Judge Denies Whistle-Blowers' Claims in Dallas Segregation Case. Again.

Categories: Schutze

Pea_Whistle.jpg
Wikipedia Commons
A lawsuit about whose whistle this is and who blew it first.
If I'm blushing -- just the slightest tint of rose upon my gray and whiskery cheeks -- it's because my I was back in federal court again yesterday. Sort of. There was mention of me.

U.S. District Judge Reed O'Connor handed down a ruling in the Lockey and MacKenzie (Dallas segregates by race) case, and I was sort of ... well, I don't want to say a star, exactly, but, you know, front and center. I wish they'd give me some warning so I could wear my good tassel loafers on these days.

Judge O'Connor shot down an attempt by two Dallas developers to get him to reconsider an earlier dismissal of their whistle-blower case against the city. They say they caught Dallas City Hall red-handed defrauding the federal government over a decade of massive sums of desegregation money -- money they say Dallas spent to promote ... oops ... deliberate segregation. (Maybe we didn't notice the de- ?)

This is about two things. 1) At this late date in American history, is Dallas really deliberately segregating its downtown by race? Or is this an acid flashback to a Sidney Poitier movie? And, 2) Are Lockey and MacKenzie the dudes who caught Dallas doing it, in which case federal law would allow them to claim a huge reward for exposing government fraud?

See also: The Feds Say Dallas City Hall Has Promoted Racial Segregation in Housing Projects for Years

Hey. Let me come back to the Lockey and MacKenzie question in a second, because it's interesting. But first, what about the deliberate segregation thing? No, that's got to be wrong, right? This is the year 2014. Maybe City Hall goofed up and got the books all whomperjawed and forgot to add things up right and it all just came out wrong, but you're not going to tell us that Dallas City Hall, our City Hall, went out and deliberately tried to racially segregate downtown Dallas! Seg. Re. Gate? No way.

Ah, yes way. In fact, this is the really interesting thing about O'Connor's ruling yesterday. In stronger, more explicit language than the judge has used in the prior several years of litigation in this case, O'Connor suggests Lockey and MacKenzie could be right, that Dallas officials have been deliberately racially segregating the city.

In fact he names names. The main name in yesterday's opinion is that of Karl Zavitkovsky, the city's economic development director. Lockey and MacKenzie testified to the court that in 2008 when they were trying to renovate a downtown tower as apartments, "Mr. Zavitkovsky told us that Downtown Dallas is not the right place for low-income housing and that low-income housing 'is not part of the vision for Downtown Dallas.'"

They told the court they took Zavitkovsky's admonition as a big fat hint the city didn't want to see any housing projects downtown that would put more minorities in downtown, in spite of the fact that the city was using federal money dedicated to desegregation. They told the court they spent the next 15 months carrying out their own in investigation of city policies. They say it was their investigation that spurred the U.S. Department of Housing and Urban Development to launch a four-year probe of Dallas housing practices.

The HUD report on its investigation, which came out last month, agreed with Lockey and MacKenzie. It said Dallas had been doing just what they claimed -- using federal money to racially segregate downtown -- and the report credited Lockey and MacKenzie as the whistle-blowers who alerted HUD to the scam.

But back to the deliberate segregation thing. In his opinion yesterday, O'Conor said, "the Court acknowledges that Relators' personal experience with Zavitkovsky strengthens their claim to the extent it shows intentional segregation."

It doesn't say, Dallas deliberately segregated. But it comes pretty damn close -- the closest the judge has ever come so far to acknowledging that Lockey and MacKenzie have proved that much of their claim.

But then the judge goes on to say they don't get credit for being the original whistle-blowers. He says I was. Yeah, I told you about this a couple weeks ago.

See also: Dallas and Its Housing Authority Credit Me With Uncovering Their Housing Scam. I Wish.

I wrote stories about Lockey and MacKenzie's claims in 2010. The judge has basically said my stories and some stuff in The Dallas Morning News, along with an earlier housing segregation lawsuit, already blew the whistle. That's why he threw out Lockey and MacKenzie's whistleblower suit, now on appeal before the 5th U.S. Circuit of Appeals. He said they didn't whistle first, which is a requirement to claim the reward money. (If it's on appeal before the 5th Circuit, you ask, why is it back before O'Connor? Oh, sorry, good point, just a second while I go to law school. I don't know. It just is, OK?)

My reading of yesterday's opinion is that, even though I am still mentioned, I have been demoted to the status of sort of a joke, along with several other sources the judge originally claimed had blown the whistle before Lockey and MacKenzie. What the judge is really down to now is his argument that the earlier litigation, called the "Walker Case," was the real whistle.

More on that later this week. It raises all kinds of interesting questions. If Walker was such a great case, how come City Hall is still practicing deliberate racial segregation? And, look, forget me, forget Lockey, forget MacKenzie and think about the segregation thing. So next time you travel, people say, "Oh you're from Dallas. That's the city that still practices deliberate racial segregation, right?"

I know what my reaction will be. "No, no! We're the ones who shot JFK!"

o'Conner Opinion Denying Indicative by Schutze


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21 comments
atdal
atdal

The Judge states the HUD Findings, don't add anything material to what was already known by the public; this is going to be next to impossible to stand with the 5th Circuit. The HUD findings reveal discriminatory actions by City Hall never before disclosed or seen in the public sphere, much less known by the public or HUD/DOJ. 


General predicate AFFH allegations in the decades old Walker case hardly covers it. This case should absolutely get remanded. 

JackJett
JackJett

Jim....life is too short.   Wear your best tassel loafers everyday.   You deserve it. 

everlastingphelps
everlastingphelps topcommenter

Who thought that it was a good idea for the government to decide who lives where again?

holmantx
holmantx topcommenter

How can the City comply with a HUD Rule that did not exist when the projects were submitted, accepted by HUD, then built?

http://www.huduser.org/portal/affht_pt.html

And how can the City be called a liar when they must attest to the project's compliance annually, since the Rule affecting its creation subsequently changed to put it out of compliance?

The imposition of Disparate Impact as a measure, which demands a project move the race composition needle, was not set forth when the developers were denied the permit.  Hence, the City cannot be punished under a rule that did not exist at the time the project was approved or built.


The mayor needs to ask this question when he sits down at HUD Central - that beehive of activity.


P1Gunter
P1Gunter

Is this about race or is it about economic class? That's what is so confusing about this entire thing. The implication seems to be that poor = black or Hispanic, which in and of itself is a fairly racist assumption. If you go down to Pleasant Grove you'll find plenty of poor whites. Same with Oak Cliff (and no, I don't mean Bishop Arts or Kessler Park). When the "law of the land" is that poor = minority, well there is your problem. Low income doesn't mean black, it means......low income. HUD can't seem to differentiate the two.

jobe3
jobe3

So, City Hall is currently committing fraud, these guys expose it, and the Judge won't allow the case to go forward because of predicate allegations from 25 years ago in Walker; a case that did nothing to eradicate segregation, much less intentional segregation!?!?

This may be a district court ruling, but the real test is the 5th Circuit Court of Appeals!

Something tells me, a different outcome will take place there.

halldecker
halldecker

Back during the 'busing' foolishness ("I don't mind the busing,  it's what's at the end of the bus ride ...")  long-gone Federal Judge Woodrow Seals of Houston explained it this way:


"The Supreme Court has told me I have to integrate.  That's my job.  If the races don't live conveniently next to each other,  then I have to figure out another way to do it."


The Walker case found tax dollars were being used to support segregated housing.  HUD wanted tax dollars spent to integrate downtown housing.  That would have involved subsidies.  That appears to have been opposed by City staff.


Judge Conner's background includes a half dozen years when he was a prosecutor for the US Atty for the Northern District,  but working in Washington DC for the Senate Judiciary Committee.  I assumed becoming a Federal Judge was his reward for a job well done.   Given that Repubs have gone out of their way to obstruct everything Dems/liberals have tried to do since they took back the Senate,  no great surprise at how he's ruling.


Problem is,  the Fifth Circuit,  to which Repubs won't allow Obama to place new Judges,  isn't much more inclined to help white folks trying to help non-white folks.  Am reminded of the joke Chief Justice Burger's clerks supposedly thought up,  Burger was trying to make up his mind on a case,  thinking wasn't one or his strong points,  they discussed standing outside his chambers when they knew he was working on it,  hollering,  "Mr. Chief Justice,  Petitioner is BLACK!"



d-may
d-may

This seems like as if a judge said to Edward Snowden, "No you don't get whistle blower status because practically everything you leaked was previously reported on by any number of book authors, reporters, and other whistle blowers, and CSPAN, and pretty clearly spelled out in the Patriot Act for the 7 people in the nation that read it. You were not the first, so it doesn't matter that the media didn't care about it until you said something."

animas
animas

As usual, in DFW-it's all about politics- at the expense of implementing rational or equitable policy.  Good work Jim!

holmantx
holmantx topcommenter

A swing and a miss!  Maybe the Justice Department can get it moved to the 9th Circuit?

Dallas segregates by income and class, fair and square like the rest of the metros do.

(Maybe we didn't notice the de- ?)  do you mean, money they say Dallas spent to liberate segregation?  By class and income?

Notice the DMN Ed Board rolled out its tsk tsk this week.  But they swerved into it.  Check out the picture.  http://tinyurl.com/kojng77 Looks like only one race is represented.  Where's the rest of the poor?  The "protected classes" HUD NUTs speak so fondly of (codewords)?  Looks like its all about one race now, doesn't it?  Which is what this is really about.  Forget the rest of those unlucky poor not so anointed.

"O'Connor suggests Lockey and MacKenzie could be right, that Dallas officials have been deliberately racially segregating the city."

Not OUR South Dallas politicians!  I mean after all, pork is pork by God and we need those ten drops to fall in a South Dallas Bucket.

Otherwise, it's just a form of racism that dare not speak its name.

"O'Connor suggests Lockey and MacKenzie could be right, that Dallas officials have been deliberately racially segregating the city."

Hey man, get in line with that one.  That's why neighborhoods form in the first place - to exclude by class and income.  

"They told the court they took Zavitkovsky's admonition as a big fat hint the city didn't want to see any housing projects downtown that would put more minorities in downtown."

But they still want the big fat 25% finders fee based upon the HUD contribution denied.  Mighty white of them.  Guess they'll donate it to the poo, uh, race-baiter of their choice.

Dallas politicians are guilty of segregation all right, but not by race.

Except for the racialists who porked the system and got caught.

I know what my reaction will be. "No, no! We're the ones who shot JFK!" - good one.

except that dipshit was outa New York.

Friggin Yankees.

The Dallas taxpayer missed a bullet.

Now all that is left is for the Mayor to scmooze the HUD activists while he's in D.C. scmoozing all the other public money launderers.

TheCredibleHulk
TheCredibleHulk topcommenter

I'm not sure whether you are supposed to be the chicken, here, or the egg.

In other words, in O'Connor's view this has been an open secret for some time now, and everybody just needs to calm down.

Lorlee
Lorlee

Actually, I tried to be the whistle blower when I was the Community Development Board -- but no one would listen.  Also Jerry Killinsworth's name should come up if Zavitkowsky's does.  He was the Housing Director for all those years. 

jtothejizzle
jtothejizzle

@jobe3 


The Judge called the HUD Findings cumulative to what had already been publicly disclosed about Dallas. There is no possible way that is true. 


I agree with you; there are many problems with this ruling that 5th Circuit should remand on. 

Guesty
Guesty

@d-may You are right, but that actually is the law.  If Snowden wanted a share of a billion dollars under the false claims act for his leaks, then a court would probably say exactly that. Note that this is an imperfect example because the false claims act is about remedying fraud on the federal government, not fraud by the federal government. So Snowden would lose for a number of other reasons.


Also keep in mind, getting the public's attention doesn't matter under the false claims act (in other words, this isn't about whistle-blowing in the broadest sense).  The issue is whether you identified fraud on the federal government that the federal government didn't already know about and which it couldn't have discovered through public information.  If the federal government already knew or should have known, then the person reporting it doesn't get a piece of the action. 

Guesty
Guesty

@holmantx You seem to have missed the point.  The only issue was whether Lockey and MacKenzie can bring the claims on behalf of HUD and get a big chunk of the action for themselves. 


Judge O'Connor's opinion does not stop HUD from suing the city itself.   

JimSX
JimSX topcommenter

I think we taxpayers not only did not dodge the bullet: we're gonna look like Swiss cheese when this is said and done, Lockey and MacKenzie notwithstanding. It's fine for you, Holman, to promulgate your own theory of the law, that segregation is not segregation, just the natural and inevitable artifact of class. In fact it's OK with me if you keep saying disparate impact and HUD's strictures based on it are bullshit. But I think you agree with me here: the law of the land as promulgated in HUD policies is that economic discrimination winds up as racial discrimination. When they hand out the money, they not only say you cannot spend their money to discriminate. You cannot spend your own money to do it either. To get the money, you have to sign a contract every year swearing that your city is "affirmatively furthering fair housing," and if you still don't get what that is, HUD tells you -- racial desegregation. If you take the money and then deliberately do what they said you couldn't do while certifying you are not doing it, you are engaging in a fraud. And we taxpayers are not getting out of that one cheap, no matter who is the whistle blower.

Guesty
Guesty

@TheCredibleHulk Agreed, except for the part about everyone calming down.  What he really is saying is that Lockey and MacKenzie don't get to cash in merely for saying what everyone should have seen was right before our very eyes.  

holmantx
holmantx topcommenter

@Guesty @holmantx 

Yep, there are two independent courses of action being presented against the City.  One has been stayed temporarily.  The other the Mayor is working on.

Good luck Mr. Mayor.

holmantx
holmantx topcommenter

@JimSX  


The Law of the Land is a fine and wonderful thing indeed, but it must pass through the "legislative process" and enacted by Congress. "Affirmatively furthering fair housing" is a recent RULE CHANGE by an agency. http://tinyurl.com/kojng77 not an amendment to the Law of the Land.  And so long as the various agencies can AD HOC make law in this manner, then enforce it retroactively, Dallas (as well as the rest of the metros who have taken HUD money) will lose under the new and improved definition of Disparate Impact. It does not measure Racism.  It only measures segregation by income and class, which is real, and quite common.  So the only avenue left is the application of quotas by race, which has already been rejected by SCOTUS. Added to that is the specter of enforcing a law ex post facto. 

We cannot thwart societal racism by institutionalizing racism in law.

holmantx
holmantx topcommenter

@JimSX  


http://www.huduser.org/portal/affht_pt.html


I apologise for the previous bad link.  This should be the right one (above).

Under this administrative change, pre-existing HUD financed projects are now being measured by applying Disparate Impact statistics, which demand quotas and the application of a new interpretation (a change in the law) after the fact.

Disparate Impact, as a measurement criteria, is not set forth (or even mentioned) in Executive Order 12892.

By redefining "affirmatively furthering fair housing" with Disparate Impact as a measurement, the law was changed to the extent projects who were deemed compliant, are no longer.

The Executive Branch does not possess that power.


https://www.federalregister.gov/articles/2013/07/19/2013-16751/affirmatively-furthering-fair-housing

JimSX
JimSX topcommenter

@holmantx @JimSX  

Did you mean to link back to the News editorial as your authority? Anyway, "affirmatively furthering fair housing" is actually from a Clinton-era executive order citing the constitution and the Fair Housing Act as its authority. I think that's pretty law-of-the-land, but if you've got another story, you can always telll it to the judge.


"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in accordance with the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.) (Act), in order to affirmatively further fair housing in all Federal programs and activities relating to housing and urban development throughout the United States, it is hereby ordered as follows:"


http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/FHLaws/EXO12892

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