Thursday, February 28, 2008

Sanctions v. St.Paul

Frank J. Steinhauser, III, et al., Civil No. 04-2632
City of St. Paul, et al., SANCTIONS
Sandra Harrilal, et al., Civil No. 05-461
Steve Magner, et al.,
Thomas J. Gallagher, et al., Civil No. 05-1348
Steve Magner, et al.,
Plaintiffs in the above-referenced cases, with the exception of Plaintiffs Bee Vue and Lamena Vue, respectfully renew their motion for sanctions against Defendants herein pursuant to the Court’s inherent power and pursuant to Rule 37 of the Federal Rules of Civil Procedure.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 1 of 5
Procedure. Plaintiffs’ motion for sanctions is based upon:
(1) Defendants’ spoliation of relevant evidence including: failure to place a “litigation hold” on relevant evidence including electronically maintained correspondence and documentation and housing inspection records;
(2) Defendants’ destruction of a substantial volume of relevant evidence during the litigation herein;
(3) Defendants’ intentional non-disclosure of City documents related to the City’s long standing, close relationship, contractual and otherwise, to the St. Paul Public Housing Agency, in violation of the Court’s November 13, 2007 production Order;
(4) Defendants’ intentional non-disclosure of certain other relevant evidence that was subject to Plaintiffs’ discovery requests to Defendants but which Defendants intentionally failed to disclose to Plaintiffs, including multiple evaluations conducted in 2006 by City code enforcement personnel of large representative samplings of 2005 Truth-in-Sale-of-Housing inspection reports and the City’s determination from those evaluations that at least 60 percent of the single family and duplex homes in the City had serious code deficiencies, as Plaintiffs had claimed;
(5) Defendants’ violation of the Court’s November 13, 2007 Order, by production on January 9, 2008, of electronic evidence in a different format than required by the parties’ stipulation and Court’s order;
(6) Defendants’ intentional failure to timely disclose that Defendants’ had deleted most of Andy Dawkins’ emails and other electronic documentation; that the emails of Susan
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 2 of 5
Kimberly, a key official in the City’s “problem property” and housing related policies, had been deleted in 2006; that many of the email boxes of Defendants and other officials and employees’ had a shocking lack of emails from periods prior to December 2005 contrary to claims by counsel for Defendants;
(7) Defendants’ intentional delay in the redaction of claimed “private data” from the “attorney eyes” only raw emails selected by Plaintiffs under the parties’ stipulation; delayed production by Defendants of the “redacted emails” for use by Plaintiffs in this motion; Defendants produced the redacted emails to Plaintiffs on Friday, February 22, 2008, one business day before the deadline for Plaintiffs to file this renewed motion for sanctions;
(8) Other conduct by Defendants and their counsel in violation of discovery rules following the March 2, 2007 discovery cutoff; and
(9) The prejudice to Plaintiffs from said improper conduct.
Plaintiffs, as part of this motion, respectfully request a further order of the Court as follows:
Findings by the Court that the destroyed documents were relevant to Plaintiffs’ claims, that the destruction of said documents occurred during the litigation, that the destruction has prejudiced Plaintiffs, and that Defendants’ conduct constituted spoliation of evidence and willful non-disclosure of relevant documents subject to the Court’s Order mandating disclosure;
Entering sanctions against Defendants for their spoliation and willful non-disclosure of relevant evidence, including, but not limited to:
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 3 of 5
entering judgment against Defendants and in favor of Plaintiffs on the issues of liability;
entering judgment against Defendants and in favor of Plaintiffs on the issues of damages;
entering monetary sanctions against Defendants and/or their counsel for spoliation of evidence and non-disclosure of relevant evidence;
in the alternative, ordering dismissal of Defendants’ Motions for Summary Judgment herein;
in the alternative, making an adverse inference against Defendants and in favor of Plaintiffs as part of Defendants’ Motions for Summary Judgment;
in the alternative, directing factual findings in favor of Plaintiffs;
imposing an adverse inference instruction to the jury at trial;
awarding Plaintiffs their attorney’s fees, expert fees, costs and expenses incurred by Plaintiffs as a result of Defendants’ wrongful conduct including all attorney’s fees incurred by Plaintiffs since the close of discovery on March 2, 2007;
for such other and further relief as the Court deems just and equitable and that will otherwise restore Plaintiffs to the same position they would have been in absent Defendants’ spoliation, non-disclosure of relevant evidence, and conduct in violation of the court order and rules.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 4 of 5
This renewed motion for sanctions is based upon the motion filings submitted by Plaintiffs in their original motion for sanctions, arguments by Plaintiffs’ counsel at the August 20, 2008, hearing, Plaintiffs’ joint memorandum of law and affidavits in support of their renewed motion for sanctions to be filed herein, evidence and arguments presented at the hearing on this renewed motion, and upon all the files, records and other proceedings herein.
Dated: February 25, 2008 By: /s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al. Attorneys for Plaintiffs Harrilal, et. al.
Dated: February 25, 2008 By: /s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al.
Case 0:04-cv-02632-JNE-SRN Document 161 Filed 02/25/2008 Page 5 of 5

Wednesday, February 27, 2008

Judicial Recusal

Federal law requires the automatic disqualification of a
Federal judge under certain circumstances.
In 1994, the U.S. Supreme Court held that "Disqualification
is required if an objective observer would entertain reasonable
questions about the judge's impartiality. If a judge's attitude or
state of mind leads a detached observer to conclude that a fair and
impartial hearing is unlikely, the judge must be disqualified."
[Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).
Courts have repeatedly held that positive proof of the
partiality of a judge is not a requirement, only the appearance of
partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias
or prejudice but its appearance); United States v. Balistrieri, 779
F.2d 1191 (7th Cir. 1985) (Section 455(a) "is directed against the
appearance of partiality, whether or not the judge is actually
biased.") ("Section 455(a) of the Judicial Code, 28 U.S.C. §455(a),
is not intended to protect litigants from actual bias in their judge
but rather to promote public confidence in the impartiality of the
judicial process.").
That Court also stated that Section 455(a) "requires a judge
to recuse himself in any proceeding in which her impartiality might
reasonably be questioned." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir.
1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the
Court stated that "It is important that the litigant not only
actually receive justice, but that he believes that he has received
The Supreme Court has ruled and has reaffirmed the principle
that "justice must satisfy the appearance of justice", Levine v.
United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v.
United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge
receiving a bribe from an interested party over which he is
presiding, does not give the appearance of justice.
"Recusal under Section 455 is self-executing; a party need
not file affidavits in support of recusal and the judge is obligated
to recuse herself sua sponte under the stated circumstances." Taylor
v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself
even if there is no motion asking for his disqualification. The
Seventh Circuit Court of Appeals further stated that "We think that
this language [455(a)] imposes a duty on the judge to act sua sponte,
even if no motion or affidavit is filed." Balistrieri, at 1202.
Judges do not have discretion not to disqualify themselves.
By law, they are bound to follow the law. Should a judge not
disqualify himself as required by law, then the judge has given
another example of his "appearance of partiality" which, possibly,
further disqualifies the judge. Should another judge not accept the
disqualification of the judge, then the second judge has evidenced
an "appearance of partiality" and has possibly disqualified
himself/herself. None of the orders issued by any judge who has been
disqualified by law would appear to be valid. It would appear that
they are void as a matter of law, and are of no legal force or
Should a judge not disqualify himself, then the judge is
violation of the Due Process Clause of the U.S. Constitution. United
States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a
tribunal free from bias or prejudice is based, not on section 144,
but on the Due Process Clause.").
Should a judge issue any order after he has been disqualified
by law, and if the party has been denied of any of his / her
property, then the judge may have been engaged in the Federal Crime
of "interference with interstate commerce". The judge has acted in
the judge's personal capacity and not in the judge's judicial
capacity. It has been said that this judge, acting in this manner,
has no more lawful authority than someone's next-door neighbor
(provided that he is not a judge). However some judges may not follow
the law.
If you were a non-represented litigant, and should the court
not follow the law as to non-represented litigants, then the judge
has expressed an "appearance of partiality" and, under the law, it
would seem that he/she has disqualified him/herself.
However, since not all judges keep up to date in the law, and
since not all judges follow the law, it is possible that a judge may
not know the ruling of the U.S. Supreme Court and the other courts on
this subject. Notice that it states "disqualification is required"
and that a judge "must be disqualified" under certain circumstances.
The Supreme Court has also held that if a judge wars against
the Constitution, or if he acts without jurisdiction, he has engaged
in treason to the Constitution. If a judge acts after he has been
automatically disqualified by law, then he is acting without
jurisdiction, and that suggest that he is then engaging in criminal
acts of treason, and may be engaged in extortion and the interference
with interstate commerce.
Courts have repeatedly ruled that judges have no immunity for
their criminal acts. Since both treason and the interference with
interstate commerce are criminal acts, no judge has immunity to
engage in such acts.

Monday, February 4, 2008

2008 Elections - Right to Petition Constitution at Risk
February 4, 2008


Petition for Rehearing Filed in Landmark
Right-to-Petition Case

Taking advantage of one final procedural step to ask the U.S. Supreme Court to hear the landmark Right to Petition case, on February 1st, Bob Schulz filed a Petition for Rehearing.

"According to its own precedent, this Court would be abdicating its duty and committing treason to the Constitution if it fails to [accept jurisdiction and hear this case]" wrote Schulz. "Tyranny marks a government that ignores its free People."

Schulz also wrote that it would be "shameful" for the Court to fail to hear this first impression question of extreme public importance involving the interpretation of the Constitution while agreeing to hear the probate/bankruptcy/defamation case of Anna Nicole Smith.

"Shall the People in republican America, with its written Constitution for the protection of the public Rights and a body of strictly limited powers, now be forbidden to do that which the Framers' intended?" asked Schulz.

Click here for a copy of the Petition for Rehearing.

RIGHT-Click here to download WTP's November, 2007 Petition for Writ of Certiorari
to the U.S. Supreme Court and its

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