IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Appeal No. 09-1528

FRANK J. STEINHAUSER, III, ET AL.,

Plaintiffs-Appellants,

v.

CITY OF ST. PAUL, ETC., ET AL.,

Defendants-Appellees,

Appeal From United States District Court For the District of Minnesota

Civil No. 04-CV-2632 (JNE/SRN)

PLAINTIFFS-APPELLANTS BRIEF WITH ADDENDUM

John R. Shoemaker, Esq. SHOEMAKER & SHOEMAKER, P.L.L.C. 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610 john@shoemakerlaw.com ATTORNEYS FOR PLAINTIFFS-APPELLANTS

STATEMENT OF THE CASE

Plaintiffs filed suit in 2004 after Defendants' "forced the sale" of Plaintiffs'

older rental homes through illegal code enforcement and other retaliatory tactics

including repeated false claims of code violations, illegal condemnations of homes and

removals of "grandfathering" protections through forced renovations to present code

under "Code Compliance Certifications" and fraudulent notice and fee schemes, all

resulting in economic losses to Plaintiffs and displacement of "protected class" tenants.

During this litigation, Defendants destroyed written communications and other

electronic documents for the relevant periods, destroyed over 15,000 relevant housing

inspection records and consistently played "hide the ball" during discovery. Despite

the shocking spoliation of evidence, including evidence related to Defendants' "motive

and intent," Plaintiffs' motions for spoliation were denied by the District Court and

summary judgment entered against Plaintiffs for their claimed failure to produce

sufficient evidence. Plaintiffs' subsequent Rule 59(e) motion was denied.

REQUEST FOR ORAL ARGUMENT - 45 minutes

This case is one of three related cases consolidated on appeal from summary

judgment. This Court's de novo review requires detailed review and analysis of the

facts and oral argument is critical to a full understanding the facts.

TABLE OF CONTENTS

STATEMENT OF THE CASE .............................................................. .i

REQUEST FOR ORAL ARGUMENT ..................................................... .i

TABLE OF CONTENTS .......................................................................................... .ii

TABLE OF AUTHORITIES ................................................................................... .iii

JURISDICTIONAL STATEMENT.. ...................................................................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ..................................... 2

FACTS BEFORE THE DISTRICT COURT.. .......................................................... 3

SUMMARY OF THE ARGUMENT .................................................................... 19

ARGUMENT ........................................................................................................... 21 I. Summary Judgment Reviewed De Novo .......................................... 21

II. Reasonable Minds Standard ......................................................... 21

III District Court erred in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial... ......... 27

a. Fair Housing Act -Disparate Impact and Disparate Treatment - Section 3617 Retaliation ......................... 33

b. Constitutional Rights I Equal Protection ................................... 52

c. RICO ........................................................................... 55

IV. District Court Erred in Denying Plaintiffs Motion for Sanctions for Spoliation of Evidence ............................................................... 59

CONCLUSION ........................................................................................................ 61

ii

CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND CERTIFICATION OF WORD PROCESSING PROGRAM ......................... 62

TABLE OF AUTHORITIES

CASES

Federal cases:

Abels v. Farmers Cooperative Corp .• _259 F. 3d 910 (8th Cir. 2001) ................... 56

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................... 21, 22

Atlas Pile Driving v. Dicon Financial, 886 F. 2d 986 (8th Cir. 1989) ................. 56

CBDCS West, Inc. v Humphries, 128 S. Ct. 1951 (2008) .............................. 27

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................... .21

Costello v. Mitchell Pub. School Dist. 79,266 F.3d 916,

921 (8th Cir. 2001) ........................................................................... 54

Darst-Webbe Tenant Ass 'n Bd v. St. Louis Hous. Auth.,

417 F.3d 898, 902 (8th Cir. 2005) ......................................................... 28

Dirden v. Dep 't of Housing and Urban Dev.,

86 F.3d 112, 114 (8th Cir. 1996) ............................................................ 54

East-Miller v. Lake County Highway Dept., 421 F.3d 558,563

(7th Cir. 2005) ................................................................................ 34

E*Trade Securities, LLC v. Deutsche Bank AG,

111

230 F. R. D. 582 (D. Minn. 2005) .......................................................... 2

First National Bank of Arizona

v. Cities Service Co., 391 U.S. 253 (1968) ............................................................. 22

Ganley v. Minneapolis Park & Recreation Bd.,

491 F.3d 743, 747 (8th Cir. 2007) ......................................................... 53

Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 914

(8th Cir. 2007)....................................................................... ... 34,35

Griffithv. City of Des MOines, 378 F.3d 733 (8thCir. 2004) ................................... 35

Handeen v. Lemaire, 112 F.3d 1339 (8th Cir. 1997) ................................ 21,56

Huntington Branch NAACP v. Town of Huntington, 844 F. 2d 926

(2nd Cir. 1988) ............................................................................ 28,29

Int 'I Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)

990 F.2d 1051 (8th Cir. 1993) ................................................................................... 34

Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007) .................................... 53

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................... 34

Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977) .............. 29

RSBI Aerospace, Inc. v. Affiliated FM Ins. Co.,

49 F.3d 399, 401 (8th Cir. 1995) ........................................................... 22

IV

Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003) ....................................... 21

Shrum v. Kluck, 249 F.3d 773,777 (8th Cir. 2001) ..................................... 52

Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972) ................ 28

U S. v. City of Black Jack, MO, 508 F. 2d 1179 (8th Cir.197 4)

(rehearing and rehearing en banc denied 1975) ......................................... .28

United States v. Diebold, Inc., 369 U.S. 654 (1962) ............................................... 22

Us. v. Leyden, 842 F. 2d 1026 (8th Cir. 1988) .......................................... 56

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) ...................... 53,54

Zakrweski v. Fox, 87 F.3d 1011 (8thCir.2003) ........................................... 21

Zubulake v. UBS Warburd LLC, 220 F. R. D. 212 (SDNY 2003) ..................... 2

2922 Sherman Ave. Tenants' Ass 'n v. District of Columbia,

444 F.3d 673 (D.C. Cir. 2006) ............................................................. 55

State cases

City of Morris v SAX Investments, Inc., 749 N.W.2d 1 (Minn.2008) ................ .36

215 Alliance, et al. v. Andrew Cuomo, et al.,

(Minnesota District Court No. 98-64, 1999) ............................................. 29

Statutes

18 U.S.C. § 1962(c), (d) ..................................................................... 56

v

42 U.S.C. § 1981 ...................................................................................................... 56

42 U.S.C. § 1982 ............................................................................. 56

42 U.S.C. §1983 .............................................................................. 52

42 U.SC. §3604(a)-(b) ....................................................................... 27

Minnesota Statutes §16B.62 ............................................................... 36

Saint Paul Legislative Code Chapters 33 and 34 ......................................... 11

Rules

Fed.R.Civ.P.56( e )(2) ......................................................................... 21

VI

JURISDICTIONAL STATEMENT

The District Court had original jurisdiction over Appellants' claims under Title

VIII ofthe Fair Housing Act, as amended, 42 U.S.C. Sections 3601, et seq., 42 U.S.C.

Section 3613, under the Civil Rights Act of 1866,42 U.S.c. Sections 1981, 1982 and

1983, and under 18 U.S.C. Section 1964 (c) jurisdiction was therefore appropriate

under 28 U.S.C. §§ 1331 and 1343.

This Court has jurisdiction over Appellants' appeal as a matter of right, under

Fed. R. App. P. 3. The lower court granted summary judgment in an order dated

December 18,2008 and entered final judgment on December 19, 2008.

Appellants timely filed their Rule 59( e) motion to alter or amend the judgment

on January 6, 2009. The District Court denied Appellants' Rule 59( e) motion by Order

dated January 30, 2009.

On March 2,2009, Appellants timely filed their Notice of Appeal under Fed. R.

App. P. 4(a)(4), and served their Notice of Appeal on Respondents.

This appeal is from a final Judgment of the Court.

1

STATEMENT OF ISSUES PRESENTED FOR APPEAL

1. Did the District Court err in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial?

a. Fair Housing Act / Disparate Treatment / Disparate Impact / Section 3617 Retaliation

Most apposite cases: Trafficante v. Metropolitan Life Insurance Co., 409 U. S. 205 (1972) U. S. v. City of Black Jack, MO, 508 F. 2d 1179 (8th Cir.1974) (rehearing and rehearing en banc denied 1975) Huntington Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988) Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977)

b. Constitutional Rights Claims / Equal Protection

c. RICO, 18 U.S.C. Section 1961, et seq.

Most apposite cases: Handeen v. LeMaire, 112 F. 3d 1339(8th Cir. 1997) Atlas Pile Driving v. Dicon Financial, 886 F. 2d 986 (8th Cir. 1989) Abels v. Farmers Cooperative Com., 259 F. 3d 910 (8th Cir. 2001) U. S. v. Leyden, 842 F. 2d 1026 (8th Cir. 1988)

2. Did the District Court err in denying Plaintiffs' original and renewed motions for sanctions?

E*Trade Securities, LLC v. Deutsche Bank AG, 230 F. R. D. 582 (D. Minn. 2005) Zubulake v. UBS Warburd LLC, 220 F. R. D. 212 (SDNY 2003) Kobrin v. University of Minnesota, 34 F. 3d 698 (8th Cir. 1994) Reeves v. Sanderson Plumbing, Products, Inc. 530 U. S. 133 (2000)

2

STATEMENT OF FACTS BEFORE THE DISTRICT COURT

City Recipient of Federal Low Income Housing Funds - Affirmative Duty to Further Fair Housing Act and Fair Housing Choice

As a recipient of federal Community Development Block Funds "CDBG," the

City must continually certified to the U.S. Department of Housing and Urban

Development that the City will "affirmatively further fair housing" (AFFH) as well as

identify "impediments [barriers 1 to fair housing choices" within its jurisdiction and

take appropriate action. APP1471; generally, APPI442-1447.

The City certifies each year to HUD that "The jurisdiction will ... conduct an

analysis of impediments to fair housing choice with the jurisdiction, take appropriate

actions to overcome the effects of any impediments identified through that analysis,

and maintain records reflecting that analysis and actions in this regard." Id "City's

obligation to [AFFH} applies to all housing activities in its jurisdiction whether

publicly or privately funded." APP1447.

City Duty to Conduct Analysis of Impediments and Barriers to Fair Housing Choice

As part of the HUD required "Analysis ofImpediments 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." APP 14 70 (emphasis added); 1471. The City claims that it

3

promotes "fair housing choice for all persons." APP1468.

CDBG funds are provided to Block Clubs, District Councils, and

Neighborhood Development Corporations. APP 1517 -18. Caty Royce testified that ,

these non-governmental organizations working closing with and being provided

funds from the City, each took part in selecting rental homes for inclusion on

"problem properties" lists for heavy code enforcement under the direction of Kelly

and Dawkins. APP1253.

The City's 2003 Consolidated Plan Update states that the CDBG funds City

"code enforcement" efforts, City activities related to "rental rehabilitation," "vacant

buildings," "demolition" of housing, and other fair housing related activities.

APP1520-23.

City regulatory policies and building code are barriers to fair housing

In 2000, the City acknowledged that its regulatory policies, including what

some may consider "above standard' development requirements, can pose a barrier

to affordable housing - the City cited its own building code as one such barrier.

APP1525.

The City stated that The Metropolitan Council had determined that Cities

regulations, ordinances and fees as well as administrative practices may exceed

4

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 to assess whether new construction or housing maintenance standards are

most appropriate for houses being moved to a new site." APP1525.

City knew older homes not compliant with code but still habitable

Councilmember Mike Harris stated the proposed ordinance "would impose

overly strict standards for aging properties that may be adequate, if not up to code."

APPII73.

The City long ago acknowledged that, "There are few properties in Saint Paul

where a determined inspector could not find a violation of some City ordinance.

APPl175 (City's Chronic Problem Property Case Study, 2002).

Starting in the fall of 2002, the City began to require owners of older rental

homes to renovate their homes to "present code" under a program the City called,

"Code Compliance Certification," a process whereby the City illegal removed

grandfathering protections applicable to the older properties under the State Building

Code. APPI037,1039,1075,1117,1138 (affidavit and four written reports and

qualifications of Don Hedquist, a Certified State Building Official, Plaintiffs' liability

expert).

5

Abandonment of Inner City Older Homes

There is significant evidence of wholesale abandonment of inner city homes due

to the increase in costs to own such homes to meet the City's heightened standards.

On March 31, 2003, there were 367 listed vacant homes in the City of Saint Paul.

APPl176. By November 1,2007, the number of vacant homes had dramatically risen

to 1466. APPll77. Don Hedquist reviewed the City's records and voluminous other

evidence and concluded in his June 2, 2008 report, that "Mandatory renovations under

the City's "code compliance inspection" process, significantly increased the costs to

providers of housing to the point where forced sales and abandonment occurred. The

heightened code standard has contributed to the high number of vacant properties

currently in the City." APPl120.

City knew heavy code enforcement would lead to wholesale abandonment

Dawkins, as Director of Code Enforcement, and former state representative from

the inner city who focused on housing related legislation at the State Capitol from 1987

to 2002, acknowledged that "in most cities a balance has to be struck between

aggressive enforcement to preserve livability and over-zealous enforcement potentially

leading to wholesale abandonment of properties or the inner-city." Docket 211-21, p.

1; 211-22, p. 17 [05-cv-01348]. "All I know is that! read a study that was in ajournal

6

about stepped up code enforcement in Baltimore and that it had tipped the scales so

that there was more abandonment of properties than the city had thought or wanted to

have happen." Id.

City Minimum Maintenance Code Chapter 34 and Section 8 standard

In 1994, the City proposed to PHA, a long term partner, that the City's

Property Maintenance Code (City Code) be substituted for the federally minimum

Housing Quality Standards (HQS) applicable to federally subsidized, Section 8

"low income" housing in the City. Docket 224-12, p. 11 [05-cv-OI348}. During

this process, the City and PHA discovered that the City's code was actually "more

stringent" 82% of the time when compared to the federal code. Docket 224-12, p.

4-10.

In 1995, the City was informed that BUD tightly controls the variations in

HQS by local jurisdictions due to the adverse effect a higher local housing code can

have on the availability of affordable housing. Docket 224-12, p.II. Al Hester of

PHA informed City personnel on the City's Housing Coordination Team that

"[L J ocal HUD staff feared more stringent standards would reduce the supply of

affordable housing for Sec 8 holders. Id.

7

Defendants' "Code Compliance Certification" to "Present Code" in Violation of State Building Code

Don Hedquist's Expert Testimony

In opposition to summary judgment, Plaintiffs' presented the Court with four

reports from liability expert Don Hedquist, a certified Minnesota Building Official

since 1973. APPl037,1039,1075,1117,1138. Mr. Hedquist is qualified to provide

his opinions based upon his significant experience since 1975, including as a former

Minneapolis building inspector and supervisor, carpenter, construction company

owner, college instructor, owner and manager in the low-income housing market,

and Truth in Housing inspector. APPl099-l116. Hedquist, has issued four reports

since 2006 in the consolidated cases before this Court. APPI039,1075,1117,1138.

Hedquist's opinions were unopposed by the Defendants at summary

judgment and the District Court failed to discuss Mr. Hedquists reports. Hedquist's

supplemental report June 2, 2008 (APPll17) stated that "The City required

Plaintiffs and many other landlords to make substantial changes to their rental

properties that were not mandated by the State Building Code or by the City's

minimum maintenance code." APPlll8. Hedquist stated that the City's "code

compliance" certification process was a "mandatory renovation process where

8

grandfathering protections were eliminated and current codes were applied."

APPll18. Hedquist also opined that "Mandatory renovations under the City's

"code compliance inspection" process significantly increased the costs to providers

of housing to the point where forced sales and abandonment occurred. The

heightened code standard has contributed to the high number of vacant properties

currently in the City." Appl120.

City Inspector Michael Kalis admitted City Code Compliance Certification

process was to "present code". APP. 887-1036. Johnson called inspector Kalis to

inquire why Johnson's 469 Whitall home was posted by Kalis as "vacant" when the

home was in fact occupied. Kalis told Johnson, "Too bad" and stated that Johnson

would need a "full code compliance" - he would need to "complete an upgrade of

the home to current building standards in order to reoccupy the home." Id.

After Meysembourg's duplex was condemned in early 2003, and a Code

Compliance Certification demanded, he was told by City LIEP officials that "code

compliance" inspections were to present or current codes, which required all major

systems in a rental building to be brought up to current code requirements, thereby

removing grand-fathering protections of state law. APP657-766.

NHPI Rules and Procedures August 1, 2002 adopted by Dawkins with

9

authority of the City Council provided inspectors with authority to issue condemnation

orders on homes in the City as follows:

"When Do We Condemn A Building" ... "Whenever a structure is deemed dangerous or unfit for human habitation, we will order the structure vacated, sometimes immediately, but usually after a short compliance period has expired and the occupants are given 1 to 30 days to find alternative shelter. Condemnation occurs when life-safety violations exist, such as fire hazards, unsanitary conditions, severe rodent and pest infestation, lack of basic facilities, faulty construction or dilapidation. If principal violations are corrected prior to the vacation date, the order to vacate will be lifted. If principal violations are corrected after the vacate date, once corrected the dwelling can be reoccupied. "

APP. 1179; Docket226-48, p. 36 [2002 NHPl Rules, Docket 226-48, p. 27-38]; see also Docket 226-47, pp.1-3 for Steve Mark Aff. and Exh. "B" documents produced to Steve Mark by City of Saint Paul, Bates050023-050369, with Andy Dawkins assistance.

The 2002 NHPI Rules did not provide authorization for Dawkins, Lippert,

Martin, Magner, and other inspectors to condemn homes for less than "severe rat

and pest infestation, or to add additional conditions for removal of the "vacate

order" upon condemnation including keeping the property off-line following

correction of the "principal items" for extended periods of time for a forced

renovation to "present code" under the Code Compliance Certification" process.

Docket226-48, p. 36. The Rules failed to state that "due to the number of

violations" a Code Compliance Certification" process may be required of the

10

owner, or that under such a process, the Defendants would illegally remove the

owner's grandfathering rights, keep the property off-line for extended periods of

time while the owner had to arrange for contractors to renovate the home to

"present code". Id.

The City responded to Steve Marks' Request for Admissions, admitted that

the NHPI Rules were official NHPI policy and Dawkins did not need City Council

approval. Docket 226-48, pp.14.

The City adopted the State Building Code as referenced in Chapter 34 of

Legislative Code [Sec.34.07] a chapter titled, "Minimum Property Maintenance

Standards for all Structures and Premises" (hereinafter "City Minimum Standards").

Docket 226-13, pp. 6-9 (Chapter 33 - adoption); APP. 1189. The City recognized

in many specific references in its "Minimum Property Maintenance Standards" the

State Building Code grandfathering protections, which the City phrases as,

"maintained in accordance with the Building under which it was originally

constructed." APP. 1189 [e.g., Sec. 34.09(2); 34.10(2)(3)].

Senior inspector Harold Robinson explained "grandfathering" protections

as only requiring an existing owner to meet current codes "When they remodel."

APP1206,1211. Robinson testified that if an inspector condemned a building and

11

did not refer it right away to vacant buildings, the owner could get the permits,

complete the repairs and reoccupy the building quicker and not have a "Code

Compliance". APP1210.

Bill Cullen, a realtor, real estate investor and Section 8 housing provider,

testified that he had considerable experience in purchasing homes in the City and

had experienced the City's "Code Compliance" Certification process, a very

expensive process that he expected to cost him at least $40,000 depending on what

was written up by inspectors. APP1214-1216.

Cullen testified that in his discussions with Dawkins that Dawkins knew that

the Code Compliance Certification process was a substantial renovation of an older

home and at times would have a significant financial effect in an adverse way on

rental property owners. Cullen 212-13.

Catv Royce, a tenant advocate from Community Stabilization Project

testified that most homes in the City could not meet pass the onerous City's "Code

Compliance" requirements. APP1217. Royce opined that the Code Compliance

requirement on older homes was very problematic in loss of affordable housing due

to the costs ofthe rehabilitation not being economically viable. APP1229. Royce

with considerable experience in low-income housing, believes that some of the

12

vacant rental homes in the City are a result of the Code Compliance requirement

and landlords not being able to cash flow the rentals due to the costs of the Code

Compliance. APPl229-30. Royce testified that Code Compliances were having

harmful effects on tenants. Id. Royce testified that she knew of no source of

funding assistant made available to the low-income landlords to meet the Code

Compliances Id. Royce testified that the City's code compliance renovation

requirement for older rental homes "requires additional costs that frequently push it

over the edge of economic viability, essentially for the small rna-and pa guys and

gals." APP1235. Royce said that she had seen examples of tenants she was

representing lose their housing in homes subject to the City's Code Compliance

renovation requirement. Id. While the rental property was being renovated, the

home was unavailable for the families for significant time periods and that the code

compliance renovation decreased the number of available rental units in the market.

Id. Royce was against demanding a Code Compliance renovation requirement in

City civil actions against landlords because a significant number of rental properties

that would normally be at safe and decent, became economically unviable and

leading to abandonment APP1248. Royce was in favor of simply requiring the

landlord to repair the principal code violations. "The rather recent (five years)

13

strategy of requiring the highest level of rehab, I think they call it code compliance,

on a vacant building, even if it's only been vacant for a short amount of time is not

a policy conducive to preserving our existing stock of housing. It is [a] policy that

should be analyzed as people look over this issue in general. Not many of our

homes, including mine, could withstand the level of scrutiny created by this code

compliance inspection." APP1254. Royce testified that Dawkins knew ofthese

concerns and that Dawkins knew the code compliance inspection requirement was a

higher level of rehabilitation to an older property and that Royce informed Dawkins

of her concerns. APP1254.

Senior Inspector Lippert Dick sometimes required "Code Compliance

inspections" conducted by the City's LIEP office before re-occupancy was allowed,

and at other times, he either not require a "Code Compliance" inspection, or he

waived the requirement. APP1257-1285. In all examples, Lippert testified that life

safety issues were present to justify the condemnations, but in some cases he only

required the "principal violations" to be corrected before re-occupancy, when in

other cases, with fewer number of violations, he added a requirement that the owner

obtain a LIEP Code Compliance Certification inspection. APP1258-60. Plaintiffs'

counsel presented multiple exhibits to Lippert during his deposition from his

14

condemnations between May and August 2001 and between 2002-2003 and

inspector notes and legislative hearing notes. APPI257-1285.

Defendants Martin, Dawkins and Lippert demanded Steinhauser,

Meysembourg, Brisson and Johnson complete the Code Compliance Certification

process. APP460-656 (Steinhauser); APP 657-766 (Meysembourg); APP767-827

(Brisson); APP887-1 036 (Johnson). Plaintiffs detail in their affidavits the false

claims made by Defendants as part of the scheme to strip rental properties of the

grandfathering protections of the State Building Code and to in many other ways

increase Plaintiffs' costs, harass and displace their protected class tenants, force

Plaintiffs from the low-income rental business and obtain the properties or vacant

lots following demolition. Id.

Adverse impact on Plaintiffs' tenants - not just the cost to Plaintiffs

LaChaka Cousette, an African-American tenant renting from Steinhauser

experienced displacement from her home and losses after Martin, Keohnen and

Dawkins condemned her unit for minor issues. APPI556-59. She recalls Martin

and Keohnen nitpicking things and that she was happy living there and there was no

reason to condemn her unit. They created a big list of problems out of nothing

during their inspection. rd. She and her two minor children were forced out of their

15

home and experienced great difficulties finding replacement housing. Id. After

losing her permanent home with Steinhauser, Cousette had to live in more than ten

different places including shelters, an experience she recalls as a nightmare. Id.

Debbie Doolittle and her disabled boyfriend were renting 941 Cypress from

Mr. Baudette when Steve Johnson purchased the property in late 2002. APP1286-

87. Ms. Doolittle had two teenage children also living with her at the time

Inspector Lippert condemned the home for minimal items. APP1288. Lippert

arrived at the home after City police raided the home, arrested Doolittle's boyfriend

and took him away. APP1291. No charges were filed against and he was released.

APPI288,1296. Doolittle described the raid and the rough treatment she and her

disabled boyfriend and children received by the police. APP 1289-91,1294-96.

Doolittle testified that her home was clean and picked up and that there were no

access problems or over storage problems in the basement on the night of the raid

[APPI291-95], contrary to Lippert's Condemnation Order on the home. APPI033.

Prior to the raid nothing was piled next to the furnace or water heater. APP1300.

Doolittle described how the police tore the whole home apart and then Lippert

condemned the home giving her family 24 hours to vacate the home. APP1296-

7;1298-9;1300-02. After the raid Doolittle found the basement a mess from the

16

police opening her boxes-it took her about 3 hours to repack. APP1301-02.

Doolittle then had to move in with her boyfriend's mother for over three

weeks in cramped conditions. APP 1302-03. Doolittle was able to obtain another

rental home from Johnson about 3 weeks later. APP1303. Doolittle said there was a

weedwacker in the kitchen her boyfriend was working on just before the raid but it

was not apart. Id. By the time the inspector arrived, Doolittle was confused and

shook and police officers were still present. APP1304. Just before the raid, there

were no excessive storage in the home and if someone wanted to inspect every

room they would have had access contrary to Lippert's claims. Id. Doolittle said

there was no reason for condemning the home; "they were just interested in getting

us out of our home." APP 1305.

Johnson located a place for Doolittle and her family to rent at 390 Sherburne

and after she and her disabled boyfriend moved in, City inspectors towed three cars

with current tabs that were operable and Martin and Keohnen were nitpicking

everything at the property; Johnson stood up to the inspectors for her family.

APP1306-10. Code inspectors were harassing Doolittle and her boyfriend but

ignoring poor conditions in neighboring properties. Id. Doolittle says that she had

excellent experience with Johnson as a landlord. API3ll-l2.

17

Leo Sider, a Section 8 disabled tenant of Brisson received approval to reside

in Brisson's 297 Burgess duplex in April 2003 following a Section 8 HQS

inspection. APP1313-17. About three months later, Martin, Koehnen and Dawkins

condenmed the home and he lost his home there when there was no reason for the

condemnation. Docket 217-7, p.11-13. Sider described the condition of his unit in

positive mauner the entire time he lived there. APP. 1314-22. Sider experienced

difficulties and frustrations in losing his home from July to September 2003.

Docket 217-7, p.11-13. He was able to move back into 297 Burgess after the City

sent Brisson notice of approval. APP 1314-22.

Caty Royce testified that minorities from outside Minnesota were having an

extremely difficult time locating affordable housing in the City. APP1217, 1236.

The Saint Paul Public Housing Agency (PHA) has admitted that any loss of

federally subsidized housing would adversely affect the availability of affordable

housing. APP1323-25 ["Attachment N" to PHA Five Year Plan]. PHA staff

notified HUD that "none oJthe PHA 's developments are appropriateJor conversion

because any such conversion would adversely affect the availability oj affordable

housing in St. Paul." APP 1323. PHA states that even conversion of 1 or 2 units

in scattered site homes would "adversely affect the availability oj affordable

18

housing" in the community". APP1325.

PHA provides the statistics 10-21-04 on waiting lists for protected class and

lists African-Americans (61 %), Whites 26%, for PHA housing with limited

turnover with 91 % in the extremely low income level. Docket 226-40, p14.

Section 8 housing as 10-21-04, with 62% Blacks and 30% Whites with 86% at

extremely low income, and low turnover with Section 8 list closed as of 11-2002.

Docket 226-40, p.15.

In 2005, PHA listed the strategies for addressing the shortage of affordable

housing such as (1) maximize the number of units by minimizing the number of

units off-line; (2) reducing the time to renovate PHA units, (3) maintaining or

increasing Section 8 lease-up rates by marketing to owners, (4) apply for additional

Section 8 units. Docket 226-40,p.16[PHA Five Year Plan].

SUMMARY OF THE ARGUMENTS

The District Court's Order granting summary judgment to the City shows a total

disregard for the summary judgment standard. Throughout the Order, the Court takes

the place of the jury, weighs the evidence, selects which evidence will assist the

Defendants in what certainly appears to have been a "predetermined" decision, and

which evidence to simply ignore, and then dismisses every claim of Plaintiffs.

19

The Court mischaracterizes and misstates the evidence, and often times sets

forth completely false conclusions. In light of the abuse by the Court at this stage of

the proceeding, Plaintiffs have no confidence that the Court will ensure a fair trial of

their claims.

If the standard for summary judgment would have been properly applied, the

facts presented by Plaintiffs, with all inferences drawn in favor of Plaintiffs, would

have resulted in this case proceeding to trial. Plaintiffs presented evidence from which

a reasonable jury could conclude that Defendants violated the Minnesota State

Building Code, Federal Fair Housing Act, Sections 1981 and 1983 and the RICO Act,

by their illegal schemes to wrongfully deprive Plaintiffs oftheir property and tenants of

their homes, through a combination of illegal removal of "grandfathering" protections

on older rental homes through unjustified condemnations, illegal demands for

renovations to "present code," application of other heightened standards and illegal

notice schemes, all predictably resulting in disparate impact on "protected class"

tenants and hanning Plaintiffs.

20

ARGUMENT

I. Summary Judgment Is Reviewed De Novo.

This Court reviews a district court's summary judgment order de novo. See,

Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003); Zakrweski v. Fox, 87 F.3d

1011, 1012 (8thCir.2003).

II. "Reasonable Minds" Standard.

Summary judgment may not be granted if "reasonable minds could differ as

to the import of the evidence." Anderson v Liberty Lobby, Inc., 477 U.S. at 250,

251 (1986).

District Court's Misapplication of the Summary Judgment Standard

The movant for summary judgment "bears the initial responsibility of informing

the district court of the basis for its motion," and must identify "those portions of [the

record] which it believes demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Ifthe movant satisfies its burden,

the nonmovant must respond by submitting evidentiary materials that "set out specific

facts showing a genuine issue for trial." Fed.R.Civ.P.56(e)(2).

Where a moving party fails to meet its initial burden, "the onus never

passe[s]" to the non-moving party. Handeen v. Lemaire, 112 F.3d 1339, 1346-7

(8th Cir. 1997).

21

In determining whether summary judgment is appropriate, a court must look at

the record and any inferences to be drawn from it in the light most favorable to the

nonmovant. Anderson, 477 U. S. at 255; Enterprise Bank v. Magna Bank of Missouri,

92 F.3d 743, 747 (8th Cir. 1996).

A genuine issue of material fact exists if: (1) there is a dispute offact; (2) the

disputed fact is material to the outcome of the case; and (3) the dispute is genuine in

that a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v.

Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

The issue of material fact required to proceed to trial, is not required to be

resolved conclusively in favor of the non-moving party; rather, all that is required is

that sufficient evidence supporting the claimed factual dispute be shown to require a

jury to resolve the parties' differing versions ofthe truth. See, Anderson, 477 U.S. at

248-49 citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-

89 (1968).

The United States Supreme Court has many times reiterated that the trial court's

sole function on summary judgment is to determine whether disputed fact issues exist;

it may not weigh the evidence and determine the truth ofthe matter. See Anderson. 477

U.S. at 2510-11; United States v. Diefold, Inc., 369 U.S. 654 (1962).

22

The District Court ignored the summary judgment standard on all of Plaintiffs'

claims, and without exception on each of Appellants' claims, the Court weighed the

evidence, draw conclusions from the evidence always in favor of the Defendants. The

Court in selecting certain statements of Plaintiffs and third parties for discussion,

analyzed the "context" of the statements and in each example drew all inferences in

favor of the Defendants. The degree to which the Court used this approach against

Plaintiffs in direct violation of the standard set by the U.S. Supreme Court is absolutely

shocking.

Unfortunately for Plaintiffs and other members of the public who necessarily

enter the federal court system in search of justice and accountability for abuses of

power by state and local public servants, this kind of disregard for the standard at

summary judgment has become so common that it endangers the very fabric of our

democratic society and certainly deprives plaintiffs of their right to a trial by jury under

the United States Constitution.

An example of the misuse of the standard here can be found upon brief

review ofthe actual facts available for a jury. The Court makes passing reference

to Plaintiffs' claims that the City'S demands for "Code Compliance Certifications"

are illegal (ADD00005):

"At times, properties not in compliance with the housing code were required to

23

undergo a "code compliance" inspection by the City's Office of License, Inspections, and Environmental Protection, which would evaluate the building's structure, plumbing, electrical condition, and mechanical condition. "

The Court also admitted that "Bringing a property up to the current housing

code rather than the "as built" housing code would increase the cost of compliance.

ADD000039. The Court then states, "Plaintiffs rely on Meysembourg's affidavit as

a 'particularly egregious example' of the City's intent to 'force as many illegal code

compliances as possible"'. Id. At that point, the Court begins to misstate the

evidence and abuse the summary judgment standard in order to isolate

Meysembourg's experience and claims, and then dismiss the evidence of

Defendants direct violation of State law; the Court footnotes its incorrect assertion

that "Plaintiffs offered no facts specific to Steinhauser and Brisson." ADD000039.

Steinhauser and Brisson, like Meysembourg and Johnson, presented detailed

affidavits on personal knowledge with supporting exhibits buttressing their sworn

statements (uncontested by the Defendants in their Reply) detailing Defendants

illegal demands that Plaintiffs' properties undergo a code compliance inspection

certification process to "current code" or "present code". Steinhauser Aff.,

APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887-1036. Each of

these Plaintiffs detailed the facts of Defendants' violation of the State Building

24

Code and City Minimum Maintenance Standards of Chapter 34 of the Legislative

Code by "Code Compliance" to "current" or "present" code" that removed

grandfathering" protections provide by State law and City code for existing

buildings. Plaintiffs' Joint Memorandum of Law opposing summary judgment

included numerous arguments of Plaintiffs claims concerning the Defendants

violation of State law through the "Code Compliance" certification process. Docket

258,p.2,38,39,41,56-7[04-cv-2632]. The Defendants' Reply Memorandum and its

counsel's oral argmnent, failed to mention or contest these claims and evidence.

Docket 263 [04-cv-2632].

Moreover, the Court completely ignored the uncontested testimony with four

expert reports by a Minnesota State Building Official who has spent over three

years looking at Plaintiffs' evidence and has concluded that the actions of

Defendants challenged by Plaintiffs related to the "Code Compliance Inspection

Certification" process, is in violation the State Building Code. APPll17-18,133-34.

The Court dismissed Meysembourg's "Code Compliance" inspection claims based

on an apparent exhaustion of remedies requirement that is not required under the

Fair Housing Act. ADD000040.

Another egregious example of the Court turning the summary judgment

25

standard on its head is the way the Court looked at the evidence in a light most

favorable to Defendants on Plaintiffs claims that the City had continued a working

relationship with PHA after abandoning that same working relationship with so

called "problem landlords" under PP2000, a City code enforcement program

inspectors called successful. The Court claiming to have reviewed the record,

dismissed Plaintiffs claims that evidence showed the City had closed inspection

files for PHA properties without appropriate action or follow-up inspection.

ADD000029.

Inspector Seeger testified while reviewing extensive City inspection records

of PH A properties that City inspectors repeatedly failed to conduct interim and final

safety inspections on permits for replacements of gas lines, furnaces, roofs and

other components in PHA homes. Docket 220-6,p.l, 220-7,pp17-25. Plaintiffs

also presented substantial evidence from City records, that PHA was slow to take

action when its tenants made complaints of mold, mice and rats and PHA frequently

had serious issues of non-compliance with City codes including multiple re­

inspections, frequently requiring third and fourth re-inspections. APP 115 8-1172.

The Court also failed to consider Plaintiffs' submissions of City's Truth-in­

Sale of Housing (nSH) inspection reports for PHA scattered site homes showing

26

PHA rental homes had numerous deficiencies under the City's Minimum

Maintenance Standards. APP23-105. The Court again twisted the evidence in

favor of the Defendants.

Because of space limitations here and many other matters necessary for

discussion, Plaintiffs conclude that these are mere examples of the abuse of the

summary judgment standard by the Court.

III. Did the District Court err in granting summary judgment to Defendants in light of evidence creating genuine issues of material fact for trial?

a. FAIR HOUSING ACT CLAIMS

Plaintiffs have presented evidence of disparate impact due to Defendants' violation of the Fair Housing Act

Section 3604 of the Fair Housing Act (FHA) makes it unlawful to refuse to

sell or rent to any person or discriminate in the terms, conditions, or privileges of

sale or rental of a building on the basis of race, color, religion, sex, familial status,

or national origin. 42 U.S.C. §3604(a)-(b). The FHA also makes it "unlawful to

coerce, intimidate, threaten, or interfere with any person in the exercise or

enjoyment of, or on account of his having exercised or enjoyed, or on account of his

having aided or encouraged any other person in the exercise or enjoyment of, any

right granted or protected by" section 3604. Id. §3617. See CBOCS West, Inc. v

Humphries, 128 S. Ct. 1951 (2008) (summary judgment analysis under 42 U.S.C. §

27

1981 which encompasses an action claiming retaliation, involving post-contract and

also parallel to property rights). Plaintiffs claim that in many cases Defendants

retailitated against them for renting to "protected classes," for challenging the

Defendants' heavy-handed code enforcement, abuses of power, and violations of

law, and for bringing claims in this Court to vindicate their rights and hold

Defendants accountable for their abuse of public trust and authority.

Plaintiffs have shown a per se unlawful policy facially neutral policy results

in, or can be predicted to result in, a disparate impact on protected classes compared

to a relevant population. See Darst-Webbe Tenant Ass'n Bd. v. St. Louis Hous.

Auth., 417 F.3d 898, 902 (8th Cir. 2005). If Plaintiffs make that showing,

Defendants must demonstrate that the objected-to policy has a "manifest

relationship" to legitimate, nondiscriminatory policy objectives and "is justifiable

on the ground it is necessary to" the attainment of those objectives. rd. If

Defendants make that showing, the burden shifts back to Plaintiffs to show that a

viable alternative means is available to achieve the legitimate policy objectives

without discriminatory effects. Id. at 902-03. See also Trafficante v. Metropolitan

Life Insurance Co., 409 U. S. 205 (1972); U. S. v. City of Black Jack, MO, 508 F.

2d 1179 (8th Cir.l974)(rehearing and rehearing en banc denied 1975); Huntington

28

Branch NAACP v. Town of Huntington, 844 F. 2d 926 (2nd Cir. 1988); Otero v.

New York Housing Authority, 484 F. 2d 1122 (2nd Cir.1977).

In 215 Alliance, et al. v. Andrew Cuomo. et aI., (Minnesota District Court

No. 98-64, 1999), Judge Donovan Frank determined that "in light ofthe general

crisis in availability of housing and the more-acute specific crisis of these

disadvantaged demographic groups," HUD's approval of a low-income landlord's

termination of project-based Section 8 contracts was contrary to federal

requirements APP1390, 1407. Judge Frank noted that "HUD has recognized that a

disproportionate number oflow-income tenants are minority, elderly, or disabled"

and "minority, elderly, and disabled tenants fact significant hurdles in locating

housing above and beyond the mere shortage oflow-income housing. Despite the

nominal protection of federal laws, minority tenants continue to experience

discrimination by landlords and hostility from non-integrated communities .... Any

policy which results in the displacement of low-income tenants will

disproportionately affect these particular low-income citizens whose housing

options are especially constrained." APP1407 (citing Affidavit ofJohn Cann and

HUD position papers - see APP 1409.

In its Five Year Plan for 2005, PHA admitted that there would be an adverse

29

affect on the availability of affordable housing in the community from conversion

of only 1 or 2 units in scattered site housing. APP 1325.

Plaintiffs presented the affidavits and deposition testimony of their tenants

displaced by Defendants' illegal code enforcement showing that the basis of

Plaintiffs' disparate impact claims were not merely "cost" driven, but actually were

based on the tenants' right to housing choice.

Caty Royce testified that minorities from outside Minnesota were having an

extremely difficult time locating affordable housing in the City. APP1236.

City Admissions of disparate impact

The City stated, "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." APP 1442-43.

"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." APP 1443.

In 2000, the City acknowledged that African-Americans were disproportionately

represented in emergency shelters (A-A 52%; Hispanics 16%, Whites 33%) and

30

transitional housing indicating that they were most likely to be without any housing at

all. APP1446.

Protected class members tend to have lower incomes, less expensive rental

units/homes - more likely to be renters. APP 1449.

HUD CHAS Data

HUD's 2000 Census "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%. APP1326-1332.

PHA provides the statistics 10-21-04 on waiting lists for protected class and

lists African-Americans (61 %), Whites 26%, for PHA housing with limited

turnover with 91 % in the extremely low income level. Section 8 housing as 10-21-

04, with 62% Blacks and 30% Whites with 86% at extremely low income, and low

turnover with Section 8 list closed as of 11-2002. Docket 226-40, p2,14-15.

PHA listed the strategies for addressing the shortage of affordable housing as

(1) maximize the number of units by minimizing the number of units off-line; (2)

reducing the time to renovate PHA units, (3) maintaining or increasing Section 8

31

lease-up rates by marketing to owners, (4) apply for additional Section 8 units.

These strategies of PH A, a partner of the City, demonstrate that Defendants knew

that every low-income rental unit in the city was significant in meeting the needs of

protected class tenants especially those like African-Americans disproportionately

disadvantaged in housing.

While Defendants knew PHA was trying to reduce turnover and renovation

time to get empty units back on-line, Defendants were coordinating to get

Plaintiffs' homes off-line for extended periods of time with the goal of permanent

closure. While PHA was striving to encourage the private market to invest in

Section 8, Defendants were doing everything they could to create huge

disincentives to the private housing providers for extremely low-income "protected

class" members, all contrary to the City's affirmative duty to further fair housing

choice.

The testimony of Royce, Cullen, Dawkins and others demonstrate that there was

a clear understanding by Defendants that their aggressive code enforcement would

have the predictable result it did in disparately impacting minorities, especially the

many African-Americans Plaintiffs served.

The City acknowledged the need but failed to provide the assistance

32

Plaintiffs needed to meet the City's insistence on higher and higher standards and

predictably Plaintiffs were forced to sell their properties (a result Defendant

Dawkins admitted was his goal) and tenants were forced to leave their homes.

Steinhauser Aff., APP460-656; Brisson Aff., APP767-827; Johnson Aff. APP887-

1036; Harrilal Aff., APP828-886; Docket 226-48, p.39 [05-cv-1348] [forced sale

policy].

Defendants Failed to Produce Analysis of Impediments to Fair Housing Choice and Destroyed Electronic Communications

and Other Key Documents Related to Impact

In over four years of discovery herein, Defendants failed to produce any

evidence that Defendants ever conducted a required Analysis of Impediments to

Fair Housing Choice (AI) for disclosure to the U.S. Department of Housing and

Urban Development and the public on whether the "protected class" was adversely

impacted by the City's application of its illegal policy of removing "grandfathering

rights" and application of "present code" to older homes through the City's "Code

Compliance Certification" process.

FAIR HOUSING ACT CLAIMS

Plaintiffs have presented evidence of disparate treatment due to Defendants' violation of the Fair Housing Act

The Court in looking at the "Disparate Treatment" standard, once again

33

choose which evidence to ignore. There was considerable evidence going to

intentional discrimination to meet the summary judgment standard and send

Plaintiffs' claims to the jury.

Disparate treatment, which occurs when some people are treated less favorably

than others because of their race, color, religion, sex, or national origin, "is the most

easily understood type of discrimination." Int'l Bhd. of Teamsters v. United States, 431

U.S. 324, 335 n.15 (1977). Proof of discriminatory motive is crucial to a disparate

treatment claim. Id. Plaintiffs may survive summary judgment on their disparate

treatment claims by presenting either "direct evidence" of discrimination or "creating

the requisite inference of unlawful discrimination" under the framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Griffith v. City

of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); East-Miller v. Lake County

Highway Dept., 421 F.3d 558, 563 (7th Cir. 2005) (distinguishing between "direct

evidence" and McDonnell Douglas framework in FHA context).

In the context of Plaintiffs' disparate treatment claim, "direct evidence" is not

the opposite of circumstantial evidence. See Griffith, 387 F .3d at 736. Rather, the tenn

"direct" refers to the causal strength of the proof. Id. "[D]irect evidence is evidence

'showing a specific link between the alleged discriminatory animus and the challenged

34

decision, sufficient to support a finding by a reasonable fact finder that an illegitimate

criterion actually motivated'" the adverse action. See id.

A plaintiff with direct evidence that illegal discrimination motivated the adverse

action does not need the three-part McDonnell Douglas analysis to survive surmnary

judgment, even if the strong evidence is circumstantial. See Griffith, 387 F.3d at 736.

A plaintiff who lacks evidence that clearly points to the presence of an illegal motive,

however, can only avoid swnmary judgment by creating the requisite inference of

unlawful discrimination under the McDonnell Douglas framework. Id. Under the

McDonnell Douglas framework, once the plaintiff establishes a prima facie case of

discrimination, the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its actions. See Gilbert v. Des Moines Area Cmty. ColI.,

495 F.3d 906, 914 (8th Cir. 2007). If the defendant offers a legitimate,

nondiscriminatory reason, the burden shifts back to the plaintiff to put forth evidence

showing the defendant's proffered explanation is a pretext for unlawful discrimination.

Id.

Although Plaintiffs did not cite the McDonnell Douglas case until their analysis

under their §1981 analysis, Plaintiffs still provided a three-part McDonnell Douglas

analysis in their discussion of the Fair Housing claims: the City operates with a

35

discriminatory environment and attitude in housing code enforcement, the City claims

that the actions are legitimate to achieve their policy objectives, and there is a

reasonable alternative in the PP2000 program to achieve those policy objectives

through non-discriminatory means.

But there is another ground for Plaintiffs challenge here to Defendants' illegal

conduct: Plaintiffs have uncontested direct evidence that illegal discrimination

motivated the adverse action as Defendants violation of the State Building Code shows

a discriminatory intent on it face. Defendants did not contest the opinions of Plaintiffs

expert Don Hedquist, a State Building Officials, wherein he asserted that Defendants

were in violation of State law in removing grandfathering protections for existing

buildings through the Code Compliance Certification process. Applying an illegal

policy is per se discriminatory. See City of Morris v SAX Investments, Inc., 749

N.W.2d 1, 7 (Minn.2008) (the relevant language ofthe State Building Code expresses

the legislature's specific intent to supersede municipal building codes; legislature

recognized a single, unifonn set of building standards was necessary to lower costs and

make housing more affordable); see also Minnesota Statute Section 16B.62 - State

Building Code - "The State Building Code applies statewide and supersedes the

building code of any municipality. A municipality must not by ordinance ... require

36

building code provisions regulating components or systems of any residential structure

that are different from any provision of the State Building Code").

Under the three-part McDonnell Douglas test, Plaintiffs have established

under a traditional approach a prima facie case of discrimination through the

testimony and documentation from many sources.

However, and most importantly, the Court here should seriously consider

whether there should have been a shifting of the burden at all once Plaintiffs'

presented uncontested evidence that Defendants' code compliance certification

"

policy is in direct violation to the State Building Code. How can the City's "code

compliance certification" policy not have a predictable disparate impact on

"protected classes" when it is in direct violation of State law, and Defendants failed

to contest that evidence or argument?

Even if the Court were to shift the burden to Defendants, how can the

Defendants show "bona fide government interest" in an policy that is in direct

violation of State law and in violation oflegislative intent that uniformity and fair

housing policies are promoted by the State Building Code?

In turning now to look at the prima facia requirement, Plaintiffs presented

substantial evidence to meet their initial burden.

37

Steve Johnson questioned Martin and Koehnen why they were issuing so

many orders on his rental properties; "Martin and Koehnen would frequently reply

with derogatory terms to describe my Black tenants, calling them "trouble makers,"

"out oftowners," "low life tenants," "bottom ofthe barrel," undesireable tenants,

and "The black plague come like roaches." APP 887, 893-4. Johnson was deeply

offended by these derogatory names and racist attitudes since most of his tenants

were Black Americans, it was clear to him what Martin and Keohnen meant by the

"black plague" comment. APP894.

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". APP1560-67.

Bill Cullen, former president ofSt. Paul Association of Responsible Landlords

(SP ARL) testified that Dawkins suggested to landlords that maybe the solution for the

city was to try and increase the quality of properties to the point that the lower tier of

less qualified tenants would not have places to rent - how would the landlords like it of

they didn't have to deal with tenants at the bottom ofthe market - "if all those tenants

that are at the bottom ... were no longer in St. Paul". Docket 217-25,p.l;217-26,pp.7-

9;217-27,p.14. Cullen remembers being "shocked" by Dawkins' comments. Docket

38

217-27,p.14.

Defendants knowledge of Minority Concentration in Inner City

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 ,3'd Engel Aff) down on i=er city property

owners, primarily low-income landlords with so called, "problem properties," a

definition that varied from neighborhood to neighborhood. Docket 218-17, p.17.

Caty Royce testified concerning the history of City's discriminatory

demolition of protected class housing in the Lakewood and the many examples of

where neighbors used code enforcement to get rid of her Blacks tenants. APP1217-

1256.

Successful program PP2000 and City's continuing the working relationship with Problem Property owner PHA is evidence of intentional discrimination

The City Police worked with PHA on criminal behavior issues. Both the

City and PHA considered PHA rental properties to fall within the definition of

"problem properties." However, Defendants penalized private landlords for

alleged bad behavior, and abused their code enforcement authority in their claimed

39

attempt to address bad behavior, all resulting in predictable disparate impact on

protected class tenants. APP 1117 [Hedquist Report].

City Abandoned successfully PP2000 program in Retaliation

Defendants suddenly decided to abandon the successful PP2000 Program

with private rental property owners that the inspectors called "successful".

APP428, 429-431. However the City continued its separate working relationship

with PHA, a program similar in many respects to PP2000. The abandonment of a

successful program (APP33-36) that reduced complaints, satisfactorily addressed

the interests oftenants, landlords, neighbors and the City, and the adoption of a

heavy-handed, forced sale policy surely could be viewed by a reasonable person as

retaliation against the PP2000 landlords and those who purchased their properties,

because Plaintiffs and other such landlords continued to rent to the same class of

tenants, the "protected class".

The Court also ignored the evidence that not one of the Plaintiffs received

and assistance or other resources from the City or federal government to assist them

in renovations or repairs to my older rental properties. No one from the city,

including the inspectors, ever identified for them any programs that would provide

resources needed to continue to provide affordable housing in the City. APP460;

40

657; 767; 828; 887.

City's Destruction of Written Communicatious Related to Intent, Motive

After this litigation commenced, Defendants destroyed virtually all of their written

internal and external cOlmnunications - these written communications naturally were

relevant to Plaintiffs' claims and Defendants claims of immunity. Moreover, the

destroyed written communications clearly related to intent and motive under the disparate

treatment analysis.

Frank Steinhauser:

Frank Steinhauser owned 15 rental homes with 23 rental units providing housing

primarily to very low-income women with children that were placed through the

assistance of Project Hope, a low-income tenant housing agency promoting permanent

housing options for the homeless, with partial funding from the Department of

Housing and Urban Development. APP460. More than ninety (90) percent of

Steinhauser's tenants were African-American women and children and other members

of the "protected class". Id. Steinhauser was a long-time participant in the federal

Section 8 program and during 2002 through 2004, he had three Section 8 tenants. Id.

In 1999, Steinhauser was assigned a code inspector to work with him on

reducing complaints under the City's major initiative called, "Problem Properties

2000" or "PP2000".APP.460. Complaints against Steinhauser's properties dropped

41

off considerably during and after the PP2000 program due to the working relationship

between Steinhauser and City inspectors Jeff Hawkins and later Joel Essling. rd.

During the PP2000 program, Steinhauser continued monitoring his rental properties on

a daily basis. rd ..

During 2001 through 2004, Steinhauser did not change his successful approach

to providing low-income housing under "PP2000"; he continued to frequently monitor

his rental homes, timely respond to requests from tenants, worked with City inspectors

and City police on all issues brought to his attention, and continued to invest in his

properties where necessary to maintain all properties to City codes. rd.

Councilmember Kathy Lantry has known since 1998 that Steinhauser rented

primarily to low-income African-Americans and prior to fall 2002 Lantry would

frequently call Steinhauser to inform me that neighbors of his rental properties were

complaining about his tenant; she stated that he was single handedly destroying the

property values in the neighborhoods where those rental properties were located. rd.

Starting in about the fall of2002, the City suddenly increased its code

enforcement activity on five of Steinhauser's fifteen rental homes. rd. The

increased code enforcement attention directed against his rental homes and business

included exterior and interior inspections, fabricated correction orders, shortening

42

of time lines for fixing any claimed deficiency, false condemnations and the illegal

requirement of "Code Compliance certifications" on two homes, two civil lawsuits,

a retaliation against Steinhauser after he commenced suit in this case through

criminal charges by Martin and fellow PPU member Maureen Dolan for claimed

failure to complete exterior painting during an extremely wet spring 2004. Id.

Dawkins created a "Distressed Properties" and published the list on his City

website - the list included Steinhauser's 910 6th st., 1024 Euclid, 719 Sherburne,

118 Litchfield and 953 Wilson. APP460. Steinhauser's rental properties were not

distressed in any sense as they were all occupied by African-Americans, or mixed

race couples except for one unit, were well-maintained, were cash-flowing prior to

Defendants commencement of targeting, taxes, mortgage and contract for deed

payments were current and all City charges were paid. Id. Dawkins' action injured

Steinhauser's business. Id.

LaChaka Cousette testified that Martin and Koehen made statements that

other properties of Steinhauser's were going to be condemned. APP1556-1559.

This show a predetermined outcome by PPU and Dawkins carrying Lantry's water.

Martin encourage Cousette to sue Steinhauser. Id. Cousette and her children were

displaced, having an adverse impact on the family. Id.

43

Martin, Keohen and Dawkins issued false code violations claims on

Steinhauser's 910 6th street and 1024 Euclid, when most of demanded repairs had

already been completed by time Martin Dawkins condemn duplexes. APP460.

Dawkins and Martin then demanded code compliances on both properties saying

the code compliance would be to existing code in order to reoccupy. Steinhauser

agreed to the code compliance only to learn the City would only allow re­

occupancy when a Code Compliance Certification to "present code" was

completed. That removed the grandfathering protections and resulting in significant

costs. APP460.

Steinhauser commenced suit in federal court and within a few weeks Martin

issued two criminal tags for failure to paint the outside of homes during wet spring.

A pp460. Steinhauser was required to hire attorney to defend himself at

considerable expense. Id. On the day of trial, the City simply dismissed the action.

Martin stated on a probable cause worksheet "This is the PO that has sued us in

federal court for harassment!!! APP460.

Mark Meysembourg: In November 2002, Meysembourg received correction

orders on his duplex at 970 Euclid St. after Martin and Keohnen forced entry to

both units. APP657-766. The lower unit was rented by African-Americans. Id.

44

657. Martin then issued orders to Meysembourg which included false claims of

code violations. Id. When Meysembourg challenged the entry and false orders at a

City hearing with assistance from his tenants, "Koehnen stood up and stepped into

the isle in direct line with the tenant, spread his feet, folded his arms and glared at

each tenant, all in an attempt I believe to intimidate my tenant witnesses. Id.

Koehnen continued this intimating conduct through the testimony of my tenants."

APP. Keohen has a history of using his "size" to influence situations at properties.

APP15.

Martin, Magner and Koehnen and Dawkins retaliated even though

Meysembourg had completed many of ordered repairs. APP657. Magner, Martin

and Dawkins falsely claiming the duplex had no boiler relief valve, and on that

false basis, condemned the duplex, prohibiting Meysembourg from renting the

duplex to protected class tenants. APP657. Magner, Martin and Dawkins required

a Code Compliance Certification, represented to Meysembourg "as built" when in

fact the City was using a "present code" with removal of grandfathering

protections. APP657. As a result the duplex was removed from the market for

months and Meysembourg sustained significant costs to meet the illegal demands.

Id.

45

Inspector Seeger testifies that the Code Compliance did not require any work

to the boiler. Docket 220-8,p.7-8.

Hedquist reported that the claim by Defendants was false as there were relief

valves on the boiler as required by code. APPI037. Hedquist also opined that the

claimed violations for the February 3, 2003 condemnation did not rise to the level

of a condemnable structure. APPI037 (page 19-10 report).

Kelly Brisson:

Robinson condemned Brisson's entire duplex on October 9, 2003, for five

claimed code violations related solely to the upper unit; he did not have access to

the first floor unit. APP1206-1213 (pp.203, 212, 219-222, 237-238). Robinson's

10-9-03 Condemnation Notice was copied to PHA - Section 8 - so he and NHPI

inspectors did know at the time of condemnation that the lower unit was federally

subsidized. Id. At the time ofthe Condemnation, the City considered Brisson's

duplex remodeling project to be 95% complete. APP767 (Exh 12 Brisson Aff., pg

7); APP1206-1213 (pp. 229-230).

Brisson appealed Robinson's condemnation but the City denied his appeal

and Robinson had sent it to vacant buildings and they had made it a category 2

vacant building requiring a code compliance inspection. APP 1206-12l3 (p.218).

46

Leo Sider, Brisson's Section 8 tenant testified that shortly after Robinson and

Dawkins condemned the entire duplex, Sider's disabled girlfriend moved in to the

lower unit, Sider then moved to the upstairs unit, as both units were inspected and

approved for HQS Section 8 payments. Docket 217-5, pp7-9.

Earlier in August 2003, Magner was seeking to have Brisson's rental duplex

stay in condemned status, order to vacate stay in place and building referred to

vacant buildings and a code compliance required. APP 1206-12l3 (pp.23 8-39.

Martin, Koehnen and Dawkins notices of condemnations of 297 Burgess in

July and August 2003 had stated that due to the number of violations, a code

compliance was required. APP 1206-1213. Brisson stated that many of the items

claimed by Martin and Dawkins as code violations in the summer 2003 were

actually false. APP767; APPI037(pp8-9).

Sandra Harrilal

In 2003, Harrilal purchased 704 Lawson from Ray Hessler. APP828. Thereafter,

Martin, Dawkins, Magner and Koehnen continued to consider the 704 Lawson

property a "problem property long after Hessler had sold the home. APP885.

Harrilal's tenants in 704 Lawson were African-Americans. APP828. She

registered her property with the City. Id. Harrrial also had a second rental property

47

with a Section 8 African-American from 2003-2004. Although Martin and

Dawkins had access to Harrilal' s rental registration - her Charles Street home

address - Martin and Dawkins coordinated a scheme of deliberately failing to use

proper notice methods on important code orders, civil suits, and excessive

consumption claims. APP828.

The first code notice from Martin was mailed to the rental property not

Harrilal's home and predictably Harrilal received no notice. rd. Martin and

Dawkins then prepared a civil suit against Harrilal for failure to correct claimed

deficiencies. rd. CSP posted a flyer on Harrilal's rental home showing that

Dawkins office had informed CSP that the Code Enforcement was considering

condemning the home because the City considered it to be a nuisance problem

property. Docket 212-4, p3. Harrilal had not had any nuisance activity at her rental

property since she purchased it. APP828. Dawkins and Martin orders and civil suit

papers included false claims of code violations. rd.

Harrilal was forced to defend herself in Ramsey County District and hired an

attorney to protect her interests. APP828. Harrilal made observations of her

neighborhood that there were many homes and garages in similar condition to her

rental property and homes and garages in bad condition, not like her home. rd.

48

During the civil suit, Martin continued to write orders on Harrilal's 704 Lawson

rental property and then she and Dawkins used a delayed mailing scheme whereby

postmarking and mailing of important code orders, excessive consumption of city

services and rental registration appeal information were delayed 15 or more days.

Id. The delayed mailings came after Harrilal's attorney was forced to aggressively

defend Harrilal before fellow Problem Property Unit member Maureen Dolan, a

City Prosecutor. Id. Dawkins and Martin's delayed mailing were in retaliation for

Harrilal defending her tenants and her properties interests. Although Harrilal had

been able to work with Section 8 and had passed HQS inspection on her second

rental property, as a receipt of the City's heavy enforcement and illegal notice and

false claims tactics, loss of rental income from extended code fights with Martin

and Dawkins, she was forced to sell her so-called "Problem Property" just as

Dawkins had pla=ed. APP828.

Hedquist opined that based upon his review of the evidence, both of

Harrilal's rental properties were well maintained and managed. APPI075. Hedquist

stated that his opinions were also based upon his inspections of the properties of

Harrilal and Plaintiffs, as well as visual inspection of properties of the neighbors of

Plaintiffs included Harrilal, review of photographs of homes in the City owned by

49

PHA, City officials and employees and others and his professional experience.

Hedquist stated that based upon the continued code enforcement actions from the

City, the City's lawsuit against her and related costs, the costs of time and required

repairs, and interference with her rental business, Harrilal was force to sell both her

rental properties. Id.

Steve Johnson:

Johnson's owned over 40 low-income rental properties consisting of primarily

single family and duplex rental homes located in the neighborhoods adjacent to the

City's inner core in the neighborhoods with heavy concentrations of minorities.

APP887. During 2002 through 2004, Johnson's tenants included a majority of"people

of color" and included a high percentage of Section 8 recipients. Id.

Following the illegal posting by Inspector Kalis of Johnson's 469 Whitall in

early 2003 as "vacant building" and requirement that he go through a "code

Compliance Certification, Johnson attempting to defend his rental business from

targeted and coordinated attacks on his properties and tenants through appeals. Id.

Debbie Doolittle deposition -Ms. Doolittle testified that due to Lippert's

condemnation and immediate order to vacate, she and her disabled partner were

displaced from their home they were renting from Plaintiff Steve Johnson.

50

Defendants targeted Johnson and his tenants for illegal code enforcement

through a number of coordinated schemes with corresponding illegal fees.

APP887. The evidence shows the schemes were not only illegal, but also designed

to deprive Johnson of his properties and displace large numbers of "protected class"

tenants. Defendant Kalis unlawfully declared one of his homes "vacant" when in

fact it was occupied, then demanded a "code compliance". APP887. Later Martin

and Dawkins unlawfully condemned that same home and demanded a "code

compliance" inspection certification. APP887. Defendant Lippert also unlawfully

condemned the rental home occupied by Ms. Doolitte and then demanded a "code

compliance" in violation of State law. APP887.

Johnson's Affidavit details at length the harassment and false code claims by

various Defendants including Kalis, Martin, Dawkins, Lippet and Seeley. APP887,

When Johnson attempted to appeal these abuses of power to City officials, the

harassment increased and costs of attempting to meet the Defendants unjustified

and illegal demands mounted, all raising the costs of Johnson who was providing a

valuable and necessary service to the community - providing extremely low-income

with housing. rd. The Defendants' coordinated their illegal tactics against Johnson

and his African-American tenants, and forced Johnson to sell building after

51

building to cover his increased costs from the illegal demands. rd. Johnson's

tenants also suffered through displacement from their homes. Due to Defendants

actions in repeatedly issuing false notices and orders of code violations, Johnson

and his family were forced to expend much time in defending against these illegal

actions, and thus had less time to attend to the needs of their tenants, or to meet with

and rent to other "protected class" tenants in need of housing. APP887. Johnson

details the terrible experience he went through in trying to protect his tenants'

housing rights and his property interests. rd. Defendants' "forced sale" policy was

successful against Johnson and his tenants and clearly had a disparate impact on the

protected class renting his homes. The evidence also shows that Defendants

intended to target Johnson with their illegal schemes and unlawful conduct.

b. Constitutional Rights.

§1983

Plaintiffs make claims under 42 U.S.C. §1983 for alleged violations of their

rights under the Fourteenth Amendment to the United States Constitution. Success on a

§1983 claim requires a showing of: "(1) [a] violation of a constitutional right, (2)

committed by a state actor, (3) who acted with the requisite culpability and causation to

violate the constitutional right." Shrum v. Kluck, 249 F.3d 773,777 (8th Cir. 2001).

Plaintiffs allege violations of their Fourteenth Amendment right to equal

52

protection as a result of the City's code enforcement policies. The Equal Protection

Clause of the Fourteenth Amendment requires state actors to treat similarly situated

people alike and permits state actors to treat dissimilarly situated people dissimilarly.

Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 747 (8th Cir. 2007). As

a threshold matter, Plaintiffs must establish that Defendants treated them differently

from similarly situated landlords. Id. In addition to unequal treatment, Plaintiffs must

also show intentional or purposeful discrimination. See Lewis v. Jacks, 486 F.3d 1025,

1028 (8th Cir. 2007).

The facts and evidence submitted in support of discriminatory intent to prove

their FHA claims also supports Plaintiffs § 1983 claims. The City's discriminatory

environment and attitude in housing code enforcement, force ownership change

strategy and eviction strategy were known by the City to eliminate affordable housing

and to have a disproportionate impact on protected class members.

Plaintiffs make a "class of one" equal protection argument based on the City's

preferential treatment of the St. Paul Public Housing Agency. The purpose of a class­

of-one equal protection claim is "to secure every person within the State's jurisdiction

against intentional and arbitrary discrimination, whether occasioned by express terms

of a statute or by its improper execution through duly constituted agents." Vill. of

53

Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Here, Plaintiffs presented considerable evidence that demonstrated at the

summary judgment stage, that they may prevail on their class-of-one claim before a

jury through the evidence that can reasonably be seen as proving Plaintiffs were

"intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment." rd.; see also Costello v. Mitchell Pub.

School Dist. 79,266 F.3d 916, 921 (8th Cir. 2001).

§1981 and §1982

Plaintiffs are required to show discriminatory intent to prevail on their claims

under 42 U.S.C. §§ 1981, 1982. See Dirden v. Dep't of Housing and Urban Dev., 86

F.3d 112, 114 (8th Cir. 1996).

The facts and evidence submitted in support of discriminatory treatment to prove

their FHA claims also supports Plaintiffs §1981 and §1982 claims. The City's

discriminatory environment and attitude in housing code enforcement, "forced

ownership change" strategy, eviction strategy, most importantly, illegal scheme and

policy to violate the State Building Code protections for existing building, were known

by the City to eliminate affordable housing and to have a disproportionate impact on

protected class members.

54

Plaintiffs cited and the District Court discussed 2922 Sherman Ave. Tenants'

Ass'n v. District of Columbia, 444 F.3d 673 (D.C. Cir. 2006), where the District of

Columbia's lack of explanation for how it narrowed a list of seventy-five properties

recommended for closure that were evenly distributed across the city down to five

apartment buildings located in neighborhoods having an average Hispanic population

4.4 times that of the city as a whole supported an inference of intentional

discrimination. 444 F.3d at 684.

The District Court isolated Plaintiffs' maps and failed to consider the evidence

from the FHA analysis - that the City's discriminatory environment and attitude in

housing code enforcement, force ownership change strategy and eviction strategy were

known by the City to eliminate affordable housing and to have a disproportionate

impact on protected class members. The discriminatory enviromnent Plaintiffs refer to

includes animus toward rental properties (Andy Dawkins' own statements), a

complaint based code enforcement system that has a problem with targeting people of

color (Jane Prince's email and Dawkins' memo) ,and getting rid ofthe bottom tier of

tenants and low income people in the City (Cullen's and Anderson's testimony.

c. RICO claims

Plaintiffs brought RICO claims against Defendants claiming violations of 18

55

U.S.C. § 1962(c), (d). Plaintiffs who bring claims under 18 U.S.C. § 1962(c) must

show that defendants engaged in (1) conduct (2) of an enterprise (3) through a pattern

(4) of racketeering activity. Handeen v. Lemaire, 112 F.3d 1339,1347 (8th Cir. 1997).

See also Atlas Pile Driving v. Dicon Financial, 886 F .2d. 986 (8th Cir. 1989); Abels v.

Farmers Cooperative Corp., 259 F. 3d 910 (8th Cir.2001); U.S. v. Leyden, 842 F2d.

1026 (8th Cir 1988)

"Racketeering activity" is defined in 18 U.S.C. § 1961(1), and lists as "predicate

acts" certain state law crimes, conduct that is "indictable" under various federal

provisions, and numerous other offenses. Handeen, 112 F.3d at 1353.

Plaintiffs based their RICO claims in their Complaint on seven predicate acts:

mail fraud, bank fraud, wire fraud, the Hobbs Act, tampering, bribery, and interstate

travel or transportation in aid of racketeering enterprises.

In Plaintiffs' brief, Plaintiffs added facts obtained through discovery to their

RICO claims against Defendants based upon their fraudulent scheme to illegally

deprive Plaintiffs oftheir properties and their tenants of their homes, including illegal

actions in furtherance of that scheme such as making false claims of housing code

violations, intentionally sending important City notices to wrong addresses, delaying

mailings in order to prejudice Plaintiffs, intentionally condemning buildings without a

56

basis in City codes or under State law, illegally removing "grandfathering" protections

applicable to Plaintiffs' existing buildings under of the State Building Code, and

corresponding unlawful application of "present codes" to Plaintiffs properties, with

fees and other benefits flowing to Defendants.

From the period of 2002 and thereafter, Defendants have, through a joint

enterprise, participated in conduct which qualifies as racketeering activity. Defendant

Magner engaged in excessive code enforcement and targeting properties with the intent

of forcing property owners to sell their properties. In each case, Magner enforced

numerous code violations which required thousands of dollars in rehabilitation work.

Prior to completion of the rehabilitation work, Magner approached property owners

offering to arrange for each to sell their property to either Magner or someone of

Magner's choosing. In both cases, Magner presented the property with an offer that

was grossly below market value.

Moreover, Plaintiffs have shown through uncontested testimony and other

evidence that Defendants were running a fraudulent scheme to deprive Plaintiffs of

their properties and tenants of their housing rights through Defendants use of false

code violations claims, illegal mailings that intentionally were designed by

Defendants to avoid due process notice to plaintiffs, illegal condemnations with

57

trumped up charges of code violations, illegal removal of "grandfathering"

protections and forced renovations to "present code," and intimidation and

retaliation against Plaintiffs and tenants who dared standup to Defendants abuses of

their public trust and powers or take their claims to court for protection.

City interference with the independence of the State District Court

The Defendants illegal activities went so far as to "fix" the State District

Court in their favor through secret meetings to discuss City policy, "Court buy-in,

selection of judges to preside over City prosecution against property owners

Defendants labeled as "problem property" owners.

Council President Bostrum and the City Attorney met with Chief Judge Mott

regarding Mayor Kelly's "problem properties" priority. The City Attorney was

bringing Police and Code staff to meet the Judge. Early in 2002, Dawkins was

questioning "How pull off' a "crackdown". The City needed the District Court to

"buy-in" to ensure victory. Dawkins-City Attorneys held further private meetings

with Chief Judge. City Attorney Dolan had a private meeting with housing Referee

Yanish who later presided over City initiated-promoted Tenant Remedy Cases by

Dolan against Steinhauser, Meysembourg, Brisson, Harrilal and others. After the

civil litigation proceeded to the point that Dawkins and the City were "9 for 9" in

58

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.

IV. Spoliation Motions

It was uncontested that Defendants destruction of relevant evidence occurred

long after commencement of litigation and continued over a number of years of

litigation. What is shocking is the scope of the destruction and the fact it was

carried out under the eye of Dawkins a member of the Bar. When questioned

whether he directed his staff to preserve evidence following commencement of the

Staeinhauser case in May 2004, he claims he did yet virtually all internal and

external communications of code officials, inspectors, and council members for the

relevant time periods were thereafter destroyed. Dawkins depo 20. When one

reviews the e-mails between White neighbors and Councilmember Lantry and her

staff concerning the 321 Bates Avenue four plex occupied by protected class

tenants and then reviews the 2004 letter from legal aid attorney de Stefano to the

City Council its no wonder Defendants destroyed their written communications.

The destruction ofthe electronic and paper copies of written communications

of Defendants and other key officials deprived Plaintiffs of relevant evidence going

59

to the issues of Defendants' claims of immunity, defendants" motive and intent,

Defendants' decisions to violate the State Building Code grandfathering

protections, and the City's certifications and responsibilities under FHA to conduct

analysis of impediments to fair housing, actions taken to remove said impediments

and records keeping required by HUD.

Defendants destroyed 15,000 TISH records of homes in the City including

those surrounding Plaintiffs' homes and failed to timely produce a 2006 TISH

Study by City Code Enforcement of 2005 TISH reports showing 60% of City

homes had violations and 35% with serious deficiencies. Defendants destroyed the

2001-2003 TISH reports that would show where those homes were located and the

nature of the deficiencies then claimed Plaintiffs could recreate the data by seeking

those records from over 40 TISH inspectors with the tremendous expense of same.

HUD regulations require the City to conduct a full and fair analysis of

impediments to fair housing in the City, to identify those impediments, including those

based on the City'S legislative code, rules, procedures and practices related to fair

housing and "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, and to maintain records regarding those City actions. The

60

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.

CONCLUSION

Nowhere in the District Court's Order granting summary judgment did the

District Court draw inferences in favor of Plaintiffs, nor consider whether a reasonable

juror could view the evidence differently. This disregard for the summary judgment

standard and this kind of "trial on the paper" violates Plaintiffs' Constitutional right to

trial by jury.

Plaintiffs ask this Court to reverse the District Court's grant of summary

judgment and remand the case for trial.

Dated: May 6, 2009

SHOEMAKER & SHOEMAKER, P.L.L.C.

By: s/ John R. Shoemaker John R. Shoemaker (Attorney Lic. #161561) 7900 International Drive International Plaza, Suite 200 Bloomington, Minnesota 55425 (952) 224-4610

Attorney for Plaintiffs-Appellants

61

CERTIFICATION OF COMPLIANCE WITH FRAP 32

AND CERTIFICATION OF WORD PROCESSING PROGRAM

Counsel for Plaintiffs-Appellants-prepared its brief using Microsoft Word 2003

for its word processing program. This brief contains 12,081 words. Counsel also

certifies that the attached CD has been scanned for computer viruses and there are no

viruses on the CD. The only document contained on this CD is the Appellant's Briefin

the PDF file format.

Dated: May 6, 2009 By: s/ John R. Shoemaker John R. Shoemaker, Esq.

62