Monday, June 15, 2015

Supreme Court to Shame St. Paul?

Under the Fair Housing Act of 1968 (FHA), plaintiffs have been suing for fun and profit for decades. That may be about to end.

The Supreme Court is due out with an opinion any day on the 'legality' of racial disparity in housing where there was no intent to discriminate. Under the current interpretation of the '68 law, minority groups have been able to win cases based on nothing more than the "disparate impact" of housing regulations from city to city, landlord to landlord. A rule may apply equally to all, but if it somehow has an effect on a particular group, why...they ostensibly have a case. You might recall that Labor Secretary Thomas Perez had perfected the art of filing such suits using “disparate impact” analysis in his previous post as assistant attorney general at the Justice Department.

Here's a little legal background. Prior to the landmark 1971 ruling in Griggs vs. Duke Power, most cases of discrimination required actual intent. That is, a business policy that is racially neutral on its face would not be prohibited. However, in Griggs, the U.S. Supreme Court found that “even where an employer is not motivated by discriminatory intent,” he or she could still be held liable for damages if such a policy results in an ‘unequal’ impact.

The opinion, in addition to changing statutory intent, ignored the fundamental fact that every rule (or law) is bound to have a disproportionate effect on someone. Consequently, one legal absurdity that followed was a federal appeals court decision overturning legislation in Washington state that denied imprisoned felons the right to vote — allegedly due to the law’s “disparate impact” on minorities who were disproportionately represented in correctional institutions. The case was eventually reversed en banc, but you get the point.

And here is where it gets interesting as it pertains to the incestuous nature of Democratic politics in St. Paul, MN. You see, this issue should have been settled years ago when the city was set to win a landmark case, Magner vs. Gallagher, challenging its housing inspections on the basis of the so-called 'statistical disparities.' Landlords "had sued the city to prevent it from enforcing its housing code on the grounds that it disproportionately decreased the amount of housing available to minorities," according to government authorities. In fact, St. Paul had successfully argued "that the Fair Housing Act of 1968 prohibits only intentional discrimination, not neutral practices like code enforcement that happen to impact particular groups disproportionately.”

Suddenly, at the last minute, St. Paul withdrew what most observers agreed was a slam-dunk case that had already reached the highest court in the land. But why would the city do such a thing after eight years of preparation? For one reason: because the Supreme Court’s reversal of “disparate impact” theory would have amounted to a giant cease and desist order for activists everywhere exploiting this dubious civil rights tactic. Imagine, the Constitution (not to mention the plain statutory language) getting in the way of liberal litigation. So, after heeding the wisdom of University of Minnesota housing radical Myron Orfield (your tax dollars at work), former senator Walter Mondale, yes, that Walter Mondale...placed a call to St. Paul Mayor Chris Coleman urging the city to drop the case.

Coleman, however, had other issues — not the least of which were career attorneys at the federal Justice Department who were eager to recover up to $200 million in a pair of false-claims lawsuits. One, brought by businessman Fredrick Newell, charging that St. Paul “certified it was using federal funds to create jobs in low income areas for all races, when in fact it was only focused on employing minorities,” in the words of the House Oversight & Government Reform committee. Then assistant attorney Perez seized the opening and brokered the quid pro quo by contacting the city’s attorney, David Lillehaug (Gov. Mark Dayton’s second pick for the state Supreme Court). In early February 2012, the interested parties met in St. Paul and agreed, according to documents uncovered by the Wall Street Journal, that if “Justice would decline to intervene in Newell, the city would withdraw its Supreme Court case.”

To no one's surprise, once St. Paul dropped the case, the federal Department of Housing and Urban Development issued its own “disparate impact” rules allowing lawsuits based on statistics to go forward against housing projects under the FHA, regardless of intent to discriminate. The legacy of the Fair Housing Act — and its chief sponsor, Mr. Mondale — was intact.

That is, until now. A lower court has already thrown out several "disparate impact" cases stating the FHA "unambiguously prohibits only intentional discrimination." Enter SCOTUS.

Regardless of the outcome of the case, the whole sordid affair speaks volumes about not only Minnesota's Democratic elite--but a subservient news media looking the other way? Indeed, we now know that Messrs. Mondale, Lillehaug, Coleman and Orfield were more than willing to impede the wheels of justice and apply considerable political pressure in order to preserve a suspect legal tactic at the expense of a whistleblower looking out for the U.S. taxpayer. This is your state--this is your state on liberal crack.

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