CASE 0:04-cv-02632-MJD-SER Document 351 Filed 08/03/15 Page 1 of 20

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
________________________________________________________________________
Frank J. Steinhauser, III, Mark E.
Meysembourg, and Kelly G. Brisson,

Case No. 04-2632 (MJD/SER)

Plaintiffs,
vs.

PLAINTIFFS BRIEF
PER COURT ORDER
JULY 6, 2015

City of St. Paul,

Defendant.
Sandra Harrilal, Bee Vue,
Lamena Vue, and Steven R. Johnson,
d/b/a Market Group and Properties,

Case No. 05-0461 (MJD/SER)

Plaintiffs,
vs.
City of St. Paul,
Defendant.
________________________________________________________________________
Plaintiffs Frank J. Steinhauser, Mark E. Meysembourg, Kelly G. Brisson, Sandra
Harrilal, and Steve Johnson, through their undersigned counsel submit this status Brief
pursuant to the Courts July 6, 2015 Order.
INTRODUCTION
Plaintiffs filed suit May 5, 2004 after Defendant through its officials and inspectors
during 2002 through 2005 targeted their low-income rental properties with illegally
heightened housing standards and illegal code enforcement tactics and methods and other
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retaliatory tactics, including repeated false claims of code violations, illegal condemnations
of homes and removal of grandfathering protections through forced renovations to
present code under City Code Compliance Certifications in violation of the Minnesota
State Building Code, all resulting in displacement of and injuries to protected class
tenants, removal of habitable housing units, and economic losses to Plaintiffs.
During 2005 through 2008, Plaintiffs participated in extensive discovery and motion
practice including unsuccessfully seeking sanctions against the City for its admitted
destruction following commencement of the first lawsuit in 2004 of electronic
communications of Defendant officials and inspectors and thousands of relevant City
housing inspection reports of homes in St. Paul not owned by Plaintiffs.
Defendants sought summary judgment in 2008. On December 18, 2008, the Court
ordered summary judgment for Defendant and its officials and inspectors.
Plaintiffs appealed the dismissal of their claims in early 2009. On September 1,
2010, the U.S. Court of Appeals for the Eighth Circuit reversed the dismissal of Plaintiffs
Fair Housing Act (FHA) claim alleging that the Citys housing standards, policies and
actions had a disparate impact on protected class tenants occupying and looking for
housing in the City. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010), rehg en banc
denied, 636 F.3d 380 (8th Cir. 2010), cert. granted, 132 S. Ct. 548 (2011), and cert.
dismissed, 132 S. Ct. 1306 (2012).
After an unsuccessful en banc petition, the City petitioned the U.S. Supreme Court
for certiorari review and on November 7, 2011, the Supreme Court granted the Petition to
decide whether the FHA recognizes claims under a disparate impact theory, and, if so,
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whether the Eighth Circuit Court of Appeals applied the correct test to analyze the validity
of such a claim. After full briefing by the parties and numerous amici curiae in late 2011
into early 2012, the City dismissed its Petition on February 14, 2012 shortly before the oral
argument as part of a Quid Pro Quo deal wherein St. Paul agreed to dismiss its Supreme
Court appeal in Magner v. Gallagher in return for the United States agreeing not to pursue
over $200M in False Claims Act fraud claims against the City. See Congressional Report:
http://blogs.twincities.com/cityhallscoop/files/2013/05/Congress-Report-DOJ-StPaul1.pdf.
Later that year, Plaintiffs found themselves before this Court in a court ordered
settlement conference, assured that this case and trial would not be kicked down the road.
Following the unsuccessful settlement conference in 2012, the Court ordered the parties to
mediation in late 2014 with a Special Master appointed. Plaintiffs Tom Gallagher and Joe
Collins agreed to dismiss their claims for non-monetary settlement terms; the remaining
three Gallagher Plaintiffs dismissed their claims.
During late 2012 through June 2015, two additional challenges to Fair Housing Act
disparate impact liability theory came before the United States Supreme Court.
STATUS OF CASE IN RELATION TO
U.S. SUPREME COURTS JUNE 25, 2015
TEXAS DEPT. OF HOUSING v. INCLUSIVE COMMUNITIES PROJECT
and
ISSUES THE COURT SHOULD ADDRESS CONSISTENT WITH
THE SUPREME COURT DECISION
On June 25, 2015, the Supreme Court confirmed the holdings by unanimous federal
appellate courts since 1968 that disparate impact, without evidence of intentional
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discrimination, is a viable liability theory under the Fair Housing Act. Texas Dept. of
Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U. S. ____,
___ (2015) (Kennedy, Slip op. at 11, 17). The Fair Housing Act, Section 3604(a) makes
its unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any
person because of race, color, religion, sex, familial status, or national origin. 42 U.S.C.
Section 3604(a) (emphasis added).
While the Supreme Court stated that disparate impact claims should be carefully
reviewed to ensure that disparate impact causation evidence is alleged, and that the
challenged policy or action is artificial, arbitrary and unreasonable, the Court recognized
the validity of the heartland of disparate-impact liability type claims. Slip op. at 17.
The Supreme Court majority opinion in Texas Dept. of Housing describes two types
of disparate impact claims heartland disparate claims and novel disparate claims.
Slip op. at 18. The heartland disparate impact cases noted by Justice Kennedy include
lawsuits targeting zoning and occupancy limit ordinances and other housing restrictions
that unfairly exclude minorities from certain neighborhoods without sufficient
justification:
These unlawful practices include zoning laws and other housing restrictions
that function unfairly to exclude minorities from certain neighborhoods
without any sufficient justification. Suits targeting such practices reside at
the heartland of disparate-impact liability. See, e.g., Huntington, 488 U. S.,
at 1618 (invalidating zoning law preventing construction of multifamily
rental units); Black Jack, 508 F. 2d, at 11821188 (invalidating ordinance
prohibiting construction of new multifamily dwellings); Greater New
Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F. Supp. 2d
563, 569, 577578 (ED La. 2009) (invalidating post-Hurricane Katrina
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ordinance restricting the rental of housing units to only blood relative[s]

in an area of the city that was 88.3% white and 7.6% black); see also Tr. of
Oral Arg. 5253 (discussing these cases). The availability of disparateimpact liability, furthermore, has allowed private developers to vindicate the
FHAs objectives and to protect their property rights by stopping
municipalities from enforcing arbitrary and, in practice, discriminatory
ordinances barring the construction of certain types of housing units. See,
e.g., Huntington, supra, at 18.
Slip op. at 17 (emphasis added - Plaintiffs sustained damages to their property rights and
interests here).
Here in the Twin Cities, it is debatable as to the proper affordable housing solution:
build in the suburbs or build in the inner-city. The Supreme Court noted this would be a
novel claim. Id. at 18-19. This is especially true when one considers the immense unmet
demand by protected class members for housing in the increasingly gentrified inner-city
areas of St. Paul and Minneapolis and St. Pauls illegal but successful efforts to thin-out
availability of low-income rental homes since 2002.
What must not be debatable here is that Defendants illegally elevated housing
standards and illegal policies and actions do not serve a valid interest or valid
government policy. See Slip op. at 18. The evidence presented by Plaintiffs at the Rule
56 summary judgment stage demonstrates Defendant targeted Plaintiffs and other lowincome rental housing providers with illegally elevated housing standards and illegal code
enforcement methods that directly caused disproportionate displacement of protected class
members and removed habitable housing units from the housing stock disproportionately
for protected class members. See Gallagher, 619 at 829-30, 833-38.

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While the City should be allowed to maintain a housing policy if the City can
demonstrate that its policy or practice had a manifest relationship to a legitimate, nondiscriminatory policy objective and was necessary to the attainment of that objective, 619
F.2d at 834, illegal policies and actions are by their definition unnecessary to meet any
claimed legitimate policy objective in a civil society founding on the rule of law. Illegal
housing standards and illegal code enforcement methods do not serve any valid
government interest. Moreover, even a valid interest cannot justify illegal means.
Plaintiffs have conceded that a municipality has a valid interest in legitimate,
legal standards, policies and actions. Plaintiffs have not agreed that the Citys policies
and actions challenged here meet that standard at stage two of the disparate impact burden
shifting. This Court must not sanction illegal conduct by municipal officials and employees
where the evidence demonstrates knowing violation of law by City officials and employees
for over a decade.
St. Pauls has claimed that code enforcement should be categorically exempt from
disparate-impact claims. See Supreme Court Brief for the Petitioners, Magner v.
Gallagher, at 54-56. This Court should reject that claim as The FHA does not immunize
municipalities from disparate-impact claims that challenge code enforcement, nor is it
sound to infer as much given the Acts goal of promoting fair housing opportunity.
NAACP Legal Defense & Educational Fund, Inc. (LDF), amicus curiae brief at the U.S.
Supreme Court in support of Plaintiffs-Respondents opposing St. Pauls attempt to destroy
FHA disparate impact. http://www.scotusblog.com/case-files/cases/magner-v-gallagher/

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The Eighth Circuits Gallagher decision holds that St. Pauls code standards and
enforcement policies and actions can be the proper subject of a disparate impact. 619 at
833-838.
Plaintiffs challenge here to St. Pauls illegally heightened housing code standards
and illegal city code enforcement tactics is similar to the heartland of disparate-impact
liability claims as the Citys illegal housing policies and actions fall within the housing
restrictions that unfairly exclude minorities from certain neighborhoods without sufficient
justification. Slip op. at 17.
A housing disparate impact claim would certainly be novel and, without question,
fail to meet the disparate impact standard if private rental housing providers claimed that
a municipality could not enforce its legitimate codes because statistics showed protected
class members lived in the subject housing. While Defendant has consistently so
mischaracterized the legal challenges to City housing policies and actions, Plaintiffs have
never taken that absurd position.
Defendant has repeatedly claimed that all City code enforcement is a benefit to
tenants, especially to protected class tenants. That argument assumes without evidence
that the Citys standards and enforcement are with proper authority and in all ways legal.
They are not. See e.g., Builders Association of Minnesota vs. City of St. Paul, Mn. Ct.
App., July 23, 2012, No. A11-2270; Bee Vue, et al. vs. City of St. Paul, Mn. Ct. App., April
13, 2010, No. A09-531. Illegally raised housing standards and illegal code enforcement
that causes displacement and makes housing unavailable is not good for protected class

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tenants who have a disproportionately more difficult time findings affordable and available
housing and locating replacement housing upon displacement.
The Supreme Court cautioned that disparate-impact liability mandates the removal
of artificial, arbitrary, and unnecessary barriers, not the displacement of valid
governmental policies. Slip op. at 18. Defendant St. Paul illegally elevated housing
standards and illegal code enforcement methods challenged here must not be considered
by this Court as valid government policies!
Defendant has claimed that: (1) Plaintiffs do not allege the City engaged in
aggressive enforcement with respect to all low income housing in St. Paul; (2) that other
landlords who owned low income housing were not subject to aggressive enforcement;
(3) Plaintiffs do not allege that the City practiced aggressive enforcement at all of their
properties; and (4) some of Plaintiffs allegations of aggressive enforcement relate to
properties that were rented by non-protected tenants or were vacant at the time of
enforcement. See Supreme Court Brief for the Petitioners, Magner v. Gallagher, at 47-48.
Disparate impact under the FHA does not require that all protected class members
in the city must be adversely impacted by the targeted, illegally heightened housing
standards and illegal code enforcement policies and actions; the only requirement is that
members of the protected class be disproportionately and unnecessarily impacted. If all
protected class members were adversely impacted by such illegal policies and actions, it
certainly would speak strongly toward intentional discrimination.

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Burden Shifting by Eighth Circuit Court of Appeals

in Gallagher is Still Valid Law
The Eighth Circuit in Gallagher applied a three-step analysis to Plaintiffs disparate
impact claim, which under the Supreme Courts ruling in Texas Dept. of Housing is still
valid. The Supreme Court did not reject the burden shifting used by the lower courts or as
set forth by HUD in its 2013 Disparate Impact Rule. Slip op. at 4, 18-19.
The burden shifting standard applicable here has been decided by the Gallagher
Court and Defendant is barred from further challenge to that standard in these cases.
Defendant waived its claim presented the U.S. Supreme Court in 2011 and 2012 that the
burden shifting standard used by the Eighth Circuit was inappropriate. Before the U.S.
Supreme Court, Defendant City had argued that enforcement of Saint Pauls Housing
Code does not violate the Fair Housing Act even if the Act imposes disparate impact
liability, claiming that circuit courts of appeals have generally applied either a burden
shifting test or a balancing test, but the proper test was found in Wards Cove Packing Co.
v. Antonio, 490 U.S. 642 (1989).
The law of the case is a doctrine that provides that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case. See Morris v. American Nat. Can Corp., 988 F.2d 50 (1993) (citing
Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983)).
The Eighth Circuit in Morris, 988 F.2d. at 52, stated the exception to the law of the
case doctrine would apply where an intervening decision from a superior tribunal clearly
demonstrates the law of the case is wrong. The Supreme Court in Texas Dept. of Housing
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did not abandon the burden shifting standards applied by the appellate courts for over 40
years. Slip op. at 4, 18-19.
In applying the burden shifting standard in 2010, the Gallagher Court, 619 F.3d at
833-34 stated:
First, Appellants must establish a prima facie case, which requires showing
that the objected-to action[s] result[ed] in ... a disparate impact upon
protected classes compared to a relevant population. DarstWebbe Tenant
Assn Bd. v. St. Louis Hous.Auth., 417 F.3d 898, 902 (8th Cir.2005). Stated
differently, Appellants must show a facially neutral policy ha[d] a
significant adverse impact on members of a protected minority group. Oti
Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 883 (8th Cir.2003).
Appellants are not required to show that the policy or practice was
formulated with discriminatory intent. Huntington Branch, NAACP v. Town
of Huntington, 844 F.2d 926, 93435 (2d Cir.), affd, *834 488 U.S. 15, 109
S.Ct. 276, 102 L.Ed.2d 180 (1988) (per curiam); Smith v. Anchor Bldg.
Corp., 536 F.2d 231, 233 (8th Cir.1976). If Appellants establish a prima facie
case, the burden shifts to the City to demonstrate that its policy or practice
had manifest relationship to a legitimate, non discriminatory policy
objective and was necessary to the attainment of that objective. Darst
Webbe, 417 F.3d at 902 (quoting Oti Kaga, 342 F.3d at 883). If the City
shows that its actions were justified, then the burden shifts back to Appellants
to show a viable alternative means was available to achieve the legitimate
policy objective without discriminatory effects. Id. at 90203.
The Gallagher Court, 619 F.3d at 834 stated that The first component of
Appellants prima facie case is an identifiable, facially-neutral policy or practice. The
Eighth Circuit in Gallagher determined that Plaintiffs had properly identified a specific
policy or policies of Defendant for prima facie purposes to meet the first step of the burden
shifting standard. 619 F.3d at 833-34. This was not an issue in Texas Dept. of Housing and
thus the issue is settled here under the law of the case doctrine.
The Rule 56 evidence presented to the Gallagher Court demonstrates that the illegal
City housing policies and actions are artificial, arbitrary and unreasonable:
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Appellants have consistently challenged the Citys aggressive Housing Code

enforcement practices. The common denominator in Appellants affidavits,
allegations, and briefs is that the City issued false Housing Code violations
and punished property owners without prior notification, invitations to
cooperate with DNHPI, or adequate time to remedy Housing Code
violations. Punishments included fines, evictions, condemnations, revocation
of rental registrations, and the financial burden of Code Compliance
Certification. (emphasis added).
The Eighth Circuit in Gallagher provided more detail from the Rule 56 summary
judgment record concerning the Code Compliance Certification housing policy
challenged by Plaintiffs as illegal under the State Building Code:
In addition, the City used a procedure known as Code Compliance
Certification to require rental properties to meet current housing and
building standards. The contours of this procedure are unclear, but it appears
that the City required rental property owners to acquire Code Compliance
Certification if a property was remodeled or deemed a dangerous structure,
a nuisance building, or vacant. Code Compliance inspections were conducted
by the Citys Office of License, Inspections, and Environmental Protection,
which would evaluate the buildings structure, plumbing, electrical
condition, and mechanical condition. Code Compliance Certification
allegedly forced property owners to undertake expensive renovations,
especially with regard to older properties that were exempt from current
building codes under Minnesota law.
619 F.3d at 829-30. Thus, the evidence in Gallagher certainly shows the artificial,
arbitrary and unreasonable nature of Defendants illegal policies and actions.
Causation:
Substantial Showing that Citys Illegally Raised Housing Standards and Illegal
Code Enforcement Methods Caused Disparate Impact
The Supreme Court stated that a disparate impact claim relying solely on a statistical
disparity must fail if a plaintiff cannot point to a defendants policy as causing the disparity.
Slip Op, Kennedy, J., at 19-20. The Court in Gallagher, 629 F.3d at 834-35, reviewed the

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Rule 56 summary judgment record, and noted Plaintiffs claim did not rest only on
statistics, and found substantial causation evidence presented:
(c) The Citys aggressive Housing Code enforcement practices increased
costs for property owners that rent to low-income tenants. Appellants
produced at least six affidavits describing the toll that the Citys aggressive
Housing Code enforcement took on their rental business. They reported a
substantial increase in costs, resulting in evictions for tenants and forced
sales of their properties in some cases. These allegations are corroborated
by an internal memorandum from the Citys fire marshal in 1995, comparing
the Housing Code and the HQS and concluding that the Housing Code was
more strict in regard to 82% of the examined categories.
(d) The increased burden on rental-property owners from aggressive code
enforcement resulted in less affordable housing in the City. Documents from
the City and the Public Housing Authority acknowledged that any decrease
in federally assisted rental housing would reduce the amount of affordable
housing in the City. Those predictions were supported by the Citys Vacant
Buildings Report, which showed that the number of vacant homes listed in
the City rose from 367 to 1,466 between March 2003 and November 2007,
which was a nearly 300% increase. Further, Appellants submitted affidavits
from three tenants who alleged that they endured hardship when their homes
were condemned for minimal or false Housing Code violations.
See also, 05-cv-1348, Ecf 223-23, page 4, (Report of Plaintiffs expert Don Hedquist mandatory renovations under the Citys code compliance inspection process
significantly increased the costs to providers of housing to the point where forced sales and
abandonments occurred The heightened code standard has contributed to the high number
of vacant properties currently in the City; and Ecf 223-21, pages 3-15 generally).
The Eighth Circuit in Gallagher concluded that there was reasonable demonstration
of a direct causal link between the challenged facially neutral City housing policies and
actions and the disproportionate impact on protected class members, 619 F.3d at 835:
These premises, together, reasonably demonstrate that the Citys aggressive
enforcement of the Housing Code resulted in a disproportionate adverse
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effect on racial minorities, particularly AfricanAmericans. Viewed in the

light most favorable to Appellants, the evidence shows that the Citys
Housing Code enforcement temporarily, if not permanently, burdened
Appellants rental businesses, which indirectly burdened their tenants. Given
the existing shortage of affordable housing in the City, it is reasonable to
infer that the overall amount of affordable housing decreased as a result. And
taking into account the demographic evidence in the record, it is reasonable
to infer racial minorities, particularly AfricanAmericans, were
disproportionately affected by these events. See 215 Alliance v. Cuomo, 61
F.Supp.2d 879, 889 (D.Minn.1999) ([M]inority, elderly, and disabled
tenants face significant hurdles in locating housing above and beyond the
mere shortage of low-income housing 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.). Though there is not a single document that connects the dots
of Appellants disparate impact claim, it is enough that each analytic step is
reasonable and supported by evidence. (emphasis added).
The Eighth Circuit Court of Appeals in Gallagher properly applied the Rule 56
standard of review, and looked at the facts in a light most favorable to the Gallagher
housing providers. Fed. R. Civ. P. 56.
Here, St. Paul and its officials and inspectors had every opportunity to follow state
and federal law requirements but intentionally chose not to do so. The consistent legal
claim by Plaintiffs has always been that the Citys housing policies and actions were illegal
and had displaced protected class tenants and unlawfully made housing units unavailable.
Plaintiffs have continued for eleven (11) years to tell the courts and the public that
the City had illegally elevated its housing code standards, and then selectively enforced
those standards against protected class housing, that inspectors with encouragement from
City officials had falsely claimed that serious code violations existed when in fact claimed
serious violations were non-existent, that City officials and staff illegally removed State
Building code grandfathering protections with demands that older homes meet current
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codes, thereby keeping housing units off-line for extended periods of time, and that City
employees and officials had used other illegal and dirty tactics to force legitimate lowincome landlords out of business.
Imposing disparate impact liability here does not place the Defendant in a double
bind of liability. While The FHA does not put housing authorities and private
developers in a double bind of liability, subject to suit whether they choose to rejuvenate a
city core or to promote new low-income housing in suburban communities, Texas Dept.
of Housing, Slip Op, Kennedy, J., at 19, breaking the law is not a legitimate option and
claiming sanctuary for illegal housing policies is shameful conduct by City officials. The
challenged illegal policies and actions against Plaintiffs and other similar housing providers
were wide spread, not a one-time event. Texas Dept. of Housing, Slip op. at 20.
Moreover, Defendant was funded by federal housing grants during 2000 through
2005, at the very time Defendant planned, adopted and implemented its illegally elevated
housing standards and illegal code enforcement methods against Plaintiffs and other lowincome rental housing providers. As a condition of the federal funding, Defendant had a
mandatory duty to conduct an Analysis of Impediments to Fair Housing Choice (AI)
including on the specific question of whether city housing and building code policies and
actions would disparately impact minorities and the disabled. See 24 CFR 91.225(a)(1);
91.325(a)(1); and 91.425(a)(1)(I). These federal funding regulations require Defendant to
take into account building codes and enforcement for purposes of local planning and
redevelopment and to consider any adverse impact of these public sector policies and
actions on low-income housing supply. See C.F.R. 91.210(e). Defendants failure to
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conduct legitimate AIs is further reason the Gallagher Courts holding that Plaintiffs
have met their prima facie burden should stand. Defendants failure to perform the required
AI on the challenged illegal housing policies and actions leaves Plaintiffs without the
AI evidence that would have been available but for Defendants failure to follow federal
law.
Moreover, as a direct consequence of Defendants failure to conduct the required
AI on housing standards and actions, and on the illegal housing policies and actions, and
to take actions to eliminate those impediments, Defendant will not be able as a matter of
law to meet its burden at stage two. Defendants failure to conduct the required AI and
take appropriate actions to eliminate impediments, shows that its policies and actions are
not legitimate.
Claimed Rat Infestation and Lack of Heat Deliberate Falsehoods
The majority and dissenting opinions in Texas Dept. of Housing mistakenly stated
that the Magner v. Gallagher case was settled. Slip op., Kennedy, at 22; Slip op., Alito
dissenting, p. 2, fn. 1. The Gallagher, et al. Plaintiffs did not settle with St. Paul until early
this year. It was the City who dismissed its Supreme Court appeal without settlement with
any of the twelve Plaintiffs in February 2012.
Justice Alitos dissenting opinion in Texas Dept. of Housing, joined by Chief Justice
Roberts and Justices Scalia and Thomas, contains a more troubling error. Slip op., Alito
dissenting, at 1-2. The dissent misstated the Magner v. Gallagher Rule 56 summary
judgment evidence presented by the parties to this Court and the Eighth Circuit Court of
Appeals, and contained in the record before the Supreme Court. In referring to the Magner
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case that was no longer before the Court, and which had not been presented to the Court in
any event on the facts, but solely for determination of the disparate impact FHA
statutory interpretation question, the dissent in Texas Dept. of Housing looked at the
claimed evidence from Magner in a light most favorable to the City, citing St. Pauls
claimed facts as the established facts, but doing so without any support in the Rule 56
record, claiming the Citys efforts were in good faith. Slip op., Alito dissenting at 29
(As Magner shows, when disparate impact is on the table, even a citys good-faith attempt
to remedy deplorable housing conditions can be branded discriminatory.)
Whether one looks at all the evidence in a light most favorable to either party, there
is a complete lack of admissible evidence of a rat infestation or a rats nest in any of
the Steinhauser, et al. or Harrilal, et al. or Gallagher, et al. rental homes.
The Rule 56 evidence does not reveal a good-faith effort by the City.
There is also a complete lack of admissible evidence of any rat inside any of the
over 100 subject rental homes owned by the Plaintiff housing providers in these cases. The
hearsay statement of a claimed rat inside one home was made by a tenant who was behind
in rent payments, a statement made to the police and contained within a hastily concocted
police report. Case 04-cv-02632, Ecf 201-52, pp. 1-4. The City and its attorneys failed to
present to the Court any admissible evidence from that tenant (or any other tenants), from
the police officer who wrote the report, or from any other source, to support the Citys rat
infestation claim at the summary judgment stage of the litigation.
The evidence in a light most favorable to Plaintiffs demonstrated the falsity of
Defendants claims. See e.g., 05-cv-1348, Ecf 223-2, pages 1, 14-20 (910 6th Street East
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property), and pages 23-27 (1024 Euclid property). The unsubstantiated, out-of-court,
hearsay claims became rat infestation, or a rats nest, the established facts as claimed
by Justice Alito. Texas Dept. of Housing. Slip op., Alito dissenting at 1-2.
Defendant and its officials have also repeatedly claimed publicly that the City has
established there was a lack of heat in Plaintiffs rental dwellings. This claim is also a long,
often repeated lie without admissible evidence in the record in these Fair Housing cases.
There is no admissible evidence in the Rule 56 summary judgment record to support
the claim of lack of heat in the traditional sense in any of the over 100 rental properties.
The actual admissible factual evidence presented to this Court on the issue looking at
evidence in a light most favorable to Plaintiffs revealed that a licensed heating contractor
found the thermostat had been turned off and the furnace and heating system were properly
working in the housing unit claimed by the City to be without heat. See 05-cv-1348, Ecf
223-2, page 24-25, 72 (1024 Euclid); see also pages 17-18, 52 (910 6th Street East
furnaces working properly).
The dissent in Texas Dept. of Housing ignored the Supreme Courts own civil
procedural rule for review of Rule 56 summary judgments and repeated the Citys false
statements in the dissents time immortal opinion, false statements of claimed facts
knowingly broadcast by St. Paul city officials to the entire country for over a decade while
the City has delayed the Plaintiffs opportunity to present a Minnesota jury with admissible
and undisputable evidence to the contrary. If Defendant City officials truly believe
Plaintiffs were so deficient at providing rental housing in St. Paul, why is it that City

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officials have lied to the Courts and the public and tried everything for eleven years to
delay a jury trial that would finally provide the City the opportunity to prove its false facts?
Finally, Plaintiffs have presented strong evidence to meet part three of the disparate
impact burden shifting standard. Even if the City shows that its actions were justified,
Plaintiffs have shown a viable alternative means was available to achieve the legitimate
policy objective without discriminatory effects. 619 F.3d. at 834. The Gallagher Court,
619 F.3d at 837-38, noted the PP2000 code enforcement program as one identified
alternative that would meet Plaintiffs burden.

Plaintiffs also presented the Citys

preferential treatment of its sister government housing agency as another viable alternative.
Additional alternatives were available to Defendant including not violating the State
Building Code protections to property owners, avoiding illegal enforcement tactics, and
conducting a legitimate Analysis of Impediments to Fair Housing Choice looking at how
these challenged policies negatively impacted protected class housing and then taking
required action to eliminate the identified impediments/barriers. See The Consolidated
Plan regulations (24 C.F.R. 91).
Plaintiffs suffered destruction of their businesses and substantial negative impact on
their personal lives at the hands of Defendants illegal housing policies and illegal actions
that wrongfully drove them and their protected class tenants out of town. Plaintiffs bright
futures are long gone. Plaintiffs reputations were destroyed by Defendant after years
(decades for some) of hard work by Plaintiffs to create and maintain their rental business.
Now after eleven (11) years of litigation in federal court without a trial, Plaintiffs are very

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upset and disappointed to say the least that the Supreme Court would violate its own rules
to help St. Paul dodge its responsibility for its longstanding illegal policies and actions.
Plaintiffs wonder how the Supreme Court reasonably expects citizens to have
respect for the law and the court system when the Court refuses to follow its own rules.
How can citizens believe the court system is fair and impartial when the system sides with
the perpetrator of illegal acts to the determent of the victims?
Plaintiffs strongly oppose the anticipated request of Defendant to use the Supreme
Courts decision in Texas Dept. of Housing to try to muddy the waters that clearly reveal a
very real and dark image of illegal City conduct for over a decade. The illegal City housing
policies and actions have thinned-out and decreased the availability of protected class
rental homes in the City and made formerly existing rental housing units unavailable to the
thousands of protected class members in the Twin Cities.
Further delay of trial through yet another summary judgment motion (two such
motions already), or additional Eighth Circuit review, will only further deny justice to
Plaintiffs and buy City officials more time to continue their illegal policies and increase
the damage to protected class members looking for affordable and available housing.
CONCLUSION
The Supreme Courts decision and announced cautionary standard in Texas Dept.
of Housing does not negatively impact Plaintiffs disparate impact claim. Plaintiffs
disparate impact claim falls within the heartland disparate impact claims challenging
local government barriers to protected class housing that have been successfully litigated
since 1968. Illegally raised housing standards, illegal code enforcement programs, false
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claims of code violations, illegal condemnations, and illegal removal of State Building
Code authorized grandfathering protections for older homes are barriers to protected class
housing, and properly challenged under the disparate impact liability theory.
Plaintiffs have demonstrated sufficient evidence of direct causation of disparate
impact on protected class members by the challenged facially neutral housing policies and
actions. The Citys illegally elevated housing standards and illegal code enforcement
methods directed at Plaintiffs fall by definition within the artificial, arbitrary and
unreasonable policies prohibited by the Fair Housing Act.
This Court must not assist in any further delay of justice. After eleven years, the
Plaintiff housing providers are still waiting for their right to present their evidence to a
jury! Memories fade. Documents disappear. A jurys interest wanes. Eleven years is long
enough. Plaintiffs respectfully request that the Court set a jury trial for Plaintiffs claims.
Respectfully submitted.
SHOEMAKER & SHOEMAKER, P.L.L.C.

Dated: August 3, 2015

By: s/ John R. Shoemaker

John R. Shoemaker (Atty Lic. # 0161561)
Paul F. Shoemaker (Atty Lic. # 0178226)
Highland Bank Building, Suite 410
5270 West 84th Street
Bloomington, MN 55437
Attorney for Plaintiffs

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