Professional Documents
Culture Documents
v.
v.
_________________________________________________
TABLE OF CONTENTS..........................................................................................ii
TABLE OF AUTHORITIES....................................................................................iv
ARGUMENT.............................................................................................................1
DEFENDANTS’ RETALIATIONS………………………………………...3
ii
II. SPOLIATION - DISTRICT COURT ABUSED DISCRETION BY
MISAPPLYING SPOLIATION LAW, FINDING NO PREJUDICE
AND AWARDING NO SANCTIONS…………………………………….16
STANDARD OF REVIEW………………………………………………..16
CONCLUSION.............................................................................................37
iii
TABLE OF AUTHORITIES
Federal cases:
Dahlgren v. First National Bank of Holdrege, 533 F.3d 681 (8th Cir. 2008)…….12
Dillion v. Nissan Motor Co., 986 F.2d 263 (8th Cir. 1993)………………16, 19. 34
Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2006)………………….17
(D.N.J. 2004)……………………………………………………………………...36
U.S. v. Phillip Morris USA, Inc., 566 F.3d 1095 (D.C.Cir. 2009)…………………4
West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir.1999)……………...17
Federal Statutes:
18 U.S.C. § 1961………………………………………………………………...3, 7
42 U.S.C. § 1981…………………………………………………………………..3
42 U.S.C. § 1982…………………………………………………………………..3
v
42 U.S.C. § 1983…………………………………………………………………...3
42 U.S.C. § 3617………………………………………………………………….. 3
42 U.S.C. § 3631…………………………………………………………………...3
24 C.F.R. § 91.210(e)……………………………………………………………..29
24 C.F.R. § 91.215(h)…………………………………………………………….29
24 C.F.R. § 91.220(j)……………………………………………………………..29
24 C.F.R. § 91.225………………………………………………………………..29
Fed.R.Civ.P. 26……………………………………………………………………27
Fed.R.Evid. 401…………………………………………………………………...26
State cases:
Witzman v. Lehrman, Lehrman and Flom, 601 N.W.2d 179 (Minn. 1999)……...12
vi
Secondary Authorities:
52 A. L. R. Fed. 818………………………………………………………………..7
vii
I. Defendants’ Schemes Applicable to All Claims
A Civil Rights Case With Multiple Other State and Federal Law
Violations – Defendants’ Attempt to Rationalize By Their Claimed
Police Powers To Protecting Public Health-Safety
Defs.’Br.18.
that Plaintiffs have no evidence, all the while Defendants and their counsel
have attempted to distract the public and the Court from Defendants’
Code, despite the State Code’s history since 1974 as having field preemption
over any municipal codes that varied from the State Code. Defendants’ and
their associates have sought to take control over the City’s rental housing
the Defendants off the hook given the facts in dispute over such a scheme
with the inferences that properly could be drawn in favor of Plaintiffs. See,
1
LeMaire, 112 F.3d 1339 (8thCir.1997)(lawyers could be liable under RICO
conduct, not the title of the actor that controls and here the conduct includes
the intentional violations of field preemptive State law, under exactly the
guise of the “valid” exercise of the City’s [field preempted] police powers.
Defs.’Br.p.4-7.
Police powers for municipalities are a creature of State law, and such
imposed by the Legislature. If, as alleged and proffered here, a City exceeds
judgment arguably should have been granted by the District Court which
2
completely failed to address such excess ultra vires Code enforcement
policies and police powers, let alone the ultra vires significance of such
the favor.
Defendants’ Retaliations
against victims and witnesses, which is actionable under both Federal Fair
Housing 42 U.S.C. §3617 and for civil and criminal prosecution under
§3631 and 18 U.S.C. §1961–1962(c) and (d), as well as civil rights laws
APP292-341-Allison;APP342-415-Kubitscheks;APP435-37-Osterman;
APP438-442-Jayasuriya;APP443-56;APP457-59-Jacobs;APP460-56-
Steinhauser;APP657-66-Meysembourg;APP767-827-Brisson;APP828-886-
Harrilal;APP887-1036-Johnson;APP1286-1312-Doolittle;APP1560-67-
Anderson;APP1568-73-Miller;APP1576-79-Krahn;APP1037;1039;
1075;1117;1138-HedquistReports;APP1046-48-Brisson-Meysbourg-
Steinhauser;APP1082-91-Harrilal-Vues-Johnson; APP1138,1146-Gallagher-
Collins-Allison-Kubitschek].
3
Because it is not necessary that any or every Defendant actually
Defendants, it is black letter law that passage of an ultra vires City Code or
States v. City of Black Jack, Missouri, 508 F.2d. 1179 (8th Cir. 1974)(fair
scheme and “association in fact”); Handeen v. LeMaire, 112 F.3d 1339 (8th
RICO enterprise, and deceive courts); United States v. Phillip Morris USA,
Under the Federal Fair Housing Act, Section 3615, “…any law of a
4
Defendants’ scheme was exposed before the District Court as
under the State Building Code and civil rights laws, with illegal participation
could allow a properly instructed jury to find both liability and damages in
Osterman;438-442-Jayasuriya;443-56;457-59-Jacobs;460-56-Steinhauser;
657-66-Meysembourg;767-827-Brisson;828-886-Harrilal;887-1036-
Johnson;1286-1312-Doolittle;1560-67-Anderson;1568-73-Miller;1576-79-
5
Krahn;1037;1039;1075;1117;1138-Hedquist-Reports;1046-48-Brisson-
Meysbourg-Steinhauser;1082-91-Harrilal-Vues-Johnson;1138,1146-
Gallagher-Collins-Allison-Kubitschek].
would take control over the City’s deviant versions of the State Building
the City, whether for personal gain, the financial gain of others associated
with the scheme, or the addictive “high” control of all those City affairs such
a scheme provided.
there from, reveal that Defendants re-wrote the City’s laws and then
gerrymandered the County’s court system, so that almost nobody could ever
get a full or fair hearing on anything having to do with the subject matter
Uncontested evidence also reveals the schemers even set up their own
version of Federal Fair Housing and State Building Code Courts, in which
applying standards that deviated from those required under the field
6
preemption of the State Building Code and/or Federal Fair Housing. [See,
fact,” further buttresses Plaintiffs’ claims the District Court erred. Case law
is replete with rulings that cities and city departments and courts and state
violations that are properly pled and enforced through civil rights litigation
including the Federal Fair Housing Act, which like other civil rights law and
7
The Schemes of Defendants Completely Undercut Their Defenses
Codes, which are demonstrably at odds with and thus void in comparison
with the subject matter field preemptive Minnesota Building Code, whose
existence, subject matter terms and field preemptive force were completely
1
The District Court erred as a matter of law in not performing the
immunity analysis, but instead seemingly prepared Plaintiffs to be
sandbagged so as to prevent the exposure of public corruption “at any costs,”
even to the reputation of the District Court.
Defendants, including the City for all purposes other than RICO, were
on actual notice that: violating field preemption of State Building Code;
violating Fair Housing including City’s affirmative duty to further fair
housing, conduct “AIs” concerning the effect of City’s building codes on
“protected classes”; violating duties to provide true certifications to HUD;
violating civil rights law; preserving evidence; violating RICO and
conspiracy law; and committing such violations while employed by or
associated with the City; would constitute knowing and intentional
violations under qualified immunity standards.
8
manner outside the usual and customary data storage practices of
unbroken line of decisions dating between 1975 and 2008. City of Morris v.
preempted by state statute). This Court arguably must respect their decisions
9
as to this controlling issue of State law, which was completely ignored
Building Code – not only was summary judgment not proper, no immunity
existed for any individual Defendant or the City, as ultra vires passage or
enforcement of codes that violate the subject matter field preemption of the
State Building Code cannot protect the Defendants from further discovery,
128 S.Ct. 1951 (2008), the Plaintiffs exceeded the requirements to avoid
10
The District Court managed to reach the summary judgment by
supporters and multiple critics. It is not proper where a District Court fails to
issues.
discovery and trial on state and federal law facts in dispute, which is why
11
Hopefully, this Court is not jaded into complacency where as here the
evidence shows a City trying to escape liability for civil rights and other
who ratify it, are jointly and severally liable for injury); U. S. v. Hively, 437
government functions from those that are illegitimate, and actually illegal or
almost never the case in complex civil rights cases that summary judgment
is granted where motive, knowledge and intent are at issue. Yet it was here.
12
While the presumption may be that government actions are legal, clearly
Such a gate keeping function by the District Court is not aided when
mail evidence, the District court excluded expert affidavits sub silentio,
allowed Defendants to justify their own efforts to protect the public under
police powers they clearly do not have under field preemptive controlling
State law, and the Court in fact never discussed that State Law.
In its defense, the City submits that it has the power to enact and
enforce certain police powers related to public safety and public health, as
subject matters under its legislative code, and besides the Plaintiffs’
provisions. Defs.Br.4-7.
13
Plaintiffs’ have countered, as the St. Paul City code does not and
cannot control:
(1) there was a prior PP2000 approach that protected residents and
(2) the City only has police powers within limits allowed by the State;
(3) any police powers the City has granted unto itself that exceed
(4) precisely because they violate the field preemptive force of the
State Building Code, such ultra vires police powers are an attempt by
Thus, when analyzing the disputed facts and all inferences to be drawn in
not only violated the field preemptive State Building Code, they also
violated Federal Fair Housing, civil rights and RICO, as ‘proven’ for
summary judgment purposes by the expert reports of Don Hedquist and the
14
inferences properly drawn from the City’s factually un-denied violations of
Because Defendants’ cannot and have not defended how or why they
can violate the State Building Code’s field preemption, and further at least
de minimus any and all facts are in dispute as to such claims, no summary
mails and TISH inspection records, who was in charge of the usual and
intent, and a trial before a jury, lest a District Court be found to approve and
2
See, CJS MUNCCORP §62, CJS Municipal corporations §141
Updated June 2009 - Analysis of conflict and field preemption, dating back
years – going to actual knowledge of Defendants.
3
This includes the uncontested [completely unaddressed on summary
judgment] sworn Plaintiffs’ evidence, including Dawkins depositions
admissions and notes, implicating the local state court, City Attorney’s
Office, City Council and Dawkins in meeting to pre-determine any civil
rights, code enforcement, or Fair Housing claims before court action, in
order to fix results for Defendants, which all would have been ipso facto
violation of the State Building Code and other laws. Perhaps this evidence
could explain any pressures on the District Court and the City Attorney to
keep this case from going to trial, as somehow requiring the District Court to
violate summary judgment standards.
15
uphold precisely the type of civil rights violations properly condemned by
Defendants had:
(3) for three years during litigation, annually destroyed 5,000 to 6,000
Truth-in-Sale of Housing inspection reports (15,000-18,000 inspection
reports) of homes inspected by licensed inspectors during 2001-2003.
Standard of Review
standard. Stevenson v Union Pacific Railroad Company, 354 F.3d 739, 745
16
(8thCir.2004) (citing Dillion v. Nissan Motor Co., 986 F.2d 263, 267
(8thCir.1993).
The Court will be found to have abused its discretion, “If the court
bases its ruling on ‘an erroneous view of the law or on a clearly erroneous
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2dCir.1999).
the Court’s inherent power and duty to insure the integrity of the judicial
proceedings).
17
A spoliation sanction requires “a finding of intentional destruction
Stevenson, at 746.
the evidence destroyed was unfavorable to the party responsible for its
spoliation. E*Trade Securities, LLC v. Deutsche Bank AG, 230 F.R.D. 582,
track maintenance records after litigation was commenced and after the
18
receipt of a request for production of documents, was properly sanctioned
for showing “prejudice” from spoliation after litigation has commenced and
instruction. Id. at 749. See Dillion, 986 F.2d at 268 (“evidence which may
irrelevant or unimportant).
innocence under its routine document retention policy (sound familiar?) and
document request for track maintenance records, Union Pacific could not
19
rely on its routine document retention policy as a shield. Id. at 749-50
1393992 (S.D.N.Y. June 12, 2004) (court imposed sanctions for failing to
ADD000074; Ecf.114,pp.6-7[04-cv-2632].
20
E-data/E-mail Communications
Authority, and Human Rights Department, and Citizen Services offices, City
Ecf.114,pp.5-9-ShoemakerAff.
21
Defendants were the first party here to acknowledge the relevancy of
code enforcement files generally retained three years; (2) vacant building
reports]; and (4) Rental Registration files generally retained three years. Id.
Ecf.114,ShoemakerAff.paras.26,31,41[04-cv-2632].
22
records to Defendants’ liability expert, obtained an expert opinion that those
TISH records were relevant to the parties claims and defenses, and used
pp.13-18[04-cv-2632].
ADD000076,fn.3.
that, “Defendants also reminded Plaintiffs that they had not even asked for
the [TISH] reports until 2007, approximately two years after they first
learned of the reports, and that the City had produced all of the reports in its
Plaintiffs’ eventual inspection and use and knew that destruction of same
kept busy fighting Defendants’ motions to strike and for protective order
23
Due to Defendants’ destruction of the TISH reports that were centrally
located at Dawkins’ office, Plaintiffs were faced with a cost and time
around the Twin Cities Metro Area, with no assurance the inspectors had
each year, when the three year normal retention period applicable to both the
ADD000081. Arguably, the Court’s Order included service fees, but there
deposition transcripts ($300 each), or for Plaintiffs’ attorney fees for the
collection of 2001-2003 TISH records, all with no guarantee the City files
create that additional mountain for Plaintiffs to climb. But for Defendants’
24
destruction of centrally stored TISH reports, Plaintiffs would not have been
Court. ADD000083.
reports. ADD000064-68;80.
such.
25
Plaintiffs would have brought motions for sanctions if they had agreed, as
Mr. Shoemaker stated to Ms. Seeba in a letter dated May 15, 2007:
Ecf.217-6,p.9[-04-cv-2632].
1994 to present:
Emails both within the City and to and from third parties have been
relevant to the claims herein since 2002. …inspectors also testified to
use of the e-mail system in their work for the City. It certainly appears
…Defendants…did not take action to preserve the written
communications … for the time period prior to December 2005, ...
Ecf.217-7,p.6[-04-cv-2632].
relevant evidence for the relevant periods prior to December 2005, which
other city officials and employees and third parties, including neighborhood
26
Plaintiffs were clearly prejudiced by such destruction during this
“relevancy” under Rule 401, F.R.E. (“evidence having the tendency to make
evidence”).
were served with the Steinhauser Corrected First Amended Complaint (87
pgs) filed May 28, 2004 (Ecf.7[04-cv-2632) detailing the Plaintiffs claims
that:
(3) All inspection programs for rental homes in the City were
relevant;
27
(4) Communications between City officials and employees and third
parties were relevant;
(5) PHA had rental properties and tenants that were similar in many
respects to those of Plaintiffs and had their own inspection system;
intent and motive of Defendants on Plaintiffs’ claims that the City was
under federal law concerning the City’s building code and code enforcement
29
concerning federally mandated “AIs” concerning City building code and
costs of same and displacement effect from such illegal application of the
2000 through most of 2005, covered the period that the City suddenly
demanding older homes meet “present code” under the City’s Code
in direct violation of the State Building Code and Minnesota court decisions,
legitimate “AIs,” and how to keep the public and Plaintiffs’ in the dark about
criminal conspiracy.
30
The Court failed to consider that the written, electronic
been the best source of evidence directly bearing on all these matters and
and attorney’s fees related to bringing its motion (ADD000055) and failed to
paras88-90[04-cv-2632].
conduct when the Court acknowledged Plaintiffs may have been harmed.
evidence was so egregious that the district court abused its discretion in
31
denying Plaintiffs any of the relief requested: judgment against Defendants
and costs from March 2, 2007 through the hearing March 2008; discovery
pars.17,18,27,50,88-89)].
“bad faith,” Plaintiffs submit that Defendants conduct rose to the level of
was relevant, would have been helpful to Plaintiffs and could have led to
32
for all periods prior to December 2005, the time periods relevant to
spoliation:
“Courts must take care not to ‘hold the prejudiced party to too strict a
standard of proof regarding the likely contents of the destroyed [or
unavailable] evidence,’ because doing so ‘would subvert
the…purposes of the adverse inference and would allow parties who
have…destroyed evidence to profit from that destruction.”
33
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109
(2dCir.2002).
as to what that missing evidence may have revealed.” Kronisch v. U.S., 150
party to too strict a standard of proof regarding the likely contents of the
evidence destroyed would have been helpful to the opposing party, even if
that evidence was of “limited use,” this Court will approve sanctions
Here, the District Court determined that Plaintiffs had not shown what
34
subjects relevant to the parties claims and defenses but from a period after
the relevant claim/defense period. Under Stevenson, even if this e-data was
sanctions.
large full service law firm at their disposal. Defendants were familiar with
Court rules due to experience with litigation. Yet the District Court held that
employees and the housing inspection reports for the relevant time period
prior to December 2005 was not in “bad faith” and that the other related
federal court litigation, the Court abused its discretion in placing a heavy,
35
almost impossible burden on Plaintiffs to demonstrate they were
Plaintiffs submit that the Court should consider the serious public and
government business.
Court. The District Court has from the commencement of these cases,
downplayed and soft pedaled the claims and evidence of violations of state
36
and federal laws, court rules and the corruption by public officials-
employees, and State Court personnel, has seriously abused the summary
judgment standard, dismissed the evidence that a reasonable jury could view
Plaintiffs’ ability to hold accountable before the law, a City run by those
matter what the cost to other members of society. The message heard by all
from the District Court of Minnesota through its decisions here is that
consequences. This Court must not let this message stand without challenge.
U.S.:
CONCLUSION
(1) overturn summary judgment and remand these cases for trial on all of
Plaintiffs’ claims;
37
(2) determine that prior to trial, full discovery on spoliation and sanctions
(3) that Plaintiffs be awarded their reasonable attorney’s fees and costs due
(5) that a federal circuit judge from outside Minnesota be appointed as the
(6) such other relief that this Court determines is warranted under the
circumstances.
Respectfully submitted,
38
CERTIFICATION OF COMPLIANCE WITH FRAP 32 AND
CERTIFICATION OF WORD PROCESSING PROGRAM
Word 2003 for its word processing program. This brief contains 6,994
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
39