti v which ewas to maintain minimum property standards forproperties w i hin the C i y. Respondents argued that t ta pre vious, and limited, City enforcement program ,,named "PP2000 2 would achie v the C i ys objecti v e t eswithout discriminatory impact. The d i trict court srejected this argument because PP2000 d i not change dmi nimum ma i tenance requirements or excuse n1 The Tenth Circuit does not apply the three part burden shiftingtest to a Fair Housing Act disparate impact analysis that thedistrict court applied here. It applies a three part balancing testderived from a four part balancing test from the Seventh Circuit.Reinhart v. Lincoln Cnty. , 482 F.3d 1225, 1229 ( 10th Cir. 2007).2 In fall 1999, the City began a program known as PP2000, shortfor problem properties 2000. As part of the program, a limitednumber of landlords in the City who owned some of the mostProblematic Properties -- properties that violated the Cityshousing code frequently and in many areas -- worked with aspecified housing inspector. The program lasted approximatelyone year and had 12-15 participating landlords and two inspectorsassigned to it.
  18. 18. 6property owners from compliance with the housingcode. The program required the same costs to bringthe property up to the minimum standards andtherefore had the same effect on African-Americans. A panel of the Court of Appeals reversed and foundthat Respondents offered evidence to support thefollowing conclusions: a) the City experienced ashortage of affordable housing, b) racial minorities,e specially African-American s , made up adisproportionate percentage of lower Incomehouseholds in the City that rely on low incomehousing, c) the aggressive housing code enforcementpractices increased costs for property owners that rentto low income tenants, d) the increased burden onrental property owners from aggressive codeenforcement resulted in less affordable housing in theCity. The panel acknowledged that " [ t]hough there isnot a single document that connects the dots of[ Respondents] disparate impact claim, it is enoughthat each analytic step is reasonable and supported bythe evidence." Pet App. 20a. In making this finding, the panel applied a "three­step analysis to [Respondents] disparate impactclaim." Pet App. 16a. Th e panel identified the firststep as requiring Respondents to show that theobj ected to conduct resul ted in a di sparate impact onprotected classes as compared to a relevant population.The panel found that the burden then shifts toPetitioners to show that housing code enforcement hasa manifest relationship to legitimate, non­di scriminatory objectives. Pet App. 24a. Respondentsconceded that the Citys housing code enforcement hasa manifest relationship to legitimate, non­discriminatory obj ectives. Pet App. 24a. The panel
  19. 19. 7then found that the burden sh i s back to Respondents ftto offer a vi ble alternat iv that sat i fies the C i ys a e s tleg i i ate, pol i y object iv tm c es wh i e reduc i g the l nd i i i atory i pact of the C i ys hous i g code scr m n m t nenforcement. Pet App. 24a. The panel found thatRespondents i ent i ed PP2000 as a vi ble alternat iv d fi a eto c i yw i e code enforcement. t d The panel d i not i ent ify any e vi ence that the d d dPP2000 program sat i fies the C i ys leg i i ate pol i y s t tm cobject iv wh i e reduc i g the d i i i atory i pact of es l n scr m n mthe C i ys code enforcement pract i es. The panel rel i d t c eon a report that found that the program was effect iv e i reduc i g compla i ts aga i st part i i at i g owners. n n n n cp nThere was no e vi ence that i reduced any d tma i tenance costs of the part i i at i g owners, or that n cp nthe l i i ed program met Pet i i ners leg i i ate pol i mt to tm cyobject iv es of keep i g all propert i s (not just n epart i i ants propert i s) i the C i y ma i ta i ed to cp e n t n nm i i um property standards and safe for the nm i hab i ants. n t Pet i i ners requested a rehear i g en bane argu i g, to n ninter alia, that apply i g a d i parate i pact analys i to n s m shous i g codes would i effect pre v n n ent rac i lly d iv a ersemun i i al i i s w i h a shortage of affordable hous i g cp te t nfrom enforc i g the i hous i g codes. Pet i i ners n r n toh i hl i hted that under the panels analys i , a per se g g scase of d i sparate i pact ex i ts when neglectful m slandlords fa i to meet m i i um ma i tenance l nm nstandards I a rac i lly d iv n a erse mun i i al i y. cp tFurthermore , the panel d i not require that dRespondents offer any stat i t i al i format i n or show s c n ohow the C i ys hous i g code enforcement affected those t ntenants not i protected classes. The i pact of the n m
  20. 20. 8City s enforcement on u nprotected classes versusprotected classes was not shown and is still unknown. The Eighth Circuit denied Petitioners request fora rehearing en bane with fi ve of the eleven judgesdissenting. Those dissenting were Chief Judge L okenand Circuit Judges Colloton, Riley , Gruender, andShepherd. The dissent recognized that this Court hasnot y et decided whether the Fair Housing Act allowsfor recovery based on a disparate impact theory . Also,the dissent found that there exi sts an importantundecided question of "whether aggressiveenforcement of a housing code is the sort of faciallyneutral policy that can trigger disparate impactanaly sis under the [Fair Housing Act] . . . . " Pet. App.11 8a. "Second, if disparate impact analy sis should beapplied to claims under the [Fair Housing Act] basedon the purpose of the statute, then it seemsappropriate to consider whether the purpose of thestatute extends to declaring a city liable for disparateimpact caused by its aggressive enforcement of ahousing code." Pet. App. 1 24a (internal citationomitted) . REASONS FOR GRANTING THE WRITI. THIS COURT SHOULD DECIDE THE ISSUE OF WHETHER DISPARATE IMPACT ANALYSIS APPLIES To FAIR HOUSING ACT CLAIMS. Most courts of appeals permit disparate impactclaims under the Fair Housing Act, but the circu itsthat have decided to apply that analy sis are divided onthe approach for resolving these claims. Before thisCourt reaches the issue of which test should be appliedto a Fair Housing Act disparate impact claim, the
  21. 21. 9Court should first consider the threshold question ofwhether disparate impact claims are cognizable underthe Fair Housing Act at all. This Court hasspecifically recognized that this is an open question,and as the dissent to the Order denying the petitionfor rehearing en bane has made clear, there is aserious question as to whether disparate impact claimschallenging a citys code enforcement should berecognized. Deciding the threshold question mayob viate the need to decide which test to apply andpro vide a definiti v answer to the circuits on this eimportant and fully de v eloped, twenty year oldquestion. The Fair Housing Act makes it unlawful "to refuseto sell or rent . . . or otherwise make a vailable or deny,a dwelling to any person because of race, color,religion, sex, familial status or national origin." 42U.S.C. § 3604(a). Or, "to discriminate against anyperson in the terms, conditions, or pri v ileges of sale orrental of a dwelling . . . because of race, color, religion,sex, familial status, or national origin." 42 . U.S.C.§ 3604(b). District and circuit courts ha v interpreted ethis language to encompass both a disparate treatmentand a disparate impact theory of liability. Disparate treatment claims allege intentionaldiscrimina tion on the basis of a protectedcharacteristic. Proof of discriminatory purpose iscrucial for a disparate treatment claim. Intl Broth. ofTeamsters v. United States, 431 U.S. 324, 335 n. 15(1977). Applied to housing code enforcement, aplaintiff would ha v to show that the action or policy eshe challenged had the purpose of discriminatingagainst those in a protected class.
  22. 22. 10 In comparison, disparate impact claims usually donot depend on the intent of the action or policy.Howe v the circuits ha v applied conflicting tests to er, eFair Housing Act disparate impact analysis.Currently, courts in all ele v circuits and the D.C. enCircuit ha v applied at least four distinct tests to Fair eHousing Act disparate impact analysis. At least onetest, fol l wed by the Fourth and Se v o enth Circuits (twoof the circuits relied upon by the panel) and v ariousdistrict courts, factors in discriminatory intent. This Court has not yet decided whether the FairHousing Act allows for reco v ery based on a disparateimpact theory. In Town of Huntington, N. Y. v.Huntington Branch, NAACP 488 U.S. 15, 18 ( 1988) ,(per curium) this Court specifically recognized that ithad not yet decided the question of whether adisparate impact analysis is appropriate in a FairHousing Act claim. Howe v this Court did not decide er,the issue in Town of Huntington because the partiesconceded its applicability. 488 U.S. at 18. As a result,the is � of whether a disparate impact analysis ueapplies to the Fair Housing Act remains unresol v edand has been ripe for re view for o v two decades. er A. The Text Of The Fair Housing Act Does Not Support A Cognizable Disparate Impact Claim. In 2005, this Court analyzed disparate impact as itapplies to claims brought under the ADEA. Smith,544 U.S. 228. In Smith, this Court held that adisparate impact theory is cognizable under the ADEA.In doing so, this Court emphasized that § 703(a)(2) ofTitle VII at issue in Griggs v. Duke Power Co. , 40 1U.S. 424, 430-43 1 ( 197 1), and the comparable language
  23. 23. 11in the ADEA "prohibits such actions that depri v any eindi vidual of employment opportunities or otherwiseadversely af ect his status as an employee, because of fsuch indi viduals race or age." Smith, 544 U.S . at 235(plurality opinion). This Court recognized "key textual differences"between § 4(a)(1 ) of the ADEA, which makes itunlawful "to fail or refuse to hire . . . any indi vidual . . .because of such indi v iduals age," which does notencompass disparate impact liability, and § 4(a )(2),which does authorize reco v ery based on disparateimpact. Id. at 236 n.6 (omissions in original ) (internalquotations omitted). This Court has found thatanother important ci v rights statute, Title VI of the ilCi vil Rights Act, forbids only intentionaldiscrimination and does not prohibit actions takenwith a non-discriminatory moti v that ha v a e edisparate impact on racial groups. See Alexander v.Sandoval, 532 U.S. 275, 280-81 (2001 ). In contrast toTitle VII and the ADEA, the text of Title VI does notproscribe acti v ities that would "ad v ersely affect" aperson because of a protected characteristic. See 42U.S.C. § 2000d ("No person in the United States shall,on the ground of race, color, or national origin, beexcluded from participation in, be denied the benefitsof, or be subjected to discrimination under anyprogram or acti v ity recei v ing Federal financialassistance."). Four years later, this Court analyzedTitle IX which states that "No person in the UnitedStates shall, on the basis of sex, be excluded fromparticipation in, be denied the benefits of, or besubjected to discrimination under any educationprogram or acti v ity recei v ing Federal financialassistance . . . . " 20 U.S.C. § 168 1. This language wasfound, like Alexander, to allow a cause of action
  24. 24. 12premised on intentional discrimination but did notpermit a cause of action premised on disparate impact. Similarly, the Fair Housing Act does not includetext comparable to that relied on in Smith andappearing in § 70 3{a){2) of Title VI I, and § 4(a)(2) ofthe ADEA. Rather, the text of 42 U.S.C. § 360 4{a)makes it unlawful to " . . . make unavailable or deny, adwelling to any person because of race, color, religion,sex, familial status, or national origin." This languageis similar to § 4(a){1) of the ADEA, which the Court inSmith said does not support a claim based upondisparate impact alone. Smith, 544 U.S. at 236 n.6(plurality opinion). However, most circuit courts have found thatdisparate impact analysis applies to Fair Housing Actclaims. They have done this although there has beenno consideration by this Court of the textual basis fordisparate impacts application to Fair Housing Actclaims. Furthermore, since the Smith Court explainedhow the text ofTitle VII justifi ed its decision in Griggs,there has been nearly no discussion of the matter byany court of appeals. Accordingly, certiorari should begranted so that this Court can decide this importantquestion: Does a disparate impact analysis apply toFair Housing Act claims? B. The Fair Housing Act Does Not Reach Every Event That Might Conceivably Affect The Availability Of Housing. Congress has declared that the purpose of the FairHousing Act is "to provide, within constitutionallimitations, for fair housing throughout the UnitedStates." 42 U.S.C. § 360 1. As recognized as early as
  25. 25. 131977, in one of the first cases to permit a Fair HousingAct disparate impact claim, the Seventh Circuitemphasized not "every action which producesdiscriminatory effects is illegal." Metro. Hous. Dev.Corp. v. Vill. ofArlington Heights, 558 F.2d 1283, 1290(7th Cir. 1977) (Arlington Heights In. Indeed, herePetitioners, like cities throughout the United States,are enforcing a municipalitys housing code city wide.The housing code undisputedly applies to allproperties, both rental and owner occupied properties,without regard to the race of the tenants or theproperty owners. The City is enforcing minimumproperty standards so that all who live in the Cityhave dwellings that are structurally sound, safe, andprovide minimally basic shelter. Any municipalityenforcing its housing codes does so in part to protectresidents from structurally unsound or unsafedwellings. It is a welcome consequence that rentersare protected from neglectful landlords and landlordsare required to meet minimum property maintenancestandards. In United States v. City of Black Jack, Missouri,508 F.2d 1 179 (8th Cir. 1974), the Eighth Circuitreasoned by analogy to this Courts decision in Griggs,40 1 U.S . at 430-43 1 , that the discretion of local zoningofficials recognized in Village of Belle Terre v. Boraas,4 16 U.S . 1 ( 1974), must be curbed where "the clearresult of such discretion is the segregation of lowincome Blacks from all White neighborhoods." (CitingBanks v. Perk, 341 F. Supp. 1 175, 1 180 (N.D. Ohio1972) affd in part and revd in part without opinion,473 F.2d 9 10 (6th Cir. 1973). The purpose of the FairHousing Act, to provide fair housing throughout theUnited States, is not different from what amunicipality is doing when it applies a race neutral
  26. 26. 14mi nimum maintenance standard to properties withina city. It is a citys housing code that protects the verysame individuals that the Fair Housing Act was meantto protect. Members of protected classes should not beforced to live in properties that are neglected and donot meet minimum standards. To prevent this, citiesmust be allowed to enforce their housing codes. In Jersey Heights Neighborhood Assn v.Glendening, 174 F.3d 180 (4th Cir. 1999), minoritylandowners challenged the placement of a highway inMaryland claiming disparate impact under the FairHousing Act. The placement of the highway, theyargued, violated the purpose of the Fair Housing Act.The court found that the Fair Housing Act did notappl y to plaintiffs claims challenging a highwayplacement. The court held that the Fair Housing Actdoes not reach every event "that might conceivablyaffect the availability of housing." Id. at 192 (citingMackey v. Nationwide Ins. Cos., 724 F.2d 4 19, 423 (4thCir. 1984» . "Section 3604(a ) is designed to ensure thatno one is denied the right to live where they choose fordiscriminatory reasons." Id. (citing SouthendNeighborhood Imp. Assn v. St. Clair Cnty. , 743 F.2d1207, 1210 (7th Cir. 1984» . The landowners arguedthey were more burdened by the highway than others,but as the court explained under this theory [H]ow is a multicultural society ever to locate a highway? Suppose a roadway runs by a neighborhood that is thirty-five percent Anglo, forty-fi ve percent L atino, and twenty-percent Mrican-American. Does the predominant ethnic group have a disparate impact claim? . . . Will planners have to relocate the corridor to ensure that it affects each ethnicity
  27. 27. 15 proportionally? Simply to pose these questions is to demonstrate the absurdity of the result: a twisting, turning roadway that zigs and zags only to capture equally e very ethnic subset of our population.Id. at 194. In code enforcement cases, recognizing disparateimpact claims would be just as illogical as building azig-zagging highway. Barring municipal l ies from tenforcing housing codes in homes because they areoccupied by protected class members "would lead torace-based decision ma ki of the worst sort. We do ngnot think the drafters of the Fair Housing Act e v ercontemplated such a reading." [d. This inability toenforce health and safety codes would e v entuallyresult in exactly what the Fair Housing Act washistorically enacted to eliminate, urban neighborhoodsrife with substandard housing, disproportionallyoccupied by protected class members. This · wouldpre vent any municipality with a di v erse population ofrenters from enforcing housing codes on rentalproperties neglected by their owners.II. THE COURTS OF APPEALS ARE DIVIDED As To WHAT TEST APPLIES To A FAIR HOUSING ACT CLAIM. This Court has not addressed the issue of what testwould apply to a Fair Housing Act disparate impactanalysis. Without gi v any guidance from this Court en
  28. 28. 16on how to do so, nine circuits3 have developed theirown approaches which relate back to three early FairHousing Act disparate impact cases. ArlingtonHeights II, 558 F .2d at 1283; Resident Advisory Bd. v.Rizzo, 564 F .2d 126, 148 (3d Cir. 1977); HuntingtonBranch, N AACP v. Town ofHuntington , 844 F.2d 926(2d Cir. 1988). The test each circuit uses generallyfalls into one of two categories, either a burden shiftingor balancing approach. Each circuit then modifi estheir approach and has formulated a specifi c test fortheir circuit. A. Balancing Factors Approach. The Seventh Circuit was one of the fi rst circuits tohold that claims of disparate impact are cognizableunder the Fair Housing Act. Arlington Heights II, 558F .2d at 1283. In doing so, the court emphasized thatnot every action that results in a discriminatoryimpact is a violation ofthe Fair Housing Act. Id. 1290."Such a per se rule would go beyond the intent ofCongress and would lead courts to untenable results inspecifi c cases." Id. The court developed a balancingtest and identifi ed four factors to consider whendetermining whether the conduct that produces thedisparate impact violates the Fair Housing Act: ( 1) the3The Fifth Circuit has held that actions causing discriminatoryimpact can violate the Fair Housing Act, but has not decided whatanalysis to use after a plaintiff establishes disparate impact. Coxv. City of Dallas, Tex., 430 F.3d 734, 746 (5th eire 2005). TheEleventh and D.C. Circuits have not yet decided the thresholdquestion of whether such claims can be brought. Schwarz v. Cityof Treasure Island, 544 F.3d 1201 ( 1 1th Cir. 2008); 2922 ShermanAve. Tenants Assn v. Dist. of Columbia, 444 F.3d 673, 679 (D.C.Cir. 2006).
  29. 29. 17strength of the plaintiffs showing of discriminatoryimpact; (2) evidence of discriminatory intent, thoughnot enough to satisfy the constitutional standard ofWashington v. Davis, 426 U.S. 229, 239 ( 1 976); (3) thedefendants interest in the challenged conduct; and(4) whether the plaintiff seeks affirmative relief ormerely to restrain the defendant from interfering withindividual property owners who wish to providehousing. Id. The Fourth Circuit has also recognized disparateimpact claims under the Fair Housing Act. Smith v.Town of Clarkton, N. C. , 682 F.2d 1 055, 1 065 (4th Cir.1982). However, the Fourth Circuit is unique in thatit applies two different tests. When the case involvesa public defendant, the court balances the four factorslisted above in Arlington Heights II. E .g. , Betsey v.Turtle Creek Assocs. , 736 F.2d 983, 989 n.5 (4th Cir.1 984). When the case includes a private defendant,the court uses the burden shifting test developed foremployment discrimination cases by this Court inMcDonnell Douglas Corp. v. Green, 41 1 U.S. 792, 802( 1 973) (once the plaintiff makes aprima facie showing,the private defendant must articulate "a compellingbusiness necessity exists, sufficient to overcome theshowing of disparate impact"). The Sixth Circuit uses an Arlington Heights IIanalysis, but does not require any showing ofdiscriminatory intent and therefore only weighs threeof the four Arlington Heights II factors. Arthur v. CityofToledo, Ohio, 782 F.2d 565, 574-575 (6th Cir. 1 986).The court held that only the following factors should beconsidered: ( 1 ) how strong is the plaintiffs showing ofdiscriminatory impact; (2 ) what is the defendantsinterest in taking the action complained of; and
  30. 30. 18(3 ) does the plaintiff seek to compel the defendant toaffirmatively provide housing for members of minoritygroups or merely to restrain the defendant frominterfering with individual property owners who wishto provide such housing. Id. , cited by Buckeye Cmty.Hope Found. v. City of Cuyahoga Falls, 263 F.3 d 627,640 (6th Cir. 200 1), revd in part, vacated in part subnom. 53 8 U.S. 188 (2003 ). "We adopt three of the fourfactors pronounced in Arlington [Heights] II. Underthe second factor, the Seventh Circuit inquiredwhether plaintiffs i� troduced some evidence ofdiscriminatory intent. The court, howey er, concludedthat this factor was the least important of the fourfactors. We agree and additionally decide not toconsider this factor in our analysis." Arthur, 782 F.2dat 575 (citing Arlington Heights II, 558 F.2d at 1292). The Tenth Circuit, like the Sixth Circuit, applies amodified Arlington Heights II test which includes onlythe first, third, and fourth factors ofArlington HeightsII. Reinhart v. Lincoln Cnty. , 482 F.3 d 1225, 1229( 10th Cir. 2007); see Mountain Side Mobile EstatesPship v. Secy of Hous. & Urban Dev. , 56 F .3 d 1243 ,1252 ( 10th Cir. 1995). In eliminating the intentrequirement, the court explained that i ntent isrequired only in claims for disparate treatment.Reinhart, 482 F .3 d at 1229; see Bangerter v. Orem CityCorp., 46 F.3 d 149 1 , 1501 ( 10th Cir. 1995). Incontrast, in disparate impact claims, the plaintiff neednot show that the poli cy was formulated withdiscriminatory intent because the plaintiff ischallenging a facially neutral policy that "actually orpredictably results in . . . discrimination." Reinhart,482 F.3 d at 1229 (citing Huntington Branch, NAACP,844 F.2d at 934 (internal quotation marks omitted),affd sub nom. , 488 U.S . 15 ( 1988)).
  31. 31. 19 B. Burden Shifting Approach. Soon after the Seventh Circuit developed its test inArlington Heights II, the Third Circuit developed itsown completely different test based on a burdenshifting framework similar to what had been used inTitle VII employment cases. Rizzo, 564 F .2d at 148.Under the Rizzo approach, the plaintiff can make aprima f acie case by showing that the defendantsaction has a discriminatory impact. Id. at 148. Thedefendant can rebut this by showing a justificationwhich "serve [s] , in theory and in practice, a legitimate,bona fide interest" and by showing that "no alternativecourse of action could be adopted that would enablethe interest to be served with less discriminatoryimpact." Id. at 149. The Eighth and Ninth Circuits both recognizedisparate impact claims under the Fair Housing Actbut apply a modified burden shifting framework thatincludes three steps. Darst-Webbe Tenant Assn Bd. v.St. Louis Hous. Auth. , 417 F .3d 898, 902-903 (8th Cir.2005); Harris v. Itzhaki, 183 F.3d 1043, 105 1 (9th Cir.1999). Using this approach, plaintiffs still carry thefirst burden of showing a discriminatory impact, but torebut defendants need only provide a bona fide, non­discriminatory justification. The burden then shiftsback to the plaintiffs to show an alternative that is lessdiscriminatory but that also serves the defendantsinterest. Darst-Webbe Tenant Assn Bd. , 417 F.3d at902-903, OtiKaga, Inc. v. S. Dakota Hous. Dev. Auth. ,342 F.3d 87 1, 883 (8th Cir. 2003). To prove discrimination under a disparate impact analysis [plaintifi] must show a facially neutral policy has a significant adverse impact
  32. 32. 20 on members of a protected minority group. The burden then shifts to [defendant] to show the policy has a manifest relationship to the [action that produces the discriminatory impact] and is justifiable on the ground it is necessary to [defendants action] . If [defendant] is able to show the policy is justified, [plaintiff] may nonetheless prevail by showing another policy would accomplish [defendants] objectives without the discriminatory effects.Oti Kaga, Inc. , 342 F.3d at 883. c. Hybrid Burden Shifting And Balancing Test. Ten years after the decision in Arlington Heights II,the Second Circuit developed a third test by mergingthe burden shifting test in Rizzo with the balancingtest in Arlington Heights II. Huntington Branch,NAACP, 844 F.2d 926. The Huntington Branch,NAACP court held that the plaintiff must firstestablish a prima f acie case of discriminatory impactby showing that the "challenged practice of thedefendant actually or predictably results in racialdiscrimination." Huntington Branch, NAACP, "844F.2d at 934 (citing Rizzo, 564 F.2d at 148-149). Theburden then shifts to the defendant to rebut this caseby showing that its "actions furthered, in theory and inpractice, a legitimate, bona fide governmental interestand that no alternative would serve that interest withless discriminatory effect." Id. After the burdenshifting test is applied, the Second Circuit balancestwo of the Arlington Heights II factors (numbers 2 and4) before making an ultimate determination on themerits. Id. Although the plaintiff is not required to
  33. 33. 21show it to establish a prima facie case, the court firstlooks to see whether there is any evidence ofdiscriminatory intent on the part of the defendant. Id."Though we have ruled that such intent is not arequirement of the plaintiffs prima f acie case, therecan be little doubt that if evidence of such intent ispresented, that evidence would weigh heavily on theplaintiffs side of the ultimate balance." Id. Thesecond factor weighed is "whether the plaintiff is suingto compel a governmental defendant to build housingor only to require a governmental defendant toeliminate some obstacle to housing that the plaintiffitself will build.» Id. The First Circuit, in choosing the HuntingtonBranch, NAACP hybrid burden shifting approach overany sort of balancing test, explained, "[W] e do notthink that the courtsjob is to balance objectives, withindividual judges deciding which seem to them moreworthy. True, one circuit court decision did refer tobalancing . . . but the few later circuit court decisionson point come closer to a simple justification test . . .and we think this is by far the better approach."Langlois v . Abington Hous. Auth. , 207 F.3d 43, 49 (1stCir. 2000) (internal citations omitted).III. THIS CASE PROVIDES THE IDEAL VEHICLE FOR RESOLVING IMPORTANT ISSUES REGARDING THE SCOPE OF THE FAIR HOUSING ACT. A. This Case Presents Purely Legal Questions That Should Be Determined By This Court. It is appropriate for this Court to hear cases thatpresent purely questions of law. Whether disparateimpact analysis applies to Fair Housing Act claims
  34. 34. 22squarel y fi ts that category as the question presented isentirely a legal question. The specifi c facts involvedhere are immaterial to the resolution of the questionspresented and therefore the issues presented areappropriate for this Courts review. Nixon v.Fitzgerald, 457 U.S. 731 , 743 n.23 ( 1982); and Mitehellv. Forsyth, 472 U.S. 5 1 1, 530 ( 1985) (both holding thatpurely legal questions presented in a petition forcertiorari may be appropriate for decision even if notaddressed by the lower court). B. The Application Of Disparate Impact Analysis To A Fair Housing Act Claim Was Raised Below. In the motion for summary judgment to the districtcourt, the brief to the Eighth Circuit Court of Appeals,and in the petition for rehearing en bane, Petitionersconti nuously argued that Respondents did not presentevidence to support a Fair Housing Act claim analyzedunder disparate impact analysis. Furthermore, in thepetition for rehearing en bane Petitioners argued thatthe Eighth Circuit panel created a circuit split by itsdecision which was in direct conflict with law in othercircuits cited by the panel. As correctly recognized bythe dissent "the petition raises important questionsconcerning whether aggressive enforcement of ahousing code is the sort of facial ly neutral policy thatcan trigger disparate-impact analysis under the [ FairHousing Act] . . . ." Pet. App. 1 18a. Petitionersproperly preserved the claim for Supreme Courtreview by consistently challenging Respondents FairHousing Act claim and the panels application of thelaw. Lebron v. Natl R.R. Passenger Corp., 513 U.S.374, 379 ( 1995) ("in our view [the argument thatAmtrak was part of the government is] not a new
  35. 35. 23claim . . . but a new argument to support what hasbeen his consistent claim: that Amtrak did not accordhim the rights it was obliged to provide by the FirstAmendment"); see also Yee v. City ofEscondido, Cal. ,503 U.S. 5 19, 535 ( 1992) (since petitioners "raised ataking claim in the state courts," they "could haveformulated any argument they liked in support of thatclaim here"); PGA Tour, Inc. v. Martin, 532 U.S. 661,678 n.27 (200 1) (where Americans with DisabilitiesAct coverage issue was raised below, the Court wouldentertain a new argument regarding the statutesscope). Furthermore, the threshold issue, whether or notdisparate impact analysis applies to a Fair HousingAct case at all, was specifically discussed by the enbanc dissent. Pet. App. 1 19a-120a. Therefore, theissue, as discussed by the en banc dissent, isparticularly well suited for this Courts review.Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083,1099 n.B ( 199 1) (raising such an issue before the Courtis particularly appropriate where the question (1) is in"a state of evolving definition and uncertainty," and(2 ) is "one of importance to the administration offederal law"); see also Lebron, 513 U.S. at 379 ("even ifthis were a claim not raised by petitioner below, wewould ordinarily feel free to address it, since it wasaddressed by the court below"). Finally, Petitioners challenged the disparateimpact claim based on Eighth Circuit precedent, andother circuit court cases that applied disparate impactanalysis to Fair Housing Act claims. That Petitionersmay not have directly challenged the application ofdispara te impact analysis to the Fair Housing Actclaims does not preclude review of that threshold issue
  36. 36. 24by this Court. Petitioners approach to challengingdisparate impact analysis and the application chosenby the panel reflects Petitioners assessment that anargument to the Eighth Circuit to ignore EighthCircuit precedent would be futile. See, e.g.,Medimmune, Inc. u. Genentech, Inc. , 549 U.S . 1 1S, 125(2007) (limiting contract argument to a few pages doesnot suggest waiver but reflects counsels soundassessment that the argument would be futile). C. The Lack Of Uniformity In The Circuits Nationwide Leads To Confusion About Cities Ability To Enforce Their Housing Codes. The way the law stands, cities with a div� rsepopulation located in the Fourth and Seventh Circuits(which apply a four part balancing test) can enforcetheir housing codes where protected class individualslive in properties subj ect to the housing code at a rategreater than those non-protected class individuals.The balancing test allows courts in those jurisdictionsto use common sense when determining whether or nota violation of the Fair Housing Act has occurred. L ikewise, those in the Sixth and Tenth Circuitsmay be able to enforce the housing codes in a raciallydiverse municipality depending on how the modifi edArlington Heights II approach (three part balancingtest) is applied. The First and Second Circuits apply the burdenshifting test from the Third Circuit and then two of theparts from the balancing test from the Fourth andSeventh Circuits. This hybrid test, depending on howapplied, may also allow courts in the Second Circuit to
  37. 37. 25use common sense when deciding whether or not therewas a violation of the Fair Housing Act. In the Eighth and Ninth Circuits, applying housingcodes in a diverse municipality when protected classindividuals live in properties violating the housingcode at a higher rate than non-protected classindividuals, would be a per se violation of the FairHousing Act. The Eleventh and D.C. Circuits have notdetermined whether disparate impact analysis appliest€ a claim brought under the Fair Housing Act at all.In light of the analysis this Court relied upon inSmith, 544 U.S. 228, it is possible that these circuitswould find that there is no basis for a disparate impactanalysis in a Fair Housing Act claim. As it stands today, Los Angeles, Minneapolis,Phoenix, San Francisco, and all other municipalities inthe Eighth and Ninth Circuits cannot enforceminimum maintenance standards on properties withinthe municipality without inviting a claim broughtunder the Fair Housing Act. All that the burdenshifting in those circuits requires, under the panelsanalysis, is a showing that there is a shortage ofaffordable housing, racial minorities make up adisproportionate number of low income individualswho rely on affordable housing, code enforcementincreases costs to landlords who rent to low incomeindividuals, and because of the increased cost to thoselandlords there will be a decrease in the amount ofaffordable housing available. Every municipality inthe Eighth and Ninth Circuit with a racially diversepopulation falls into that category.
  38. 38. 26 In contrast, the four part balancing test employedby Fourth and Seventh Circuits may not allow for sucha draconian disparate impact analysis. If you are aprotected class individual in Chicago or Raleigh, or anyother municipality in those circuits, you can expectthat citys code enforcement will be allowed to functionand code enforcement will be applied to provideminimally safe properties for all residents. The threepart balancing test in the Sixth and Tenth Circuits ismore likely to allow code enforcement that will ensurethat all properties, no matter the race of the resident,meet minimum maintenance standards. That wouldleave cities such as Denver and Columbus more likelythan Minneapolis to enforce minimum maintenancestandards without the threat of a Fair Housing Actclaim. The possibility of such divergent results isuntenable. It makes absolutely no sense for cities withsimilar demographics to have different standards inenforcing housing codes. Some municipalities wouldbe in violation of the Fair Housing Act in theirenforcement while others, providing the same codeenforcement, would not run afoul of the Fair HousingAct. Clearly, this issue must be resolved for thebenefi t of all American cities. Should landlords bechoosing a business location because the Fair HousingAct in some cities will prevent code enforcementagainst their neglected properties? It is doubtful thatthe drafters of the Fair Housing Act ever contemplatedsuch a twisted result.
  39. 39. 27 CONCLUSION For the foregoing reasons, the petition for writ ofcertiorari should be granted. Respectfully submitted, SARA R. GREWING City Attorney LOUISE TOSCANO SEEBA Counsel ofRecord K. MEGHAN KISCH Assistant City Attorneys 750 City Hall and Court House 15 West Kellogg Boulevard Saint Paul, MN 55 102 (65 1) 266-8772 Attorneys for Petitioners
  40. 40. APPENDIX
  41. 41. 1 APPENDIX TABLE OF CONTENTSAppendix A: Opinion and Judgment, United States Court of Appeals for the Eighth Circuit (September 1, 2010) . . . . . . . . . . laAppendix B: Order re Summary Judgment, United States District Court, District of Minnesota (December 18, 2008) . . . . . . . . 48aAppendix C: Order re Rehearing, United States Court of Appeals for the Eighth Circuit (November 15, 20 10) . . . . . . . 1 16a
  42. 42. la APPENDIX A United States Court of Appeals FOR THE EIGHTH CIRCUIT [Filed September 1, 2010] No. 09-1209Thomas J. Gallagher; Joseph J. )Collins, Sr.; Dadders Properties, LLC; )Dadders Estates, LLC; Dadders )Enterprises, LLC; Dadders Holdings, )LLC; Troy Allison; Jeff Kubitschek; )Sara Kubitschek, ) ) Plaintiffs - Appellants, ) ) v. ) )Steve Magner, individually and as a )supervisor of City of St. Pauls )Department of Neighborhood Housing )and Property Improvement; Mike )Cassidy, individually and as a code )enforcement officer of the City of St. )Paul; Joel Essling, individually and as a )code enforcement officer of the City of )St. Paul; Steve Schiller, individually )and as a code enforcement officer of the )City of St. Paul; Joe Yannarelly , )
  43. 43. 2aindividually and as a code enforcement )officer of the City of St. Paul; Dennis )Senty, individually and as a code )enforcement officer of the City of St. )Paul; Michael Urmann, individually )and as a fire inspector of the City of )St. Paul; Andy Dawkins, individually )and as Director of City of St. Pauls )Department of Neighborhood Housing )and Property Improvement; Randy )Kelly, individually and as Mayor of )City of St. Paul; John Doe; Jane Doe, )individually and in their official )capacities as code enforcement officers )of City of St. Pauls Department of )Neighborhood Housing and Property )Improvement, law enforcement officers )or other officials or employees of the )City of St. Paul; City of St. Paul, a )municipal corporation, ) ) Defendants - Appellees, )------- ) No. 09-1528Frank J. Steinhauser, III; Mark E. )Meysembourg; Kelly G. Brisson, ) ) Plaintiffs - Appellants, ) v. ) )City of St. Paul, a municipal )
  44. 44. 3acorporation; Randy Kelly, individually )and as Mayor of City of St. Paul; Andy )Dawkins, individually and as Director )of City of St. Pauls Department of )Neighborhood Housing and Property )Improvement; Lisa Martin, individually )and as a code enforcement officer of )City of St. Pauls Department of )Neighborhood Housing and Property )Improvement; Steve Magner, )individually and as a supervisor of City )of St. Pauls Department of )Neighborhood Housing and Property )Improvement; Dean Koehnen, )individually and as a law enforcement )officer of City of St. Paul; John Doe; )Jane Roe, individually and in their )official capacities as code enforcement )officers of City of St. Pauls Department )of Neighborhood Housing and Property )Improvement, law enforcement officers )or other officials or employees of the )City of St. Paul, ) ) Defendants - Appellees. )------- ) No. 09-1579Sandra Harrilal, ) ) Plaintiff - Appellant, ) )Bee Vue; Lamena Vue, )
  45. 45. 4a ) Plaintiffs, ) )Steven R. Johnson, doing business )as Market Group and Properties, ) ) Plaintiff - Appellant, ) ) v. ) )Steve Magner, individually and as a )supervisor of City of St. Pauls )Department of Neighborhood Housing )and Property Improvement; Michael )Kalis, individually and as a code )enforcement officer of City of St. Paul; )Dick Lippert, individually and as a code )enforcement officer of the City of St. )Paul; Kelly Booker, individually and as )a code enforcement officer of the City )of St. Paul; Jack Reardon, individually )and as a code enforcement officer of the )City of St. Paul; Paula Seeley, )individually and as a code enforcement )officer of the City of St. Paul; Lisa )Martin, individually and as a code )enforcement officer of the City of St. )Paul; Dean Koehnen, individually and )as a law enforcement officer of the City )of St. Paul; Andy Dawkins, individually )and as Director of the City of St. Pauls )Department of Neighborhood Housing )and Property Improvement; Randy )Kelly, individually and as Mayor of the )City of St. Paul; individually, jointly )and severally; John and Jane Doe, )
  46. 46. 5aindividually and in their official )capacities as code enforcement officers )of the City of St. Pauls Department )of Neighborhood Housing and Property )Improvement, law enforcement officers )or other officials or employees of the )City of St. Paul; City of St. Paul, a )municipal corporation, ) ) Defendants - Appellees. ) Appeals from the United States District Court for the District of Minnesota. Submitted: February 1 1 , 20 10 Filed: September 1, 2010Before WOLLMAN, BYE, and MELLOY, CircuitJudges.MELLOY, Circuit Judge. Several owners and former owners of rentalproperties in St. Paul, Minnesota brought theseconsolidated actions, challenging the City of St. Pauls("the City") enforcement of its housing code. Theproperty owners appeal the district courts( 1) dismissal of their claims on summary judgment,(2) denial of sanctions for spoliation of evidence, and(3) denial of discovery regarding Appellee SteveMagner. We affirm in all respects except the dismissal
  47. 47. 6aof Appellants disparate impact claim under the FairHousing Act.I. Background In 1993, the City enacted the PropertyMaintenance Code ("the Housing Code") , which"[e1 stablishes minimum maintenance standards for allstructures and premises for basic equipment andfacilities for light, ventilation, heating and sanitation;for safety from fire; for crime prevention; for space, useand location; and for safe and sanitary maintenance ofall structures and premises." St. Paul, Minn. Code§ 34.0 1(1) . Sometime shortly before or during 2002, theCity established the Department of NeighborhoodHousing and Property Improvement ("DNHPI") as anexecutive department responsible for administeringand enforcing the Housing Code. DNHPI wasempowered to inspect all one- and two-familydwellings and administer and enforce laws regulatingmaintenance of residential property. Appellee Andy Dawkins was the director ofDNHPIfrom 2002 to 2005. In that position, Dawkins favoredowner-occupied housing over rental housing "for thesake ofthe neighborhood [.1" Toward that end, Dawkinsincreased the level of Housing Code enforcementtargeted at rental properties. In addition to respondingto citizen complaints about particular properties,DNHPI inspectors conducted proactive "sweeps" todetect Housing Code violations. Furthermore, Dawkinsraised inspection standards by -directing DNHPIinspectors to "code to the max," that is, writing upevery violation-not just what was called in-andwriting up all the nearby properties-not just thereported properties. Lastly, DNHPI instituted a
  48. 48. 7auser-friendly system for inspectors and observers toreport Housing Code violations. Dawkins expected thatthis vigilance would help DNHPI raise an additional$500 ,000 in revenue, which would cover the costs ofadditional inspections. Under Dawkins leadership, DNHPI also increasedits Housing Code enforcement efforts regardingso-called "problem properties." The DNHPI websitedefined a problem property by saying: "If you live nextdoor to a problem property you know it! Constant callsto get rid of the junk, intolerable behavior byoccupants and guests, etc." DNHPI sought to compelproperty owners to take greater responsibility for theirproperties or, alternatively, force changes inownership. To achieve its objectives, DNHPI employeda variety of strategies for renter-occupied dwellings,including orders to correct or abate conditions,condemnations, vacant-building registration, fees forexcessive consumption of municipal services, tenantevictions, real-estate seizures, revocations of rentalregistrations, tenant-remedies actions, and ifnecessary, court actions. DNHPI coordinated itsefforts with the St. Paul police and an assistant Cityattorney. In addition, the City used a procedure known as"Code Compliance Certification" to require rentalproperties to meet current housing and buildingstandards. The contours of this procedure are unclear,but it appears that the City required rental propertyowners to acquire Code Compliance Certification if aproperty was remodeled or deemed a dangerousstructure, a nuisance building, or vacant. CodeCompliance inspections were conducted by the CitysOffice of License, Inspections, and Environmental
  49. 49. SaProtection, which would evaluate the buildingsstructure, plumbing, electrical condition, andmechanical condition. Code Compliance Certificationallegedly forced property owners to undertakeexpensive renovations, especially with regard to olderproperties that were exempt from current buildingcodes under Minnesota law. Appellants own or formerly owned rental propertiesin the City. Appellants individual rental portfoliosranged from one property to over forty properties.They rented primarily to low-income households, anda majority of their tenants received federal rentassistance. The parties agree that African-Americansgenerally made up a disproportionate percentage oflow-income tenants in private housing in St. Paul, andspecifically, Appellants claim that they rented to ahigher-than-usual percentage of African-Americans. Appellants properties were subject to the CitysHousing Code enforcement from 2002 to 2005. Theyreceived code enforcement orders that, in many cases,cited between ten and twenty-five violations perproperty for conditions including rodent infestation,missing dead-bolt locks, inadequate sanitationfacilities, inadequate heat, inoperable smoke detectors,broken or missing doors and screens, and broken ormissing guardrails or handrails. Several ofAppellantsproperties were designated as problem properties,subject to Code Compliance Certification, or, in a fewcases, both. As a result of the Citys Housing Codeenforcement, Appellants suffered increasedmaintenance costs, fees, condemnations, and wereforced to sell properties in some instances.
  50. 50. 9a In 2004 and 2005, Appellants filed these actionsagainst the City, the Citys mayor (Randy Kelly), theCitys fire inspector (Michael Urmann), a police officerwho worked with DNHPI (Dean Kohnen), and severalDNHPI employees, including Dawkins, a supervisor(Steve Magner), and several code enforcement officers.lWe refer to Appellees collectively as "the City" unlessspecification is warranted. Appellants legal claims andthe relevant facts are described in greater detail below. The district court consolidated Appellants actionsand resolved them together. The court referred severaldiscovery matters to a magistrate judge, includingAppellants motion and renewed motion for sanctionsdue to the Citys alleged discovery abuses andAppellants motion to compel discovery of SteveMagners personal records. The magistrate judgedenied both of those motions, and the district courtaffirmed. Then, the City moved for summaryjudgment. After a hearing, the district court grantedthe Citys motion for summary judgment in itsentirety. Appellants challenge the summary judgmentorder, the denial of spoliation-of-evidence sanctions,and the denial of discovery regarding Magnerspersonal records.1 The named code enforcement officers are: Mike Cassidy, JoelEssling, Steve Schiller, Joe Yannarelly, Dennis Senty, LisaMartin, Michael Kalis, Dick Lippert, Kelly Booker, Jack Reardon,and Paula Seeley. Appellants do not appeal the district courtsdismissal of their claims against two unnamed code enforcementofficers.
  51. 51. lOaII. Summary Judgment "We review a decision to grant summary judgmentde novo, applying the same standard as the DistrictCourt." Riley v. Lance, Inc., 5 18 F ..3d 996, 999 (8th Cir.2008). We will affirm if the record shows that there isno genuine issue as to any material fact and that themoving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c)(2). We view the facts in thelight most favorable to Appellants, drawing allreasonable inferences in their favor. Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 255 ( 1986). A. Fair Housing Act The Fair Housing Act ("FHA") prohibits propertyowners and municipalities from blocking or impedingthe provision of housing on the basis of race, color,religion, sex, familial status, or national origin. 42U.S.C. § 3604(a}-(b). Appellants argue that summaryjudgment was inappropriate because there is sufficientevidence to support their claims under the followingtheories: disparate treatment, disparate impact,retaliation, and failure to affirmatively further fairhousing. We address each theory in turn.2 (1) Disparate Treatment Disparate-treatment claims under the FHA aretested under the same framework as Title VIIdisparate-treatment claims. Ring v. First Interstate2The district court concluded that Appellants have prudentialstanding to pursue a claim under the FHA, and the City does notchallenge that holding on appeal.
  52. 52. 1 1aMortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993)(applying the three-stage Title VII analysis to a FHAdisparate treatment claim). The standard isfamiliar-did the defendant(s) treat the plaintifits) lessfavorably than others based on their race, color,religion, sex or national origin? Appellants contendthat the manner in which the City enforced itsHousing Code was discriminatory. Specifically,Appellants allege that the City enforced the HousingCode more aggressively with regard to their propertiesbecause they rented to a disproportionately highamount of racial minoritie s , particularlyAfrican-Americans. Proof of discriminatory purpose is crucial for adisparate treatment claim. Intl Bhd. of Teamsters v.United States, 431 U.S. 324, 335 n.15 (1977).Summaryjudgment is warranted ifthe plaintiffcannotproduce either (a) direct evidence of discriminatoryintent or (b) indirect evidence creating an inference ofdiscriminatory intent under the McDonnell Douglas3burden-shifting framework. Griffith v. City of DesMoines, 387 F .3d 733, 736 (8th Cir. 2004); see alsoEast-Miller v. Lake County Highway Dept, 421 F.3d558, 563-64 (7th Cir. 2005) (applying the "directevidence" and McDonnell Douglas frameworks in theFHA context). The district court concluded thatAppellants did not assert a claim under the McDonnellDouglas framework, and we agree. Presentation of theMcDonnell Douglas framework on appeal raises newissues and is therefore not appropriate for ourconsideration. See Cronquist v. City of Minneapolis,237 F.3d 920, 924-25 (8th Cir. 2001) (refusing to3 McDonnell Douglas Corp. v. Green, 4 1 1 U.S. 792 ( 1973).
  53. 53. 12aconsider a mixed-motive discrimination theory becauseit was not presented to the district court); UniversalTitle Ins. Co. v. United States, 942 F.2d 13 1 1, 1314(8th Cir. 1991) (new issues are generally notconsidered on appeal). As such, we turn to whetherthere is direct evidence that discriminatory animusmotivated the Citys code enforcement actions. Direct evidence is evidence "showing a specific linkbetween the alleged discriminatory animus and thechallenged decision, sufficient to support a finding bya reasonable fact finder that an illegitimate criterionactually motivated the adverse employment action."Griffith, 387 F .3d at 736 (quotation omitted). "Directevidence does not include stray remarks in theworkplace, statements by nondecisionmakers, orstatements by decisionmakers unrelated to thedecisional process itself." Twymon v. Wells Fargo &Co. , 462 F.3d 925, 933 (8th Cir. 2006) (alteration,quotation marks, and citations omitted). Appellants cite many statements that purportedlyshow the "discriminatory attitude" of Housing Codeenforcement in the City. Nearly all ofthese statementsare not direct evidence ofracial discrimination becausethey have little or no connection to a DNHPI policy oraction. See ide We limit our discussion to statementsfrom people within DNHPI or connected to a DNHPIpolicy or action. Appellant Steven Johnson alleges that . codeenforcement officer Lisa Martin and police officer DeanKoehnen made racially derogatory remarks aboutJohnsons African-American tenants (e.g., "The blackplague come like roaches") when Johnson asked whythe City was "coming after" his properties. The
  54. 54. 13adistrict court did not address Johnsons allegations,however, as Appellants failed to bring them to thecourts attention. Indeed, the district court noted itsfrustration with "voluminous materials-four fileboxes worth-submitted by Plaintiffs in opposition toDefendants motions for summary judgment."Steinhauser v. City of St. Paul, 595 F. Supp. 2d 987,1020 (D. Minn. 2008) . The court explained thatAppellants failed to "winnow out the relevantdocuments," and therefore "the burden of doing so fellto the Court." Id. Johnsons allegations about Martinand Koehnen were contained in a single paragraph ofa thirty-page affidavit, among nearly 2,000 pages ofrecord evidence. Appellants do not contest the districtcourts portrayal of how the evidence was presented tothe district court. Given these circumstances, wedecline to reverse on the basis ofJohnsons allegations.See Midwest Oilseeds, Inc. v. Limagrain GeneticsCorp., 387 F .3d 705, 7 15 (8th Cir. 2004) {Factualassertions that defeat a summary judgment, however,cannot be presented for the first time to [an] appellatecourt, and only those matters properly before [the]district court for summary judgment consideration aresubject to appellate review." (citation omitted» ; seealso Crossley v. Ga.-Pac. Corp., 355 F.3d 1 1 12,1 1 13-14 (8th Cir. 2004) (per curiam) (affirmingsummary judgment because the plaintiff failed todesignate specific facts as per Rule 56; he attached fulltranscripts from six depositions and argued that hisclaim could be understood only upon a full reading ofthe depositions) ; White v. McDonnell Douglas Corp. ,904 F.2d 456, 458 (8th Cir. 1990) (per curiam) {"Adistrict court is not required to speculate on whichportion of the record the nonmoving party relies, nor isit obligated to wade through and search the entire
  55. 55. 14arecord for some specific facts that might support thenonmoving partys claim.") (quotation omitted). On several occasions, viewing the record mostfavorably to Appellants, Dawkins made statementsthat demonstrate his desire and intent to reduce theamount of low-income tenants in the City. Thesestatements merit our attention because of Dawkinsrole within DNHPI. However, all of Dawkinsstatements are facially race-neutral, and we havestated, "Facially race-neutral statements, withoutmore, do not demonstrate racial animus on the part ofthe speaker." Twymon, 462 F.3d at 934. Appellantshave failed to connect Dawkins allegedly hostileattitude toward low-income tenants withdiscriminatory intent; merely calling these statementsevidence of racial animus is not enough to create agenuine dispute of fact. See Thomas v. Corwin, 483F.3d 5 16, 527 (8th Cir. 2007) ("Mere allegations,unsupported by specific facts or evidence beyond thenonmoving partys own conclusions, are insufficient towithstand a motion for summary judgment."). Appellants also argue that discriminatory intentshould be inferred from the Citys knowledge that itsactions would likely have a disproportionate impact onracial minorities. The Supreme Court discussed asimilar theory in Village of Arlington Heights v.Metropolitan Development Corp., 429 U.S. 252 ( 1977).There, the court of appeals held that a citys zoningdecision violated the equal protection clause of theFourteenth Amendment, which required a finding ofdiscriminatory intent, solely because the "ultimateeffect" of the decision was racially discriminatory. 254. The Supreme Court explained that in somecases, "an important starting point" for determining
  56. 56. 15adiscriminatory intent is whether an official action"bears more heavily on one race than another." Id. at266 (quotation omitted). "Sometimes a clear pattern,unexplainable on grounds other than race, emergesfrom the effect of the state action even when thegoverning legislation appears neutral on its face." Id.The Court explained that discriminatory impact aloneis not determinative outside of "rare" cases where thepattern of discriminatory effect is "stark." Id.illtimately, the Court held that an arguable disparateimpact on racial minorities was insufficient to prove adiscriminatory purpose. Id. at 269-71 . Applying the Arlington Heights analysis here, theevidence of a disparate impact on African-Americans,which we discus in greater detail in the next section,is not so stark and unexplainable on other grounds tojustify, on its own, an inference of discriminatorypurpose. See Ricketts v. City of Columbia. Mo., 36 F.3d775, 781 (8th Cir. 1994) ("[I]n only a few cases, wherea facially neutral policy impacted exclusively againstone suspect class and that impact was unexplainableon neutral grounds, has the impact alone signaled adiscriminatory purpose."). The Citys explanation,which has greater support in the record, is thatDNHPI targeted properties occupied mostly bylow-income tenants. Although racial minorities weredisproportionately represented, those low-incometenants included people of all races. Such conduct maybe actionable, but not under the rubric of disparatetreatment. See id. ("When there is a rational, neutralexplanation for the adverse impact and the law orcustom disadvantages both men and women, then aninference ofdiscriminatory purpose is not permitted.").
  57. 57. 16a In sum, there is insufficient evidence to reasonablyinfer discriminatory intent. Accordingly, the districtcourt properly granted summaryjudgment with regardto Appellants disparate treatment claim under theFHA. (2) Disparate Impact As alluded to in the previous section, Appellantsallege that the City violated the FHA becauseaggressive enforcement of the Housing Code had adisparate impact on racial minorities. We apply athree-step analysis to Appellants disparate impactclaim. First, Appellants must establish a prima faciecase, which requires showing "that the objected-toaction[s] result[ed] in . . . a disparate impact uponprotected classes compared to a relevant population."Darst-Webbe Tenant Assn Bd. v. St. Louis Hous.Auth., 417 F.3d 898, 902 (8th Cir. 2005) . Stateddifferently, Appellants "must show a facially neutralpolicy ha[d] a significant adverse impact on membersof a protected minority group." Oti Kaga, Inc. v. S.D.Hous. Dev. Auth., 342 F.3d 871 , 883 (8th Cir. 2003).Appellants are not required to show that the policy orpractice was formulated with discriminatory intent.Huntington Branch, NAACP v. Town of Huntington,844 F.2d 926, 934--35 (2d Cir.), affd, 488 U.S. 15( 1988) (per curiam); Smith v. Anchor Bldg. Corp., 536F.2d 23 1, 233 (8th Cir. 1976). If Appellants establisha prima facie case, the burden shifts to the City todemonstrate that its policy or practice had manifestrelationship" to a legitimate, nondiscriminatory policyobjective and was necessary to the attainment of thatobjective. Darst-Webbe, 417 F.3d at 902 (quoting OtiKaga, 342 F.3d at 883). If the City shows that itsactions were justified, then the burden shifts back to
  58. 58. 17aAppellants to show "a viable alternative means" wasavailable to achieve the legitimate policy objectivewithout discriminatory effects. Id. at 902-03. The first component of Appellants prima facie caseis an identifiable, facially-neutral policy or practice.See Mems v. City of St. Paul, 224 F.3d 735, 740 (8thCir. 2000). The district court interpreted Appellantsdisparate impact claim as a challenge to the Cityspolicy of enforcing the Housing Code instead of theFederal Housing Quality Standard ("HQS"), whichapplies to all rental properties that receive federal rentassistance. This interpretation was too narrow.Appellants have consistently challenged the Citysaggressive Housing Code enforcement practices. Thecommon denominator in Appellants affidavits,allegations, and briefs is that the City issued falseHousing Code violations and punished propertyowners without prior notification, invitations tocooperate with DNHPI, or adequate time to remedyHousing Code violations. Punishments included fines,evictions, condemnations, revocation of rentalregistrations, and the financial burden of CodeCompliance Certification. Therefore, turning to thenext step in the prima facie case, we evaluate whetherthe Citys aggressive code enforcement resulted in adisparate impact on a protected class. To demonstrate a disparate impact, Appellantshave offered evidence supporting the followingconclusions: (a) The City experienced a shortage of affordable housing. The City represented in its 2003 report to the U.S. Department of Housing and Urban Development ("HUD")
  59. 59. 18a that "the lack of affordable housing opportunities remains a major issue facing many Saint Paul lower income households, who are also protected class members," and that "27.6% of Saint Pauls lower income residents cannot find adequate affordable housing in the City." Then, in 2005, the City estimated that 32% of the households in St. Paul had unmet housing needs (cost burdens, overcrowding, etc.).(b) Racial minorities, especially Mrican­ Americans. made up a disproportionate percentage of lower-income households in the City that rely on low-income housing. The district court noted that the parties agree that African-Americans make up a disproportionate percentage of low-income tenants in the City. The Citys 2000 census data showed that 1 1 .7% of the Citys population was Mrican-American, whereas data from October 2004 showed that 61% and 62% of those on waiting lists for public housing and Section 8 assistance, respectively, were African-American . Further, the Citys 2000 report to HUD showed that 52% of minority-headed renter households were in the bottom bracket for household adjusted median family income, compared to 32% of all renter households.(c) The Citys aggressive Housing Code enforcement practices increased costs for property owners that rent to low-income tenants. Appellants produced at least six affidavits describing the toll that the Citys
  60. 60. 19a aggressive Housing Code enforcement took on their rental business. They reported a substantial increase in costs, resulting in evictions for tenants and "forced sales" of their properties in some cases. These allegations are corroborated by an internal memorandum from the Citys fire marshal in 1995, comparing the Housing Code and the HQS and concluding that the Housing Code was more strict in regard to 82% of the examined categories. (d) The increased burden on rental-property owners from aggressive code enforcement resulted in less affordable housing in the City. Documents from the City and the Public Housing Authority acknowledged that any decrease in federally assisted rental housing would reduce the amount of affordable housing in the City. Those predictions were supported by the Citys Vacant Buildings Report, which showed that the number of vacant homes listed in the City rose from 367 to 1,466 between March 2003 and November 2007, which was a nearly 300% increase. Further, Appellants submitted affidavits from three tenants who alleged that they endured hardship when their homes were condemned for minimal or false Housing Code violations.These premises, together, reasonably demonstrate thatthe Citys aggressive enforcement of the Housing Coderesulted in a disproportionate adverse effect on racialminorities, particularly African-Americans. Viewed inthe light most favorable to Appellants, the evidence
  61. 61. 20ashows that the Citys Housing Code enforcementtemporarily, if not permanently, burdened Appellantsrental businesses, which indirectly burdened theirtenants. Given the existing shortage of affordablehousing in the City, it is reasonable to infer that theoverall amount of affordable housing decreased as aresult. And taking into account the demographicevidence in the record, it is reasonable to infer racialminorities, particularly African-Americans, weredisproportionately affected by these events. See 2 15Alliance v. Cuomo, 6 1 F. Supp. 2d 879, 889 (D. Minn.1999) (" [M]inority, elderly, and disabled tenants facesignificant hurdles in locating housing above andbeyond the mere shortage of low-income housing. . . .Any policy which results in the displacement oflow-income tenants will disproportionately affect theseparticular low-income citizens whose housing optionsare especially constrained."). Though there is not asingle document that connects the dots of Appellantsdisparate impact claim, it is enough that each analyticstep is reasonable and supported by evidence. We note that a common method of showing adisproportionate adverse effect is to compare levels ofdependence on affordable housing. Where a plaintiffdemonstrates that a protected group depends onlow-income housing to a greater extent than thenon-protected population, other courts have found itreasonable to infer that the protected group willexperience a disproportionate adverse effect from apolicy or decision that reduces low-income housing.See, e.g., Tsombanidis v. W. Haven Fire Dept, 352F .3d 565, 575-76 (2d. Cir. 2003) {plaintiffs canestablish disparate impact by showing statistics that(I) x% of all of a protected class in an area depend ona type of housing affected by the challenged policy or