good morning ladies and gentlemen our first case for argument this morning is julie act against mid city national bank that's way more your honour's i'm theater to that's left on council for the defendants appellants in this matter we're here to view the process of the analysis and some of the evidence by which this kind of nation case was tried in decided this is not an ordinary condemnation case it was preceded by six months civil rights and federal housing action challenging certain conduct by the city of joliet and it was defended by allegations of violations of those statutes oh i say this is simply not simply a challenge to juliette's basic condemnation authority or action by which municipalities have broad authority to condemn for numerous public purposes but rather this case is a test of how actual results or effects and potentially discriminatory intentions will be evaluated in a context charging racial discrimination and here the trial judge chose to evaluate those claims by denying defendants a jury trial on their civil rights and federal housing act claims by excluding evidence of the sort i must counsel and i'm i'm a little perplexed by that since the judge doesn't work to resolve the fair housing act claims that appears to be still pending that matter arguments about a jury trial on a claim of hasn't been resolved at all seem rather premature it might be your honor it would be your honor if it were not for the fact that the trial judge stated in his order in his opinion which were appealing that his findings in the conversation case would be given produces united state that only one but the only thing you can appeal from is the judgment and judgment covers only the condemnation case if in the future the district judge very well your honor in the interest of making sure that we didn't overlook any issue that should be appealed we raised that here at this time as i said principally in precisely because the judge went out of his way to say that to find that his findings would be given pretty close effect and the other you know the case but it addition to that jury trial issue the trial judge here resolved this case by excluding evidence of the very sort that this court and others have held as the type of evidence that can be tray and reveal discriminatory intent evidence that is at best elusive but nevertheless real and finally and significantly the trial court relied on a settlement agreement with hide to resolve significance and determinative factual issues each of these errors is wholly apart from the trial judge error we submit of either resign result of them or otherwise ignoring compelling uncontroverted statistical evidence of disparate impact deciding public person's purpose on the basis of stale controverted and selective evidence of so called blight and only failing to consider a less discriminatory alternative especially one that says leave evergreen terrace alone make no mistake this case is about racial discrimination not simply about light or the kind of nation of property it's about the effect of the condemnation of a three they're been religious for people for example get a voucher go out can't find housing right i mean yes i have and also go in the face of a certain portion of the property that's part of the settlement i put it this way it is speculative perhaps on both in both regards however in this instance there was evidence of the absence of alternative housing there was evidence of an availability of of units to be rented with into account all the settlement are considered that is should it can be given weight but as we pointed out it was brought in over objection at the very end of this trial where the  to cross examine to effectively probe its significance it under that agreement joliet receives substantial money released from hud and we submit that even that agreement itself in effect concedes that certain that there's a need for many of these units to to remain if five hundred fifteen why not the totality of them yet but our point is that that once this document was received and reviewed admitted by the court he just latched onto it to avoid doing the balance of the federal housing act analysis and i guess i would add matter in fact the trial court at that stage divest itself of the very of the last vestige of jurisdiction even had to try this case it's not obvious where the jurisdiction lie once heard was dismissed as this court previously recognized when the when the case was initially removed hug was not in it at the time of removal but was subsequently at it and this court recognized that the presence of hide in the case was the only basis for remov of the case i respectfully submit that there is a serious question as to whether the trial court after it dismissed hug with prejudice retain jurisdiction the trouble it is what is the ground for that the normal rule is dismissed the case must be remanded there's no statute that says is there some supreme court decision requiring that the cases that the trial court relied on the pacific mean you're not asking what cases the trial court might i'm asking statute that supports that so what cases are you relying on there is a doctrine supplemental jurisdiction this does not which the court relied on this does not fall in that category and that that still requires questioning the existence of subject matter jurisdiction and i'm trying to figure out what the basis for that is i would it's not thirteen sixty seven c i would refer simply to the absence of that predicate by which exists the basic rule when so you're relying on no statute and no case law just off the top of our heads that's not a very good way to deal with subject matter  discriminatory alternative again it depends on the analysis of what's considerations might over might outweigh blight in this situation the truck court simply didn't make that analysis but the district court did reject your proposed less discriminatory alternative i find in the millions of dollars and nine years over there has failed to eradicate them like right and that the district court's finding and and i'd submit that with respect to blight we might look at what the evidence was of light and what the public interest the was asserting joliet and the district court would have you believe that this is a straightforward condemnation valving property that is allegedly blighted and uninhabitable and if this were simply  a case that it was not met with challenges that other motives were involved and other impacts were involved that would be the end of the case but light's only one consideration the still and and if if we win on that and unless this action is stayed or reversed no we don't we decided long ago that the condemnation action would be resolved first now you may disagree with our decision from back in two thousand and seven the condemnation action must be resolved first but that's water under the bridge with the point i'm making is th not the f h a case that's still pending and we submit that this court needs to address this case in order to permit there to be in order to to stop the f h a case from becoming totally are you unable to think of relief  to build new housing those are two simple remedies in the f h a case very well your honor and certainly another remedy would just simply be to leave it alone in the second circuit's huntington case and third circuit where the truck court was overwhelmingly concerned with the condition of subject properties which were boarded up houses with absentee landlords relentless crime and overcrowding and used these facts to drive its analysis but the third circuit found  such reasoning distorts the focus of the analysis of disparate impact on the f h a in contrast i'm on holiday where the properties were effectively uninhabitable evergreen terrace is currently home to hundreds of african american families and has been the last twenty plus years and juliet's case involves allegations of blight however the evidence of blight as i said med submit is at best stale and based upon conditions prior to the five million dollars in hud financed improvements which were complete in two thousand and eleven the so call react scores and and select incidents a crime a closer examination of that evidence reveals that you know major deductions from the july react several arguments and i'd like to start with what has is not really an appeal here first of all this was an eminent domain case and contrary to what my opponent said there was clear evidence of blight presented both at the time the kind of nation decision was made in two thousand and five and continuing through the date of the trial which is what the trial court ruled would be relevant as this evidence included substantial evidence  involving a failure of two separate reac inspections and the new s own expert testified that essentially the standards in the huddle reac inspections and blight standards were largely similar but it also included substantial evidence of continuing issues of mold on the property infestations of rats and cockroaches on the property severe crime issues with the security on the property except for a and this is all set forth in the court's findings so i don't quite understand how it's being asserted that the judge didn't continue that the trial court didn't consider these issues and significantly another thing that was rejected by the trial court and it's not really on appeal here is that the decision to take the property by the city of joliet was pretextual and in particular the idea that this was motivated by intentional discrimination has been rejected so all that really remains is this argument that even if not intentional that the decision to take the property would have a disparate impact on some groups specifically african americans in the city of joliet and the evidence there again is completely lacking and i think it's significant that i must say i'm a little worried that we're going to end up retrying this case in the  a result of the lack of a jury trial in the condemnation did anybody suggest to george normal that he empanel an advisory turi no your honor at it and in fact in the fact that the act that's the normal solution to this kind of problem and it's right there in rule of civil procedure thirty nine c one i find it very puzzling to have this complex fight over jury trial and potentially over preclusion and nobody asked for an advisory jury where your honor juliet's position at the time was that it should simply be tried as a kind of nation action and the  knew west at that point in time strongly opposed that solution and in fact if you look at the procedural history of this case the fair housing act claims were added to the defense as in the eminent domain case only after new supremacy clause arguments were rejected by this court and at that point in time in two thousand and nine none of this has anything to do with the rule thirty nine issue there's obviously no right to a condemnation case yes your honor and so on state law there is no right even in a condemnation action under federal law but the advisory jury used in either condemnation or federal tort claims act cases is  as this court has held the argument is in the fair housing act case and the argument becomes are these reclusive findings are or are they not and i think under partly in hosiery they are but any rate that is an issue in  joliet clan the particular part the judge is talking about is the fact that juliet always intended to keep a certain portion of the subsidize units on the property because it was joli its intent to create a mixed income neighborhood  and so if you look at that depending at page forty eight and fifty four and also juliet's proposed findings two hundred sixty eight through two seventy one and two seventy four all of which the court adopted so those are also part of the record those are also part of the findings that the court made those all set forth juliet's plans from two thousand and two onwards that always intended a certain portion of the subsidize units to be kept another significant element and really the other issue that the that the settlement agreement is cited for is the fact that hud was going to issue vouchers and is entirely speculative whether those vouchers would be used in this neighborhood nor even in joliet so they could be used anywhere they could be used anywhere your honor but first of all as to whether or not the would issue them there was never any question as to that really the settlement agreement is cumulative as to that because hud had confirmed to joliet from two thousand and five onwards and and charles williams testified at trial as did theatre tune that of yes if the property was had any subsidized units reduced vouchers would be issued to support that right but we can't know with any certainty whether the found trees would be used in joliet so this this condemnation does have a discriminatory impact because ninety percent of edgewood is african american occupants well your honor let me respond and the question is whether that whether the non pretextual blight justification is satisfactory to overcome showing of discriminatory impact what the court found was that there's no adverse effect at all from the taking because any subsidize units would be replaced by other subsidize units the vouchers unit oh i'm sorry any subsidized housing would be replaced by other subsidies other subsidized housing other forms of subsidy so the argument become which may or may not be built or used in joliet correct your honor so then the argument becomes is there any evidence that these vouchers are not usable or will be used in other locations in a way that would actually be considered second rate of effect but as robin is to you're looking at the entire chicago metropolitan area so you have to anant and most of the tenants work in joliet and this plan forces them to move to waukegan that housing is not really available of them realistically and that's why right but there is no is not evidence that there was a whole slew of landlords that were willing to accept these vouchers right there is evidence of that because if there is how difficult is that number it's relates to those who would be displaced the number of units that would potentially be replaced is two hundred forty one the evidence that we have is what has happened with vouchers in joliet today and the evidence is that of the a thousand to eleven hundred vouchers that are currently issued by the city by the housing authority for the city of joliet which actually covers all of will county is that there's an extremely high utilization rate the utilization rate is people who are issued the vouchers are they able to use them and the evidence is that it's in the high ninety's so that's one bit of information is that the right way of looking at this what's what's the available housing stock in which to use the vouchers well the rich are replacing the demolished units if you look at the of absorbing all of the displaced residents if the cooling us live option is mostly right if you look at the courts finding based on the census evidence that was presented the district court found that it was that there is enough that they can housing stock or available housing stock to use the voters based on the census records there are more than enough they can see in the city of joliet even not including well county to cover them but that also i think is it within the  price within the rental that's covered by the voucher and in fact that's an important point because the rental is based on the chicago naperville joliet metro area as a whole and the evidence is that housing costs in joliet  substantially lower on average which is one reason why if you look at what happens with vouchers there's a larger number of people who port in to the city of joliet then port out which means that they have shelters that are issued by the city of chicago or by the city of milwaukee or anywhere and they choose to move into joliet and use the voucher there and there's more people coming in that coming out which completely contradicts the idea that the new west has made that there  is a shortage of housing available in the city of joliet i would also point out that the burden was on new west to show that these vouchers would not be usable because otherwise this is very much like the inclusive communities case which says that it's really a matter of priorities for the metropolitan agency or the in that case it was it was a housing agency but here it would be the city but the city when dealing with problems such as segregation and blighted housing and all of that should have a substantial ability to decide the proper policy to deal with it and i think the inclusive communities case shows that the supreme court was concerned that the use of statistics and these fair housing act cases is being used to try to substitute somebody else's priority for a genuine fair decision by a city that i'd like to handle it one way versus another right and that goes to the question about the  issue and whether it's sufficient to overcome whatever disparate impact this condemnation would have on the african american population of joliet and that evidence seems to me is very strong at least the district court thought it was very strong and persisted even after a bunch of public money was spent to renovate this complex yes your honor and i'd also like to point out that if far as there being a right and the other issue is whether there would be a segregated effect in this case is really nothing like the situations presented in cases like huntington branch or mount holly or the arlington heights two case because unlike the cities there in those cases the various zoning laws or failure to approve a public housing project essentially removed a large portion of the african american community or maintained a basically all white community julia did a lot of expansion to the west that is the statistics there are forty five percent non hispanic white thirty five percent hispanic and about twenty five percent african american i realize it doesn't add up perfectly but so we're talking about a very diverse area and in that area if the two hundred forty one people who see vouchers if some of them elected freely that maybe they didn't want to stay where they were but wanted to move to either other parts of will county or to chicago or to tampa florida or you know wherever they might choose to move out of their own freedom that would actually have no meaningful effect on the demographics of joliet at all in fact the  expert for new west he said that his assumption was that people would use the vouchers in the same pattern as people who currently receive vouchers and when you ran those statistics the actual demographics didn't change one iota so you know the idea that this is going to have a segregated effect of the sort that has been considered a cognizable under the fair housing act is simply not the case at all well in light of the entry amounts to little statistics cited was the property more valuable because it was a section eight property if you're into prints from the federal government perhaps a higher rate than the market would have been well your honor the concern about that and why the judge held that the value of the have contract should not be considered is because when joliet is condemning the property joliet is condemning just the property and not the hat contract and if the added value that new west expert maintained was added by the existence of the hap contract was included that would essentially mean that it taking property in eminent domain they not only had to pay for the property but also for additional contract between new west and hud that wasn't even the lease on the property but was a separate contract and that is is not the case under illinois law in fact under the chicago land clarence versus darrow case the  illinois supreme court looked at a situation where the party had argued that the value of a hotel and property should have been considered and said that it should not have been admissible so that's one reason why the court was correct another reason is because it's simply not as the court said it's speculative what the value of this have contract adds and that's consistent with the testimony in the main trial because contrary to the idea that these happened rents were supposed to give above market profits to the owner it was testified by hud and by the owners that the only reason for above market rents was to pay for above market expenses and therefore there really should have been no meaningful effect and added to that the idea that they should have considered the value of other subsidised properties again you have to look at the details with respect to how these hap contracts were set what the rents were what other benefits the owner is getting this is essentially not what's looked at in a eminent domain case where you look at what a willing purchaser would pay a willing buyer but it's a situation where you're looking at what additional value the purchaser is getting also from a third party not involved in the transaction and that's why it would be speculative and  contains thousands of families with thousands more precluded from even applying to the waiting was significantly almost ninety percent of those on the waiting list are african american there's there's simply no evidence that significant that sufficient housing exist joliet to accommodate the displaced residents of evergreen terrace that will jump now this waiting list and receive vouchers the mere promise doesn't assure the voucher can be used a closer examination of the evidence a blight shows that with respect to the reaction course of evergreen terrace which in order to get a feel for the what produced a failing score with things such as broken glass on the ground a damaged retaining wall a knock out missing from an electrical panel in a boiler room recent crime cited two in the district court's opinion shots were fired from a big he got into the guard building in two thousand and ten a tenant was caught breaking into another with a screwdriver and a drill january two thousand and eleven a guest of a resident was stabbed in the parking lot the vendor two thousand and eleven and a person standing outside the gates of the property opened fire in the parking lot name in april of two thousand and twelve these were all addressed public park right and that at this time no no it's suggests that well that any public park consideration should be should be taken into consideration in connection with the maintenance of public housing which is badly needed in joliet you know finally not only did the court emphasize blight but it disregarded or excluded almost all the evidence of j discriminatory intent it excluded ignored the down zoning from the period of the one nine hundred ninety s on even though the court recognized it measured evidence about the condition of the property at that time and and  americans and that evidence why excluded it's a bench trial why not consider why not at least admit it and consider it but it was simply excluded it makes no sense it didn't have to be dealt with for that reason