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Avenue 6 E Investments v. City of Yuma

United States District Court, D. Arizona

May 31, 2018

Avenue 6 E Investments, et. al., Plaintiffs,
City of Yuma, Defendant.




         At 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.


         The 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, Arizona.[1]


         The 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.

         A. Statements opposing the re-zoning request not made known to the City Council are not irrelevant.

         Defendant 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.[2]

         Rule 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.

         Mhany 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 available.'”[3]

         The Mhany court relied on the United States Supreme Court's decision in Village of Arlington Heights v. Metro. Housing Dev. Corp., [4] 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.”[5] 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 impact.”[6]

         The 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.

         B. Statements opposing the re-zoning request not made known to the City Council should not be excluded under Federal Rule of Evidence 403.

         Fed. R. 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.

         The City cites Phoenix v. Coatesville Area Sch. Dist., [7] to 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.”[8]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 this litigation.

         The 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 discrimination.

         The 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.

         C. Evidence characterizing others' statements.

         The 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.

         1. Federal Rule of Evidence 602.

         Defendant 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. 602.[9] Neither case stands for the proposition cited by the City and ...

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