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