Let me tell you about a case that involves big names, a St. Paul court case, and an apparent bit of quid pro quo.
Just when one-party domination looked safe again in Minnesota, the St. Paul scandal that dare not speak its name has reared its ugly head. And it involves a veritable who’s who of Democratic icons apparently accustomed to manipulating the legal system for political gain.
The nomination of civil-rights attorney Thomas Perez for labor secretary has raised more than a few eyebrows in the nation’s capital. Perez, who perfected the art of filing lawsuits using “disparate impact” analysis in his post as assistant attorney general at the Justice Department, has been busy explaining a particularly unctuous quid pro quo with the city of St. Paul.
Just this week, U.S. Senate Democrats were forced to postpone a confirmation vote in the Health, Education and Labor Committee.
First things first. 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, of course, ignored the 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 correction institutions.
The case was eventually reversed en banc, but you get the point. And so apparently did the highest court in the land. By most accounts, the justices were poised to rule for St. Paul in a pivotal case, Magner vs. Gallagher, challenging its housing inspections on the basis of statistical disparities.
According to the U.S. House Committee on Oversight and Government Reform, “Slumlords 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. The City argued that the Fair Housing Act of 1968 (FHA) prohibits only intentional discrimination, not neutral practices like code enforcement that happen to impact particular groups disproportionately.” Sound familiar?
So why would St. Paul ditch a slam-dunk case it had been working on for eight years? One reason: because the Supreme Court’s reversal of “disparate impact” theory would threaten not only Perez’s use of the dubious tactic, but also his ideological counterparts in Minnesota who feared the Constitution getting in the way of liberal litigation. Enter Walter Mondale. After heeding the wisdom from University of Minnesota housing activist Myron Orfield, the former senator 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, charged 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 committee.
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.”
Oh, and to no one’s surprise, the federal Department of Housing and Urban Development has since 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.
The labor nominee may yet survive, but what does this whole sordid affair say about Minnesota’s Democratic elite? 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 at the expense of a whistleblower looking out for the U.S. taxpayer.
Jason Lewis is a nationally syndicated talk-show host based in Minneapolis-St. Paul and is the author of “Power Divided is Power Checked: The Argument for States’ Rights” from Bascom Hill Publishing. He can be heard locally from 5 to 8 p.m. on NewsTalk Radio (1130-AM) and at jasonlewisshow.com.
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