Some reader comments on Magner v. Gallagher

Two readers responded to my recent post regarding PLF’s brief in Magner v. Gallagher.  The gist of the comments is the same: What St. Paul is doing here is outrageous!  How can PLF say it’s in favor of property rights and defend St. Paul’s outrageous actions?

The comments express legitimate concerns. In fact, when I first heard about this case, I looked at the 8th Circuit opinion, and I was taken aback by the extent to which onerous housing regulations were being enforced by the City of St. Paul.  For example, the court wrote that the housing director “raised inspection standards by directing DNHPI inspectors to ‘code to the max,’ that is, writing up every violation—not just what was called in—and writing up all the nearby properties—not just the reported properties.”

I am sympathetic to the plight of landlords that are forced to completely renovate their property because some newly appointed city bureaucrat decided to be a stickler.  Especially, as is the case here, the city already had an existing practice that was substantially more lenient, essentially catching the landlords — and their tenants — off guard.  And if the issue before the Supreme Court was simply “Who are the good guys here?”, I would be hard pressed not to side with the landlords.

But the issue is not that simple.  A Supreme Court decision has profound effects on the law, even decades after it is decided.  Here, the Supreme Court is presented with an extremely important issue: whether disparate impact claims are cognizable under the FHA.  That issue — and only that issue — is what PLF wrote about in its amicus brief.   While allowing the theory to go forward here would likely help the landlords state a claim for relief, the effects of allowing such a claim in the future are much, much worse.

Sometimes cases aren’t as cut and dry as we would like at PLF.  It is in those instances where it is most important to look beyond the particular facts and at the broader legal issue involved.  Magner, for better or worse, is one of those instances.  Disparate impact is a horrible legal theory that has (and continues) to discriminate against tens of thousands of individuals.  If we can prevent that theory from sinking its claws into the Fair Housing Act, we are compelled to act.