Snow and Judge Roberto Lange have delayed the demolition of the incomplete and code-violating Sioux Falls mansion of online separator of fools and money Vitaliy Strizheus and his wife Nataliya. At yesterday’s hearing in the United States District Court in Sioux Falls, the City of Sioux Falls agreed to restrain their wrecking ball for 28 days “because of the volume of snow on the ground and because the parties and Court need additional time to brief and rule” on the lawsuit the Strizheuses filed on February 17. Judge Lange advised the city and the Strizheuses to use the delay to “explore settlement by use of a magistrate judge if they wish.”
This order came a day after the city filed a pretty strong response to the Strizheuses’ outlandish claim that enforcing city code on a building project that has lingered unfinished and unsightly in violation of plain city ordinance for years represents unfair taking of property, cruel and unusual punishment, and discrimination against Ukrainians. The city contends that the Strizheuses are lodging new Constitutional claims that could have been made at any point in over seven years of conflict over their code violations. If the Strizheuses really believed that the city was violating their Fifth, Eighth, and Fourteenth Amendment rights, they should have raised those concerns earlier, during the litigation that has already been adjudicated all the way to the South Dakota Supreme Court. The city says res judicata, the doctrine that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action,” bars the federal court from reversing what the state court has decided on any of the claims that the Strizheuses now raise.
And if the Strizheuses really want to overturn the state court’s decision, the City of Sioux Falls says the Rooker-Feldman doctrine prohibits federal district courts from overturning state court rulings. Judge Lange and the Eighth Circuit Court of Appeals above him can’t undo a ruling of the South Dakota Supreme Court; the Strizheuses, argues the city, have to take their gripe to the United States Supreme Court.
If res judicata and Rooker-Feldman aren’t enough to stay Judge Lange’s hand, the flimsiness of the Strizheuses’ argument should. The city contends the Eighth Amendment is irrelevant here. The Strizheuses complain that the city is imposing an “excessive fine”, but (1) a fine is a payment to the government, and demolishing a house doesn’t put any money in the city’s purse; (2) demolishing a code-delinquent house is not “punishment” within the scope of the Eighth Amendment; and (3) the loss the Strizheuses claim they will suffer “is wholly self-imposed by the Strizheuses”, who put their own assets at risk by sinking more money into construction while appealing to the South Dakota Supreme Court.
The city reminds the court that the Strizheuses are arguing the wrong part of the ordinance providing for demolition. While the plaintiffs cry that their house does not meet the ordinance’s criterion for a building too dangerously dilapidated to be left standing, the city notes that they and the courts have applied the other criterion in that ordinance allowing for demolition of projects where normal construction has simply stopped for more than 18 months, regardless of the condition of the idled project.
The Strizheuses did attempt to subpoena Sioux Falls mayor Paul TenHaken and city attorney Ryan Sage to produce documents by close of business Thursday and appear at Friday’s hearing. However, the plaintiffs served those subpoenas during this week’s snowstorm and before the plaintiffs had even filed their brief supporting their complaint to give the city any idea of what specific issues the subpoenaed witnesses would need to address. Judge Lange agreed those subpoenas were “unduly burdensome”.
In the supporting brief that they finally filed on Thursday, the Strizheuses imply that the city is demolishing their home because two of the people who actually live near their vacant structure, Cresten Capital honcho Kevin Tupy and lawyer and KOA campground franchisee Kent Cutler, have donated to TenHaken’s political campaigns. I would love for the Strizheuses to lay bare any political cronyism and skullduggery that may be taking place in Sioux Falls, but the proper place for that is probably a good blog post, not federal litigation over black-and-white city ordinances. Mayor TenHaken is most surely in bed with a clique of skeezy capitalist bastards, but skeezy capitalist bastardry does not change the facts and law in a case already decided by the South Dakota Supreme Court.
Nonetheless, snow and Judge Lange have given the Strizheuses 28 more days to come up with some better legal arguments to preserve their boondoggle building.