Friday, August 29, 2008

Steinhauser v.CitySTP_ Civ04-2632

Disclaimer: Pages 1 thro 39 taken from www.ademocracy.blogspot.com
Info incomplete www.mnd.uscourts.gov in this File
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et. al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. PLAINTIFFS’ JOINT MEMORANDUM OF LAW IN OPPOSITION TO SUMMARY JUDGMENT - AMENDED
City of St. Paul, et. al.,
Defendants.
Sandra Harrilal, et. al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Thomas J. Gallagher, et. al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
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INTRODUCTION
Plaintiffs will show the Court that summary judgment as requested by Defendants is improper as there are genuine issues of material fact present in every claim presented in the Complaint.
Prior the Court considering Defendants’ motion for summary judgment, Plaintiffs request that the Court consider the facts and issues raised by Plaintiffs in their spoliation motions, and once again consider Plaintiffs’ renewed request that the Court deny Defendants’ motion for summary judgment due to destruction of relevant evidence related to defenses raised by Defendants including immunities, and to Plaintiffs’ claims. Plaintiffs’ submit that there is now even more evidence before the Court of Defendants’ non-disclosures and/or destruction of evidence relevant to claims and defenses herein, including Defendants’ failures to disclose federally mandated “analysis of impediments” (AI) to affordable housing related to Defendants’ affirmative duty to further fair housing (AFFH). In over four years of discovery herein, Defendants have failed to produce, and Plaintiffs have been unable to discover, any evidence that Defendants ever conducted an AI for disclosure to the U.S. Department of Housing and Urban Development (HUD) and the public related to whether the “protected class” was adversely impacted by the City’s application of its “heightened code enforcement standard” and illegal policy of removing “grandfathering rights” under the Minnesota State Building Code through “Code Compliance” inspections and certifications applied to older inner-city housing stock disproportionate occupied by “protected class” members. This issue is not to be taken lightly, as falsification of AFFH certifications in return for hundreds of
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millions of dollars in federal funding and spoliation of documents related thereto through destruction of internal documents, including e-data and e-mail communications, have serious implications. Defendants spoliation of written communications, including e-mails and other e-data for the years prior to 2005, has left Plaintiffs, HUD and the public without the key evidence HUD required the City to maintain related to the Defendants’ Fair Housing certifications and obligations. HUD regulations require the City to conduct a full and fair analysis of impediments to fair housing in the City, to identify those impediments, including those based on the City’s legislative code, rules, procedures and practices related to fair housing and “protected classes,” its illegal demands to the private market landlords in the City to meet expensive “code compliance” inspections and its creation of other barriers to fair housing. The City’s illegal “Code Compliance” requirements subverting grandfathering protections for older buildings in violation of the State Building Code, brings into question whether the City falsified its certifications to HUD through material non-disclosures.
INTRODUCTION OF PLAINTIFF RENTAL PROPERTY OWNERS
Plaintiffs are or were landlords providing housing primarily to low-income, “protected class” tenants in the City and at various times housing under the Federal Section 8 funded program. Plaintiffs owned and managed older rental properties located in the inner-city neighborhoods where older housing stock was common, where poverty was persistent, and where people of color had a critical need for safe and decent affordable housing. See generally Affs. of Plaintiffs attached as Exs. 70-79 to 2nd Engel Aff., and Exs. 140-144 to 2nd ShoemakerAff.
Case 0:05-cv-00461-JNE-SRN

There is copy errors.

FACTS
“We’ve reached that point where being nice, being civil and being polite in deteriorating inner city neighborhoods hasn’t got us anywhere.” State Senator Randy Kelly, Saint Paul, St. Paul Pioneer Press, 1-1-1995. “We have to take more drastic actions to stop deterioration of our neighborhoods and communities. We’ve reached the saturation point in low-income, rundown rental housing. We can’t take any more.” Id. “Saint Paul needs to do all that i[t] can to preserve and improve the existing privately owned rental stock that provides much of our affordable housing, where owners are now struggling with maintenance and management issues. If we lose that housing stock, we have lost a great housing resource in the city.” Saint Paul Planning Commission, Minutes 10-9-1998.
After taking over leadership of the City, Mayor Kelly stated, “If you’re to have a healthy city, you’ve got to have a high-quality, safe and attractive housing stock.” Pioneer Press, September 26, 2003.
And higher standards are exactly what Kelly and Dawkins put in place in 2002: “In essence the new rules shorten the time-lines for code compliance and increase the number of situations where we issue misdemeanor tags. The goal is to achieve aggressive, consistent, stepped-up enforcement throughout the city…if code enforcement has to come to your property twice, you’re going to be charged with a crime, and the Judge1 is going to treat it
1 Council President Bostrum reported to City Council that he and City Attorney met with Chief Judge Mott re Mayor Kelly’s “problem properties” priority - City Attorney was bringing Police and Code staff to meet Judge. Ex. 238 to 3rd Shoemaker Aff.,45341 (Council minutes,4-10-2002). Early 2002, Dawkins was questioning “How pull off”
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seriously.” Ex.84,3rd Engel Aff., STP0037; Ex.108,3rd EngelAff., STP658 (“We heightened inspection standards”).
Kelly and Dawkins were finally able to implement their 1995 “Change of Ownership” strategy in the inner city of Saint Paul by adopting the “heightened standard,” applying “code to max” (Ex. 298, 3rd Shoemaker Aff.,50147-50158) and bringing “heavy enforcement” (Ex. 84 ,3rd Engel Aff) down on inner city property owners, primarily low-income landlords with so called, “problem properties,” a definition that varied from neighborhood to neighborhood. Pat Fish, p.243.
Bill Cullen, former president of St. Paul Association of Responsible Landlords (SPARL) testified that Dawkins suggested to landlords that maybe the solution for the city was to try and increase the quality of properties to the point that the lower tier of less qualified tenants would not have places to rent – how would the landlords like it of they didn’t have to deal with tenants at the bottom of the market – “if all those tenants that are at the bottom...were no longer in St. Paul” Cullen,202-03, 113. Cullen remembers being “shocked”
“crackdown” (Ex.82,3rd Engel Aff.) – City needed District Court “buy-in” to ensure victory. Ex.217, 3rd Shoemaker Aff.,40072; Ex.157, 3rd Engel Aff. (“Prep city atty and judges”); Dawkins-City Attorneys held further private meetings with Chief Judge (Ex.83 ,3rd Engel Aff; Ex.111, 3rd Engel Aff; Ex.112,3rd Engel Aff; Ex.113,3rd Engel Aff); City Attorney Dolan private meeting with housing Referee Yanish who later presided over City initiated-promoted Tenant Remedy Cases by Dolan against Steinhauser, Meysembourg, Brisson, Harrilal and others. After the civil litigation proceeded to the point that Dawkins and the City were “9 for 9” in court before Referee Yanish, Dawkins returned to Judge Mott in private for a “Thanks” and to run further City-Kelly-Dawkins plans for property owner crackdown by Mott for approval. Ex. 114,3rd Engel Aff., and Dawkins., p.311-364. The City assured itself of additional allies in its war (“Build small army,” Ex. 157,3rd Case 0:05-cv-00461-JNE-SRN Document 237 Filed 08/25/2008 Page 5 of 78
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by Dawkins’ comments. Id.203
Sara Anderson, a housing advocate from Project Hope recalls City Official Dawkins telling her that City officials and employees “don't want low-income people renting in the City”. Anderson,76-77,128.
“PROTECTED CLASS” MEMBERS
Saint Paul has acknowledged that “Fair housing laws provide protection from discrimination in housing for certain groups, generally referred to as “protected classes” and “[t]hese groups have been included in fair housing laws because individuals have been identified over time as having difficulties in obtaining housing due to their status as a member of one of these groups.” Ex. 267,3rd Shoemaker Aff., Regional Analysis of Impediments to Fair Housing (AI), May 2001,4.
The Regional AI, partially funded by City, focused on “the incomes of protected class members, their relative low rates of home ownership, high rent burdens, tendency to live in larger households, and their disproportional representation among users of emergency shelter-transitional housing facilities. Id. 2001,AI,5,15. (Ex. 237,3rd Shoemaker Aff., 2000 ConPlan referred to AI. p.97; Ex.86,3rd Engel Aff., ConPlanUpdate2003, p.44).
“It is often people of color, people with disabilities, women, large families, and new immigrants who earn significantly less than the population as a whole and who experience the greatest housing cost burdens. Ex.267,3rd Shoemaker Aff., AI May 2001,8. Protected class
Engel Aff) against landlords by funding SMRLS). Ex. 92, 3rd Engel Aff, Ex.88,3rd Engel Aff. Case 0:05-cv-00461-JNE-SRN Document 237 Filed 08/25/2008 Page 6 of 78
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members tend to have lower incomes, less expensive rental units/homes - more likely to be renters. Id.
A much higher percentage of people of color than Whites fall within HUD’a definition of “Very Low income”. Id, 9. “Among renters … disparities between Whites and people of color are particularly strong, with lower income Blacks in “unaffordable housing” at 67.2% versus Whites at 33.9%. Id.,14.
A disproportionate percentage of “protected class” persons live in the City’s inner core neighborhoods where there is a concentration of older, affordable low-income rental housing stock. Ex. 268,3rd Shoemaker Aff., ConPlan2005, pp.44,50,Map.
Poverty is persistent in those areas of the City. Id.,50-51. Many residents have poor credit, bad tenancy, and personal issues that prohibit access to affordable housing – they need support services. Id.,104.
CITY RECOGNIZED IN MAY 2001 “PROTECTED CLASS”
TENANTS WERE VULNERABLE TO BIAS AND RENT BURDENED
The City continues year after year to admit bias is present and affecting minorities, the disabled and families with minor children in their housing choices. Ex.103, 3rdEngel Aff., City’s Comprehensive Plan 1/9/2002,p.10;Ex.268,3rd Shoemaker Aff., 2005Con.Plan,87.
The City reported to HUD that “Housing discrimination can be a significant barrier for individuals and families seeking affordable housing” and “discrimination is often difficult to detect” and “can prevent access to safe and decent housing.” Id.,105.
In 2002, poverty continued to be persistent in the City; HUD estimating that 7,700
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renter households in the City had incomes at or below 30 percent of the regional median ($16,988-family of four) who paid more than 50% of their incomes for rent. Ex.103,3rd Engel Aff., City’s Comprehensive Plan 1/9/2002, p.10.
The City has long acknowledged that “people of color” and other “protected class” persons have a disproportionate need for affordable housing in the City. In June 2005, the City reported to HUD that 37,000 households had unmet housing needs. Ex.268,3rd Shoemaker Aff.,2005Con.Plan,83.
HISTORICAL SHORTAGE OF AFFORDABLE HOUSING IN CITY
Historically, the City has had a critical shortage of low-income housing. Ex.237,3rd Shoemaker Aff., Con.Plan2000,16. A large number of “protected class” persons wait years for affordable housing in the City. Gutzmann,62.
The City has large numbers of immigrants and persons of color who are constantly seeking affordable housing and who are disproportionately burdened in housing. Ex.237,3rd Shoemaker Aff., Con.Plan2000,23-25.
Between 1989 and 2000, the City acknowledged that when including new units constructed, vacant units rehabilitated and units demolished, the overall change in housing went up merely 468 units. 2000 End-of-the-Year Housing Report,2-28-2001. In 2005, the City reported that owner occupied units had increased by 1,993 units since 1990 while occupied rental units decreased by 133 units. Ex. 268,3rd Shoemaker Aff., ConPlan2005,43.
The City’s Housing Action Plan 2002 stated “affordability of housing in St. Paul continues to be a critical issue” and “the need and demand for housing that is affordable to
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lower income households(…below 30% of AMI) is severe.” The City’s Task Force noted “there are not adequate resources currently targeted to address this situation.” Ex.103,3rd Engel Aff.,p.2. The Task Force was concerned that City data showed over five years a total of 649 units have been demolished, of which 123 units (the PED/HRA projects) triggered the local policy. Id.3.
In April 2003, the City confirmed that, “the lack of affordable housing opportunities remains a major issue facing many Saint Paul lower income households [at or below 30% of the AMI], who are also protected class members.” Ex.86,3rd Engel Aff,40. “[T]he lack of affordable housing realistically limits housing choice for many protected class members.” Id. “27.6% of Saint Paul’s lower income residents cannot find adequate affordable housing in the City of Saint Paul.” Id.
In 2005, the City confirmed that “[t]he oldest housing stock in the City is located primarily in areas immediately adjacent to the central core where the greater amounts of low-moderate income populations reside. Id at 44. The availability of affordable, large units (3 bedrooms) is scarce because they are costly to maintain and construct and profit margins are minimum. Id.
PUBLIC HOUSING AND SECTION 8 WAITING LISTS
In 2005, PHA reported to the City (for inclusion in City’s ConsolidatedPlan2005) that 6,219 people were on PHA’s waiting lists with a 2-4 year wait; a disproportionate number of minority residents were on PHA’ lists – 61 percent were African-Americans; 2,747 Section 8 applicants, and list was closed. Ex.268.3rd Shoemaker Aff., ConPlan2005,47.
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PHA Management Reports provide data on comparisons of waiting lists with actual occupancy in both PHA and Section housing. PHA’s waiting lists show PHA and Section 8 list racial percentages. PHA’s December 2002 Management Report showed the composition of the waiting list as follow: Blacks 63%, Whites 22%; Asians 13%.
PHA scattered sites home occupancy revealed: Asians at 60.6%; Blacks 28.7%; Whites 9.7%. Ex.181, 3rd Shoemaker Aff. By December 2005, PHA’s waiting list showed Blacks at 57%, Whites at 25% and Asians at 16%, with occupancy at PHA overall at Blacks 34.6%, Whites 38.4% and Asians at 13.3%. Ex.182,3rd Shoemaker Aff.
PHA attempts to maximize the number of affordable units available to the PHA within its current resources by minimizing the number of units off-line; reduce turnover time for vacated public housing units; reduce time to renovate public housing units.
CITY’S AFFIRMATIVE DUTY TO FURTHER FAIR HOUSING
UNDER HUD REGULATIONS DUE TO CITY’S RECEIPT OF
MILLIONS OF DOLLARS OF FEDERAL GRANTS
HUD annually provides St. Paul with a variety of program funding and support services primarily for persons of low and moderate income and homeless persons. These HUD funded programs are called, Community Development Block Grant (CDBG) Program, HOME Investment Partnership (HOME) program, and Emergency Shelter Grant (ESG) program. Ex.86,3rdEngelAff.“Forward, i”.
The City voluntarily accepts the “affirmative duty” to further federal fair housing (AFFH) policies required by the HUD as a condition for receipt of federal grants primarily for the benefit of low and moderate income housing. Ex.86,3rdEngelAff. The CDBG program Case 0:05-cv-00461-JNE-SRN Document 237 Filed 08/25/2008 Page 10 of 78
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objective is “the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” Id.
In 2000, the Mayor and City Council adopted the City’s HUD Five Year Consolidated Plan for 2000 through 2004 (“ConPlan2000”) Id. ( Ex. 237,3rd ShoemakerAff.). The City identified the lack of affordable housing as an unmet need in the 2000 Consolidated Plan and in 2003 stated that a total of 9 HUD funded activities would assist with the preservation or creation of affordable housing. Id.,38.
The City acknowledged that the CDBG program’s “primary objective is “providing decent housing” principally for persons of low and moderate income.” Ex.237,3rd Shoemaker Aff, ConPlan2000,vii. St. Paul has about 30% lower median family income than the metropolitan median income due to the high poverty in the City. Id.,60.
Following the City’s reference to Chapter 34, Minimum Property Maintenance Standards, and “Substandard Condition but Suitable for Rehabilitation,” the City stated, “While the City does not collect data related to the race or ethnicity of those households with identified housing needs, it would not be surprising if those data revealed a disproportionate impact on persons of color.” Id. 23. “The number of new immigrants … coupled with historic settlement patterns that find racial and ethnic communities more heavily concentrated in central cities and the reality of racial and ethnic bias in the housing market all contribute to such a differential impact.” Id.
The City included a map indicating the geographic concentrations of households of
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color and showing the 37 planning districts where more than 50% of public school students were children of color. (Id.,23A) The high number of immigrants who continue to arrive in the City “would suggest that the differential impact between minority-headed renter households and all renter households will continue to grow over the next five years.” Id.23-4.
In 2000, the City acknowledged that African-Americans were disproportionately represented in emergency shelters (A-A 52%; Hispanics 16%, Whites 33%) and transitional housing indicating that they were most likely to be without any housing at all. Id.,24,31. Homelessness in the City “disproportionately affects persons of color.” Id.,28. The City concluded by admitting that “racial and ethnic minorities have a greater housing need than the population as a whole.” Id.,25.
The City acknowledged that migration to the area, demolition of housing, and a low level of construction have resulted in serious affordability issues for the working poor. Id.,27. The City acknowledged that “the number of new units added to the stock over the decade just barely exceeds the number that were … demolished.” Id.,60.
The City acknowledged that common barriers that prevent homeless persons or families from obtaining permanent housing include criminal background checks, credit checks, past unlawful detainers, and problems associated with bias. Id.,28. In 2000, the City admitted that bias continues to affect the City’s racial and ethnic minorities, the disabled and families with minor children. Id.,77.
The City recognized the “need to change attitudes and public opinion toward rental housing.” Id.,88.
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The majority of the City’s housing stock of smaller, single family, duplex and apartment units are aging, more than 50 years old, but generally in sound condition; the portion that had not been repaired or updated now required a substantial investment in order to remain viable. Id.,47.
In 2000, the City acknowledged that its regulatory policies, including what some may consider “above standard” development requirements, can pose a barrier to affordable housing – the City cited its own building code as one such barrier. Id.,59. The Metropolitan Council had determined that Cities regulations, ordinances and fees as well as administrative practices may exceed reasonable protection of public health and safety and contribute to housing costs. Id. Saint Paul promised that it “will continue examine its enforcement of the building code.” Id.,87.
The City’s 2000 Consolidated Plan, and all other updates since then, fail to state whether the application of the City’s heightened code standards (more strict 82% of time when compared to HQS and its private market “Code Compliance” requirement – see Ex.171,3rd Shoemaker Aff.) have had an adverse affect on affordable housing and whether those policies and practices have disproportionately impacted “protected classes” in the City. Id. 87-88.
The oldest housing stock in the City is located primarily in the areas immediately adjacent to the central core. Id.,62. The most recent data for the 2000 Consolidated Plan indicated that these same areas coincide with the city’s lower income census tracts. Available information to the City in 2000, suggested that “large minority populations also reside in
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these neighborhoods.” Id.
Many of the City structures that provide rental housing affordable to lower income households are smaller (1-4 unit) buildings owned by landlords who own relatively few buildings and “[t]hey are the kinds of structures that are at highest risk of becoming “problem properties” or vacant buildings – yet “maintaining them in good condition represents the most cost effective way of providing affordable housing.” Id.,68. The City’s 2000 Plan noted that with stepped up code enforcement there should be matched additional resources for repair and rehabilitation. Id.,69. “Additional resources must be identified and used in partnership with code enforcement to assist property owners in making the necessary repairs and improvements. Id. The City admitted that the current rental rehab programs were generally under subscribed by property owners and suggested an assessment for the reason. Id.
Census block groups with at least 51 percent low to moderate income residents are CDBG eligible. Id.,137-C (Census Tracts Map).
In January 2002, the City claimed that one half of the City’s housing was built before 1940, the condition of its housing stock was stable, the level of reinvestment remained constant, there were few indicators of disinvestment, and that the City had a low number of “vacant buildings”. Comprehensive Plan,1/9/02,STP00523,35. The City did admit that “Among the most vulnerable residential structures in the city’s housing stock are its rental properties”. Ex.103,3rd Engel Aff. (CompPlan1/9/02).
The City’s 2003 Consolidated Plan Update states that the CDBG funds City “code
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enforcement” efforts, City activities related to “rental rehabilitation,” “vacant buildings,” “demolition” of housing, and other fair housing related activities. Ex.86,3rd EngelAff. pp.11-33. In 2003, the City received $12,452,666 of CDBG, HOME and ESG funds from HUD.
As a recipient of CDBG funds, the City must continually certified to HUD that the City will “affirmatively further fair housing” (AFFH) as well as identify impediments to fair housing choices within its jurisdiction. “Local Government Certifications” attachment to Ex.86,3rdEngelAff.. The City admits that under HUD’s interpretation of AFFH, the City must: (1) analyze and eliminate housing discrimination in the jurisdiction; (2) promote fair housing choice for all persons; (3) provide opportunities for inclusive patterns of housing occupancy regardless of race, color, disability, national origin, etc.; (4) foster compliance with the nondiscrimination provisions. Id.,38-9. PHA provides a similar certification of AFFH to HUD. Ex.171,3rd Shoemaker Aff.
“City’s obligation to [AFFH] applies to all housing activities in its jurisdiction whether publicly or privately funded.” Id. The City has loudly proclaimed that it has adopted “even more stringent ordinances than federal and state laws in order to mitigate housing discrimination, while setting City policy directions to ensure the rights of all Saint Paul residents.” Id.,39.
As part of the HUD required “Analysis of Impediments to Fair Housing (AI), the City claims that it “continually evaluates its housing policy and housing practices to determine whether the City has deliberately or inadvertently prevented people from living where they choose. Id.,40.
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The CDBG funds are designated by the City for code enforcement activities, owner and rental rehabilitation, and demolition in CDBG low-income and moderate income areas of the City. Ex.237,3rd ShoemakerAff.,110-112, 115,119, 121-122, 129,133-34. Ex.86,3rdEngelAff., pp11-13,20,24,25,29,30,33. CDBG funds also are provide to Block Clubs, District Councils, and Neighborhood Development Corporations. Id.,10,14,16,18,20,24,30,31. The 2003 Update contains many pages listing numerous sub-grantees and mentions the City’s partnership with PHA and housing problems in City. Ex.86,3rd EngelAff.
In 2002, the City stated that its share of the region’s lower cost housing that is located in the central cities had been growing and should be reversed, because according to the City, that was providing few choices for lower income households and fewer workers for suburban businesses. Ex.103,3rdEngelAff.,CompPlan2002,21.
The plan recommended that Saint Paul aggressively work to capture the its share of an emerging market of smaller households and older empty-nest households, many of whom have moderate or higher incomes, want to live in an urban environment and are currently unable to find suitable options in Saint Paul. Id.,7.
The City claimed that it would support measures to lower construction costs associated with local requirements, a reassessment of the State Building Code, and rental housing resources for replacement housing and rehabilitation. Id.,22.
PRESERVING OLDER HOUSING STOCK IS CRITICAL TO PRESERVING AFFORDABLE HOUSING YET COSTLY AND RESOURCES NEEDED
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The City has consistently acknowledged that preserving the existing, older housing stock is critical to preserving affordable housing and yet the preservation of the older rental housing is costly and financial resources must be made available to owners of low-income housing who are particularly vulnerable. Ex.237,3rd ShoemakerAff.
“Many of the structures that provide rental housing affordable to lower income households in Saint Paul are smaller (1-4 unit) buildings owned by landlords who own relatively few buildings. They are the kinds of structures that are at highest risk of becoming “problem properties” or vacant buildings and, yet, maintaining them in good condition represents the most cost effective way of providing affordable housing.” Ex.103,3rd EngelAff.,CompPlan2002,28-29.
The City admitted that it must coordinate code enforcement with measures for repair and improvement and that additional resources must be identified to assist property owners in making the necessary repairs. Ex.268,3rdShoemakerAff.,ConPlan2005,86.
The City is a “built city” with little available vacant land for development of new affordable housing. Removal of older housing stock is seen as a way to make way for new development and a higher tax base due to reductions in federal and state funding to the City. ConPlan2005,105.
DEFENDANTS MAYOR KELLY AND DAWKINS KNOWLEDGE OF CONCENTRATION OF “PROTECTED CLASS” IN AREAS OF INNER CITY
Prior to becoming mayor of St. Paul, Defendant Kelly was in the Minnesota Legislature for 22 years as representative and senator representing the City’s East side where
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a high percentage of “protected class” reside. Ex.243-245,3rdShoemakerAff., 45415-45428.
Prior to becoming Director of Neighborhood Housing and Property Improvement (NHPI) of St. Paul, Defendant Dawkins was in the Minnesota House for 16 years representing the City’s Frog Town area where a high percentage of “protected class” reside. Ex.239-242,3rd Shoemaker Aff.,45402-45414.
Dawkins recognized that people of color were being disproportionately impacted by the higher code enforcement standard: “Perhaps a disproportionate number of folks getting EC [City fines for “excessive consumption” of code enforcement services] are people of color; but if this is so, then maybe it’s because a disproportionate number of families living in poverty are people of color.” Ex.299,4thShoemakerAff . “The new way to bill-out for excessive consumption … Everything counts …I estimate the new ordinance will bring in half a million dollars or more, and the Mayor has basically said it’s ours to spend.” Ex.300,4th ShoemakerAff.(Dawkins to Code Enforcement Staff,11-13-03).
CITY’S HISTORY OF DISCRIMINATION AGAINST PROTECTED CLASSES
Community Stabilization Project (CSP) Director Catie Royce testified concerning Kelly and Dawkins’ efforts to assist the City in de-concentrating poverty in St. Paul’s inner city neighborhoods and how those efforts assisted the City’s demolition of affordable housing disproportionately occupied by “people of color”:
“…the randy andy show were responsible for deconcentration of poverty policy when they were up at the capitol. … Randy was the first legislator in this state to begin to institutionalize the racist language of “deconcentration of poverty” which he used to get approximately $100,000 appropriated to the Minnesota Housing Finance Agency to demolish low income rental housing because ‘it was responsible for crime and blight.”
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I’m pretty sure those were the exact words of the bill. That was the first time that I saw Andy carry polluted water for randy, he authored the companion bill in the house. That money was used about five years later to demolish the Lakewood Apartments, 138 units of very affordable, structurally sound rental housing located on the banks of the now gentrified Lake Phalen. Lakewood was in poor condition and there were many code violations because the city and the district council had conspired to ignore the property for years. Lakewood was home to a diverse community of low income families, there was ONE WHITE family in Lakewood, ONE!!!
Ex.128,1stShoemakerAff.,RoyceDepo.,Ex. 3.
Ms. Royce testified that under Mayor Norm Coleman, the City was “doing a lot of demolition, using a lot of city funds to demolish affordable housing” and was “particularly interested in tracking Community Development Block Grant funds in the hopes that we could require replacement of those units through that period conducted.” Id.,17-18. The City “started to use a significant amount of public subsidy to go after large complexes. They wanted to demolish Concord Square, known as Bluff Park Homes now. We intervened strongly there, Community Stabilization Project, and they jumped across the city to the East Side and went after a complex called the Lakewood Apartments. They successfully demolished that.” Id.
Royce continued, “vacating and demolitions of units throughout the city have been a part of trying to get rid of rental housing. Now, then you can make the leap, without having a whole bunch of brain synapse occurring, that that is also going after people or color.” Royce, 88. “The rather recent (five years) strategy of requiring the highest level of rehab, I think they call it code compliance, on a vacant building, even if its only been vacant for a short amount of time is not a policy conducive to preserving our existing stock of housing. It is
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policy that should be analyzed as people look over this issue in general. Not many of our homes, including mine, could withstand the level of scrutiny created by this code compliance inspection.” Id. Royce recall talking to Dawkins about this issue and that Dawkins understood that “Code Compliance” was a higher level of rehabilitation to an older home. Id.,189-190.
CITY MINIMUM PROPERTY MAINTENANCE CODE FOUND
TO BE 82% MORE STRINGENT WHEN COMPARED
TO FEDERAL SECTION 8 STANDARDS
In 1994, the City proposed to PHA, it long term partner, that the City’s Property Maintenance Code (City Code) be substituted for the federally mandated Housing Quality Standards (HQS) applicable to federally subsidized, Section 8 “low income” housing in the City. During this process, the City and PHA discovered that the City’s code was actually “more stringent” 82% of the time when compared to the federal code. Ex.171,3rd ShoemakerAff,PHA011488-494;Ex.180,3rdShoemakerAff.,PHA012087;Ex.115, 3rdEngelAff.,STP6689-90.
Representative Dawkins’ Legislative Aid attended the City’s Community and Economic Development Committee meeting on October 26, 1994, where PHA informed the City that HUD tightly controls the variations in HQS by local jurisdictions due to the adverse effect a higher local housing code can have on the availability of affordable housing. Ex.1783rdShoemakerAff.,PHA011881;Ex.174,3rdShoemakerAff.,PHA011799; Ex.177;3rdShoemakerAff., PHA 011877-011890.
In 1994, PHA informed City leaders that “local HUD staff feared more stringent
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standards would reduce the supply of affordable housing for Sec 8 holders.” Ex.172,3rd ShoemakerAff.,PHA011789. PHA Staff informed the City that HQS was a national minimum standard for unit habitability and that HUD tightly limited local variations because HUD did not want Cities to unduly restrict the supply of dwelling units available to Section 8 participants by setting standards higher than HQS. Ex.177,3rdShoemakerAff.,PHA11879-11881(Items incorrectly identified as Housing Quality Violations: minor drip in wash basin or tub; one burner out on stove; condition of appliances; types of locks; heat shut off from certain rooms; crack window pane (which are not a safety problem or cause drafts); location of outlets and light fixtures; peeling paint; worn carpeting or other floor covering; stained wall paper; lack of screens; no air conditioning; occasional roaches or mice).
RISK OF WHOLESALE ABANDONMENT IN INNER CITY
In 1997, two years after the Minnesota State Building Code was amended to allow one and two unit dwellings to be covered by Certificates of Occupancy (CofO), Council members Dan Bostrum and Roberta Megard promoted a new ordinance that would require City inspection for all rental single family and duplexes. Ex.210,3rd ShoemakerAff.,p.32; Ex.167 3rd Shoemaker Aff.,PHA011340.
The City acquired notice during the debate on the proposed ordinance that, “Most rental property owners are small-business people who are struggling to make ends meet,” that “Most rental properties in the Twin Cities have very slim profit margins and have incomes that barely allow for repair of tenant-caused damage and basic maintenance, let alone improvements and aesthetics” and the “financial burden of costly repairs cannot be met by
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many rental property owners and would likely result in an increase in the number of abandoned properties” and the “increased cost due to inspections and code compliances will result in higher rents, which will decrease the number of affordable housing units for moderate to low-income tenants.” Ex.169,3rd Shoemaker Aff., PHA011390.
Councilmember Jerry Blakey stated during the debate that “We need to make sure there’s financial resources in place or the costs will be passed on to the tenants.” Ex. 166 to 3rd Shoemaker Aff., PHA011339.
Councilmember Mike Harris stated the proposed ordinance “would impose overly strict standards for aging properties that may be adequate, if not up to code.” Ex. 168 to 3rd Shoemaker Aff., PHA011363.
The City received further notice during this debate when Catie Royce, director of the Community Stabilization Project (Royce - CSP) suggested that grants or low-interest loans should be provided for repairs or many landlords will simply abandon their properties with followed demolition and reduction of the city’s already limited supply of low-rent housing and increase in homelessness. Dawkins acknowledged the need for resources. Ex. 299 to 4th Shoemaker Aff .
In November 1997, the City’s Planning and Economic Development (PED) noted that it “needed to study which city housing programs could release parts of their budgets for the inspections [CofO], as well as possible impact on increased rents, displacement of tenants and reduction of low-cost housing.” Ex. 179 to 3rd Shoemaker Aff., PHA012054 (emphasis added).
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In 1999, another City Council proposal related to the C of O inspection program was promoted and the City claimed that under that program, “Class C building will still meet City Codes …, but will have frequent citations for code violations.” Ex. 164 to 3rd Shoemaker Aff., PHA011285. The question for PHA and HUD was whether the additional City regulation would unduly restrict the supply of affordable housing available. Id.
In 1999, during the public debate over the City’s proposed Housing Plan, the City received further notice that increased regulation of the low-income rental housing market could backfire as “too much code enforcement could lead to more housing being condemned and boarded up, pushing even more low-income people into shelters or looking for replacement housing when the vacancy rate was less than 2 percent.
In 1999, City enacted a rental registration program adding further regulations to the private rental market. Ex. 171 to 3rd Engel Aff., STP211856-211860.
In 2000, the City acknowledged that attitudes and public opinion as a barrier to affordable housing, including division in neighborhood communities which pits renters against owners and single family residents perception that a rental building is a “problem property”, rather than recognize problems which may be associated with tenants. Id at 61.
In 1999, the City and Ramsey County recommended that given the critical need for low income housing in the City and County, “all efforts should be taken to preserve existing stock” and that the City and County should develop a set of strategies to carry out this policy, including assurances that resource are adequate. Id at 56.
In September 2000, John Lensch, a legislative aide to Councilmember Chris Coleman
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was informed by PHA that in fact the City’s Code had been found to be more stringent than Section 8 HQS. Ex. 170 to 3rd Shoemaker Aff., PHA011439.
In January 2004, Lensch, by then a State Representative for the City, would comment before the City Council that he felt that a property before the Council on a proposed resolution ordering the owner to remove or repair the home within 15 days “will end up as another rental property in a zip code that already has twice the number of Section certificates of any other zip code in St. Paul.” Ex. 266 to 3rd Shoemaker Aff., 45764.
2000 US CENSUS DATA
The City acknowledged in its 2003 Consolidated Plan Update (Ex. 86 to 3rd Engel Aff) that the 2000 Census showed that the City had gained nearly 15,000 residents since 1990 the racial communities had increased in population and there had been an increased number of children and persons of color living in poverty. Id at 40.
HUD’s 2000 Census “CHAS” data for St. Paul showed that among renters in the City, 37.1 % of White renters had housing problems (cost burdens of greater than 30% of income and/or overcrowding or without complete kitchen or plumbing facilities) while 53.9% of Blacks had such problems, and Hispanics had 57.5% Black family households had 59.3% and Hispanics families had 64.9%. Ex. 262 to 3rd Shoemaker Aff., 45701-45707.
INSPECTORS HAD KNOWLEDGE THAT AREAS WHERE PLAINTIFFS’
HAD RENTAL PROPERTIES HAD A HIGH CONCENTRATION
OF “PROTECTED CLASS” TENANTS
Defendant Lippert stated, “We know that we are very effective. As I drive around town I rarely drive down a block where I haven’t solved a problem. On some blocks I have
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been to every house on the block. This is of course true of every inspector.” Ex. 100 to 3rd Engel Aff., STP0409-0410.
Ms. Royce testified that based upon her considerable time and experience in the inner city of St. Paul assisting protected class, that the concentrations of minorities in the City were located on the East side, Railroad Island, along Payne Avenue and in those neighborhoods, Summit-University, Frogtown, and West Side for the Latino population. Royce, p. 30-31. This was true, she said, both before and after Randy Kelly was Mayor. Id.
Nevertheless, Dawkins in November 2003, he boasted, “We got our new excessive consumption ordinance and our new rental registration ordinance … yesterday….Everything counts …I estimate the new ordinance will bring in half a million dollars of more, and the Mayor has basically said it’s ours to spend.” Ex. 300 to 4th Shoemaker Aff. Dawkins reminded inspectors the Mayor wanted every property written up, which would slow down the inspection department but “it is the way to build our base so we do bring-in a million on re-inspects.” Id.
LONG TERM PARTNERSHIP BETWEEN THE SAINT PAUL
PUBLIC HOUSING AGENCY AND CITY OF SAINT PAUL
The Saint Paul Public Housing Agency (PHA) owns and manages federally subsidized low-income, primarily to low and moderately low income “protected class” tenants in the City and manages the Section 8, Housing Choice Voucher program. Gutzmann, p. 14.
The City acknowledges that it “works closely with” PHA and that this “close relationship is based upon mutual goals, staff cooperation, joint planning and program Case 0:05-cv-00461-JNE-SRN Document 237 Filed 08/25/2008 Page 25 of 78
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development” Ex. 237 to 3rd Shoemaker Aff., City Consolidated Plan 2000, p. 7. PHA enjoys the “good cooperation and coordination between the City’s Code Enforcement Staff and PHA Staff.” Ex. 165 to 3rd Shoemaker Aff., PHA011323. PHA has a working relationship with the City’s code inspection department. Hester (1st), 132.
Even though PHA is no longer a city department, the City continues to have effective control over PHA as the Mayor appoints the members of the PHA Board of Commissioners and the City Council confirms those appointments. There are seven Commissioners, five of which are non-public housing residents. Ex. 268 to 3rd Shoemaker Aff., 2005Consolidated Plan, 111.
HUD mandates the City review PHA Housing Plans for submission to HUD to determine if PHA plans are in conformance with the City Consolidated Plan. Id at 41. The City recognizes that PHA needs to continue rehabilitation and modernization of its properties. Id at 41.
In the 2000 Consolidated Plan, PHA is listed as having 455 scattered site homes, 1,296 family development units, 2,543 Hi-Rise units in 16 Hi-Rises, for a total of 4,286 rental units. Id at 49. The City has intimate knowledge of the physical condition of PHA rental properties from a number of partnership sources, including PHA’s Comprehensive Grant Plan, its five year improvement plan, and at times City or county officials serving on the PHA Board of Commissioners. Id at 50.
The City reviews detailed information concerning PHA’s rental operations, including PHA’s five year capital funding plans, annual plans, proposed sales of PHA properties. Ex.
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184 to 3rd Shoemaker Aff., PHA 17394; Ex. 268 to 3rd Shoemaker Aff., Con Plan 2005, 111, Ex. 236 to 3rd Shoemaker Aff., Con Plan 2001 Update, 41.
COOPERATIVE AGREEMENT BETWEEN CITY AND PHA
The City and PHA were required by HUD to enter into and maintain a Cooperative Agreement. Ex. 154 to 3rd Shoemaker Aff., PHA00007-17. City and PHA are partners in provision of subsidized housing in the City.
The Cooperative Agreement also provides that the City will “Grant such deviations from the building code of the City as are reasonable and necessary to promote economy and efficiency in the improvement and administration of such Development, and at the same time safeguard health and safety;” “Cooperate with the PHA by such other lawful action or ways as the City and the PHA may find necessary in connection with the improvement and administration of such Development;” “Provide such services as are normally provided to other inhabitants or dwellings in the City for which PHA will pay the City a Service Charge.” The City and PHA are contract partners on a number of additional levels: the City provides supplemental police services to PHA under special contract (Contracts for Supplemental Police Services), and the City and PHA partner together in submissions to HUD. Ex. 237 to 3rd Shoemaker Aff., Con. Plan 2000, Ex. 236 to 3rd Shoemaker Aff., Con. Plan 2001 Update.
PHA CLAIMS IF ANY RENTAL LOST WOULD ADVERSELY
AFFECT AFFORDABLE HOUSING IN THE CITY
PHA has over 400 single family homes – if one is taken out of the subsidized role
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through “conversion” to private market rents, that in that event, the conversion of any PHA home would “adversely affect the availability of affordable housing” in St. Paul. Ex. 270 to 3rd Shoemaker Aff., PHA Plan, FY 2005, Attachment N. Sixty-Seventy percent of PHA’s homes were built between WWI and WWII. Id. 37-38, but some were built in early 1900s. Id.
PHA’S HOUSING STOCK
PHA has been chronically underfunded for almost the entire existence of public housing. Gutzmann, 23. PHA admits that it has to prioritize the repairs - life safety and exterior envelope to keep out the moisture. Id at 47. Hester testified that every year for PHA staff have to ask how much money they have – have to prioritized the work – in a general sense there are a lot of needs that are being deferred because of insufficient funds. Hester (1st) 160. Had to sell homes to pay for other repairs. Hester (1st) 170.
PHA at times takes 6-7 weeks to get a rental unit ready for a new tenant after a tenant departure and the home is vacant during that time. Id at 40. HUD measures PHA on how fast PHA can turn around a vacant home to reoccupy. Id at 40.
PHA is inspected about every two years by HUD but only on a portion of its properties and HUD inspectors have not taken a rental unit off line no matter what condition it was in at the time of inspection. Petro 57-58. HUD does not focus on housekeeping as much as actual physical condition Id at 59.
Petro testified that the City would issue orders on trash, yard issues, vehicles, screens. Petro, 63-64. Petro says that tenant intentional caused damage is significant in amount with broken doors, damaged screens, holes in walls. Petro, 66-71. Damage to PHA properties is
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fairly common across the scattered site portfolio. Id at 38-39. Tenants dictate whether there will be a rodent issue and frequently bring pests with them when they move in. Petro , 86-87. PHA does get complaints from its tenants that PHA is slow to make repairs. Petro, 106.
In fact, PHA has had serious health conditions in its properties from wet basements including mold filled homes. Hester, 140(2nd) (wet basements). PHA has rodent issues including mice and rats. Hester, 140-41(2nd).
In one case, PHA acknowledged that 125 showers in one of its High-Rises had to be gutted due to deadly mold conditions. Residents had complained and had to live in those conditions for a considerable period of time before PHA could address the needed repair. Ex. 196 to 3rd Shoemaker Aff., PHA21751-52.
PHA prepares a five year comprehensive plan for submission to the City and to HUD that details PHA capital funding needs, showing needed repairs and plans for deferred maintenance, repairs and improvements. Ex. 185 to 3rd Shoemaker Aff., PHA17505-17525.
PHA is subject to HUD review of its operations under the Public Housing Assessment System and while maintaining “high performer” status for overall operations, PHA scores on physical condition of its properties has ranged from 88% in 2002to 90% in 2005. Ex. 199, 200 to 3rd Shoemaker Aff., PHA22191,22198-22200; Ex. 206, 207, 208 to 3rd Shoemaker Aff., PHA22850,22855,22857.
The City acknowledges that PHA must acquire the necessary resources to modernize and maintain PHA’s stock of public housing. Ex. 268 to 3rd Shoemaker Aff., Con Plan 2005, 86.
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Gutzmann testified that PHA has been in crisis mode due to federal funding cutbacks and PHA had to sell off on two recent occasions many of its homes, where 2006-2007 on average those homes needed $40,000 in repairs. Gutzman, 56. PHA conducted an internal analysis of the costs needed for each of almost 20 homes, with the estimates running from a low of $13,000 to a high of $199,000. Gutzmann said the average costs to repair was $40,000. Gutzmann., 56-57; Ex. 190 to 3rd Shoemaker Aff., PHA 18488-18523. Hester, (1st) 155. PHA needed to sell these properties to get the money out of them and to avoid making expensive repairs. Hester (1st, 26).
City TISH evaluators conducted city code review prior to PHA sale of those homes and found that many of PHA’s homes were in fact not compliant with City Codes and had serious mold issues throughout. Ex. 192 to 3rd Shoemaker Aff., PHA 18636-18661 (2004); Ex. 189 to 3rd Shoemaker Aff., PHA18431-18487 (2006-07).
PHA - CITY ADMIT PHA RENTAL PROPERTIES SUBJECT TO CITY CODE: PARTNERSHIP BETWEEN CITY AND PHA
PHA rental properties are subject to all the same City’s codes as Plaintiffs’ properties were. Gutzman, 78-79; Petro, 60; Hester (1st), 132; Ex. 304 to 4th Shoemaker Aff., Defendants’ Responses to Requests for Admission, No. 24. p.6. Yet, PHA admits that the City has not conducted interior inspection of PHA’s over 430 homes. Hester (1st), 137. Forty-one year veteran of PHA’s maintenance Henry Petro could not recall the City ever conducting an interior inspection on any of PHA’s scattered site homes. Petro, 62. Defendants could not produce any interior inspection records for PHA homes during Plaintiffs extensive discovery
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for same.
The City and PHA admit that at no time has the City designated any PHA home as vacant, required a “Code Compliance” or condemned any of its homes. Ex. 304 to 4th Shoemaker Aff., Defendants’ Admissions, Nos. 31-35. Petro, 22-3; Hester (1st), 137-38, Hester (2nd 63-64 – no vacants or code compliances). There has never been a requirement by the City that PHA homes be substantially renovated. Hester (1st), 134-5. Petro does not recall the City ever mandating that PHA replace roofs on homes as that is an issue for the owner, can you get four-five more years out of it … by patching it. Petro, 74. Petro doesn’t recall the City’s LIEP office ever inspecting any PHA home for code compliance and he would know if it had happened. Id at 81-83.
The City has issued minimal code orders on PHA homes, mainly for garbage. Petro, 62-64. PHA has had units of it larger rental building condemned for excessive combustibles but as soon as they were cleared, the units are reoccupied. Petro, 23-27.
PHA is frequently called by City staff and given verbal orders or given friendly reminders when PHA is not compliant with City codes. Ex. 117 to 3rd Engel Aff., STP 20003-05; Ex. 151 to 3rd Engel Aff., STP20555; Ex. 150 to 3rd Engel Aff., STP20513-522; Ex. 122 to 3rd Engel Aff., STP20070-72; Ex. 144 to 3rd Engel Aff., STP20450; Ex. 142 to 3rd Engel Aff., STP20401; Ex. 133 to 3rd Engel Aff., STP20233; Ex. 123 to 3rd Engel Aff., STP20098-99; Ex. 124 to 3rd Engel Aff., STP20105; Ex. 126 to 3rd Engel Aff., STP20108; Ex. 125 to 3rd Engel Aff., STP20106, Ex. 127 to 3rd Engel Aff., STP20116; Ex. 118 to 3rd Engel Aff., STP20018-19; Ex. 131 to 3rd Engel Aff., STP20208-09; Ex. 132 to 3rd Engel
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Aff., STP20213-20216; Ex. 146 to 3rd Engel Aff., STP20472. Ex. 138 to 3rd Engel Aff., STP20369-70; Ex. 139 to 3rd Engel Aff., STP 20374-75; Ex. 121 to 3rd Engel Aff., STP20052-56 (mold in mildew, Basement keeps flooding, water around foundation); Ex. 116 to 3rd Engel Aff., STP19980-82 “Don’t think this office can take action”.
PHA has a history of being subject to serious health and safety complaints on it properties. Ex. 121 to 3rd Engel Aff., STP20055, STP 20052-56 (1375 Jessie Street, August 2000, mold and mildew, basement keeps flooding, water around foundation - refer complaint to PHA “City owned.” Also, 5-1-03 note, “Left message for PHA Will check in a week”; Ex. 119 to 3rd Engel Aff., STP20036-37; Also 1653 Ford Parkway, Ex. 120 to 3rd Engel Aff., STP20050-51 (6/17/05 “Mold thru-out the house,” 5 ½ years of mold problems - “Public Housing has been working with the tenant for over 5 years for mold problem”. Other PHA homes also appear to be frequently subject to mold growth and wet basements. Ex. 204 to 3rd Shoemaker Aff., PHA22803, Ex. 205 to 3rd Shoemaker Aff., PHA22807-08.
PHA records of its Iowa Hi-Rise shows that 62-85 showers units showers and adjacent sheetrock walls in apartment closets and kitchens were found to have deadly mold growth – showers leaks had been reported over the years. Ex. 195 to 3rd Shoemaker Aff., PHA21735, Ex. 196 to 3rd Shoemaker Aff., PHA21751-752; Ex. 197 to 3rd Shoemaker Aff., PHA21778; Ex. 186 to 3rd Shoemaker Aff., PHA17714; Ex. 187 to 3rd Shoemaker Aff., PHA17716-17. PHA homes also appear to be frequently subject to mold growth and wet basements. Ex. 204 to 3rd Shoemaker Aff., PHA22803; Ex. 205 to 3rd Shoemaker Aff., PHA22806-08. PHA has a variety of other problems with proper maintenance of its public rental units. Ex. 188 to 3rd
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Shoemaker Aff., PHA17827-36. The City could not produce any enforcement documentation showing that these serious health and safety problems were of a concern to the City.
PHA “PROBLEM PROPERTIES”
PHA and the City have long recognized that PHA, while maintaining “high performer” status under HUD regulations, owns and manages significant numbers of “problem properties” due to criminal behavior of residents, guests and third parties on PHA properties. Ex. 202 to 3rd Shoemaker Aff., PHA22440; Ex. 203 to 3rd Shoemaker Aff., PHA22475-476. Since 1991, the City and PHA have had a special partnership called “ACOP” whereby a platoon of City police are devoted solely to policing PHA family developments. Ex. 161 to 3rd Shoemaker Aff., PHA656-660. The City police services under ACOP are above and beyond the “baseline” police services PHA is provided with like any other resident or business in the City. Ex. 160 to 3rd Shoemaker Aff., PHA0591(2003 ACOP contract). At times, there are arrests of PHA residents and gang activity. Hester (1st), 146-48. The City has received over $8 million from PHA for supplemental police services since 1991. Ex. 159 to 3rd Shoemaker Aff., PHA585.
PHA and the City submitted grant applications for ACOP through the 1990s and funding continued through 2001. Ex. 162 to 3rd Shoemaker Aff., PHA3194-3390 (1999 DEP application). PHA’s PHDEP application for 1999 for funding for two years through 2001 shows that PHA and City knew criminal activity was so extensive at PHA rentals that City and PHA needed federal funds to combat the crime in PHA properties. Id.
PHA has “problem properties” and police officers live in PHA Hi-Rises. Ex. 162 to
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3rd Shoemaker Aff., PHA3248. Thereafter, PHA used capital funds to help fund this special policing arrangement. PHA and the City see the ACOP program as being very necessary for a number of reasons including to keep the lid on significant criminal gang activity in and around PHA properties. Ex. 162 to 3rd Shoemaker Aff., PHA3313-14 – Chief Finney letter 5-27-99, re - problems and strategy).
The City and PHA detail the significant criminal activity at PHA properties that supports their conclusion that PHA owns and manages “Problem Properties”. Ex. 162 to 3rd Shoemaker Aff., PHA 3194-3390; (drug related crime and gangs in PHA – Ex. 163 to 3rd Shoemaker Aff., PHA4114-4125; Ex. 156 to 3rd Shoemaker Aff., PHA283-285; Ex. 158 to 3rd Shoemaker Aff., PHA408-417; Ex. 155 to 3rd Shoemaker Aff., 271-272. PHA understands that definition of “problem properties: “loosely defined as those [properties] having numerous code violations, police calls and criminal activity, and/or poor property management practices.” Ex. 193 to 3rd Shoemaker Aff., PHA21332, Ex. 194 to 3rd Shoemaker Aff., PHA21356; Ex. 199 to 3rd Shoemaker Aff., PHA22191; Ex. 201 to 3rd Shoemaker Aff., PHA22206-208; Ex. 202 to 3rd Shoemaker Aff., PHA22440, Ex. 203 to 3rd Shoemaker Aff., PHA22475-476; Ex. 204 to 3rd Shoemaker Aff., PHA22803, Ex. 205 to 3rd Shoemaker Aff., PHA22806-08. City Police reports for criminal activity connected to PHA rental properties were sent to Assistant Chief Reding, a member of the PHA Board. P Ex. 157 to 3rd Shoemaker Aff., PHA288-307 (reports during 2003-2004).
CITY POLICE OFFICIAL SERVED ON PHA BOARD
In October 2001, Assistant Chief of Saint Paul Police, Tom Reding, was appointed to a
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five year term on the PHA Board of Commissioners thus providing the City with a “bird’s eye view of PHA’s entire rental operation. Ex. 198 to 3rd Shoemaker Aff., PHA022029 - 45. Reding served on the PHA Board from October 2001 forward even partnering with Dawkins in the City’s crackdown on so called “Problem Properties in 2003 and 2004. Ex. 198 to 3rd Shoemaker Aff., PHA022029-022045. In March 2004, Reding worked with Dawkins in preparing a training bulletin to police officers on how to work with code enforcement against private landlords. Ex. 105 to 3rd Engel Aff., STP0582-83.

Document 237 Filed 08/25/2008 Page 3 of 78

ARGUMENT
Defendants are not entitled to summary judgment as requested in their memorandum of law in support of their motion for summary judgment because there is sufficient record evidence to raise genuine issues of material fact as to each contested cause of action. Summary judgment must be denied because, when the evidence is viewed in the light most favorable to Plaintiffs and after all reasonable inferences based on the evidence are made in the Plaintiffs’ favor, there are genuine issues of material fact upon which a reasonable fact-finder could decide in favor of the Plaintiffs.
The party requesting summary judgment bears the initial burden of informing the court of the basis for its motion and identifying the pleadings, admissions, discovery documents and affidavits that it contends show the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the moving party has met its initial burden, the non-moving party must then go beyond the pleadings to designate specific facts that raise a genuine issue for trial. Id. at 324. The evidence produced by the non-moving
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party need not be in a form that would be admissible at trial in order to avoid summary judgment. Id. at 324.
A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine in that a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). When considering a motion for summary judgment, a court must construe all evidence and reasonable inferences in favor of the non-moving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996); RSBI Aerospace, Inc., 49 F.3d at 401. Moreover, this circuit has held that summary judgment in a civil rights action is inappropriate where there are genuine factual disputes. See Gainor v. Rogers, 973 F.2d 1379, 1384-85 (8th Cir. 1992); Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir. 1995).
I.
PLAINTIFFS’ CLAIMS UNDER THE FAIR HOUSING ACT SURVIVE SUMMARY JUDGMENT BECAUSE THE PLAINTIFFS HAVE STANDING AND HAVE PRODUCED RECORD EVIDENCE TO RAISE GENUINE ISSUES OF MATERIAL FACT AS TO BOTH DISPARATE IMPACT AND DISPARATE TREATMENT CLAIMS.
A.
Plaintiffs have standing to bring claims under the Fair Housing Act.
The City does not dispute that Plaintiffs have Article III standing to bring its FHA claims. Rather, the City attacks the Plaintiffs’ prudential standing. The test for prudential standing is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. The
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Supreme Court has held a party need not be a member of a protected class to suffer harm from discrimination.” Oti Kaga, Inc. v. South Dakota Housing Development Authority, 342 F.3d 871, 881 (8th Cir. 2003) (internal quotations and citations omitted).
The 8th Circuit recognized “the need to construe prudential standing broadly to vindicate the rights of citizens trammeled by illegal discrimination.” Id. at 882. Oti Kaga, despite being a corporation and not a member of any protected class, was held to have prudential standing because the discrimination affected its economic interests and “permitting Oti Kaga to prosecute the discrimination claims will effectuate the purpose of the Fair Housing Act’s anti-discrimination provisions and recognize Congress’s intent under the Fair Housing Act to extend standing to the full limits of Art. III” Id. at 882.
B.
Plaintiffs have presented evidence of disparate impact due to Defendants’ violation of the Fair Housing Act
Proof of a disparate impact claim requires a showing that a facially neutral policy has a significant adverse impact on members of a protected minority group. Oti Kaga, Inc., 342 F.3d at 883. Defendants argue that the Plaintiffs’ disparate impact claims fail because the policy at issue is not facially neutral. If that were the case, the policy would be facially discriminatory and no further analysis would be necessary. However, the analysis looks to the impact of the policy, which must be significantly adverse to members of a protected class. In the present case, the Defendants’ policy of targeting non-PHA low income housing with excessive code enforcement results in less choice in housing for the protected-class individuals seeking affordable housing because it drives private landlords who have
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affordable rental options out of the rental market.
Plaintiffs as a group had or have a higher percentage of people of color and disabled “protected class” in their properties. Plaintiffs were targeted – PHA was not. Plaintiffs have scattered site properties with over two times the number of Blacks occupying their privately owned units than Blacks occupying the PHA scattered site homes. Why? Maybe it is because the City cannot control the private market’s decision as to who should be allowed the freedom and privacy of a home in the inner city at affordable rates with the benefits of public transportation and community.
The City controls the number of Blacks and other minorities that can get into PHA scattered site homes by controlling the Board of Commissioners who are appointed by the Mayor and approved by the Council. The City went for further control in 2001 by making sure one of its senior police officials sat on the PHA board.
While Defendants using CDBG funds for code enforcement went after Plaintiffs for alleged behavior problems, the City and PHA were working together with federal funding to handle even worse behavior issues at and inside PHA properties. PHA’s problems were costing the taxpayer lots of money, yet Defendants failed to even mention “PHA” in the City’s 2002 Problem Property report where the City claimed the private market was costing the public so much money that the City was justified in cracking down on the private market.
The City had tools in place from 1995 forward for recouping its costs of police and code services but decided not to use those tools.
The City forcibly requires only the private market to bear the excessive costs of “code
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compliance inspections and certifications” with corresponding removal of State Building Code grandfathering protections, application of “current codes,” and resulting increase in costs to the private owners – removing those properties from the rental market for months in the short term during the “code compliance,” and forcing many owners into financial crisis, with abandonment, foreclosure, and reduction in low-income housing stock available for the 10,000 families waiting for housing.

Friday, August 1, 2008

Steinhauser et al v. City St.Paul_Magner et al Civ 05-461

Legal Notice to all Bloggers pdf file transposed from http://www.ademocracy.blogspot.com/
Pgs 1 thro 55 Educational for all St. Paul Citizens, Homeowners,Taxpayers
Blogger Bob said...

Hi All,

I will be posting this summary judgement by the "defendants" (City of Paint Paul) in sections on this thread. There is 55 pages total. This is page 1 thru part of page 8.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________________
Civil No.: 05-461 JNE/SRN
Frank J. Steinhauser, III, et al.,
Plaintiffs,
vs.
City of St. Paul, et al.,
Defendants.
DEFENDANTS’ MEMORANDUM
OF LAW IN SUPPORT OF
SUMMARY JUDGMENT
________________________________________________________________________
INTRODUCTION
Plaintiffs are former landlords who at one time owned rental property within the
City. Like any landlord with substandard housing stock in violation of City codes, they
were subject to the City’s lawful code enforcement. After selling many of their
properties, many of which were sold at a substantial profit, they now claim that the code
enforcement was in violation of various federal and state laws. Plaintiffs’ claims in sum
and substance are that the City has illegally targeted some, but not all, of their properties
for code enforcement based on the protected class status of many of their tenants.
Plaintiffs make this claim although Plaintiffs do not necessarily have protected class
tenants at allegedly targeted homes, at times admit that the alleged illegal code
enforcement had nothing to do with the identity of their tenants, and fault the City for not
targeting other landlords who had protected class tenants.
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Plaintiffs have taken forty-five depositions and have searched over a million
documents for evidence to support their claims for over four years. Plaintiffs do not have
any evidence to support their causes of action and, in fact, make crucial admissions that
support Defendants’ position that their claims are entirely meritless. Pursuant to Rule 56
of the Federal Rules of Civil Procedure, Defendants seek summary judgment in their
favor as there are no genuine issues of material fact.
STATEMENT OF FACTS
City of St. Paul Code Enforcement
Since 1993, the City Council determined that there existed in the city, structures
that were substandard and lacking in basic facilities constituting a menace to public
health, safety and welfare of its citizens. Therefore, the Council enacted Chapter 34 of the
Saint Paul Legislative Code (“SPLC”). (Exhibit 3; pp. 0558-0573). The Council found
the existence of such conditions aggravated urban blight requiring the establishment and
enforcement of minimum property standards. (Exhibit 3, p. 0558).
In 2003, the Council established the Department of Neighborhood Housing
and Property Improvement, (“NHPI”), formerly known as Code Enforcement. (Exhibits 1
and 2). The duties of NHPI consists of administering and enforcing city housing and
property maintenance codes. Chapter 14A of the SPLC describes the duties and
responsibilities of NHPI. (Exhibit 2).
NHPI is responsible for administrating and enforcing multiple city
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ordinances to accomplish the goals of providing minimum property maintenance
standards for all structures and premises within the City. To accomplish this, NHPI is
responsible for investigating all citizen complaints concerning problem properties in
neighborhoods and enforcing the city code. (Exhibit 11, pp. 409, 410).
During the time-frame of this lawsuit, Defendant Andy Dawkins was the appointed
Director of NHPI by Mayor Kelly. (Exhibit 8, p. 205). According to Dawkins, Mayor
Kelly “believed that the city’s future was dependant upon having an aggressive,
consistent stepped up code enforcement department.” (Exhibit 8, p. 118).
In response to the Mayor’s vision, Dawkins developed the following mission
statement for NHPI: “to keep the city clean, keep its housing habitable, and make
neighborhoods the safest and most livable anywhere in Minnesota.” (Exhibit 5, p.
40012).
Dawkins’ priorities were: 1) to investigate citizen complaints and respond to calls
for service, 2) conduct routine inspection patrols, 3) conduct proactive sweeps, 4) close
down problem properties, and 5) enforce dwelling unit registration provisions. (Id.).
In 2002, Dawkins developed a packet of Rules and Procedures for inspectors.
(Exhibit 7). Dawkins said the goal was to provide consistent application of these rules.
(Id., p. 50083). However, because of the limited number of inspectors and resources,
Dawkins indicated that inspectors must use discretion in applying these rules and
suggested the following priorities in exercising that discretion: “1. Serious health and
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safety issues; 2. Cleaning up “problem properties”; 3. Garbage and nuisance violations;
4. Falling down and dilapidated structures; 5. Interior habitability has a higher priority
than minor exterior violations, and 6. Structure with multiple violations gets priority.”
(Id., pp. 50083-50093).
In 2004, Dawkins’ NHPI website provided a guide for residents to work with
NHPI concerning problem property complaints, routine code enforcement protocol,
sweeps protocol, and notes for tenants and landlords. (Exhibit 6, pp. 40022-26). The
website outlines NHPI’s comprehensive approach to dealing with “problem properties.”
(Id.) A “problem property” is defined on the website as one where there are “constant
calls to get rid of the junk, intolerable behavior by occupants and guests, etc.” (Id.
p.40022).
The website lists six steps for citizens to deal with a problem property. (Id., pp.
40022-24). Step one encourages citizens to exhaust all of the procedures in step one
before proceeding to the subsequent steps. (Id., p. 40022).
Routine NHPI enforcement included inspecting interior and exterior property.
(Id., p. 40024). The website lists eight steps for routine code enforcement. (Exhibit 6;
40024-26). The most common complaints to NHPI are for “garbage/rubbish, mattresses,
appliances, junk vehicles, graffiti, and overgrown properties.” (Id., p. 40024). When an
inspector visits the property, the very first thing he/she does is to “determine the
complaint is valid or ‘founded’ (i.e., finds a violation).” (Id.). If there is a violation, then
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a correction order or abatement order is mailed to the occupant and the property owner.
(Id.).
NHPI Supervisor Magner describes the duties of an inspector as: “if you have a
complaint, you need to investigate it to see if its valid, and if there is a violation of the
law, you need to take enforcement action.” (Exhibit 11, p. 410). Code enforcement
officers would inspect the properties and use their discretion when deciding what the
appropriate code enforcement action should be. They could give written or verbal orders,
depending on the situation, and consider the season it was and whether or not the
particular correction could be made (i.e. would not require painting to be completed
during winter months). (Exhibit 12, pp. 42, 62, 63, 78, 79; Exhibit 39, pp. 113-15;
Exhibit 15, p. 66; Exhibit 14, p. 241; Exhibit 9, p. 34-35, Exhibit 10 p. 63).
City’s code enforcement manager, Lippert, described the duties of inspectors
stating, “we inspect properties for code violations, so that’s what we are looking for. If
someone calls in a complaint on a property, we are going to look at the property and call
the code violations.” (Exhibit 10, p. 237). When Plaintiffs asked Lippert about
complaints that might possibly be ill-motivated, Lippert responded, “we are not dealing
with the motivation of a complaint we’re only going to be looking for the validity of the
complaint....[W]e are primarily a complaint-based system so we respond to complaints
without taking into account motivation.” (Id., p. 238-239).
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Dawkins was asked by Plaintiffs about pitfalls in the complaint-based system.
(Exhibit 8, p. 678). Dawkins responded, “any time you’ve got a complaint-based system
and I call in a complaint, I could be calling in because I don’t like you or because I got
into a beef with you about something or other and I just want to call you in. And then we
go out and look and see if it’s there. On the other hand, if you do a sweep, then there’s no
- - the system isn’t susceptible to that problem.” (Id.).
Dawkins explained that he moved the City from a complaint-based system to a
proactive system, “[M]oving to a pro-active patrol system is a good thing - - not only for
the obvious reasons such as a cleaner city, less blight, greater safety, higher property
values and preserving affordable housing - but also because it undoes racism by reducing
the possibility of one group manipulating the system against another group as to which
properties get called - in.” (Id., p. 678).
Besides moving to a pro-active patrol system, Dawkins utilized several tools for
problem properties. (Exhibit 6, p. 40023). Those include, code enforcement orders to
correct or abate, condemnation/vacant building registration, criminal charges, charging
for excessive consumption of services, nuisance abatement orders (Exhibit 4), nuisance
abatement (Minnesota Statute §617.80), rental registration, City Attorney initiated
evictions, City initiated Tenant Remedies Action (Minnesota Statute §504B.401 et seq.)
and real estate seizures. (Exhibit 6, p. 40023).
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Plaintiffs questioned Dawkins about these tools, asking him which was his least
favorite, Dawkins answered, “condemnation”. (Exhibit 8, p.666). Dawkins was asked
what was the best tool, Dawkins answered, “voluntary compliance”. (Id.). Plaintiffs
asked Dawkins to put the tools in order between voluntary compliance and condemnation.
(Id.). Dawkins responded, “I didn’t like tagging. That was near the bottom. In terms of
condemnation, I didn’t like to get to that. I hated getting to a $75.00 excessive
consumption fee. To me, there was something going on at that property that the inspector
needed to find out more about. Was it because they couldn’t read English? They didn’t
have enough money to fix their place up, whatever. The second best favorite to voluntary
compliance was you get a correction notice and you correct it in the time line.” (Id., pp.
666, 667).
Dawkins was asked about the use of Tenant Remedy Actions. (Id., p. 667).
Dawkins answered, “Tenant Remedy Action is one that I wanted to use the $200,000 that
had been granted to the city to repair properties and I felt terrible that it was just sitting in
this account gathering dust and not interest, and every dollar could be well spent fixing up
a place. So I encouraged more Tenant Remedy Actions, especially as a way to avoid
condemnations.” (Id., p. 667).
In addition to these enforcement tools, Dawkins encouraged neighbors to
voluntarily patrol their areas and keep them looking good. This was called the “Good
Neighbor Program”. (Exhibit 6, p. 40026).
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Dawkins was instrumental in providing changes to Section 34.18 of the SPLC to
“provide landlords with a very clear direction on what their defenses could be if code
enforcement was coming after them for tenant behavior.” (Exhibit 8, p. 628). Dawkins
called this his “best lease management practices” and stated, “as long as the landlord has in the lease that the tenant must be law abiding, as long as the landlord patrols the property
to monitor the lease, so long as the landlord takes action to enforce the lease if there’s a
violation, then it’s a total defense to anything

8:55 AM

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Plaintiffs
1. Kelly Brisson
Brisson purchased 297 Burgess Avenue, a duplex, on September 10, 2001 as a
place to live and also rent out. (Exhibit 23, pp. 62, 63) Brisson was not a member of a
protected class. (Exhibit 23, p. 89) When he purchased the property it was in deplorable
condition and he admittedly did not have the money to make the necessary repairs.
(Exhibit 23, pp. 46-48, 64-70, 99, 251)
Brisson admits that many of the conditions for which he was cited actually existed
on the property. (Exhibit 23, pp. 75, 81, 94, 95, 101, 119, 120, 121, 122, 124, 125, 126,
127) He admits that photos of his property taken by the Defendant in support of the City’s
correction orders were accurate. (Exhibit 23, pp. 84, 85) He blames his tenant or others
for some of the conditions. (Exhibit 23, pp. 112-116, 120-121) For example, Brisson’s
lower unit tenant left without paying rent and the unit was “completely trashed.” (e.g., dog
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urine, feces, and garbage in the house) (Exhibit 23, pp. 112-116) Brisson simply could not
meet the deadlines set forth in the correction orders because he did not have the money to
fix his property. (Exhibit 23, p. 127)
Brisson eventually went through the Section 8 inspection and rented to Leo Sider, a
friend of Brisson’s for fifteen years. (Exhibit 23, p. 131, 135, 136, 137). Brisson claims
that Sider was disabled because he had serious back problems. (Exhibit 23, p. 132).
Brisson has no evidence that any of the Defendants knew that Sider had received Section 8
assistance or that he was disabled with a bad back. (Exhibit 23, p. 136). In fact, he had
no evidence that any Defendants had even met Sider. (Id.). Brisson admits that the
identity of his tenant and his tenant’s disability status had absolutely nothing to do with the
City’s code enforcement and condemnation. (Exhibit 23, pp. 132, 136-137, 169, 170,
268, 269). Brisson’s complaint is that he received a condemnation notice for the entire
duplex when the upper unit was the only one that did not have electricity. (Exhibit 23, pp.
170, 171). Brisson admits that the photos that were taken on July 22, 2003, one week after
he was issued a notice of condemnation, accurately depict his property on that date.
(Exhibit 23, p. 180). On August 12, 2003, Brisson was issued another condemnation
notice. (Exhibit 23, p. 196). Sider independently went to Legal Aid and retained an
attorney to assist him in a tenant’s remedy action (TRA) against Brisson. (Exhibit 23, p.
197). The action brought by Sider was resolved. (Exhibit 23, pp. 197-199). The City did
not have anything to do with the TRA or the settlement. (Exhibit 23, p. 199). Brisson
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admits that he would have addressed all of the issues listed in the correction notices
because the property needed it. (Exhibit 23, p. 254).
2. Mark Meysembourg
Mark Meysembourg previously owned a number of rental properties within the
City, but claims that only one of his properties, 970 Euclid St., has been the subject of
alleged illegal targeting by Defendants. (Exhibit 22, p. 53). Meysembourg is not a
member of a protected class. (Exhibit 22 p. 47) However, he claims that there was
discriminatory code enforcement at 970 Euclid St. (Id.). Meysembourg admits that he had
minority tenants at his other properties and that those properties were not targets of illegal
code enforcement. (Exhibit 22, pp. 62-84). Meysembourg admits the code enforcement
has actually helped his rental business many times. (Exhibit 22, p. 79). Meysembourg
never rented to any Section 8 tenants so he admits that he could not have been treated
differently because of renting to Section 8 tenants. (Exhibit 22, p. 100).
He has no first-hand knowledge that Randy Kelly directed Andy Dawkins to try and
gain access to interiors of properties. (Exhibit 22, p. 88). He has no facts to support his
claim that Randy Kelly ordered inspectors to rid the City of “bottom of the barrel
individuals” or “low-income individuals.” (Exhibit 22, pp. 90-91). He has no facts to
support his claim that Randy Kelly maliciously and intentionally commenced a policy of
discriminatory code enforcement, or that Randy Kelly selectively targeted for
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discriminatory code enforcement properties with “bottom of the barrel, undesirable and
low-income individuals.” (Exhibit 22, p. 92).
Meysembourg’s entire lawsuit rests on the code enforcement of 970 Euclid St. He
claims that other nearby properties were not held to the same standard as 970 Euclid St.
(Exhibit 22, pp. 110-112). He states that his next door neighbor did an illegal foundation
repair, but when the inspectors were inspecting Meysembourg’s property they did not cite
the next door neighbor for the illegal foundation repair. (Exhibit 22, p. 110). He admits
that his neighbor rents to protected class individuals and claims that his neighbor was not
subject to code enforcement that he should have been subjected to. (Exhibit 22, pp. 110,
111). Meysembourg admits that he never reported his next door neighbor to code
enforcement. (Exhibit 22, p. 111).
Meysembourg’s allegations surround an inspection at 970 Euclid by Defendant
Martin wherein she was accompanied by Officer Koehnen. (Exhibit 22, pp. 112-114). He
claims they informed his tenants that he knew about the inspection and the inspection is
okay with him, and that is the reason the tenants let them in. (Exhibit 22, pp. 114, 115).
No affidavit or deposition testimony of any of Meysembourg’s tenant was ever presented
to corroborate his statement of what he heard from his tenants. (Exhibit 22, p. 115).
Meysembourg was sent a correction notice on November 15, 2002 listing a number
of violations. (Exhibit 22, pp. 122-123). Meysembourg admits that many of the
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deficiencies listed on the correction notice actually existed, but complains that some of the
deficiencies were untrue. (Exhibit 22 pp. 123-129).
Meysembourg appealed the correction notice to the legislative hearing officer.
(Exhibit 22, p. 131). Meysembourg’s only issue on appeal to the legislative hearing
officer was that the inspection was illegal and that the correction notice items should not
be considered. (Exhibit 22, p. 136 ). He did not present any evidence that any of the
violations were false. (Exhibit 22, p. 136). Meysembourg contacted the Department of
Justice and informed them of what happened at his property. (Exhibit 22, p. 148). The
Department of Justice Civil Rights Division did not find any prosecutable violation of
federal law. (Exhibit 22, p. 148). Meysembourg could not identify any other occasion or
property where he believed inspectors misrepresented their authority to gain entry to a
property. (Exhibit 22, p. 150). Upon reinspection by the City, Meysembourg refused to let
the inspectors back into the property. (Exhibit 22, p. 138). A search warrant was issued
by the Ramsey County Court so a follow-up inspection could be completed. (Exhibit 22,
p. 155). After that inspection, a correction notice was issued on January 2, 2003, listing a
number of deficiencies. (Exhibit 22, pp. 156-158). Again, Meysembourg admits that
some of the deficiencies existed, but disputes other deficiencies. (Id.). Upon the third
inspection, Meysembourg came up to his property as Defendant Magner was coming out
of the property’s basement. (Exhibit 22, pp. 159-160). Magner informed Meysembourg
that there was not a proper safety relief valve on the boiler. (Exhibit 22, p. 160).
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Meysembourg disagreed because he had St. Paul Plumbing there the year before and they
put in a safety relief valve. (Exhibit 22, pp. 162, 163). Meysembourg later admits that
there were two valves in the basement but he had nothing to show that one of the valves
was working. (Exhibit 22, p. 200).
Meysembourg received a notice of condemnation of his property dated February 3,
2003. (Exhibit 22, p. 164). Meysembourg appealed the condemnation order to the
legislative hearing officer. (Exhibit 22, p. 169). Meysembourg limited his appeal to the
illegality of the November 15, 2002, inspection and the question of whether or not there
was a pressure relief valve on the boiler. (Exhibit 22, p. 170). The City then filed a TRA
against the property. (Exhibit 22, p. 173). At the hearing on the TRA, the parties had a
conversation about a code compliance inspection. (Exhibit 22, p. 176). After conferring
with his attorney, Meysembourg agreed to do a code compliance inspection so that the
TRA lawsuit was dropped. (Exhibit 22, p. 178). Meysembourg later disagreed with what
had to be done as part of the code compliance. (Exhibit 22, pp. 179-182, 186, 188).
Meysembourg admits that he would have, even without the code compliance inspection,
done many of the repairs in order to be a responsible landlord. (Exhibit 22, p. 190, 191).
Meysembourg has not indicated that his tenants at 970 Euclid were protected class
individuals. (Exhibit 20, #3(c), (d), and (e)). [Meysembourg does not recall the race of his
tenants but thinks 70 percent were African-American and Hispanics. Meysembourg
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indicated he would supplement his answer concerning the specific of his tenant’s race, but
has not done so]

3. Frank Steinhauser
Steinhauser is a white male and former landlord who owned fifteen properties
within the City. (Exhibit 20, at pp. 6, 7). Steinhauser admits that all of his properties were
not subject to the alleged illegal code enforcement although all of his properties had the
same “tenant base of minorities and low-income people.” (Exhibit 19, pp. 112, 113, 157).
Steinhauser claims that the targeting of some of his properties because of the his tenant
base began in early summer 2002 with his property located at 1038 Aurora. (Exhibit 19, p.
473). Steinhauser claims that a code enforcement officer was “stalking” him at his
property at 1038 Aurora, but he did not know who the code enforcement officer who was
“stalking” him. (Exhibit 19, p. 331). Steinhauser also claimed illegal code enforcement at
719 Sherburne, but could not identify any facts to support his claim. (Exhibit 19, p. 96).
In fact, Steinhauser admitted that “the things [Lisa Martin] cited me for [at 719 Sherburne]
were legitimate at the property.” (Exhibit 19, p. 334). Steinhauser also claimed that he
was targeted at 953 Wilson and subject to illegal code enforcement at that property.
(Exhibit 19, p.335) However, Steinhauser admits that he was not sure if there were any
false claims made by code inspectors at the Wilson address and, in fact, admitted that [he]
thinks “most of them were legitimate code deficiencies.” (Exhibit 19, p. 336).
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Steinhauser also claims that his property at 118 Litchfield was illegally targeted
based on the race of his tenants, but he admits that he did not remember who the tenant
was. (Exhibit 19, pp. 206-208). In fact, Steinhauser admits that the tenants caused
damage to 118 Litchfield. (Id.). He alleges that by the City enforcing its code against
Steinhauser for tenant caused damage, the City was interfering with Steinhauser’s contract
rights to pursue his damages’ claims against his tenants, because the City required him,
instead of his tenants, to fix his property. (Exhibit 19, pp. 207, 208). Steinhauser
complains that he was cited for doorknobs missing and admits that he replaced the
doorknobs, but directs the cause of the doorknobs missing to his tenant. (Exhibit 19, p.
208). Steinhauser admits there was a gas leak in the stove but claims it was not his
responsibility. (Exhibit 19, pp. 206, 207). He also admits the tenants ripped up the floor
at 118 Litchfield. (Exhibit 19, p. 212). Finally, Steinhauser admits that many of the
deficiencies cited against 118 Litchfield were, in fact, legitimate items. (Exhibit 19, p.
206). Steinhauser also claims the illegal entry and search of 118 Litchfield by code
enforcement. (Exhibit 19, p. 501). However, he admits that he does not know whether or
not the tenant or her son, white individuals, let them in. (Exhibit 19, p. 502, Exh. 20, p. 6).
Steinhauser also claims illegal code enforcement at his property at 1024 Euclid, but
admits that many of the deficiencies that he was cited for were legitimate and even
possibly caused by tenants. (Exhibit 19, pp. 186-188; 199-200). Steinhauser took photos
of 1024 Euclid that he admits legitimately show deficiencies in his properties. (Exhibit 19,
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p. 312). Through the photos he attempted to document damage caused by the tenant.
(Exhibit 19, pp. 312-315). The Police were called to 1024 Euclid on October 29, 2002, by
a tenant because Steinhauser was “verbally threatening” the tenant. (Exhibit 40). Officer
Wroblewski found the property, which had just been condemned by code enforcement,
“uninhabitable.” (Id., 1770). She noted that there was “no heat or smoke detectors, rotting
floors, running water in the bathroom (won’t stop), water damage, holes in the walls
throughout where rats have access....”) (Id., pp. 1770-1771) Steinhauser’s verbal threats
came after he learned that the property was condemned. The tenant reported to police that
Steinhauser stated “Why are you doing this black bitch? Why do you have the state on my
ass? Bitch you’re gonna lose in fucking court. You’ll be back on the fucking street!”
(Id., p. 1771).
Steinhauser admits that his property at 910 East Sixth St. had a number of
legitimate deficiencies that he thought were most likely caused by the tenant. (Exhibit 19,
pp. 414-416). He admits that he was responsible for the tenant caused damage and took
photos to document it. (Id., p. 302) However, the rats that he was cited for which
triggered the condemnation and code compliance “were not true.” (Exhibit 19, p. 417).
He claims that since the rats citation was not true, a condemnation and code compliance
should not have followed, and he should not have to pay to fix the legitimate code
violations discovered because of the untrue rats citation. (Exhibit 19, p. 417-419). As he
stated, “those code violations existed.” (Exhibit 19, p. 417). Steinhauser claims that he
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was sent repair orders that were designed so that he could not comply with the repairs.
(Exhibit 19, p. 359). However, he admits that he was able to comply with the orders.
(Exhibit 19, p. 360). Steinhauser admits that there were rats at his property at 910 East
Sixth St. but claims that the rats in his property came from a large pile of trash that was
next door. (Exhibit 19, pp. 504-505). Steinhauser claims that there was an illegal entry at
910 East Sixth St. because his tenant LaChaka Cousette did not want the code enforcement
officer to enter her apartment. (Exhibit 19, pp. 500-505). However, Cousette testified that
on October 21, 2002, Lisa Martin and Officer Dean Koehnen came to her door and Martin
explained to her that the unit downstairs was being condemned. (Exhibit 35, p. 69). Once
Martin explained to Cousette why they had come to her door, Cousette agreed to allow
them in. (Id., p. 143-144). Martin did all the talking. (Id. p. 144) According to Cousette,
Officer Koehnen never ordered her to admit them into her home. (Id. p. 143)
Steinhauser hired an B&E Pest Control to treat 910 East Sixth St. which noted that
units were sub-par sanitation, and had mice and rats, and rats in basement. (Exhibit 19, p.
178-179, Exhibit 21). Steinhauser claims that what B&E Pest Control meant was no rats
in basement, instead of rats in basement. (Exhibit 19, pp. 179-180).
Steinhauser also claims that his properties at 910 and 921 York were subject to
illegal targeting. (Exhibit 19, pp. 317-318). He claims the City gave him criminal tickets
regarding the painting of the property. (Compl. at ¶¶ 198-201) However, Steinhauser
admits that there was something wrong at the properties and he was able to fix it. (Exhibit
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19, p. 362). Steinhauser admits that many properties in the City of St. Paul owned by
him, owned by others, and owned by the Public Housing Agency, who have a similar
tenant base (many protected class citizens), were not subject to illegal code enforcement.
(Exhibit 19, p. 112, 113, 152-153, 524-526).
STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1985); Unigroup, Inc. v. O'Rourke Storage &
Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992). “Summary judgment will not lie if
the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court determines materiality from the
substantive law governing the claim. Anderson, 477 U.S. at 248. Further, “the
nonmoving party may not merely rest upon allegations or denials in its pleadings, rather,
they must by affidavits, ‘depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.’” Williams v.
Thomson Co., No. 00-2256, 2003 U.S. Dist. LEXIS 4481, *17 (D. Minn. Mar. 21, 2003)
(Exhibit 41), citing, Fed. R. Civ. P. 56(e); Celotex Co. v. Catrett, 477 U.S. 317, 324
(1986); U.S. v. Crane Co, 122 F.3d 559, 562 (8th Cir. 1997); McLaughlin v. Esselte
Pendaflex Co., 50 F.3d 507, 511 (8th Cir. 1995). “A plaintiff may not merely point to
Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 18 of 55
1 Plaintiffs alleges various causes of action against John and Jane Doe in their
individual and official capacities. However, Plaintiffs have not indicated the identity of
either Doe or identified any specific actions or involvement these individuals had with
regard to the matters alleged in her complaint. Plaintiffs have failed to state a claim
against these purported defendants upon which relief can be granted. See Frey v. City of
Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995) (complaint which did not indicate how
defendants were involved in alleged violations was conclusory and failed to meet
notice-pleading standard); Tatam v. Iowa, 822 F.2d 808, 810 (8th Cir. 1987) (per curiam)
("While pleadings are to be construed to do substantial justice . . . the pleading must at
minimum be sufficient to give defendant notice of the claim.").
19
unsupported self-serving allegations, but must substantiate her allegations with sufficient
probative evidence that would permit a finding in her favor.” Haas v. Kelly Services, Inc.,
409 F. 3d 1030, 1034 (8th Cir. 2005), citing, Wilson v. Int’l Bus. Mach. Co., 62 F.3d 237,
241 (8th Cir. 1995). “Evidence, not contentions, avoids summary judgment.” Haas, 409
F.3d at 1036, quoting, Mayer v. Nextel West Co., 318 F.3d 803, 809 (8th Cir. 2003).
ARGUMENT1
I. PLAINTIFFS RICO CLAIMS FAIL AS A MATTER OF LAW
Plaintiffs allege that the defendants in their individual capacity committed and
conspired to commit a RICO violation under 18 U.S.C. §§ 1962(c) and (d). To establish a
civil violation of 18 U.S.C. § 1962(c), the Plaintiffs must prove that at least one of the
individual “defendant[s] engaged in (1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997),
citing, Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). See also United States v. Darden,
70 F.3d 1507, 1518 (8th Cir. 1995) (describing same elements in slightly different way).
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20
Racketeering activity is defined through an exclusive list of criminal statutes referred to as
predicate acts. 18 U.S.C. § 1961(1) (2006). Proof of at least two predicate acts are
necessary to establish a pattern of racketeering activity. 18 U.S.C. § 1961(5).
Further, a pattern is only established if the predicate acts are related, “amount to or
pose a threat of continued criminal activity.” H. J. Inc. v. Northwestern Bell Tel. Co., 492
U.S. 229, 240 (1989); Wisdom v. First Midwest Bank, 167 F.3d 402, 406 (8th Cir. 1999).
“‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period
of repeated conduct, or to past conduct that by its nature projects into the future with a
threat of repetition.” H. J. Inc., 492 U.S. at 241. If the alleged conduct is closed-ended,
then a RICO violation is only established if the predicate acts occurred over a “substantial
period of time.” Id. at 242. As a matter of law, the predicate acts must span more than
one year. Webster Indus. v. Northwood Doors, Inc., 320 F. Supp. 2d 821, 850 (D. Iowa
2004). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d
1208, 1215 (8th Cir. 1993) (ten to eleven months insufficient); Cwick v. Life Time Fitness,
Inc., No. 04-2731, 2004 U.S. Dist. LEXIS 18463 (D. Minn. Sept. 2, 2004) (Exhibit 42)
(eight to nine months insufficient). Cf. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769
(8th Cir. 1992) (holding predicate acts over two years enough to establish a pattern).
To establish their conspiracy claim under 18 U.S.C. § 1962(d), the Plaintiffs must
first prove a violation of 18 U.S.C. § 1962(c). Darden, 70 F.3d at 1518. See also G-I
Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 267 (S.D.N.Y. 2001), citing,
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2 The Plaintiffs have plead the commission of Bank Fraud (18 U.S.C. § 1344),
Mail Fraud (18 U.S.C. § 1341), Wire Fraud (18 U.S.C. § 1343), a Hobbs Act violation
(18 U.S.C. § 1851), Tampering (18 U.S.C. § 1512), and Bribery (18 U.S.C. § 201). See
Pl. Compl. 213(a)-(f). They also appear to have made an attempt to plead a violation of
Interstate Travel or Transportation in Aid of Racketeering Enterprises (18 U.S.C. § 1952).
See Pl. Compl. 213(g).
21
Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 244-245 (2nd Cir. 1999).
Then the Plaintiffs must prove that a second defendant “objectively manifested an
agreement to participate directly, or indirectly, in the affairs of [the] enterprise through the
commission of two or more predicate crimes.” Handeen, 112 F.3d at 1355, quoting United
States v. Bennett, 44 F.3d 1364, 1372 (8th Cir. 1995) (quotation omitted).
The Plaintiffs have alleged multiple violations of seven predicate act statutes.2
After almost four years of discovery, however, the Plaintiffs have failed to identify facts
which support a single violation of any predicate act statute. The Plaintiffs’ failure to
prove that at least one individual Defendant, acting outside the scope of their employment
for the City, committed at least two predicate acts, over a period of more than one year,
translates into a failure to establish a RICO claim. Furthermore, aggressive enforcement
of the housing code by the Defendants does not create a pattern of racketeering activity if
those actions are adverse to landlords with code violations. See Sinclair v. Hawke, 314
F.3d 934, 943-944 (8th Cir. 2003) (discussing regulation by bank regulators). Housing
code enforcement officers “do not become racketeers by acting like aggressive” housing
code enforcement officers. Id., see also Terry A. Lambert Plumbing, Inc. v. Western Sec.
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3 Plaintiffs also claim Defendants interfered with their rights under the Civil
Rights Act of 1866, 42 U.S.C. Section 1982, which is the same analysis herein. E.g.,
Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989).
22
Bank, 934 F.2d 976, 981 (8th Cir. 1991) (discussing normal banking activity taken by
bankers). Any contrary “proposition is ludicrous on its face.” Sinclair, 314 F.3d at 943-
944.
Plaintiffs have presented serious allegations of RICO violations against the
individual defendants. Yet Plaintiffs’ independent and exhaustive search has failed to
uncover any actual RICO violation. As a result, summary judgment is appropriate.
II. PLAINTIFFS’ FAIR HOUSING ACT CLAIM FAILS AS A MATTER OF
LAW3
Plaintiffs allege that Defendants violated their rights under the FHA by illegally
using code enforcement to remove protected class citizens from the City. The FHA, 42
U.S.C. §§ 3601 et. seq., provides “[i]t shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on account of his having
aided or encouraged any other person in the exercise or enjoyment of, any right granted or
protected by [42 U.S.C. § 3604].” These rights include the right to exercise, enjoy,
encourage, or aid in the rental of homes to protected class citizens without race, color,
religion, sex, familial status, or national origin being implicated. 42 U.S.C. § 3604(a).
In order to bring suit under the FHA, 42 U.S.C. § § 3601, et. seq., an individual
must have standing as an “aggrieved person.” 42 U.S.C. § 3613. Admittedly, it is very
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23
easy for an individual to be an “aggrieved person” as they must only “claim . . . to have
been injured by a discriminatory housing practice [or] believe . . . that such person will be
injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(I).
As a result, standing to sue under the FHA has been held to be as broad as that permitted
by Article III of the United States Constitution. Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 209 (1972).
Apart from Article III standing, the Supreme Court has recognized prudential limits
to standing, which limits the class of persons who may invoke the court’s remedial powers.
Warth v. Seldin, 422 U.S. 490, 499, 45 L.Ed.2d 343, 95 S.Ct. 2197 (1975). When the
asserted harm is a “generalized grievance” shared in substantially equal measure by a large
class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Id.,
e.g., Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221-227 (1974).
Accordingly, although Plaintiffs may have Article III standing, the claimed injury runs
afoul of prudential limits to standing because “its effects are indistinct from those felt by
persons generally,” thereby depriving Plaintiffs of a unique stake in the controversy.
Warth, 422 U.S. at 499.
Plaintiffs’ alleged injury is indistinguishable from other landlords in the City who
are similarly subject to the housing code. Plaintiffs generally claim the housing code is
enforced more aggressively against them, but proof of such is without any comparative
analysis as to how Defendants enforce the code against other landlords. For instance,
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24

A. Disparate Impact
To prove discrimination under a disparate impact analysis, Plaintiffs must show a
facially neutral policy has a significant adverse impact on members of a protected minority
group. Id., quoting, Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 700 (8th Cir.
1987); see also United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184 (8th Cir.
1974) (plaintiff must show defendant’s conduct “actually or predictably results in racial
discrimination”). Plaintiffs fail to establish both elements of their prima facie case.
In the first instance, Plaintiffs make no attempt to identify a facially neutral policy.
The crux of their argument is that the City maintained a discriminatory policy that
aggressively targeted Plaintiffs and other St. Paul landlords. Although Defendants admit
that identifying a facially neutral policy is easy and Plaintiffs need only look to the City’s
policies, it is worth noting that Plaintiffs’ theory contradicts the existence of a facially
neutral policy, and therefore, Plaintiffs’ disparate impact claim technically fails before it
reaches the second prong.
To succeed at the second prong, Plaintiffs must prove a significant adverse impact
of the policy on a protected class. See Oti Kaga, Inc., 342 F.3d at 833. Plaintiffs cannot
do so and therefore their disparate impact claim fails as a matter of law. Plaintiffs provide
no evidence to support their sweeping claims that the City’s policies have a disparate
impact on protected-class citizens. To prove a fair housing disparate impact claim
statistics or some other analytical method is invariably used. Andrews v. City of New
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26
York, No.CV-01-7333, 2004 U.S. Dist. LEXIS 30290 (E.D.N.Y. Nov. 22, 2004) (Exhibit
43), citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575 (2nd Cir. 2003). In
addition, plaintiffs must also use the appropriate comparison groups and first identify
members of protected group that are affected by the neutral policy and then similarly
situated persons who are not affected by the policy. Id., see also, Brown v. Omaha
Housing Authority, No. 8:05CV423, 2007 U.S. Dist. LEXIS 53308, at #5 (D. Neb. July
20, 2007) (Exhibit 44) (disparate impact claim generally proved with statistical evidence).
In the present case, however, Plaintiffs provide no statistical proof or any other sort of
analytical method demonstrating Defendants enforced the housing code more aggressively
against them as compared to other landlords who have non protected class tenants. In fact,
the record reflects quite the opposite.
Brisson explicitly admits that the identity of his tenant had nothing to do with the
City’s code enforcement action against his property. (Eshibit 23, pp. 132, 137, 169, 170,
268, 269). Meysembourg has not indicated that 970 Euclid, the property in which he
alleges illegal code enforcement, had protected class tenants (Exhibit 20, #3 (c), (d), and
(e)). Steinhauser alleges illegal code enforcement at a property in which he did not recall
the race of the tenant, and also at a property with a white tenant. (Exhibit 19, pp. 206-208,
502).
Furthermore, Plaintiffs admit that they have protected class tenants in other
properties but such properties are not targeted for aggressive code enforcement. (Exhibit
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27
22, pp. 62-84, 110, 111.) (Exhibit 19, pp. 112, 113, 157) They also admit that other
landlords, including the PHA, rent to protected class tenants but such properties are not
similarly targeted. (Exhibit 22, p. 110, Exhibit 19, pp. 112, 113, 152, 525, 526).
Plaintiffs further concede that many of their housing code violations were in fact
valid due to the condition of their properties. (Exhibit 23, pp. 74-75, 120-122, Exchibit
22, pp.123-129, Exhibit 19, pp. 206-208, 334-336) Consequently, had Plaintiffs attempted
to support their claims with statistical or analytical evidence, they would have discovered
that there was no illegal targeting. The record simply falls short of supporting Plaintiffs’
contention that Defendants maintained a policy which had a significant adverse impact on
a protected class and, therefore, Plaintiffs’ disparate impact claim should be dismissed.
If the Court finds that Plaintiffs demonstrate a prima facie claim, however, the
Court next determines whether Defendants satisfy their burden to prove that any disparate
impact was justifiable as necessary to achieve legitimate policy objectives. See Darst-
Webbe v. St. Louis Housing Authority, 417 F.3d 898, 901 (8th Cir. 2005), citing Oti Kaga,
Inc., 342 F.3d at 883 (applying a burden shifting analysis to a FHA disparate impact claim
and finding a public housing fund allocation decision “justifiable on the ground it is
necessary to [the defendant’s] exercise of its funding responsibilities”). NHPI has
identified numerous legitimate policy objectives to support its code enforcement plan.
(See Statement of Facts above.) The Defendants’ general and specific objectives are
legitimate and facially neutral. Id. As such, the Court should conclude that Defendants
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28
satisfy their burden of proving any disparate impact was justified as necessary to achieve
legitimate policy objectives.
Upon finding Defendants have met their burden, the Court then addresses whether
Plaintiffs offer an alternative policy that could meet the many and varied goals set out for
the Defendant City of St. Paul’s NHPI. See Darst-Webbe, 417 F.3d at 902. (noting that a
plaintiff “may nonetheless prevail by showing another policy would accomplish [the
proffered policy] objectives without the discriminatory effects”). The Plaintiffs do not
establish any alternative that satisfies the NHPI’s legitimate policy objectives while
reducing the plan’s alleged discriminatory impact.
Based on the foregoing, Plaintiffs do not allege a prima facie case for disparate
impact. Plaintiffs cannot convert their disappointment of the Defendants’ code
enforcement into a disparate impact claim without providing any evidence of disparate
impact. By Plaintiffs’ own admissions, they cannot meet this burden and their disparate
impact claim should be dismissed.
B. Disparate Treatment
If Plaintiffs are alleging a disparate treatment claim, such claim should be
dismissed. To prevail under a prima facie case of discrimination, a plaintiff must prove
that the state acted with the intent of discriminating against a protected class. Familystyle
of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396, 1402, note 9 (D. Minn. 1990) aff’d,
923 F.3d 91 (8th Cir. 1991). This Court has recognized such intent when a policy is
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4 In fact, the only evidence of racial discrimination was of behalf of Steinhauser
verbally threatening his tenant and calling her a black bitch. (Exhibit 40, p.1771).
29
enacted for the purpose of discrimination. United States v. City of Black Jack, 508 F.2d
1179, 1185 (8th Cir. 1974) (racial criticism of [low to moderate income integrated
townhouse development] was made and cheered at public meetings. [A]t all levels of
opposition, race played a significant role, both in the drive to incorporate and the decision
to rezone). Plaintiffs, however, present no evidence of racial discrimination as there is no
indication race, or some other protected class, played a role in Defendants’ housing code
enforcement.4 Without evidence of intent, Plaintiffs fail to provide proof that Defendants
enacted and enforced the housing code with purposeful discrimination. Accordingly, any
disparate treatment claim made by the Plaintiffs should be dismissed.
III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1981
At Count IV of Plaintiffs’ Complaint, Plaintiffs claim Defendants intentionally
denied Plaintiffs’ “the same right to make and enforce contracts, and to have the full and
equal benefit of all laws or proceedings for the security of persons and property as is
enjoyed by white citizens.” Complaint, ¶251. Specifically, Plaintiffs allege that
Defendants violated 42 U.S.C. § 1981 by interfering with Plaintiffs’ contracts, right to
make and enforce contracts, and contractual relationships with their non-white tenants.
(Complaint, ¶252).
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30
42 U.S.C. § 1981 protects the rights of all individuals to make and enforce contracts
without respect to race. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474, 126
S.Ct.1246, 1075 (2006). This section was enacted “to protect identifiable classes of
persons who are subjected to intentional discrimination solely because of their ancestry or
ethnic characteristics.” Occhino v. Lannon, 150 F.R.D. 613, 620 (D. Minn. 1993), quoting
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d
582 (1987), reh'g. denied, 483 U.S. 1011, 107 S.Ct. 3244, 97 L.Ed.2d 749 (1987). It is
directed at racially motivated misuse of government power and protects against racial
discrimination in a limited range of civil rights. Bell v. City of Milwaukee, 746 F.2d 1205,
1270 (7th Cir. 1984) (overruled on other grounds, Russ v. Watts, 414 F. 3d 783 (7th Cir.
2005)).
Plaintiffs alleging violations of 42 U.S.C. § 1981 must show, by a preponderance of
the evidence, that a defendant intentionally and purposely discriminated against the
plaintiffs because of race. General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458
U.S. 375, 391-92 (1982); Youngblood v. Hy-Vee Food Stores, Inc, 266 F.3d 851, 855 (8th
Cir. 2001). Once a prima facie case of discrimination in violation of § 1981 is established,
the burden shifts to the defendant to respond with proof of legitimate, nondiscriminatory
reasons for its actions. If the defendant satisfies this requirement, the burden shifts back to
the Plaintiff to prove that the proffered reason is merely a pretext for discrimination. See
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31
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Sandy Hill Apts. v. Kudawoo,
No. 05-2327, 2006 U.S. Dist. LEXIS 75229 (D. Minn. Oct. 16, 2006) (Exhibit 46).
Summary judgment is appropriate here because Plaintiffs cannot make a prima
facie showing of racial discrimination under § 1981. The record in this case does not
establish that Defendants misused government power to interfere with or deny Plaintiffs’
right to make and enforce contracts with non-white tenants, or that Defendants misused
their authority to interfere with Plaintiffs’ contractual relationships with non-white tenants.
Defendants did not prevent Plaintiffs from renting or leasing their properties to any tenants
on the basis of race; nor did they interfere with any business or contractual relationship
between non-white tenants and the Plaintiffs.
Analogous to claims under the Fourteenth Amendment, in order to prevail on a
claim under § 1981, a plaintiff must present evidence of defendant’s discriminatory intent.
Mere conclusory allegations of discrimination are insufficient, Davis v. Frapolly, 717
F.Supp. 614, 616 (N.D.Ill.1989), and, will not sustain plaintiff’s burden of demonstrating
genuine issues of material fact sufficient to preclude entry of judgment in civil rights
actions under §1981. Taliaferro v. Voth, 774 F. Supp. 1326 (D. Kan. 1991). Plaintiffs, in
this case, have failed to produce evidence of discriminatory intent under § 1981 by any of
the named Defendants. Because of Plaintiffs’ failure to produce evidence of
discriminatory intent, Plaintiffs’ § 1981 claims against these Defendants should be
dismissed as a matter of law.
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32
Plaintiffs also allege the City violated their rights under § 1981. However, § 1981
does not impose vicarious liability on municipalities for civil rights violations committed
by the municipality’s employees. A municipality will not be held liable for its employees’
acts through a respondeat superior standard. Dunham v. Special Sch. Dist. No. 1, 484
N.W.2d 63 (Minn. Ct. App. 1992), rev’d 498 N.W.2d 441 (Minn. 1993), citing Jett v.
Dallas Indep. Sch. Dist., 491, U.S. 701, 735, 109 S.Ct. 2702, 2721, 105 L.Ed.2d 598
(1989). Consequently, Plaintiffs’ § 1981 claim against the City should be dismissed.
IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1983
Count VI of Plaintiffs’ Complaint asserts civil rights violations under 42 U.S.C. §
1983. Specifically, Plaintiffs allege Defendants and other employees of the City “did
wrongfully deprive Plaintiffs and their tenants of . . . the right to be free from
unreasonable searches and seizures, the right to be free from taking of their property
without compensation, the right to due process of law, the right to equal protection of the
laws, and the right to pursue an occupation, business or profession free from governmental
deprivation or undue interference, or government imposed monopoly, guaranteed by the
Fourth, Fifth, Ninth, and Fourteenth Amendments.” (Complaint, ¶264).
42 U.S.C. § 1983 imposes liability for damages upon any person acting under color
of state law who deprives another of the rights, privileges, or immunities secured by the
Constitution. It is well established that 42 U.S.C. § 1983 does not provide an independent
basis for liability. Rather, it is a remedial statute affording remedies for violations of
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5 Brisson is the only plaintiff who actually lived at the property where he claims
illegal code enforcement. However, Brisson does not claim any Fourth Amendment
violation by defendants.
33
constitutional rights or federal laws. See Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979). In order to recover under § 1983, Plaintiffs must (1) establish that Defendants
violated a right secured by the United States Constitution; (2) demonstrate that Defendants
acted under color of state law in violating those rights; and (3) establish that Defendants’
acts damaged Plaintiffs. Rinker v. Sipler, 264 F. Supp.2d 181, 186 (M. D.Pa. 2003).
A. Fourth Amendment: Unreasonable Search & Seizure
The Fourth Amendment guarantees individuals the right to be secure in their houses
and free from unreasonable searches and seizures. Plaintiffs claim Defendants violated
their Fourth Amendment rights to be free from unreasonable searches and seizures when
the City’s code enforcement officers (specifically Defendants Magner, Koehnen and
Martin) entered Plaintiffs’ properties without their consent. Defendants are entitled to
judgment on Plaintiffs’ Fourth Amendment claims because Plaintiffs lack standing to
assert Fourth Amendment claims with respect to properties they owned but did not live in,
Defendants obtained consent to enter the properties at issue, and Plaintiffs failed to allege
any unconstitutional conduct as to several Defendants.5
1. Plaintiffs Lack Standing
Fourth Amendment rights are personal rights which may not be vicariously
asserted. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425 (1978). Fourth
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Amendment rights are not limited or defined by the law of property. United States v.
Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993 (1974). Property ownership alone is
insufficient to confer standing to contest a search under the Fourth Amendment. See
DiBlasi v. Borough of E. Rutherford, No. 05-1890, 2006 U.S. Dist. LEXIS 54236 (D.N.J.
Aug. 4, 2006) (Exhibit 47). Instead, a plaintiff asserting a Fourth Amendment violation
must show that he/she had a reasonable expectation of privacy in the premises searched.
In this case, Plaintiffs fail to show that they had a reasonable expectation of privacy
in any of the properties inspected. Plaintiffs did not reside in the properties and have
provided no evidence, besides their ownership of the properties, that they maintained a
legitimate expectation of privacy in any of the properties at issue. See Godshalk v.
Borough of Bangor, No. 03-1465, 2004 U.S. Dist. LEXIS 7962 (E.D. Pa. May 5, 2004)
(Exhibit 48) (holding that plaintiffs lacked standing to challenge borough officer’s
inspection of plaintiffs’ property for building code violations because plaintiffs were mere
legal owners of the property and did not reside at the property); Rozman v. City of
Columbia Heights, 268 F.3d 588, 591 (8th Cir. 2001) (landlord lacked standing to assert
tenant’s Fourth Amendment rights).
2. Defendants Obtained Consent
Even if Plaintiffs had standing to challenge the inspections of their properties,
Defendants did not violate their Fourth Amendment rights. A search is per se
unreasonable under the Fourth Amendment if it is conducted without a warrant issued
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35
upon probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041
(1973). However, searches conducted with the voluntary consent of persons possessing
authority are exceptions to the warrant requirement. Id.
In this case, the respective tenants of the properties gave consent for the City’s code
enforcement officers to enter and inspect the properties. As residents, these individuals
had the requisite authority to consent to an inspection of their living areas. See Illinois v.
Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793 (1990) (an individual who has or reasonably
appears to have common authority over premises, but has no property interest in the
premises searched, has sufficient authority to consent to a search of the premises).
3. No Unconstitutional Conduct or Policies
Plaintiffs’ Fourth Amendment claims center on allegations that Defendants Martin,
Koehnen and Magner entered Plaintiffs’ property without consent. Plaintiffs have not
alleged or presented evidence that any of the other named defendants engaged in such
conduct or that the City maintained an unconstitutional policy, custom or practice
authorizing such conduct. See Sanders v. United States, 760 F.2d 869 (8th Cir. 1985)
(limiting liability to instances of personal administrative involvement, personal
knowledge, or breach of a legal duty that proximately causes the injury). Absent evidence
of individual action, unlawful conduct by the other individually named Defendants or an
unconstitutional policy, custom or practice by the City, Plaintiffs’ Fourth Amendment
claims against Defendants Kelly, Dawkins and the City fail as a matter of law.
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6 As a threshold matter, it should be noted that Plaintiffs have had the opportunity
to litigate violations of the various building codes as referenced in their Complaints.
Plaintiffs have pleaded guilty to a number of violations which constitute an admission of
fault which may not be relitigated here. To the extent that they have failed to pursue their
state court remedies by appeal, Plaintiffs have similarly waived their right to contest those
violations in a later proceeding.
36
B. Equal Protection and the Fourteenth Amendment
Plaintiffs claim Defendants, did wrongfully deprive Plaintiffs and their tenants of
rights secured by the Constitution and laws of the United States, including the right to
equal protection of the laws. Specifically, Plaintiffs asserts civil rights violations under 42
U.S.C. § 1983 and the Fourteenth Amendment by following an unconstitutional city
policy, custom and practice of discriminatory code enforcement.6
The Equal Protection Clause of the Fourteenth Amendment commands that no state
shall “deny to any person within its jurisdiction the equal protection of the laws”. U.S.
Const. Amend. XIV, 1. Generally, this provision proscribes government action that treats
one group of individuals less favorably than others similarly situated. City of Cleburne,
Tex. V. Cleburne Living Center, 105 S.Ct. 3249, 3254 (1985). The Fourteenth
Amendment does not require perfectly equal treatment for every individual. See Kahn v.
Shervin, 416 U.S. 351, 355-56 (1974). In order to establish an Equal Protection violation,
a plaintiff must prove that he was treated differently from other similarly-situated people.
See Bogren v. Minnesota, 236 F. 3d 399, 408 (8th Cir. 2000). A plaintiff must also
produce evidence of a racially discriminatory intent or purpose. Village of Arlington
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37
Heights v. Metropolitan Housing Dev. Corp., 97 S.Ct. 555, 563 (1977) (overruled on other
grounds at Chapman v. Nicholson, 579 F. Supp. 1504 (N.D. Ala. 1984)). The
discriminatory purpose must be the motivating factor in an Equal Protection Claim.
Regarding Plaintiffs’ alleged cause of action for violation for equal protection of
the law under the Fourteenth Amendment, the Federal Civil Rights Statute as interpreted
provides that municipalities cannot be held liable solely because of the discriminatory
actions of one of its employees. Back v. Hastings on Hudson Union Free School District,
365 F.3d 107, 128 (2nd Cir. 2004). Defendants can only be held liable if Plaintiffs prove
that Defendants’ policy or custom inflicted the claimed injury pursuant to Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978).
To prevail on a selective enforcement equal protection claim pursuant to § 1983,
Plaintiffs must show that: 1) the person compared with others similarly situated was
selectively treated and 2) the selective treatment was motivated by an intention to
discriminate on the basis of impermissible considerations such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent
to injure the person. Zahra v. Town of Southhold, 48 F.3d 674, 683 (1995). Plaintiffs
have alleged that as landlords they have been subjected to Defendants’ discriminatory code
enforcement policy. Fatally lacking from Plaintiffs’ equal protection claim is any evidence
from which a reasonable person could conclude that the Defendants were motivated by
discrimination and acted pursuant to some widespread policy or custom.
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In Berry v. City of Little Rock, 904 F. Supp. 940 (U.S.D.C Ark. 1995), plaintiffs,
landlords and tenants brought an action against a municipality alleging that the City’s
ordinance that provided for inspection of residential rental housing units violated the
Equal Protection Clause. The Court dismissed plaintiffs tenants’ claims for lack of
standing and dismissed plaintiff landlords’ claims on the merits. The Court found that the
City’s use of its ordinance to “target rental properties for the enforcement of minimal
standards of maintenance and repair of dwellings” is not cause for complaint, and
plaintiffs landlords’ claims that they have been denied equal protection should be
dismissed. Berry, 904 F. Supp. At 949. It was not a violation of the Equal Protection
Clause to effectively utilize the City’s limited enforcement resources by concentrating
enforcement activities where they are needed most. Id.
In the present case, Plaintiffs are landlords claiming a violation of the Equal
Protection Clause based on the allegation that they were targeted because of the protected
class status of their tenants. In an effort to support this claim, Plaintiffs allege facts that
actually support Defendants. Plaintiffs admit that all of their properties were not targeted
although all their properties had the same class of tenants. Plaintiffs admit that many of
the correction orders were valid and Plaintiffs had to correct the deficiency in their rental
properties. Brisson actually admits that the identity of his tenant (an allegedly disabled
white individual) had absolutely nothing to do with the City’s code enforcement and
condemnation. In support of his claim, Meysembourg identifies a neighbor who rents to
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protected class tenants who was not subject to City code enforcement that he should have
been subjected to. Meysembourg also admittedly cannot recall the race of the tenants at
970 Euclid, the only property in which he alleges illegal code enforcement based on the
race of his tenants. Likewise, Steinhauser claims 118 Litchfield was illegally targeted
because of the race of his tenants but he does not recall who the tenant was. (Exhibit 19,
pp. 206-208). He later claims illegal code enforcement based on enforcement at 118
Litchfield of a unit occupied by a white tenant. (Exhibit 19, p. 502 Exh. 20, p. 6). He also
claims that the PHA, who has the same tenant base, was not subject to illegal code
enforcement. Like the City in Berry, the City of St. Paul legitimately used its resources on
code enforcement where it was needed most. There is absolutely no evidence that the
code enforcement was based on the protected class status of the tenants. In fact, all
evidence (and even the evidence provided by Plaintiffs) confirms that code enforcement
did not consider (or necessarily even know) the protected class status of Plaintiffs’ tenants
when applying the City’s code. Plaintiffs’ Equal Protection Claims should therefore be
dismissed as a matter of law.
C. Substantive Due Process
Plaintiffs claim Defendants have deprived them of their due process rights under
the Fifth Amendment of the Constitution, specifically asserting the right to be free of
deprivation of property without due process of law. As a preliminary matter, the Fifth
Amendment is only applicable to violations of due process committed by federal officials.
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Dusenbery v. United States, 534 U.S. 161 (2002). The Dusenbery court noted that the due
process clause of the Fifth Amendment prohibits the United States from depriving any
person of property without due process of law whereas the due process clause of the
Fourteenth Amendment prohibits the states from depriving persons of property without
due process of law. Based on this, Plaintiffs’ Fifth Amendment due process claim is
defective and must be dismissed.
Assuming Plaintiffs have preserved a claim for substantive due process under the
Fourteenth Amendment, Plaintiff must demonstrate that Defendants engaged in conduct
that shocks the conscience or interferes with rights implicit in the concept of ordered
liberty. Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998). Because the doctrine of
substantive due process does not protect individuals from all governmental actions that
infringe upon liberty or injure property, to establish a claim a plaintiff must demonstrate an
abuse of governmental power that shocks the conscience or action that is legally irrational
in that it is not sufficiently keyed to any legitimate state interest. PFZ Properties, Inc. v.
Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991). Where discretionary administrative action
is involved, the class of cases which meets this constitutional threshold is narrowly
limited. See Baker v. Coxe, 230 F.3d 470 474 (1st Cir. 2000). Even the outright violation
of state law by local officials in denying a permit or license does not automatically raise a
federal claim. Roy v. City of Augusta, 712 F.2d 1517, 1523 (1st Cir. 1983). It is apparent
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from the record that Plaintiffs cannot demonstrate conduct on the part of Defendants
which “shocks the conscience”.
The Second Circuit Court of Appeals in Zahra v. Town of Southold, 48 F.3d 674
(2nd Cir. 1995), noted the general rule in regard to substantive due process claims, federal
courts should not become zoning boards of appeal to review local legislative and
administrative agencies, citing Sullivan v. Town of Salem, 805 F.2d 81, 82 (2nd Cir. 1986).
Here, Plaintiffs are in effect asking the federal court to act as a local government board
reviewing whether Defendant’s state court-related actions were appropriate. Plaintiff’s
Fifth Amendment due process claim should be dismissed for the reasons stated above.
D. Taking Property Without Just Compensation
Plaintiffs assert that Defendants have taken their property without just
compensation in violation of the Fifth Amendment of the Constitution. Plaintiff’s claim is
based upon allegations that they suffered expenses because of Defendant’s code
enforcement. Plaintiffs are not alleging they have lost permanent use of their properties.
Further, while Plaintiffs allege they have been required to engage in “forced sales” of their
property, they have not alleged that the properties were taken over by Defendants.
In Minnesota Industrial Ventures LLC v. City of Roseville, No. 05-2488, 2006 U.S.
Dist. LEXIS 13421 (D. Minn. Mar. 24, 2006) (Exhibit 49), plaintiff property owner
brought suit against the municipality alleging that it had taken real property in violation of
the Federal Constitution. The Court noted that under the Fifth Amendment of the United
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States Constitution, private property shall not be taken for public use without just
compensation. The City of Roseville argued that plaintiff had not exhausted state
compensation procedures as required by the case of Williamson v. County Regional
Planning Commission, 473 U.S. 172 (1985). In Williamson, the Supreme Court held that
if a state provides an adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the just compensation clause until it has used the
procedure and been denied just compensation. The Court found that the federal court
claims were not ripe for adjudication and dismissed plaintiff’s lawsuit. A similar result is
mandated in the present case where Plaintiffs have had the opportunity to seek state court
remedies and have failed to do so.
The Minnesota Court of Appeals in Arcadia Development Corp. v. City of
Bloomington, 552 N.W.2d 281 (Minn. App. 1996) reviewed the situation where plaintiffslandowners
of a mobile home park challenged the constitutionality of a city ordinance
requiring landowners to pay relocation costs to mobile home park residents upon closure
of the park. Plaintiffs asserted there was a regulatory taking without just compensation.
The court noted that statutes and local ordinances are presumed valid and will not be
declared unconstitutional unless clearly shown to be so, citing City of St. Paul v.
Kekedakis, 199 N.W.2d 151 (1972).
Because there has been no taking of property without compensation and the
ordinances are presumed valid, Plaintiffs’ claims lack merit and should be dismissed.
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E. Ninth Amendment
Plaintiffs allege Defendants violated the Ninth Amendment, which provides that
“the enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.” U.S. Const. Amend. IX. Plaintiffs Ninth
Amendment claim against Defendants lacks merit and should be dismissed.
The Ninth Amendment has not been recognized as independently securing any
constitutional right, for purposes of pursuing a civil rights claim. Strandberg v. City of
Helena, 791 F.2d 744, 748-49 (9th Cir. 1986); Ramirez v. Butte-Silver Bow County, 298
F.3d 1022, 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because
plaintiff may not “double up constitutional claims”) aff’d sub nom; Groh Ramirez, 540
U.S. 551, 124 S. Ct. 1284 (2004). “This amendment has never been used as a solid basis
for any decision from the Supreme Court.” National Assoc. of Property Owners v. United
States, 499 F.Supp. 1223(D. Minn. 1980). Instead, a civil rights claim must be based on a
specific constitutional guarantee. Strandberg, 791 F.2d at 749. Because courts have
rejected the Ninth Amendment as independently securing constitutional rights, Plaintiffs’
Ninth Amendment claim fails as a matter of law.
F. Qualified Immunity Bars Plaintiffs’ §1983 Claims Against the
Individually Named Defendants
Even if the individually named Defendants’ conduct violated Plaintiffs’ rights
under the Fourth, Fifth, Ninth, or Fourteenth Amendments, the doctrine of qualified
immunity would bar Plaintiffs’ claims. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
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Under the doctrine of qualified immunity, government officials performing discretionary
tasks are shielded from liability for civil damages unless their conduct violates clearly
established constitutional rights of which a reasonable person would have known. In other
words, the right allegedly violated must have been “clearly established” such that the
contours of the right are sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Id. at 202 (internal quotes omitted). If the law did not
put the official on notice that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate. Id.; See also Malley v. Briggs, 475 U.S. 335,
341 (1986).
A right is not clearly established unless the official has “fair warning” that his
conduct would violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002).
An official has fair warning if a general constitutional rule applies “with obvious clarity to
the specific conduct in question.” Id. at 740-41.
Each Defendant in this case is a government official performing discretionary
duties. They are entitled to qualified immunity because their conduct was objectively
reasonable and did not violate any clearly established constitutional or statutory rights.
“There was no clearly established constitutional right of a rental property owner to be free
from a series of building inspections [or] citations.” Myrosek v. Kraatz, 178 F. Supp. 2d
104, 106 ( 2001). The record in this case contains no evidence to suggest that a reasonable
official, acting in the Defendants’ capacity, would have believed that he or she was acting
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unlawfully by enforcing the requirements of the housing code against the properties owned
by Plaintiffs. Cf. Melek v. Kohler, No. 93-56131, 1995 U.S. App. LEXIS 25185, (9th Cir.
Feb. 9, 1995) (Exhibit 50) (granting qualified immunity to housing code enforcement
officers because reasonable official would have believed it lawful to cite plaintiff for
housing code violations).

G. Plaintiffs Have Failed to Establish a Viable § 1983 Claim Against the
City of St. Paul
Plaintiffs allege the City is liable for Plaintiffs’ damages under 42 U.S.C. § 1983
because the individually named Defendants and other employees of the City deprived
Plaintiffs of their rights while “following an unconstitutional City policy, custom and
practice of discriminatory code enforcement.” (Complaint, § 265). A city cannot be held
vicariously liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v.
Dept. of Social Servs., 436 U.S. 658, 694 (1978). A city may be held liable for the
unconstitutional acts of its officials or employees when those acts implement or execute an
unconstitutional policy or custom of the city. Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999). Only where the constitutional injury is caused by the execution of
city policy or custom will section 1983 liability lie. City of Canton v. Harris, 489 U.S.
378, 385 (1989).
A “policy” is an official policy, a deliberate choice of a guiding principle or
procedure made by the city official who has final authority regarding such matters. See
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Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir.1998). To establish liability based
upon city custom, the plaintiff must show:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the city’s employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the city’s
policymaking officials after notice to the officials of that misconduct; and,
(3) The plaintiff’s injury by acts pursuant to the governmental entity's custom,
i.e., proof that the custom was the moving force behind the constitutional
violation.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
The City is entitled to summary judgment on Plaintiffs’ § 1983 claim because
Plaintiffs have failed to produce evidence of any constitutionally deficient policy or
custom, let alone evidence that such a policy or custom was the “moving force” behind the
code enforcement actions at issue. Absent evidence of a policy or custom of unlawful
code enforcement action, indifference to citizen complaints, failure to discipline code
enforcement officers for unconstitutional conduct, Plaintiffs’ claim cannot prevail.
V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFFS’ CONSPIRACY CLAIMS UNDER 42 U.S.C. § 1985
At Count VII of Plaintiffs’ Complaint, Plaintiffs allege the individually named
Defendants and other employees for the City conspired together and with other unknown
parties “to deny Plaintiffs and their tenants their federal civil rights.” (Complaint, ¶ 274).
42 U.S.C. § 1985 does not confer rights or provide an independent basis for
liability. Like §1983, it is a remedial statute which affords remedies for violations of
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constitutional rights conferred elsewhere. See Chambers v. Omaha Girls Club, 629 F.
Supp. 925, 933 (D. Neb. 1986), aff’d 834 F.2d 697 (8th Cir. 1986).
In order to establish that Defendants violated Plaintiffs’ rights under 42 U.S.C. §
1985, Plaintiffs must prove: (1) the existence of a conspiracy; (2) that the purpose of the
conspiracy was to deprive the Plaintiffs of their civil rights; (3) that a conspirator did an
act in furtherance of the object of the conspiracy; and (4) damages, shown by
demonstrating either injury to person or property or the deprivation of a civil right. See
Andrews v. Fowler, 98 F3d 1069, 1079 (8th Cir. 1996), citing Griffin v. Breckenridge, 403
U.S. 88, 102-03, 91 S.Ct. 1790 (1971).
A conspiracy is not established from the mere fact that it is alleged. Speculation
and conjecture are not enough to prove a conspiracy exists. See Hinkle v. City of
Clarksburg, 81 F.3d 416, 421-22 (4th Cir. 1996) Allegations of a conspiracy must be
pleaded with sufficient specificity and factual support to establish a meeting of the minds.
Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992), cert denied, 510 U.S. 831 (1993)
Allegations of a conspiracy, absent supporting facts, do not establish a claim upon which
relief may be granted. Holbird v. Armstrong-Wright, 949 F.2d 1019, 1020 (8th Cir.1991).
Here, the Plaintiffs’ allegations of a conspiracy are bald and conclusory. There are
no facts in the record identifying the existence of an intent to violate Plaintiffs’ civil rights.
Plaintiffs do not even allege that Defendants engaged in any conduct that would establish
there was a meeting of the minds or conduct in furtherance of any alleged conspiracy.
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Plaintiffs have not shown damages by demonstrating either an injury to themselves, their
property, or the deprivation of a civil right due to the alleged conspiracy.
Plaintiffs’ §1985 claim against Defendants and the City should be dismissed.
IV. PLAINTIFFS’ STATE LAW CLAIMS FAIL AS A MATTER OF LAW
A. Count VIII - Abuse of Process
Plaintiffs claim an abuse of process in Defendants’ alleged coordinated effort to rid
the City of “bottom of the barrel” and “low income” individuals and target Plaintiffs’
properties for illegal code enforcement. To prove an abuse of process action, the plaintiff
must show that there was an ulterior purpose and that the defendant used the process to
achieve something not within the scope of the proceedings. Nutter v. Messerli & Kramer,
P.A., 500 F. Supp. 2d 1219, 1224 (D. Minn. 2007), citing Kellar v. VonHoltum, 568
N.W.2d 186, 192 (Minn. Ct. App. 1997). The plaintiff must also demonstrate that the
abuse of process resulted in injury to person or property, whereas a showing of direct
injury to business or good name is not sufficient. Kittler & Hedelson v. Sheehan Props
Inc., 295 Minn. 232, 239, 203 N.W. 2d 835 (1973). Plaintiffs fail to satisfy the elements
of their abuse of process claim and accordingly, such allegation should be dismissed.
Plaintiffs have not identified an ulterior motive behind the City’s code enforcement
process. They allege the City coordinated an “illegal scheme” of targeting their properties
and created false entries in City code enforcement documentation. However, the record
fails to reflect the City had an “illegal scheme” in place as Plaintiffs readily admit in many
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instances Defendants legally enforced the code. (Exhibit 23, pp. 132, 137, 268-269;
Exhibit 19, pp. 206-208, 210-211, 360-362). In contrast, the record reflects that Defendant
City created the code enforcement policy for a legal purpose. (See Statement of the Facts
above.) Plaintiffs have not established an ulterior motive and without such, there are no
grounds supporting Plaintiffs’ abuse of process allegation. Accordingly, Plaintiffs’ claim
should be dismissed.
Further, there is no evidence supporting Plaintiffs’ contention that Defendants used
the process to achieve something outside the scope of the proceedings. See Nutter, 500
F.Supp.2d at 1224. Plaintiffs cannot prove Defendants used enforcement of the city
housing code to accomplish an unlawful end. See Kittler & Hedelson, 295 Minn. at 239
(the test for abuse of process is whether the process was used to accomplish an unlawful
end for which the process was not intended, or to compel a party to do a collateral act
which he or she is not legally obligated to do). Plaintiffs allege Defendants created false
entries in City code enforcement documentation and used such in court filings against
them. However, there is no evidence in the record supporting these allegations and,
without more, Plaintiffs have no proof Defendants used code enforcement to achieve
something outside of its original and legal purpose. In short, there is no evidence
Defendants illegally misapplied the code and, therefore, Plaintiffs’ abuse of process claim
should be dismissed.
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B. Count IX - Tortious Interference with Contract
Plaintiffs claim Defendants tortiously interfered with the contracts between them
and their respective tenants for lease of private housing in the City. To establish a claim
for tortious interference with a contract, a plaintiff must prove the following elements: (1)
existence of a contract; (2) alleged wrongdoer’s knowledge of the contract; (3) his or her
intentional causation of its breach; (4) without justification; and (5) damages resulting
therefrom. Storage Technology Corp. v. Cisco Systems, Inc., 395 F.3d 921, 924 (8th Cir.
2005), citing Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn. 1982).
A successful claim requires proof of all five elements. Dyrdal v. Golden Nuggets, Inc.,
672 N.W.2d 578, 580 (Minn. App. 2003).
Plaintiffs have not alleged any material facts, or elicited evidence, to support a
tortious interference of contract claim against any of the Defendants. Plaintiffs have not
identified any evidence that Defendants intentionally procured breach of the contracts and,
in fact, Plaintiffs admit that many leases were breached because of tenant issues, not
anything to do with Defendants enforcing the housing code. (Exhibit 23, pp. 112, 126,
127, 197, 199; Exhibit 22, pp. 175-177; Exhibit 19, pp. 207, 302, 416-419). It is
Plaintiffs’ poor housing stock and neglect of their properties which caused any breach of
an alleged lease. Even if Plaintiffs’ tenants breached a lease because of code enforcement,
Plaintiffs, as landlords, are the individuals responsible to keep their properties up to code
and consequently, are the cause of tenants breaking leases. In short, Defendants are
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entitled to summary judgment because Plaintiffs have not raised a genuine issue of
material fact with respect to any of the tortious interference with a contract elements.
C. Count X - Tortious Interference with Plaintiffs’ Business Expectancy
Plaintiffs allege Defendants tortiously interfered with the business expectancy they
had in their rental business in the City. To prevail on a claim for tortious interference with
business expectancy, a plaintiff must show: (1) the existence of a reasonable expectation
of economic advantage or benefit belonging to the plaintiff; (2) that the defendant had
knowledge of that expectation of economic advantage; (3) that the defendant wrongfully
and without justification interfered with the plaintiff’s reasonable expectation of economic
advantage or benefit; (4) that in the absence of the wrongful act of the defendant, it is
reasonably probable that the plaintiff would have realized his or her economic advantage
or benefit; and (5) that the plaintiff sustained damages as a result of this activity.
Lamminen v. City of Cloquet, 987 F. Supp. 723, 731 (D. Minn. 1997), citing United Wild
Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-633 (Minn. 1982).
Plaintiffs have not alleged any material facts to support the elements of a tortious
interference with a business expectancy claim against any of the Defendants. Brisson
cannot prove the existence of a reasonable expectation of economic advantage because he
purchased the property knowing it needed substantial renovation and consistently failed to
cure such violations because of lack of money. (Exhibit 23, pp. 99, 251). His property
was eventually condemned due to his inability to meet deadlines in the correction and
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abatement orders on account of his financial situation, a problem apart from Defendants’
conduct. (Exhibit 23, pp. 127, 254, 268-269). Further, there is no evidence indicating
Defendants interfered with any alleged business expectations and, in contrast, Plaintiffs
readily admit that at times code enforcement was good for their business. (Exhibit 23, pp.
126, 127, 197, 220-222; Exhibit 22, pp. 190, 191). Finally, any economic loss suffered by
Plaintiffs is either non-existent or Plaintiffs have brought such loss upon themselves
because of their failure to remedy valid code violations. (Exhibit 23, p. 126, 127, 254).
Steinhauser cannot prove he sustained damage as a result of Defendants’ alleged
interference because he explicitly admits that he realized substantial profits from the sale
of his properties. (Exhibit 20, p. 15). In sum, Plaintiffs allege a skeletal claim of tortious
interference with a business expectancy without establishing grounds for such claim.
Without more, the Court should conclude that there are no genuine issues of material fact
and dismiss Plaintiffs’ allegation.
D. Statutory and Official Immunities Bar Plaintiffs’ State Law Claims
Plaintiffs have not met the burden of proof to establish viable claims for abuse of
process, tortious interference with contract, or tortious interference with business
expectancy. Plaintiffs’ admissions contradict the notion that Defendants acted with intent
to abuse their authority or intent to interfere with Plaintiffs’ contracts or business
expectancy. Instead, Plaintiffs’ contentions seem to challenge the underlying City policies
and procedures and the discretionary decisions used by Defendants to enforce the St. Paul
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Housing Code. In this regard, Defendants are immune from liability pursuant to the
statutory immunities provided by the Minnesota Municipal Tort Claims Act and common
law official immunity.
E. Statutory Immunities
The City is immune from liability for “any claim based upon the performance or the
failure to exercise or perform a discretionary function or duty, whether or not the
discretion is abused.” Minn. Stat. §466.03, subd. 6 (2006). To the extent Plaintiff is
challenging the City’s housing code policies and procedures for enforcement, i.e., planning
level decisions regarding the timing and allocation of resources to enforcement actions,
statutory immunity bars Plaintiffs’ claims. Planning level decisions are those involving
questions of public policy, that is, the evaluation of factors such as the financial, political,
economic, or social effects of a given plan or policy. Holmquist v. State, 425 N.W.2d 230
(Minn. 1988). The policies and procedures followed by Defendants are based upon
planning level decisions which balanced economic, political, and social factors. (Exhibit
7). Minnesota courts have reasoned that statutory immunity exists to prevent the courts
from conducting an after-the-fact review which would second guess planning and policy
making activities that are legislative or executive in nature. Conlin v. City of St. Paul, 605
N.W.2d 396 (Minn. 2000); Angell v. Hennepin County Regional Rail Authority, 578
N.W.2d 343 (Minn. 1998); Christopherson v. City of Albert Lea, 623 N.W.2d 272 (Minn.
Ct. App. 2001).
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To the extent Plaintiffs’ state law claims challenge Defendants’ execution of the St.
Paul Legislative Code or other laws, Defendants are immune from liability. The
Minnesota Legislature created a limitation on municipal tort liability for acts committed in
accordance with a statute, where the municipality has been sued for “any claim based upon
an act or omission of an officer or employee, exercising due care, in the execution of a
valid or invalid statute, charter, ordinance, resolution or rule.” Minn. Stat. 466.03, subd. 5
(2006). Where there is no conflicting evidence on the issue of due care in the execution of
a statute, summary judgment is appropriate. Landview Landscaping, Inc., v. Minnehaha
Creek Watershed Dist., 569 N.W.2d 237, 241 (Minn. Ct. App. 1997) (summary judgment
proper where due care in watershed district's issuance of conditional license according to
rule was not disputed factually).
F. Official Immunity
The doctrine of official immunity "provides that ‘a public official charged by law
with duties which call for the exercise of judgement or discretion is not personally liable to
an individual for damages unless he is guilty of a willful or a malicious wrong.’" Elwood
v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988), quoting Susla v. State, 247 N.W.2d
907, 912 (Minn. 1976).
The record is devoid of facts establishing that any of the Defendants intentionally
engaged in conduct that he/she knew was prohibited. Official immunity bars Plaintiffs’
state law claims against the individual Defendants.
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Vicarious official immunity must be extended to the City to preserve code
enforcement officer’s discretion and protect it from liability for the acts of its individual
employees. See Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992), see also Watson v.
Metropolitan Transit Commission, 553 N.W.2d 406, 415 (Minn. 1996) (stating public
policy underlying official immunity is to prevent threat of liability from inhibiting use of
discretion).
CONCLUSION
Based on the arguments set forth above and all the files, records, evidence, and
documents of record, the Defendants respectfully request that summary judgement be
entered in its favor and that the plaintiffs claims be dismissed with prejudice.
Dated: July 29, 2008 JOHN J. CHOI
Saint Paul City Attorney
s/ Louise Toscano Seeba
Louise Toscano Seeba (#292047)
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
(651) 266-8772
Attorneys for Defendants

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