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Naked City The Puppet Master

Federal Judge Jerry Buchmeyer loves pulling the strings. But so far his puppetry in the Dallas housing case has done nothing more than make a lot of lawyers rich.
By Tom Pauken |

I M THE F1VF. MONTHS SINCE HE WAS OVERRULED BY the Fifth Circuit Court of Appeals and rebuffed by (he Supreme Court in the latest round of the world’s longest running public housing case. Judge Jerry Buchmeyer has had a lot to think about. He could think about the $123 million his mandates have cost the City of Dallas. According to local developers. 1,500 luxury apartments-at Uptown prices, no less-could have been constructed for $123 million. Or perhaps he could think about the accomplishments of the Dallas Housing Authority, whose past history of discrimination was the reason for the lawsuit in the first place: The agency cleaned up its act years ago under the leadership of strong and committed African-American directors and now is widely praised as one of the most innovative in the nation. Or maybe the judge might think about the changing housing patterns in Dallas over the last [5 years, which, along with the rise of the black middle class, has resulted in a quiet desegregation that reaches beyond the city and into the suburbs.

Most likely the judge is not thinking about any of these things.

Most likely the judge is thinking about plaintiffs’ attorney Mike Daniel’s latest strategy to jerk the strings of North Dallas homeowners. Poverty, not race, will be the justification, Daniel has announced, for reinstating the judge’s order to build public housing units in affluent white neighborhoods, thereby escaping the Fifth Circuit’s ruling that the use of race as a criterion for the placement of public housing is unconstitutional. It’s a tactic that Judge Buchmeyer. who seems to enjoy his role as puppet master, may well endorse, guaranteeing another long round in the seemingly never-ending lawsuit. If history is any guide, the only winners will be Mike Daniel and a handful of Dallas lawyers.

The Dallas public housing litiga-tion started in 1985, when activist lawyer Mike Daniel and his partner tiled a class action lawsuit on behalf of the Walker Plaintiffs, a group of African-American public housing residents. The defendants in the case were the Dallas Housing Authority and HUD. Daniel sought to have the public housing system in Dallas declared unconstitutional based upon a history of racial discrimination and segregation.

Daniel managed to get the lawsuit assigned to Judge Buchmeyer’s court, the same Judge Buchmeyer who previously declared the City of Dallas” electoral system unconstitutional- a case that also involved Mike Daniel (with me, I should add, on the opposing side). As some close to the electoral litigation have observed, the handwriting was already on the wall as to what the judge was likely to do in the public housing case. In fact, the lawyers for HUD and the Dallas Housing Authority must have come to the same conclusion: Soon after the assignment they entered into a consent decree, effectively transferring authority over Dallas public housing from locally elected and appointed officials to the federal court. According to Michelle Raglon, public relations director of the Dallas Housing Authority, ever since then. “everything [DHA] does has to go through Mike Daniel and Judge Buchmeyer.”

Four years after Daniel challenged the housing authority, he sued the City of Dallas, adding it as a defendant in the Walker lawsuit. He wanted to make the city subject to the consent decree even though it had delegated all of its authority over public housing to DHA. No doubt the attraction of the city ’is $1.6 billion budget played a part in this decision. Shortly thereafter, the city capitulated, resulting in the district court assuming control over the expenditure of city funds for low-income housing. Compliance with the decree has turned out to be expensive.

As Councilwoman Donna Blumer told me, “The costs are astronomical.” How astronomical?

Through September 1999, the City of Dallas has spent $123 million in direct costs for products and services to satisfy the terms of the decree.

The $l23 million ligure does not include approx imately $943,000 in legal lees that Judge Buch-meyer has ordered the city to pay Mike Daniel’s law firm. Daniel also received $1.645,000 in fees from the Dallas Housing Authority and $54,000 from HUD. The total of at least $2,642,000 suggests that fighting city hall has its rewards.

As a result of the decree, the city has also been forced to maintain its own outside counsel. The Walker litigation has resulted in the city paying the law firm of McKool, Smith some $3,075,000 since 1992. Fees paid to other lawyers prior to 1992 are not available, but a conservative estimate would put that amount at more than SI million.

The legal costs of Buchmeyer’s decisions don’t end there. Like the city. DHA has had to pay for outside lawyers to the tune of more than $4 million, leading Councilwoman Blumer to comment, “This case has been a full employment program for several lawyers.”

Additionally, once the city became a defendant in September 1990, Judge Buchmeyer named attorney Louis Weber to serve as special master of the case. Weber is a close personal friend of Judge Buchmeyer. who regularly socializes with him and is known to have the judge’s ear. When asked what his role has been as master. Weber describes his function as helping the various parties work oui their differences. “I don’t feci that I have any authority except what the judge asks me to do,” he responds. What has the judge asked him to do? “Gather all the parlies together to see if they can get more low-income apartments by agreement.” When pressed to explain why the City of Dallas and DHA cannot handle matters on their own. Weber declined to comment, citing ongoing litigation.

While Weber is modest about his role and duties as special master, the pay isn’t too bad. He has received approximately $ 1,283,000 in fees from the City of Dallas. according to city officials, and his firm has received in excess of $1.1 million from the DHA. for a grand total of nearly $2.4 million from Dallas taxpayers for his work as a “facilitator” in a case that has droned on for years. When asked about his fees, Weber said he didn’t remember how much he had been paid.

Nor did he know his hourly billing rate. Weber told me that he thought it was more than S300 per hour, but less than $350. According to court records. Weber’s actual hourly billing rate was $345.

In case you’re counting, the legal fees- so far, and to the degree that they can be calculated-total $ 13.213,000. “The attorneys’ fees in this case are unreal,” protests frustrated Dallas City Council member Mary Poss. “Who has really benefited from all this litigation?”

Her question is a good one because during most of the nearly 15-year period that public housing in Dallas has been under the control of Judge Buchmeyer, the housing authority has been run by African-Americans: Alphonso Jackson from 1989 to 1996. and more recently, Lori Moon. Jackson and Moon are both well-respected leaders in the black community. As one attorney familiar with the housing litigation told me, “It is ridiculous that a white lawyer and a white judge are making all of the major decisions affecting public housing in Dallas instead of the people elected and appointed to do that job by the citizens of Dallas.”

Moon, the DHA’s executive director. came to Dallas in 1989 from Washington. D.C., where she had served as Housing Management Administrator of D.C.’s public housing under Jackson. In that capacity. Moon helped institute a widely acclaimed tenant ownership program that allowed public housing tenants to acquire a stake in the management and ownership of their own apartment units just like co-ops and condominiums.

Moon has received high marks for her performance as DHA director. She is quick to acknowledge that before the lawsuit, and before Jackson and she arrived. “DHA was steering people based on race” to certain units. But she is adamam in arguing that those days are long past. Moon is particularly proud of the progress that has been made in West Dallas since she and Jackson took over the reins of the agency. While she won’t say so directly, Moon leaves the impression thai she is frustrated about Mike Daniel’s ongoing efforts to “’micromanage” the agency through the courts. When asked if Daniel has ever lost on any of the key demands he has made in Judge Buchmeyer’s court on this case, she responded, “On the major things, he has not,”

REGARDLESS OF THE PROGRESS IN Dallas public housing under Alphonso Jackson and Lori Moon, lawyer Mike Daniel was intent on his larger goal; using integration as a weapon to place projects in white neighborhoods. Under pressure from the court, DHA officials announced that they had selected sites and acquired property in far North Dallas for two new public housing projects adjacent to residential neighborhoods. Highlands of McKamy and Preston Highlands. According to homeowner association president Joe Darby, “property values in the neighborhood immediately declined as people rushed to sell their homes. The value of the homes in the area dropped from more than $80 per square foot to the low $50s, even while a real estate boom in North Dallas was taking place.”

Seeing their property values plummet and concerned about the overall impact of a public housing project, the homeowners decided to challenge the decision to build the projects in their neighborhood. As Joe Darby explains, the homeowners wanted to make sure this wasn’t viewed as a racial issue. He is quick to point out that Asian-American, American Indian. Hispanic, and African-American homeowners all supported the legal action challenging the building of the projects. In fact, one of the lead plaintiffs in their lawsuit was a black homeowner named Ginger Lee.

The Highlands of McKamy and Preston Highlands hired attorneys Bob Goodfriend and Mike Lynn to right the judge’s public housing project. Goodfriend believed that he could beat Mike Daniel’s constitutional argument (that homeowners have to accept public housing projects in predominately white neighborhoods as a remedy for the vestiges of past racial discrimination) with a better constitutional argument: that any remedy of past wrongs should be color-blind and race-neutral, not an intrusive, race-based solution.

From the beginning, Bob Goodfriend understood that he wasn’t about to change Judge Buchmeyer’s mind. Ironically, it was Mike Daniel himself who gave Goodfriend the opening he needed. Daniel insisted that the final court order include a provision mandating that new public housing units had to be built in neighborhoods that were at least 63 percent white. The object, of course. was to get the units built in North Dallas. So under the court order as finally written, public housing recipients could not be located in any neighborhood where Asian-Americans. Hispanics, and blacks comprised more than 37 percent of the population.

Alphonso Jackson, the DHA Director when that provision was inserted, objected. He argued, reasonably, that such a rigid racial quota would severely limit the housing authority’s flexibility in selecting sites. Bui Mike Daniel was determined to see public housing built in North Dallas, and that’s how the Highlands of McKamy/Preston Highlands project got off the drawing board in the first place.

As usual. Mike Daniel got what he wanted. Goodfriend and Lynn noted in their riling: “The record in this case shows that the district court simply signed off on a remedy negotiated by the parties before it. and then, when the homeowners sued, gave homeowners a hearing to satisfy due process, reaffirming its original order, and allowed Plaintiffs’ counsel to draft its 143-page opinion justifying its original decision. In short, the Court rubber-stamped a remedy previously devised by the parties before homeowners were ever heard.”

When 1 asked the various attorneys involved in the Walker litigation whether it was unusual for a court to adopt, as its opinion, a draft written by one of the lawyers in the case, none of the attorneys would answer on the record. However, other attorneys who regularly litigate in federal court find it very unusual indeed.

One attorney close to the case told me that Judge Buchmeyer’s 143-word opinion was verbatim what Mike Daniel had submitted to the court-down to certain typographical errors.

Once the judges at the Fifth Circuit had the opportunity to review the record in this case, they agreed with the position of the homeowners” attorneys that use of vouchers enabling public housing recipients to choose their own living arrangements made far more sense than forcing projects on residential neighborhoods. The court wrote: “We also recognize that [the use of vouchers] is overwhelmingly preferred by public housing families, that it allows market forces and personal preferences to control the homemaking decision, and that it has not proven ineffective at desegregating Dallas’ public housing programs when combined with a vigorous mobility program.”

Nor did the Fifth Circuit panel find any justification for what it called Judge Buchmeyer’s arbitrary definition of a white neighborhood as being at least 63 percent white: “There is no evidence in the record to support the court’s arbitrary definition of a predominately white neighborhood. The emphasis should instead be directed toward placing public housing participants in neighborhoods of their choice through a vigorous [voucher] program, non-black neighborhoods, census tracts in which no public housing currently exists, or non-poor neighborhoods.”

All in all, it was a stinging revoke for a sitting federal judge who has made it a regular practice to take over various legislative functions from local Dallas officials.

Now, with his decision reversed and the case remanded back to him, everyone waits to see what Judge Buchmeyer will do. As this article goes to press, the attorneys for the homeowners are seeking the recovery of their legal fees since they won the case at the appellate level. Meanwhile. Mike Daniel has changed his rationale for the need to build in North Dallas–this time the basis is poverty instead of race. The question before the court is whether Buchmeyer, having suffered one rebuke, is willing once again to rubber-stamp Daniel’s argument du jour.

City of Dallas officials too are mulling over whether, in light of the Fifth Circuit’s ruling, now might not be a good time to ask the Appeals Court to get them out from under the judge’s thumb, And last but not least, DHA officials are wondering why they can’t run the local public housing program on their own without having to put up with all of the puppetry of Judge Buchmeyer.

So far. the judge’s string-pulling has only served to make a lot of lawyers rich.

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