Legal Report, August 2015
General Counsel, Trela J. White
Assistant General Counsel, Jennifer G. Ashton
1.
Texas Department of Community Affairs v. Inclusive Communities Project,
Inc.; Case No.
13-1371, Supreme Court of the United States of America.
Fair Housing Act.
In June, the Supreme Court of the United States (SCOTUS) issued an opinion
upholding the
disparate impact theory of liability in claims brought under the Fair Housing
Act (FHA). The
FHA was passed in 1968 to “provide, within constitutional limitations, for
fair housing throughout
the [nation].” The FHA contains seven protected classes, which are prohibited
bases for discrimination:
race, color, gender, religion, disability, familial status, and national
origin. The prohibition
against discrimination applies to private and public actors, and federal,
state, and local
governments. Under a disparate impact theory of liability, a defendant may be
liable for discriminating
against a protected class when a rule, policy, or practice that is not
discriminatory on its
face and not motivated by a discriminatory purpose has a differential impact
on any of the seven
protected classes.
In this case, defendant Inclusive Communities Project, Inc. (Inclusive
Communities) claimed
under a disparate impact theory of liability that Texas Department of
Community Affairs (Texas)
discriminated against lower-income black families by establishing an
eleven-factor test to allocate
Federal Low Income Housing Tax Credits (LIHTC). Inclusive Communities argued
that
Texas’ eleven-factor test encouraged the location of affordable housing in
low-income and predominately
minority areas. The district court ruled that Inclusive Communities
demonstrated
disparate impact. The Fifth Circuit Court of Appeals upheld the decision of
the lower court and
Texas appealed to SCOTUS.
SCOTUS affirmed the lower court rulings. The majority drew parallels between
the nature of
federal employment law, which recognizes disparate impact liability, and the
FHA. Additionally,
the majority opined that Congress was aware of the federal circuit courts’
recognition of the
disparate impact theory of liability in FHA cases. Because Congress never took
action to limit the
disparate impact theory in FHA cases, the majority opined, Congress implicitly
endorsed disparate
impact. Two dissenting opinions were filed; both noted unintended policy
consequences.
Although this case reaffirmed a preexisting theory of liability, it is
important to note that as new
Community Development Block Grant program rules are finalized, HUD will have
an increased
ability to review local government ordinances for neutral policies that have a
disparate impact.
2.
Town of Gulf Stream and Wantman Group, Inc. v. Martin E. O’Boyle, et al.;
Case No. 15-
80182-CIV-MARRA of the United States District Court, Southern District of
Florida.
Public Records.
Town of Gulf Stream and Wantman Group, Inc. filed suit and alleged Defendants
violated the
Racketeer Influenced Corrupt Organizations Act (RICO). Plaintiffs claimed
Defendants filed
large numbers of frivolous public records requests that were often
intentionally inconspicuous,
followed by lawsuits when the claims were not addressed. Plaintiffs alleged
the Defendants’
public records requests were frivolous and nothing but a first step of a RICO
scheme to defraud
and extort money from Plaintiffs. The court dismissed the case on June 30,
2015 and stated Defendants’
acts did not violate RICO. The court held that threatening to sue or actually
suing
someone did not constitute a predicate act under RICO, and the filing of a
public record request
does not constitute a predicate act under RICO. The court noted that
“Plaintiffs find themselves
in a very difficult situation” and “to the extent Defendants are abusing the
rights afforded them
by the Florida public records laws, those abuses must be addressed in the
individual lawsuits
filed, or through a change in the laws by the Florida Legislature.”
This case was closed on June
30, 2015. We will continue to monitor public records litigation.
3.
Parker et al. v. American Traffic Solutions, Inc. et al., Case
No. 1:14-cv-24010-FAM of the
U.S. District Court for the Southern District of Florida.
Red Light Cameras
As a result of the outcome of City of Hollywood, etc. v. Eric Arem case, which
was reported in the
June 2015 Legal Report, class action lawsuits were filed in the U.S. District
Court for the Southern
District of Florida against eighty-one towns, the Florida Department of
Revenue, and private
red light camera operators. The lawsuits were consolidated and Plaintiffs seek
reimbursement of
fines assessed against motorists by red light camera programs. Plaintiffs
allege these fines were
unlawful. At stake is over $200 million in fines. The court previously
dismissed the matter for
lack of jurisdiction over the Florida Department of Revenue.
Recently, the court denied the local governments’ motions to dismiss many
of the drivers’
causes of action but granted the local governments’ motion to dismiss the
drivers’ procedural
due process claims. Notably, the court held that the drivers’ claims of
unjust enrichment,
a quasi-contract claim, was not barred by sovereign
immunity. Florida has only
waived immunity from tort claims. The local governments filed an
interlocutory appeal to
the U.S. Circuit Court of Appeals for the Eleventh Circuit from the order
determining local
governments were not entitled to sovereign immunity.1
We will continue to monitor this
case.
4.
Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida,
Inc. (LSS); Case
No. 1D14-5793 of the First District Court of Appeal.
Public Records
The full details of this case are contained in the January 2015 Legal Report.
Gray is a selfdescribed
public activist, who earns part of his livelihood making public records
requests on
unsuspecting private entities that do business with public agencies and then
suing them when
they fail to provide the public records to Gray’s satisfaction. Joel Chandler
helps Gray carry out
his public records requests. In this case, the trial court ruled that the
means utilized by Gray to
seek records from LSS constituted a flagrant abuse of Chapter 119 and were
designed to ambush
unsuspecting private entities. The trial court denied Gray’s complaint, which
sought attorney’s
fees and costs. Gray filed an appeal with the First District Court of Appeal.
His Initial Brief was
filed with a motion for oral argument. LSS’s Answer Brief was filed with an
unopposed motion
to supplement the record. Recently, Gray filed a Reply Brief. A date for oral
argument has yet to
be set. We will continue to monitor this case.
5.
Town of Gulf Stream, et al. vs. Palm Beach County, et al.; Case No.
4D15-1753 of the
Fourth District Court of Appeal of Florida.
Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County (the County) challenging the
method of funding
for the Office of Inspector General (the OIG Program). The current funding
method authorizes
the Board of County Commissioners to set an amount the municipalities must pay
for the OIG
Program and to bill municipalities for that amount. The municipalities contend
that the current
funding method is an unlawful tax and invades municipal home rule budgetary
authority. On
March 16, 2015, the trial court entered a Final Judgment in favor of Palm
Beach County. In May
of this year, a Notice of Appeal was filed by the municipalities in the trial
court and the County
filed a Notice of Cross Appeal. Both parties agreed to an extension of time to
file the Initial Brief
(until September 14, 2015) and the matter is in the brief writing stage. The
Florida League of
Cities considered the merits of the municipalities and has decided to petition
the appellate court
for amicus curiae (friend of the court) status.
The Florida League’s motion for amicus curiae
status on behalf of the municipalities was filed on August 7, 2015. We will
continue to monitor
this case.
1 Parker et al. v. American Traffic Solutions, Inc. et al., No.
15-_____, (11th Cir. filed Aug. 18, 2015).