Sunday Commentary: WDAAC Lawsuit Was Politically Motivated, Here’s Why

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Jason Taormino addressed some of the concerns raised by the lawsuit back in September

In yesterday’s comments one of our readers called the lawsuit a “campaign ploy.”  Another quickly responded, “You don’t know that nor do I.”

That reader is correct – we do not know that it was a campaign ploy.  He also points out that “the case was reportedly dismissed without prejudice because the Buyers’ program had not been finalized and, thus, the controversy was determined to be not yet ‘ripe’—i.e., premature.”

That point actually bolsters the case that the lawsuit was a campaign ploy – there is actually nothing that precludes it from being a campaign ploy in terms of its timing and construction, or eventually being a valid suit.

From the start here, I argued that not only was this a campaign ploy, not only was it premature (at best), but it was playing the race card.  No one likes being accused of playing the race card, but, as I believe this was a campaign ploy, I also believe that the move was made to raise a salacious accusation – that the project is discriminatory and will perpetuate racial inequities in local housing, as a means of convincing voters to vote against the project.

The problem with these types of lawsuits is exactly what we see in this case. They make accusations that are bold, unequivocal, and prejudicial – they do so in the middle of a campaign – and then the judicial system is not set up to adjudicate the matter within the brief window of a campaign, so they are in effect left to stand on their own with no benefit to the voters of the ultimate outcome.

In this case, the matter was clearly premature, whether it ultimately has merit or not. It was dismissed by mutual agreement last week and yet, even with the relatively quick resolution of at least this part of the case, it is still move than 75 days after the election was held.

While I agree we do not know for sure that this was a campaign ploy, I think the circumstantial evidence is quite strong that will lead a reasonable person to agree that a campaign ploy is a good possibility.

My first point is that you have to understand context.  The playbook to run against Measure R projects is you file a lawsuit against them – not after they are approved, but in the middle of the campaign.  That is what happened with Nishi in 2016, Nishi in 2018 and now here.  The lawsuit against Nishi in 2016 was pulverized in court – it survived summary judgment, but the judge shredded the plaintiffs in his ruling and they did not file an appeal.

The 2016 project lost, but the 2018 Nishi project and this project won at the polls.

Here is some of the evidence I have gathered that leads me to believe that this lawsuit was created by the opponents of Measure L, the plaintiff was a “put up” candidate, and the lawsuit was motivated as a tactic to defeat the project at the polls.

First, we did some basic research into just who the plaintiff of the case – Samuel Ignacio – is.  Some complained this was doxing, but the information we have uncovered is material to the issue of the lawsuit, whether the lawsuit has merit and whether the lawsuit is politically motivated.

This is no more doxing than it was when the media investigated the public record on Kevin Limbaugh after he fatally shot and killed a Davis police officer.

What we know about Mr. Ignacio is that he is Filipino, lived most of his life in Vallejo, and moved to Sacramento.  He is not a home owner.  He is not gainfully employed.  He has spent most of his life living with friends or family and does not appear to have the financial means to purchase a home at WDAAC (which would have made it really difficult for him to prevail in such a lawsuit).

The first question I had was how would he have even known about the project, let alone the Davis-Based Buyers Program, in order to have known that it would potentially discriminate against him in the first place – and then, why would he have the foresight to call a preeminent civil rights attorney and sue?

I re-examined the media record and found no references to the Davis-Based Buyers Program in media outside of Davis prior to the lawsuit being filed.  Indeed, there was only one reference, a May op-ed in the Davis Enterprise, in the Davis paper.  The Vanguard had a bunch, but unless a non-Davis resident was actually looking in Davis media sources, it is unlikely he would have found even a reference.

And that begs the question – why would he be doing that?  I guess it is conceivable, but it seems suspiciously unlikely.

He was neither a resident of Davis (a requirement to have standing to sue) nor did he have any known ties.

Moreover, it is not clear that he would ultimately have standing to sue because he might not be able to afford to purchase a home in the complex.

There is another piece.  Mark Merin told defense attorneys that he was being paid to represent Mr. Ignacio.  He did not say by whom.  But this was not pro-bono work.  Given his attorney fees, it therefore seems likely that someone other than Mr. Ignacio would had to have been paying these fees.

Again our investigation of Mr. Ignacio casts doubt on his ability to afford Mark Merin’s services.  (It also worth noting that Mr. Merin was no longer the attorney of record by the time of the dismissal).  The plaintiffs were represented by John McIntyre of the San Jose firm, Shea and McIntyre.  (Again we wonder who was assisting Mr. Ignacio to shop for an attorney, first stopping at Mark Merin in Sacramento and then San Jose attorneys).

There is further circumstantial evidence here.  The lawsuit was filed in the middle of the campaign – September 24.   It would be one thing if Mr. Ignacio went to the housing development after it was built, qualified as a buyer and then was turned down due to a Davis-Based Buyers Program provision.  He would not only have a ripe claim, but it would demonstrate potential discriminatory aspects of the rule.

In this case, there is nothing built, he would have had to have learned about this somehow and decided to sue.  And just so happen to do so in the middle of a heavily disputed housing development in a community he had no ties to, a few days after Rik Keller ran a series of articles on discriminatory housing practices in Davis – and oh, by the way, the complaint just happens to borrow heavily from said series of articles.

Could it have all been by chance?  It’s possible.  But the circumstantial evidence here seems fairly overwhelming when you consider the timing, the history of litigation being used in Measure R campaigns as a campaign weapon, the lack of the plaintiff’s ties to the community, the lack of publicity outside of the city of Davis about this program, and the plaintiff’s lack of means and possible lack of standing.

Add it all up and the case seems very strong that Mr. Ignacio was recruited to file a lawsuit – what we don’t know at this time is who paid Mr. Merin’s legal bills, but there may be ways to find that out eventually as well, which should tie most of the loose ends together.  Even without that piece, the circumstantial evidence is fairly strong in this one.

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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31 thoughts on “Sunday Commentary: WDAAC Lawsuit Was Politically Motivated, Here’s Why”

  1. PhilColeman

    Above is an example of a fine piece of investigative journalism no longer found in conventional media. The research on the plaintiff was compelling. Were Ignacio to agree to an interview on many of the lingering questions that still remain, the results would be fascinating. That will never happen as Ignacio would never voluntarily submit to personal scrutiny, “on advice of (paid) counsel.”

    Mark Merlin is depicted as a celebrated civil rights attorney. His reputation suffered mightily with this transparent and shabby legal effort. Don’t kid yourself, all judges chat among themselves and form judgments outside the courtroom on the skill-set and motivation of attorneys who appear before them. One can understand why an alternate law firm a hundred miles away had to appear in court to get their collective heads handed to them.

    Let’s all hope that the source of Mark Merlin’s compensation is learned and published. As the saying goes, “Follow the money.” Plaintiff should request a refund, except for the fact he never paid the retainer. And why Merlin mentioned he was being paid to opposing counsel was a blunder not commonly associated with someone who wears the adjective, “preeminent.”

    The lawsuit was contrived, alleging a possible future act of racial discrimination and deliberately timed to cast a shadow on a pending poll of the electorate. Filipinos and the Davis Community were “used.” Our publicly funded judicial branch of government was deceitfully mobilized for a baseless allegation of racism, casting a cynical shadow on a legitimate legal alternative meant for the millions of others who have just legal cause for alleging racism. Small wonder no reputable attorney in Yolo County would accept this case.

  2. Matt Williams

    David Greenwald said . . .  The problem with these types of lawsuits is exactly what we see in this case. They make accusations that are bold, unequivocal, and prejudicial – they do so in the middle of a campaign – and then the judicial system is not set up to adjudicate the matter within the brief window of a campaign, so they are in effect left to stand on their own with no benefit to the voters of the ultimate outcome.

    I agree 100% with what David has said in this quoted statement.  That is indeed a problem.  However, the following statement is equally true.

    The problem with censoring these types of lawsuits is clearly seen in this case. Censoring makes accusations that are bold, unequivocal, and prejudicial – they do so in the middle of a campaign – and the judicial system is just as equally not set up to adjudicate the matter within the brief window of a campaign, so the censoring is in effect left to stand on its own with no benefit to the voters of the ultimate outcome.

    My bottom-line for both David and Phil (who also makes very good and reasonable points is that our system of government isn’t perfect, but it is the system that we’ve got.

    I also believe that David’s and Phil’s arguments presented here in this article and comments are just as political in nature as the lawsuit is.

  3. Alan Miller

    I also believe that David’s and Phil’s arguments presented here in this article and comments are just as political in nature as the lawsuit is.

    It’s only political if the ‘other side’ promotes it.

  4. Alan Pryor

    I argued that not only was this a campaign ploy, not only was it premature (at best), but it was playing the race card.  No one likes being accused of playing the race card, but, as I believe this was a campaign ploy, I also believe that the move was made to raise a salacious accusation – that the project is discriminatory and will perpetuate racial inequities in local housing, as a means of convincing voters to vote against the project.

    Mr. Greenwald is exhibiting over-the-top hypocrisy in this and yesterday’s article conveniently forgetting that he himself was the very first person to argue that the Buyers Program had racist overtones. Following is an email thread between myself and Mr. Greenwald in the earliest opening days of the campaign immediately after he read the No on WDAAC campaign’s “Argument Against” that I authored:

    On 8/14/2018 4:12 AM, David M. Greenwald wrote me an email stating:

    Wow, Alan, I just read your ballot argument against L and frankly it sucks.  It’s basically boilerplate, anti-development mumbo-jumbo.  It fails to capture any of my reasons why I couldn’t support the project.  It’s amazingly tone death to the valid arguments raised on the Vanguard against the project.  There are plenty of reasons not to vote for this project, but you amazingly fail to identify a single one.

    On Tue, Aug 14, 2018 at 8:09 AM, I wrote back to Mr. Greenwald:

    OK, David – I’ll bite. What are any of the reasons why you couldn’t support the project, what are the valid arguments raised on the Vanguard against the project, and what are the plenty of reasons not to support the project for which I amazingly fail to identify a single one.

    Finally, on  8/14/2018 12:27 PM, Mr. Greenwald responded:

    Everyone makes assumptions.  Point of my piece was that the argument against Measure L was a poor one.  I think you can see people like Eric have much stronger arguments to make.  Here’s a juicy one: Davis based buyer’s program means an all-white senior development most likely.

    So after initially being the very first person to suggest the project was racist and even claiming the segregation aspects were one of the strongest arguments to make against the project, here Mr. Greenwald is now climbing on his tall white horse stating the claims of racism were only a political ploy.

    Mr. Greenwald also conveniently fails to mention that other prominent civil rights organizations spoke out against the Buyers Program. On November 2, Project Sentinel sent a letter to the Vanguard entitled “The Fair Housing Problem with Measure L” (see https://www.davisvanguard.org/2018/11/letter-measure-l-discriminates-blacks-latinos/). In that letter they stated,

    “Project Sentinel is a full-service non-profit Fair Housing agency serving the Bay Area and portions of Central California, including all of Sacramento County and West Sacramento in Yolo County. We have been fighting discrimination in housing through education, advocacy and enforcement in Northern California for more than 40 years. We believe that a proposal on the November 6 ballot, Measure L, has serious Fair Housing implications. Its passage will raise a serious barrier to an important housing opportunity for non-white individuals living in the area, and will promote further segregation of an already segregated community. Therefore, we urge City of Davis voters to vote “NO” on Measure L.”

    So Mr. Greenwald himself went on record very early in the campaign stating the Buyers Program could lead to an all white development and the most prominent housing rights advocate in the region claims it “will promote further segregation of an already segregated community“, yet Mr. Greenwald now claims the lawsuit was just a ploy and merely playing the race card.

    Wow!

    1. Rik Keller

      Alan Pryor rightly points out the context of Greenwald’s about-face. It is also interesting to note that Greenwald/Davis Vanguard was paid to give the WDAAC developers the title of “Social Justice Champions.”

  5. Eric Gelber

    The article is replete with speculation, particularly about the genesis of the lawsuit and the plaintiff’s presumed resources or lack thereof. The statement that “He was [not] a resident of Davis (a requirement to have standing to sue)” is the opposite of the truth. To the contrary, if he were a resident of Davis he would not have standing because the buyer restriction would not apply to him.
     
    I would point out the indisputable fact that even if a lawsuit is politically motivated doesn’t mean it is without merit. The merits of the claims of this lawsuit were not addressed by the court. I am somewhat disappointed that the critics of the lawsuit seem so unconcerned with the substance of the underlying allegations.
     
    If the developer and the Council can be taken at their word, the specifics of the Davis-Based Buyers’ program have yet to be determined. As the details are developed, I would urge all those who profess to be concerned with Davis’ reputation as a welcoming and inclusive community, and with prevention of housing discrimination, generally, to closely scrutinize the proposed parameters of the program, and pay attention not to the motivations for a premature lawsuit but to the merits of its underlying claims.

    1. Don Shor

      I would point out the indisputable fact that even if a lawsuit is politically motivated doesn’t mean it is without merit.

      While you may be correct in principle, I would say that the track record to date (percentage of development projects subjected to lawsuits, percentage of lawsuits that prevailed on the merits) suggests otherwise.

      1. Eric Gelber

        Every lawsuit has to be judged on its own merits. And unlike the previous lawsuits, this was a civil rights action. Civil rights actions are by their nature political. Was Roe v. Wade not political? Brown v. Bd. of Education?

      2. Matt Williams

        Don Shor said . . .  I would say that the track record to date (percentage of development projects subjected to lawsuits, percentage of lawsuits that prevailed on the merits) suggests otherwise.
        Don’s comment reminds me of a recent point made by Harvard professor Steven Pinker citing an observation by Franklin Pierce Adams, “Nothing is more responsible for the good old days than a bad memory.”

  6. Tia Will

    Full disclosure first. I opposed this project, but not for reasons related to the Davis Based Buyers Program. The developers themselves dissuaded me from supporting the project through their failure to demonstrate the greatest need for this type of housing and the sprawling nature of the design. Having said that, my take on David’s article:

    1. “the race card” – this phrase seems to only be trotted out by those in opposition to any comment or action. It bears no correspondence to whether race is a real consideration in the outcome. I wish we would just stop using it altogether.

    2. “the plaintiff was a “put up” candidate” – For better or worse, our adversarial system is set up so that there always must be a potential or factually involved litigant. We have no mechanism for lawsuits on a purely moral or ethical principle. So my question would be, bluntly put, so what?

    3. “the indisputable fact that even if a lawsuit is politically motivated doesn’t mean it is without merit.”

    Eric beat me to it. To Don’s response, I agree historically. But precedent dominates only until it does not. Without rechallenging on the merits of each case, we simply don’t know. And yes, this is from someone who eschews lawsuits at almost any cost.

     

      1. Rik Keller

        And I strongly concur with Matt concurring with Tia! 

        To extend this, David Greenwald has never been held to account for his characterization of the civil rights legal action against the project as a “dangerous playing of the race card.” And even today, he is still only interested in playing politics in campaign mode rather than addressing the fundamental merits of a civil rights complaint about the discriminatory locational requirements of project.

        1. Craig Ross

          In retrospect, I agree with you Rik, I don’t think the playing of the race card here was all that “dangerous” – mostly because no one else seemed to buy into it other than you and Alan Pryor.

  7. Eric Gelber

    One other point, as to the assumptions and speculation in the article on attorneys fees: Attorneys fees are available to prevailing plaintiffs in fair housing and other civil rights actions—essentially a contingency fee. The complaint in this lawsuit sought attorneys fees under applicable state and federal statutes.

  8. Craig Ross

    One interesting thing while Alan Pryor and Rik Keller have attempted to throw mud here, neither have denied the core contention of this commentary – their involvement in the lawsuit

    1. PhilColeman

      The measure has been ruled in both the legislative and judicial branches of our form of government. The lawsuit was dismissed, it never passed the first step of court review. This means that allegations of discrimination were without merit.

      Legislatively, the public need and benefit for the development were resolved by a general election, the proposal passed!

      Those who still hold the view this measure is illegal or is ill-suited for the community, or whatever can continue to pursue additional options. Vanguard arguments and accusations have limited reach and no real impact.

      Legally, opponents could appeal the ruling. They could also seek a court injunction to suspend or revoke any process they feel is discriminatory. Legislatively, opponents can begin a public campaign for a second election, or appeal to the City Council to re-visit the matter. All opponents need to have is adequate facts and circumstances to change either of these judgments.

      1. Eric Gelber

        This means that allegations of discrimination were without merit.

        Wrong. The case was dismissed without prejudice because it was filed prematurely. There was no ruling on the merits. 
         
        Another alternative here would be for the developers and the City to simply drop the Davis-Based Buyers’ Program and proceed without it. (It is not a base feature of the development.) The Buyers’ Program is the functional and moral equivalent of Trump’s border wall—intended to exclude immigration to Davis of “outsiders,” who happen to be more racially and ethnically diverse than the current Davis population.

        1. Craig Ross

          “The case was dismissed without prejudice because it was filed prematurely.”

          And why was it filed prematurely?  Because it was politically motivated as a strategy to defeat the measure at the polls.  This is the key acknowledgement here.

        2. Eric Gelber

          Even if so, why is that a problem? Why is it not a legitimate reason to file a lawsuit to defeat a proposed development because it would violate state and federal fair housing law?

        3. Matt Williams

          Craig, here is a question for you.  If you own a horse and you don’t want it running loose all over the neighborhood, do you reactively try and catch the horse once it has escaped its corral, or do you proactively take steps to ensure that the corral is able to prevent the horse from escaping? 

        4. Matt Williams

          Because it was politically motivated as a strategy to defeat the measure at the polls.  This is the key acknowledgement here.

           
          An equally key acknowledgement would be that almost every single article published by the Vanguard about WDAAC was politically motivated as a strategy to have the possibility of more housing in Davis succeed at the polls. 

          One could argue that the lawsuit was the simple pursuit of political equivalency at work.

        5. Eric Gelber

          Seems like an abuse of a lawsuit if it is grounded in politics rather than law.

          The legal claims are legitimate, so it is grounded in law. There is nothing wrong with efforts to defeat a proposed development—through a lawsuit or otherwise—because it violates fair housing law. I’d also point out that the relief requested in the lawsuit was merely to enjoin implementation of the local buyers’ restriction, not to prevent the development.

        6. Craig Ross

          Matt – I’m trying to think of a counter-example, but I keep coming up with shooting the horse to prevent them from running around the neighborhood…  lol.
          Eric – I think you’re wrong.  The legal claims are not legitimate because the suit is premature and we don’t know what the buyer’s program will even look like.

      2. Matt Williams

        This means that allegations of discrimination were without merit.

        Actually (and I am not a lawyer so take what I say with a grain of salt) , I don’t think the Judge’s actions support that inference Phil.  What the Judge said was that the case was not as yet timely procedurally, and by dismissing the case (not the allegations) without prejudice, he left the door open to a refiling of the case (and its allegations) once the WDAAC developer and the City formalize the program.
         
        Said another way, the Judge was saying that the WDAAC/City program did not have enough details to be assessed at this time.  Once those details are created by WDAAC/City, then a determination of whether ther was devil in those details would be timely from a court procedure perspective.

      3. Matt Williams

        I came to appreciate the huge importance of court procedure during the Water Case four years ago.  Judge Maguire made a very interesting statement to the courtroom, when he told the opposing lawyers arguing the case that the precedent that the City lawyer had cited was an Appeals Court precedent rather than a Trial Court precedent, and that as such, he as a Trial Judge faced a different standard than if the precedent was from a Trial Court.  He explained that for the most part Appeals Court precedent should only be overturned by Appeals Cort, or higher, courts, and  that Trial Judges, even if they legally disagreed with the explanation of the precedent, should leave the act of overturning the precedent to the Appeals Court when/if the one of the parties (the plaintiff in the Water case) actually appealed the Trial Court decision.
         
        After that procedural explanation, Judge Maguire then proceeded to explain why he felt the Appeals Court had likely erred in its decision that set the precedent (I emphasize the word likely).  The Plaintiff’s lawyers (there were two of them) were so focused on the argument that they had crafted that Judge Maguire’s words did not register with them.  My observations of the lawyers arguing the City’s case were that they fully understood what Judge Maguire was saying … and they zipped their lips about it for fear that the Plaintiff’s lawyers might become aware of the legal pathway to victory that the Judge had illuminated.
         
        It was definitely an “Ah Ha!” moment for me, but as a member of the gallery, even though I was a noticed expert witness for the Plaintiff, I was not allowed to share what I had heard and seen with the Plaintiff’s lawyers.  It was very definitely a lesson for me on court procedure/protocol on several levels.

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