June 29, 2023
Challenge to Minneapolis city source of income discrimination law based on constitutional takings claims [Link to the full brief]
STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0191
Fletcher Properties, Inc., et al.,
Appellants,
vs. City of Minneapolis,
Respondent
Poverty & Race Research Action Council, et al.,
Respondents,
HOME Line, Respondent.
BRIEF OF RESPONDENTS POVERTY & RACE RESEARCH ACTION COUNCIL AND HOUSING JUSTICE CENTER John D. Cann (#0174841)
Housing Justice Center
1774 Portland Avenue
St. Paul, MN 55104
(651) 645-7378
jcann@hjcmn.org
Attorney for Respondents Poverty & Race Research Action Council and Housing Justice Center
Kristin R. Sarff (#0388003)
Tracey N. Fussy (#0311807)
Minneapolis City Attorney’s Office
350 South Fifth Street, Room 210
Minneapolis, MN 55415
(612) 673-3919
kristin.sarff@minneapolismn.gov
tracey.fussy@minneapolismn.gov
Attorneys for Respondent City of Minneapolis
Tamara O’Neill Moreland (#278348)
Inga K. Kingland (#395801)
Larkin Hoffman Daly & Lindgren Ltd.
8300 Norman Center Drive, Ste. 1000
Minneapolis, MN 55437
(952) 835-3800
toneill@larkinhoffman.com
ikingland@larkinhoffman.com
Attorneys for Appellants
Lawrence McDonough (#0151373)
Samuel Spaid (#0390420)
Daniel P. Suitor (#0403979)
HOME Line
8011 34th Avenue S., Ste. 216
Bloomington, MN 55425
(612) 728-5770
mcdon056@umn.edu
samuels@homelinemn.org
daniels@homelinemn.org
Attorneys for Respondent HOME Line
STATEMENT OF ISSUES
I. Does the Minneapolis Ordinance, which prohibits discrimination based on a person’s receipt of public assistance, regardless of any requirements of the public assistance program, constitute a physical taking under the Minnesota Constitution?
The District court held: There is no per se physical taking as Appellants operate a business open to the public.
Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021).
Yee v. City of Escondido, Cal., 503 U.S. 519 (1992)
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
II. Does the Minneapolis Ordinance, which prohibits discrimination based on a person’s receipt of public assistance, regardless of any requirements of the public assistance program, constitute a physical taking under the Minnesota Constitution?
The District Court held: There is no regulatory taking as the Ordinance does not have a sufficiently large impact on property values, does not interfere with investment-backed expectations, and advances the public interest.
Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)
III. Is the Minneapolis Ordinance preempted by Minn. Stat. 363A.01 et seq? The District Court held: The ordinance is not preempted because the ordinance does not prohibit what the state law permits; The state law is not exclusive; and the state law does not completely occupy the field.
Edwards v. Hopkins Plaza, 783 N.W.2d 171 (Minn. App. 2010) Minn. Stat. § 363A.02 Subd. 1(b) and § 363A.04
Daniel v. City of Minneapolis, 923 N.W.2d 637 (Minn. 2019)
IV. Did the District Court abuse its discretion in granting leave to amici which had submitted proposed briefs at the same time as their motion for leave?
The District Court: Granted amici’s motion for leave.
State v. Finley, 64 N.W.2d 769 (Minn. 1964).
STATEMENT OF THE CASE
Appellants have challenged portions of the City of Minneapolis’ (Respondent) Civil Rights Ordinance (the “Ordinance”), which prohibits discrimination based on a person’s receipt of public assistance, regardless of any requirements of the public assistance program. In particular, Appellants object to having to accept rental applicants with Section 8 vouchers who do not otherwise have an objectionable rental history. While participation by owners of rental housing in the Section 8 program is voluntary under the federal program regulations, the regulations specifically state that program rules are not intended to preempt state and local laws that prohibit discrimination against voucher holders. 24 C.F.R. § 982.53(d)(2022).
Appellants rely on the U.S. Supreme Court decision in Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021) which held that regulations limiting the right of a property owner to exclude others from a business which was not open to the public was a per se physical taking in violation of the U.S. Constitution. But the Court clearly distinguished laws such as the one at issue here, limiting an owner’s right to exclude others from businesses which are open to the public.
Appellants assert, in the alternative, that the Ordinance constitutes a regulatory taking. But that argument fails because the Appellants’ own expert studies demonstrate that the Ordinance does not have a sufficiently substantial economic effect on Appellants investment backed expectations.
Appellants argue that the Ordinance is preempted by the state Human Rights Act. But the plain language of that Act clearly indicates that neither conflict nor field preemption apply. Finally, Appellants argue that the District Court abused its discretion in granting leave to participate as amici to the Housing Justice Center (HJC) and Poverty & Race Research Action Council (PRRAC) because the amici submitted their brief at the same time as their motion for leave. Appellants assert that this violates the appellate rules on amicus participation. But those rules do not apply in district court and the fact that the federal appellate rules require submission of the proposed brief at the same time as the request for leave demonstrates that permitting that procedure in district court was not an abuse of discretion.
FACTS
This brief focuses on the legal flaws in Appellants’ brief. For the most part, facts relevant to understanding these issues are incorporated in the Legal Arguments below. These are the Minneapolis Ordinance provisions that are centrally at issue: (e) Discrimination in property rights. It is an unlawful discriminatory practice for an owner, lessee, sublessee, managing agent, real estate broker, real estate salesperson or other person having the right to sell, rent or lease any property, or any agent or employee of any of these, when . . .status with regard to a public assistance program, or any requirement of a public assistance program is a motivating factor:
(1) To refuse to sell, rent or lease, or to refuse to offer for sale, rental or lease; or to refuse to negotiate for the sale, rental, or lease of any real property; or to represent that real property is not available for inspection, sale, rental, or lease when in fact it is so available; or to otherwise make unavailable any property or any facilities of real property…[Link to the full brief]
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