United States District Court, D. Arizona
Avenue 6 E Investments, et. al., Plaintiffs,
City of Yuma, Defendant.
ORDER AND OPINION [MOTION AT DOCKET 266]
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT
docket 266, defendant City of Yuma (“the City”)
filed a motion in limine seeking the exclusion of
certain evidence. Plaintiffs Avenue 6E Investments, LLC and
Saguaro Desert Land (“Plaintiffs”) filed their
response at docket 278. No. reply was filed.
background to this case is well known to the parties. In a
nutshell, the dispute turns on whether the City Council's
decision to deny Plaintiffs' re-zoning request was
animated by ethnic discrimination against Hispanics. More
details are revealed in the following sections of this order.
A fuller statement of the general background will be found in
Avenue 6 E Investments, LLC v. City of Yuma,
City asks the court to exclude evidence of (1) statements
made in opposition to Plaintiffs' re-zoning request
unless the statements were made in front of the City Council
or memorialized in documents made available to the City
Council; (2) testimony characterizing such statements; (3)
any negative inference which might be drawn from a City
Council members' refusal to testify based on legislative
privilege; and (4) testimony by Deirdre Pfeiffer, Ph.D.
(“Pfeiffer”) to the effect that the City departed
from applicable planning standards.
Statements opposing the re-zoning request not made known to
the City Council are not
first seeks to preclude testimony showing that Yuma residents
made statements opposing the re-zoning request absent
evidence demonstrating that the City Council had knowledge of
the statements. The City contends that such evidence is
irrelevant, because the pivotal issue is whether the City
Council members denied the re-zoning request because of the
ethnic prejudice of their constituents. The City relies on
what in the context of this litigation is too narrow a
reading of Fed.R.Evid. 401, and on Mhany Mgmt., Inc. v.
Cty. of Nassau.
401 defines relevant evidence as any information that has a
tendency to make a fact which is of consequence more or less
probable than it would be without that information.
Statements which could support the conclusion that there was
widespread opposition among constituents to the re-zoning
based on ethnic prejudice, even if certain specific
statements were not known to City Council members, would
support an inference that the Council members acted to
mollify their constituents' prejudicial concerns. At this
stage of the litigation, it is not possible for the court to
rule that evidence of any particular statement would or would
not be admissible. Such rulings will depend on the overall
context which emerges at trial.
also concerned a decision denying re-zoning based on comments
and concerns raised by constituents. While it is true that
the comments made in that case were known to the decision
maker, the Mhany court did not hold that each
comment presented to demonstrate an individual's animus
against a protected group must also be verifiably known to
the decision maker. That issue was not presented to the
court. However, the Mhany court highlighted the
difficulty in proving discriminatory intent. The court
concluded that this difficulty requires a more inclusive
rather than restrictive evidentiary standard. “Because
discriminatory intent is rarely susceptible to direct proof,
a district court facing a question of discriminatory intent
must make ‘a sensitive inquiry into such circumstantial
and direct evidence of intent as may be
Mhany court relied on the United States Supreme
Court's decision in Village of Arlington Heights v.
Metro. Housing Dev. Corp.,  in assessing potential
discrimination. Like the Mhany court, the Ninth
Circuit relies on Arlington Heights.
“Arlington Heights governs our inquiry whether
it is plausible that, in violation of the [Fair Housing Act]
and the Equal Protection Clause, an ‘invidious
discriminatory purpose was a motivating factor' behind
the City's decision to deny the zoning
application.” The complicated decision making process
and the difficulty in proving discrimination calls for
analysis of the decision's context: “The court
analyzes whether a discriminatory purpose motivated the
defendant by examining the events leading up to the
challenged decision and the legislative history behind it,
the defendant's departure from normal procedures or
substantive conclusions, and the historical background of the
decision and whether it creates a disparate
City's request to limit evidence to statements made by
constituents which were specifically called to the attention
of the City Council will be denied.
Statements opposing the re-zoning request not made known to
the City Council should not be excluded
under Federal Rule of Evidence 403.
Evid. 403 provides for the exclusion of evidence when its
probative value is “substantially outweighed” by
“unfair prejudice, confusing the issues, misleading the
jury, undue delay” and the like. The first thing to be
considered is the probative value of the statements at issue.
City cites Phoenix v. Coatesville Area Sch. Dist.,
support the City's conclusion that, “The statements
of Yuma residents that the Council did not hear and were not
aware of is, at most, of the very slightest probative value,
which means the evidence should be excluded at even a minimal
risk of unfair prejudice or confusion.”Phoenix
is easily distinguished from the case at bar. In
Phoenix there was direct evidence that the decision
maker was motivated by discriminatory animus in terminating
the employee. Here, the absence of direct evidence increases
the significance of circumstantial evidence, including the
statements the City wants the court to exclude. Moreover, the
evidence excluded in Phoenix did not deal with the
pivotal issues concerning the termination of the employee.
Here, the comments which the City seeks to exclude deal
directly with the re-zoning decision. They have considerably
more than the slightest probative value in the context of
City also urges exclusion on the basis of the prejudicial
nature of the evidence. The evidence the City would exclude
may be considered prejudicial because it reflects ethnic
bias. However, the prejudice relating to the statements is
not unfair prejudice given that the litigation is founded on
the premise that the City Council condoned ethnic
court does not find that admitting the statements would
confuse the issues or mislead the jury. Any risk of such may
be adequately addressed by an appropriate limiting
instruction at trial. Neither does the court find that
introduction of the statements would cause undue delay. In
short, the probative value of the statements is not
“substantially outweighed” by the matters listed
in Rule 403.
Evidence characterizing others' statements.
City argues that lay opinion testimony characterizing
comments by others or discussing motivation must be excluded
under Fed.R.Evid. 602 and 701. Rule 602 requires personal
knowledge, and Rule 701 requires the testimony to be helpful
to the fact finder.
Federal Rule of Evidence 602.
principally relies on two cases to argue that the inclusion
of lay opinion testimony characterizing or discussing the
motivation of others is precluded under Fed.R.Evid.
Neither case stands for the proposition cited by the City and