Minnesota Building Codes: August 2011

APPELLATE COURT CASE NUMBER A11276

STATE OF MINNESOTA

IN COURT OF APPEALS

Respondents: Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen

vs. Trial Court Case No.: 09-CV-10-0934

Appellants, Marvin Pirila & Gail Francette

APPELLANT'S BRIEF

STEPHANIE ANGOLKAR PIRILA & FRANCETTE

Attorney for Respondents, By Marvin Pirila

Thomson Township, Thomson Township                        Pro Se - Appellants
Fire Department, John Gulland, Jeffrey Juntunen            1 N Cloquet Rd W
Iverson Reuvers, 9321 Ensign Ave South                       Esko, MN 55733

Bloomington, MN 55438 (218) 391-2876

Steven Reyelts

Attorney for Respondent Duane Grace

Reyelts, Bateman & Schramm, LTD

332 West Superior Street, Suite 700

Duluth, MN 55802-1801

TABLE OF CONTENTS

Page

Table of Authorities……………………………………………………………………………3-5

Legal Issues……………………………………………………………………………………6-10

Statement of Facts……………………………………………………………………………11-26

Argument

1. Did defendants fail to perform their ministerial and operational (day-to-day) duties?26-35

2. Did Defendants commit trespass? ……………..…………………………………….35-41

3. Did Defendants have a breach of duty to Appellants...................................................41-47

4. Did personal injury occur due to this breach? .……………………………………...47-49

5. Do applicable exceptions void claims of official immunity? ………………………49-51

6. Do applicable exceptions void claims of vicarious official immunity? …………………51

7. Do applicable exceptions void claims of statutory immunity? ……………………...51-53

8. Did exceptions exist to nullify qualified immunity? ………………………………...53-54

9. Are defendants guilty of gross negligence? …………………………………………54-57

10. Summary judgment order did not address claims of Deliberate Indifference, Section 1983, Section 1985, Tortious Interference, Fraud, Fourth Amendment, Fifth Amendment, Fourteenth Amendment. ………………………………………….........................................…..57-59

11. Conclusion……………………………………………………………………………59-63

Appendix and Index…………………………………………………………………………..64-65

TABLE OF AUTHORITIES

Statutes

Data Practices Act……………………………………………………………………………17-18

Minnesota State Adoption Guide………………………………………………………………..41

Minn. Stat. § 3.736 Tort Claims..............................................................................................10, 54

Minn. Stat. § 16B.65.....................................................................................................................18

Minn. Stat. § 299F.08, Subd. 1………..………………………………………….……….7, 32, 39

Minn. Stat. § 299F.09………………..…………………………………….……………...7, 32, 39

Minn. Stat. § 326B.082..................................................................................................................30

Minn. Stat. § 326B.082, Subd. 7 ...................................................................................................30

Minn. Stat. § 326B.082, Subd. 11 (7)..…………………………………………….………….7, 48

Minn. Stat. § 326B.106……………………………………………………………………………6

Minn. Stat. § 326B.106, Subd. 2…………………………………………………………............29

Minn. Stat. § 326B.133, subd. 4……..…………………………………………….6, 12, 26-27, 29

Minn. Stat. § 466.02…………………………………………………………...……………..33, 55

Minn. Stat. § 466.03, subd. 6 (2008)……………………………………………………………...9

Minn. Stat. § 466.03, Subd. 5, 8, and 10........................................................................................55

Minn. Stat. § 586.09…………………………………………………………………………...9, 53

Minn. Stat. § 609.605, Subd. 1 (2007)……..………………………………….…………..7, 32, 38

Minn. Stat. § 609.605, Subd. 4 (2007)……..………………………………….……………..32, 38

Minn. Stat. § 609.605, Subd. 9 (2007)……..………………………………….……………..32, 38

Minn. Stat. § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5………………………......…7, 32, 40

Minn. Stat. § 626.556 Subd. 4, Section (c), Subd. 5……………………………………………..50

Minn. Stat. § 645.16 (2008)………………………………………………………………...7, 9, 39

Minn. Stat. § 645.19 (2008)……………………………………………………………………...56

Minn. R. 1300.0070 Subp. 24........................................................................................................29

Minn. R. 1300.0110……………………………………………………………………...12, 27, 29

Minn. R. 1300.0110, subp.3…………………………………………………………………..6, 10

Minn. R. 1300.0110, subp. 4………………………………………………………………6, 10, 29

Minn. R. 1300.0110 Subp. 5……………………………………………………………………..30

Minn. R. 1300.0110, Subp 7………………………………………………...7, 9-10, 32, 35-36, 54

Minn. R. 1300.0110, Subp. 8………………………………………………………….…………31

Minn. R. 1300.0110, Subp. 9………………………………………………………….8-10, 50, 54

Minn. Stat. § 1300.0210 Subp. 3 & 5………………………………………………………..16, 30

Minn. Stat. § 1300.0210 Subp. 6………………………………………………………………….7

Minn. R. 1300.0210, Subp. 4…………………………………………………………….21, 32, 37

Minn. R. 1305.903.2.7…………………….…………………………………………………..6, 12

Minn. R. 1311.0010 (GREB)……………………………………………………………...6, 12, 15

Minn. R. 7676.1400…………………………………………………………………...6, 12, 15, 21

MSBC (Chapter 1322) – Residential Energy Code, Section 1322.1101 IRC Section N 1101, General N1101.1, Exceptions 3 and 4………………………………………………………................15, 27

Section 1004.1 (Occupancy Load)……………………………………………………………….16

2003 International Existing Building Code…………………………………………………..14-15

2006 International Building Code……………………………………………………………14, 28

2007 State of Minnesota Building Code (MSBC)………………………………………..14-15, 27

Public Duty Doctrine…………………………………………………………………………….17

Cases

Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d, 215, 217, (1970)…………33

Berkovitz v. U.S., 486 U.S. 531, 536 ('88)…………………………………………………….6, 35

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989)………………………………………..10, 58

Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84)…………………………………………………..9, 57

Copeland v. Hubbard Broadcasting, Inc. 526 N.W.2d 405 (Minn. App. 1995)………..…..…6, 40

Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806, 807 (Minn. 1979)…………….7, 42, 46

Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. Appl. 1997), review denied (Minn. May 20, 1997)………………………………………………………………………………………......6, 34

DLH, Inc. v. Russ, 566 N.W.2d 60,69 (Minn. 1997)…………………………………………….61

Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999)………………………….....8, 51

Gilbert v. Billman Constr., Inc. 371 N.W.2d 542, 546-47 (Minn. 1985)…………………………8

Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986)…………………………………42

Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002)……………...6, 9, 35

Harlow v. Fitzgerald, 457 U.S. 800 (1982)…………………………………………………...9, 53

Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970)………………………………….8, 50

Kenyatta v. Moore, 744 F.2d 1179, 1185-1186 (CA5 1984)…………………………………….63

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)…………………………………………….…..9, 54

Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH)……………………….…...6, 38

Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 823 (1982)………………………………………………………………………………............9, 53

Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986)…………………….....7, 10, 40, 59

Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants. , State of Minnesota in Court of Appeals, A08-1580 (August 11, 2009) ……………………………………......................8, 10, 52, 56

Pletan v. Gaines, 494 N.W.2d 38, 50 (Minn. Dec. 31, 1992)……………………………….........…8, 51

Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997)………………………………….....……....…..60

Rico v. State, 472 N@2d 100, 107 (Minn. 1991)…………………………………..…… …............8, 49

Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982)……………………………………...........6-7, 47

Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d. 632, 103 Sup. Ct. 1625 (1983)………………..........9, 56

Spring Lake Park, 580 N.W.2d at 23………………………………………………………….............52

State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570-571 (Minn. 1994)………...........8, 49

Susla v. State, supra, 247 N.W.2d at 912……………………………………………………...........8, 49

Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988)…………………………............7, 43

U.S. v. Gaubert, 499 U.S. 315, 322 ('91)……………………………………………………............6, 35

Universal Circuits, Inc., et al., v. City of Maple Grove, (Minn. 1996)…………………………...........51

Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003)…………………..........7, 47

Secondary Authorities

42 U.S.C. § 1985…………………………………………………………………………………10

Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10………………...7, 38

Fed. R. Civ. P. 56(c)……………………………………………………………………………..62

Federal Torts Claims Act…………………………………………………………………….10, 56

Fifth Amendment…………………………………………………………………………….10, 58

Fourth Amendment.……………………………………………………………………...10, 32, 58
Fourteenth Amendment……………………………………………………………………...10, 58

MTLA……………………………………………………………………………………………56

Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871; ………………..7, 10, 45, 58-59

LEGAL ISSUES

I. Legal Issue #1: Did defendants fail to perform the ministerial and operational (day-to-day)

Trial court held: Court ruled that duties were discretionary.

Preserved for Appeal: Oral argument (transcript) [13:25, 14-20, 21:1-10, 22:24-25, 23-26, 27:1-24, 26:, 27:1-21]:, exhibits, and written record [A-1, A-3 -5, A-24 - A-26, A-66 - A-69, A-121, A-167 - A-168. A-232, A-238, A-242 - A-243, A-246, A-256 - A-257, A-259, A-262, A-265].

Supporting Cases: Berkovitz v. U.S., 486 U.S. 531, 536 ('88). U.S. v. Gaubert, 499 U.S. 315, 322 ('91). Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002).

Constitutional and Statutory Provisions: Minn. Stat. § 326B.133, subd. 4; Minn. Stat. 326B.106; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110, subp.3 and 4.

II. Legal Issue #2: Did Defendants commit trespass?

Trial court held: Did not rule officially, but inferred that if further criminal activity, like sexual abuse, in addition to the trespass occurred there would be cause for action.

Preserved for Appeal: Oral argument (transcript) [10:3-22, 11-13, 21:6-25, 22, 25:7-25, 27: 24-25, 28: 1,29:1-8, 35:8-25, 36-38, 39:1-5], exhibits, and written record [A-223, A-51, A-53 -A-54, A-56 - A-57, A-63 - A-67, A-81 - A-82, A-86, A-120, A-218, A-261].

Supporting Cases: Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH); Copeland v. Hubbard Broadcasting, Inc. 526 N.W.2d 405 (Minn. App. 1995); Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982); Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986).

Constitutional and Statutory Provisions: Minn. R. 1300.0110, Subp 7; Minn. R. 1300.0210, Subp. 4 & 6; Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10; Minn. Statute 609.605, Subd. 1 (2007); Minn. Stat. ¶ 299F.09; Minn. Stat. 299F.08, Subd. 1; Minn. Statute § 609.749, Subd. 1, 2, and 5; Minn. Stat. § 326B.082, Subd. 11 (7); Minn. Stat. § 645.16 (2008)

III. Legal Issue #3: Did Defendants have a duty to Appellants?
Trial court held: Did not rule.

Preserved for Appeal: Oral argument, exhibits, and written record [A-20 - A-21, A-29, A-
87, A-239].

Supporting Cases: Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871; Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806, 807 (Minn. 1979); Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003); Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988)

Constitutional and Statutory Provisions: Minn. Stat. § 326B.082, Subd. 11 (7)

IV. Legal Issue #4: Do the personal injury requirements of duty, breach, causation, and harm exist?

Trial court held: The court did not rule.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-2, A-4 - A-5, A-71].

Supporting Cases: Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982)

Constitutional and Statutory Provision: Minn. Stat. § 326B.082, Subd. 11 (7).

V. Legal Issue #5: Do applicable exceptions void claims of official immunity?

Trial court held: Defendants were entitled to official immunity.

Preserved for Appeal: Oral argument, exhibits, and written record [A-3 - A-4, A-47 - A-48, A-67].

Supporting Cases: Susla v. State, supra, 247 N.W.2d at 677, 912. State by Beaulieu v. City of Moundsview, 518 N.W.2d 567, 570-71 (Minn. 1994). Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970)

Constitutional and Statutory Provisions: Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability).

VI. Legal Issue #6: Do applicable exceptions void claims of vicarious official immunity?
Trial court held: Defendants were entitled to vicarious official immunity.

Preserved for Appeal: Oral arguments, exhibits, and written records [A-427].

Supporting Cases: Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). Pletan v.Gaines, 494 N.W.2d 38, 42-43 (Minn.1992).

Constitutional and Statutory Provisions: Minn. R. 1300.0110, Subp. 9, Liability.

VII. Legal Issue #7: Do applicable exceptions void claims of statutory immunity?

Trial court held: Defendants were entitled to statutory immunity.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-422 - A-426].

            Supporting Cases: Gilbert v. Billman Constr., Inc. 371 N.W.2d 542, 546-47 (Minn. 1985).
           Spring Lake Park, 580 N.W.2d at 23. Pigs R Us, LLC, Respondent, vs. Compton
           Township, et al., Appellants State of Minnesota in Court of Appeals, A08-1580 (August
          11, 2009).

Constitutional and Statutory Provisions: Minn. Stat. § 466.03, subd. 6 (2008). Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability). Case law is not required when a statute is clear and requires no interpretation. When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit (Minn. Stat. § 645.16). Minn. Stat. § 586.09.

VIII. Legal Issue #8: Did exceptions exist to nullify qualified immunity?

Trial court held: Defendants were entitled to qualified immunity.

Preserved for Appeal: Oral arguments, exhibits, and written record [A-427 - A-431].

Supporting Cases: Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Constitutional and Statutory Provisions: Intentional torts are subject to liability (Minn. R. 1300.0110, Subp. 9). Inspections by Building Inspections (Minn. R. 1300.0110, Subp 7).

IX. Legal Issue #9: Are defendants guilty of gross negligence?

Trial court held: Did not rule.

Preserved for Appeal: Oral arguments (transcript) [33:11-25], exhibits, and written record [A-66 - A-67].

Supporting Cases: Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d 632, 103 Sup. Ct. 1625 (1983); Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002).

Constitutional and Statutory Provisions: Minn. Stat. § 3.736 Tort Claims, Minn. R.
1300.0110, Subp. 7 and 9; Minn. Stat. § 466.03, Subd. 5, 8, and 10. Federal Tort Claims Act.

X. Legal Issue #10: Summary judgment proceedings did not address claims of Deliberate Indifference, Section 1983, Section 1985, Tortious Interference, Fraud, Fourth Amendment, Fifth Amendment, Fourteenth Amendment.

           Trial court held: Did not rule.
           Preserved for Appeal: Exhibits and written record [A-26, A-189 - A-190, A-193 - A-194, A-
           217, A-401 - A-402, A-406 - A-407, A-410 - A-415, A-421 - A-422].

           Supporting Cases: Section 1983. City of Canton, Ohio v. Harris, 489 U.S. 378
           (1989). Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986). Pigs R Us, LLC,
          Respondent, vs. Compton Township, et al., Appellants.

Constitutional and Statutory Provisions: Fourth Amendment, Fifth Amendment,
Fourteenth Amendment.

STATEMENT OF FACTS

Case: Plaintiffs Marvin Pirila & Gail Francette vs. Defendants Thomson Township, Thomson Township Fire Department, John Gulland, Jeffrey Juntunen, and Duane Grace. This case was heard by the Honorable Dale Wolf on October 14, 2010 in the Sixth District Court in Carlton County.

Defendant Duane Grace was represented by attorney Michael J. McNamara of Reyelts, Bateman & Schramm while the other defendants were represented by Stephanie Angolkar of Iverson Reuvers.

Plaintiffs appeal from a judgment that granted Defendants motion to dismiss based on immunity based on all records, exhibits, and transcript.

Plaintiffs bought the property at 1 N Cloquet Rd W in Esko, MN, from Thomson Township in 2006. Plaintiffs allege that Defendants maliciously and willfully neglected their ministerial and operational (day-to-day) duties in overseeing the applicable building codes and ensuing building permits. Additionally, Plaintiffs claim defendants performed their discretionary duties with malice and lack of good faith.

Defendant Duane Grace, Plan Reviewer, assisted Mr. Gulland in the interpretation of building codes, receiving a portion of building permit fees as payment for his services [A-20]. The duties assumed by Defendant Grace to Plaintiffs where those specifically required under Minnesota Building Codes, Statutes, and Rules.

The Plaintiffs initiated a complaint and request for an investigation by the MN Department of Labor & Industry (MN DOLI). [A-5 - A-15] regarding issues with building inspector John Gulland.

The MN DOLI investigated the complaint regarding delays in the review and permitting process. Barry Greive, Senior Investigator for the MN DOLI conducted the investigation that resulted in the “censuring” of Defendant Gulland for several violations of Minn. Statutes and Rules, as defined under the Minnesota State Building Code.

On September 1, 2009 the MN DOLI informed Defendant Gulland that they had concluded their investigation (file # 09.1244), “Based on all of the information obtained during the investigation, the Department has concluded that you engaged in the following violations of the statutes and rules that govern duties of a Minnesota certified building official: Minn. Stat. § 326B.133, subd. 4; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110 [A-66 - A-69]; Minn. R. 1300.0110, subp.3 and subp. 4. [A-5 - A-15, A-66 - A-67]

It is noteworthy that the MN DOLI uses the word “engaged” as it implies he intentionally sought conflict through ignoring guiding statutes and rules.

They also concluded that Defendant Gulland "did not maintain administrative control over this project, thus allowing others [Duane Grace] to dictate code compliance. This resulted in confusion and/or delays. [A-5]

The Department is prepared to issue a Licensing Order regarding the violations outlined above that may include civil penalties up to $10,000 per violation. However, we are willing to allow you an opportunity to resolve this matter on an informal basis. Attached please find a Consent Order, by which you would agree to be censured and take five additional continuing education units in the next 12 months. You would be fined $5,000, though the $5,000 penalty would be stayed conditioned upon your compliance with the provisions of the Consent Order.” [A-5]

Defendant Gulland agreed to the “Consent to Entry of Order” signed by him on 9/29/09 [A-9].

The MN DOLI is the official administrative department of Minnesota Building Codes and oversees building inspectors enforcing them. Their censuring of building inspector John Gulland is proof that ministerial and operational duties were not followed as required by Minnesota Statutes and Rules.

The MN DOLI based its ruling upon the actions, records, and interview results of John Gulland.

GREB and Existing Building Provisions [A-2 - A-4, A-47-A-48]

Plaintiffs hired Designer Greg Hallback, in March 2007, to design and derive correct building codes. Mr. Hallback argued initially for GREB and the use of the 2003 Minnesota Building Codes, giving precedence to the “2003 International Existing Building Code,” for areas that GREB did not apply [A-47 - A-48, A-114]. Defendant Gulland did not specify any change and Designer Hallback continued with the design plans. Once GREB is requested and is applicable, its use becomes strictly a mandatory and ministerial duty for plan reviewers and building inspectors. Later on, despite Plaintiffs consistent requests that orders be in writing, Defendant Gulland verbally stated that the gym would have to meet the guidelines of the 2003 Minnesota Building Codes as well as current energy and accessibility rules, despite applicable exceptions. Designer Hallback argued "the gymnasium should not be reclassified since it was built as a gymnasium/community center, has always been a gymnasium center, and will continue to function as a gymnasium/community center. For nearly 70 years this building functioned in many, many capacities..." [A-49] Mr. Gulland insisted that a “change in ownership constituted a change in use” and subjected the project to current codes, and not GREB. Defendant Gulland interpreted it to mean that the building would be treated the same as a “new construction.” The MN DOLI investigated in 2009 and determined that GREB was correct and that energy codes did not apply [A-5]. Nothing in the State Building Code suggests a “change in use” occurs by a “change in ownership.”

The 2007 State of Minnesota Building Code (MSBC), adopted in July of 2007, replaced the 2003 version, while retaining the GREB guidelines. Neither Defendant Grace nor Gulland can accept the 2003 IBC as it wasn’t the effective and adopted state building code at the time the building permit was issued. Similarly, GREB may only be changed if another method or code was requested and approved. The Plaintiffs and Designer Hallback never requested any code change after the initial request for the 2003 IBC and GREB [A-47]. At no time in the review process were Plaintiffs informed that the 2007 State Building Code was to be applied exclusively to Phase 1, without allowances for GREB or Buildings [A-2, A-47 - A-48]. Likewise, no method or code was requested and approved in place of GREB and absent this request and approval, cannot be rejected.

Defendants Gulland and Grace gave Designer Hallback their approval to complete the designs for the first phase without the need for an architect. The building code that Architect Adams said he used in the “second” phase was the 2007 Minnesota State Building Code/2006 International Building Code and amendments. “The 2000 Guidelines for the Rehabilitation of Existing Buildings is not subject to frequent change…” Minn. Stat. § 1311.0010 [GREB] is incorporated by reference and made a part of the Minnesota State Building Code. An alternate code must specifically be asked for and approved. Architect Adams never asked to use any code in place of GREB.

Crawl Space: Defendants Gulland and Grace declared the area under the main building a crawl space requiring insulation throughout despite applicable exceptions (GREB and Section 1322.1101 IRC Section N 1101.1, Exceptions 3 & 4 [A-70]) and that it should have been considered technically infeasible. [A-3 - A-4]

Duane Grace wrote, “Now some of the requirements of this section [7674.0600] really should not be required of this structure and it is not economical [ly] feasible in that strict compliance would result in expenditures that would never pay back in that man’s lifetime. That is why we never will ask someone to dig around the foundation and install insulation to frost design depth.” Despite this promise, Defendants Grace and Gulland made this a strict requirement. Considering the great amount of time dedicated to this one item, and the ambiguous nature of the conversation, Defendants Grace and Gulland made something admittedly “technically infeasible” into a costly, delay oriented issue. [A-3 - A-4] The discussion of the crawl space disappeared when the MN DOLI initiated its investigation.

Occupancy Load: Defendants refused to allow exception to Section 1004.1.1 for occupancy loads, instead requiring a lengthy, unnecessary debate and submittals [A-124 - A-128]. This exception states, “When approved by the building official, the actual number of occupants for whom the space is designed for.” In Defendant Grace’s words to Gulland, “I believe as we discussed, this second floor or even the first floor could never support that high an occupant load as presently designed.” [A-121] The Plaintiffs were not copied on this email and found it during the discovery process.

Stop Work Order: There were no inspections made prior to the Stop Work Order written by Gulland; in fact, he made no contact with anyone, and had no facts or credible reason to substantiate the order. Defendant Gulland constructed a letter dated February 12, 2007, three days before posting the Stop Work Order on February 15, 2007. [A-16 - A-18]

Blank On-Site Inspection Card: Defendant Gulland failed to make any entries to the on-site inspection card as required by Minn. Stat. § 1300.0210, Subp. 3 [A-86] and 1300.0110, Subp. 5 [A-66]. This card is used by building inspectors to record inspection dates, areas inspected, noting approvals or deficiencies. Even throughout the MN DOLI investigation, Defendant Gulland made no entries to the on-site inspection card. The on-site inspection card was blank and there was no official record of inspections kept at Thomson Township. [A-1]

Public Duty Doctrine: Thomson Township had no key policy and acknowledged it didn’t know who retained keys to Plaintiffs building. Defendants Gulland and Juntunen made their way through locked doors on numerous occasions. Nothing was offered to explain their ability to pass locked doors any other way than by a key.

Second, Thomson Township failed to voluntarily answer information requests [A-101], letters, and emails. Defendant Gulland or any other person with keys had access to this file without any true accountability. This file did not show any evidence of inspections, details, or the basis upon which Thomson Township attorney David Pritchett based his letters citing fire and building code violations [A-87]. Thomson Township attorney David Pritchett interfered with informal discovery by writing plaintiffs and stating they were “…hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town.” [A-122 - A-123] Such requests by a person acting Pro Se are legal and especially appropriate when the town continually fails to respond to requests.

Defendants failed to answer Plaintiffs’ Request for Production of Documents, Set I, Requests 8-10, 12, 18-22, 26-27, 30-32, 33, and 35 claiming that the “Request calls for private data under the Minnesota Data Practices Act.” [A-102 - A-112, A-122 - A-123] The Minnesota Data Practices Act did not apply to Defendants [A-101] and was the basis by which they refused to answer previous requests for information.

In Thomson Township’s Answers to Interrogatories, Rhonda Peleski failed to provide any information for the 50 questions asked [A-175 – A-183].

Defendants refused to admit the genuineness of all documents submitted with Requests for Admissions [A-33 – A-35].

Third, Thomson Township conducted no recognizable inquiry into the reported behaviors of Defendants Gulland and Juntunen. Thomson Township denies that it has the obligation to oversee the actions of its employees and contractors [A-21, Adm. 23]. Thomson Township retains the authority under Minn. Stat. § 16B.65 to dismiss or suspend a building official at its discretion, yet they stand behind its claim that it has no obligation to oversee its building official. The Public duty doctrine imperatively follows statutes, US Constitution, and Minnesota Rules regarding entry.

Ambiguity: The absence of written orders and constantly changing verbal requirements led to unnecessary ambiguity. The MN DOLI cited defendant Gulland for failing to put all orders in writing [A-5] even though constantly pressed by Plaintiffs. Defendants Gulland and Grace differed in opinions that included: Defendant Grace said he had allowed a temporary certificate of occupancy when life issue items were scheduled for completion. Defendant Gulland adamantly refused. Defendant Grace said he had allowed phased approval of building permits to allow for some work to be done. Plaintiffs wanted to insulate the lower level of the main building to prevent as much heat loss as possible. Defendant Gulland refused. The Plaintiffs consistently received differing viewpoints from both.

Inconsistent “Admissions” statements: Defendant Grace admits Plaintiff Pirila was acting as his own general contractor, whereas Defendant Gulland claims he didn't know [A-23, Adm. 34]. The record clearly shows Plaintiff Pirila was acting as the General Contractor. Defendant Gulland denied that the MN DOLI was the official authority in charge of the building inspectors charged to enforce provisions of the Minnesota State Building Codes [A-30 – A-31, Adm. 101] while Duane Grace admits they are [A-261, Adm. 249].

Requests for Temporary Certificate of Occupancy: Plaintiffs made several attempts to get the requirements for a temporary certificate of occupancy in writing from Defendants Grace and Gulland and were ignored [See A-250, Adm. 162]. Plaintiff’s ability to manage the project was seriously hindered by the absence of written orders and the presence of verbal orders that consistently changed.

Alienation & Malice: Defendant Grace privately made many statements by email to Designer Hallback and Architect Adams that seemed to have the intent of alienating them from plaintiffs [A-117 - A-119]. The fact that Adams and defendant Gulland jointly made entries without consent implies that it had that effect.

Entry without Consent/Trespass: Defendant Gulland made several entries onto Plaintiffs property without proper consent [A-88]. There was no unsafe, dangerous, or hazardous situation. There were only non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away. Defendant Gulland never sought consent for entry, instead choosing to make inspections unbeknownst to Plaintiffs. Nevertheless, in Interrogatory 5, Defendant Gulland tries to justify his entries stating that he was always with someone. He was never in the building with just an employee of Plaintiffs, as he suggests [A-72, Interr. 5]. Plaintiffs had no employees. Defendant Gulland tagged along with Thomson Township Plumbing Inspector Paul Sandstrom on August 1, 2008, unbeknownst to Plaintiffs [A-73, A-79 - A-80]. Building inspectors generally do not attend plumbing or electrical inspections, and shouldn't be without the consent of owners or the ones performing the work. This was simply one township employee inviting another so he could perform an unauthorized search of premises. Defendant Gulland used this opportunity to produce a letter alleging building code violations the same day [A-114 - A-115]. Defendant Gulland’s attendance does not constitute consent and his report was based on illegal trespass [A-81 - A-82].

On two other occasions Defendant Gulland accompanied Architect Alan Adams, on forced progress inspections, both without consent of Plaintiffs. In fact, after the first surprise visit by the Architect and Defendant Gulland, Plaintiffs specifically objected to these inspections, and insisted that Defendant Gulland contact them for inspections or wait for them to call. He ignored their requests and made yet another unauthorized inspection with Architect Adams. The MN DOLI was contacted [A-112], and Barry Greive, Senior MN DOLI Investigator, immediately contacted Architect Adams and Defendant Gulland to discontinue what Plaintiffs considered punishment and retaliatory visits [A-83 - A-85]. These visits were discontinued immediately once the MN DOLI intervened, and clearly suggests they lacked legitimacy and were based on malice. Defendant Gulland forced plaintiffs out of work to make “his” scheduled meetings that were not reasonable, nor allowable under the statute.” These weekly meetings had little significance, were done against the consent of plaintiffs, unreasonable, retaliatory, and illegal. These forced inspections came only after the initiation of the MN DOLI investigation and during the residency of Plaintiffs. There was only one contractor working at that time and progress was slow.

These inspections were not consented to for Architect Adams [A-84, A-113] and Plaintiffs told Gulland the same. Lacking consent Architect Adams possessed no authority to invite or participate in these illegal visits. Defendants chose a time they knew the owners [Plaintiffs] were not home, expected no one on site, and had free reign to all areas inside the building.

The person doing the work authorized by permit is supposed to notify the building official that the work is ready for inspection per Minn. R. 1300.0210, Subp. 4. Defendant Gulland made several entries without consent or even attempting to seek consent. Defendant Gulland also required inspections when work wasn’t ready for inspection.

Records of inspections are to be kept on site by building inspectors [A-1], as well as in the Thomson Township files [A-67, Subp. 8]. Except for one plumbing inspection by Thomson Township Plumbing Inspector Paul Sandstrom that was found in Thomson Township files, there are no records for Defendants Gulland or Juntunen recording inspections.

Defendant Gulland failed to document inspections on the job site inspection card [A-1] and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection [A-1]. Other than a stop work order and ultimately a building permit, there was nothing in the interim. Gulland chose to threaten or issue stop work orders, rather than perform the duties (on-site inspection card, records of inspections, answer emails/phone calls, or put orders in writing) that would benefit the process. It was a crapshoot for Plaintiffs to figure out what Defendant Gulland would change next, because he kept all orders and requests verbally. Every action was to delay the project, not assist it.

Defendant Juntunen does not disguise his entry without consent simply responding he “entered Plaintiffs’ property to enforce fire code regarding large pile of debris” [A-24, A-87]. The large pile of debris Defendant Juntunen refers to was a pile of slats piled near the west wall of the building, outside. This pile did not happen overnight and in no way constituted an immediate problem that would justify any visit without consent of Plaintiffs. He made no effort to seek consent of plaintiffs prior to entering premises. There isn’t a phone record, an email, a record of inspection, or any other document to substantiate any attempt [A-116]. He also didn’t leave any notice that he had been inside Plaintiffs building. The building was vacant at the time and did not necessitate emergency access. Advance consent or a search warrant is a statutory requirement. If this were an authorized inspection there should have been a record on file at the Thomson Township Fire Department or proof that he had consent.

Defendants entered Plaintiffs property at times they reasonably knew they would be working, and could easily verify this by the lack of any vehicle in either parking lot. Absent the cars and the consent of Plaintiffs, both Defendant Gulland and Juntunen, made their way to a door they reasonably expected to be locked. Even so, they had every expectation of getting inside. The only way to have had this expectation was to have a key for that particular door.

Defendants Gulland and Juntunen roamed freely through Plaintiff’s property with no consent from Plaintiffs and no warrant. Thomson Township Attorney David Pritchett based his letter on September 5, 2008, upon the claims of Defendants Gulland and Juntunen, and threatened a stop work order [A-87]. Mr. Pritchett consulted with ex-zoning official, Marv Bodie, regarding the matter, which brings privacy rights into question [A-87]. As an attorney, David Pritchett was reasonably aware Gulland and Juntunen entered without consent. The Plaintiffs expressed their concerns with trespasses to Attorney Pritchett in their September 9, 2008 letter and received no response [A-88 - A-91]. Mr. Pritchett, like Thomson Township and the Thomson Township Fire Department, failed to make any recognizable inquiry into the actions of either Gulland or Juntunen.

Plaintiffs filed trespassing charges against Defendants Gulland and Juntunen with the Town of Thomson Police Department on June 24, 2010 [A-64 – A-65]. Because of the relationship of local law enforcement official Tom Foldesi with local officials, it was sent to Carlton County Attorney Tom Pertler [A-50]. The trespasses were discussed with the MN DOLI and State Fire Marshal prior to taking to the local authorities. The MN DOLI official stated that it was trespass and should be reported to the local authorities. The State Fire Marshal said they lacked jurisdiction unless Mr. Juntunen was acting in the capacity of Deputy Fire Marshal. Mr. Juntunen claimed his entries were done in the capacity of the Fire Chief [A-218, Interr. 22 (2)].

Plaintiffs scheduled an inspection by Defendant Gulland in March of 2009 in hopes of receiving a Temporary Certificate of Occupancy. The Plaintiffs asked Nick Perfetti to join them as they wanted another person to witness the verbal discussions they had with Defendant Gulland. The Plaintiffs had taken this measure because Defendant Gulland had repeatedly changed the verbal requirements for a Temporary C.O. (In fact, the verbal requirements continually changed and frustrated the plaintiffs repeated desire for them in writing. Gulland refused and only relented after the MN DOLI got involved). Mr. Perfetti arrived around 4:25 pm and found locked doors. He returned home for 20 minutes before returning at the same time as Ms. Francette. They found Defendant Gulland’s unoccupied vehicle and entered the building to find that Gulland was already inside. Francette immediately confronted Gulland and asked him how he gained entrance and he ignored the question [Depo. Francette, 14:8-20]. After Plaintiff Pirila arrived, he also asked Defendant Gulland how he got in through a locked door and was ignored [Depo. Pirila, 14:21-25, 15:1-10].

Thomson Township officials denied that “no trespassing” and “private property” signs are displayed throughout plaintiffs’ property [A-21, Adm. 19]. The signs were and have always been there throughout Plaintiffs ownership.

Building Permit Delays: Plaintiffs requested their first building permit and met with a 42-day review (December 4, 2007 - January 15, 2008) by Grace before he passed it on to Gulland for final approval [A-92 - A-99]. Defendant Gulland failed to act on the building permit in a timely manner (27 days) until Plaintiffs contacted the MN DOLI. This is a violation of Minn. R. 1300.0110, Subp. 8, Action on Application [A-142]. On February 11, 2008, Defendant Gulland finally issued a building permit with the expectation of a MN DOLI investigation [A-100].

The 2^nd building permit took 72 days of review for approval with Defendant Gulland failing to state his reasons for failing to take action on the building permit application in a reasonable time after filing. The site inspection card did not state that anything was deficient. In fact, the on-site inspection card was blank [A-1]. There was no written documentation from Defendant Gulland either rejecting the application or stating the reasons for its delay.

Knowledge of Problems: Thomson Township Attorney David Pritchett took an active role in the zoning discussions prior to Plaintiffs purchase. Pritchett acts as a liaison between various committees and the Town Board, as well as being contracted by Thomson Township to render legal advice on the behalf of both Thomson Township and the Thomson Township Fire Department. The allegations made by Defendants Gulland and Juntunen came after their trespasses. Had David Pritchett conducted a thorough investigation, asked where the information originated, and seeing within the file that there was no scheduled day for an inspection, he should have known this was either by trespass or they needed to explain further.

Thomson Township employee Rick Bassett (Zoning Officer) informed plaintiff’s banker James Kallestedt that Plaintiff Pirila and Defendant Gulland did not get along during a critical juncture in their search for financing.

Defendants deny that Marvin Bodie ever acted as a clerk for Thomson Township [A-20, Adm. 8-9] yet he clearly was the administrative clerk for the February 12, 2008, meeting held at Thomson Township [A-388].

Defendants denied that many groups were previous occupants/renters of the Old Washington School, when in fact they were.

ARGUMENT

1: Ministerial Duties and Operational (Day-to-Day) Duties

The MN DOLI censured Defendant Gulland for numerous violations of ministerial and operational duties, including:

a. Allowing a building to be constructed without a required fire suppression system (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1305.903.2.7) [A-1].

b. Requiring a structure to comply with the current energy code despite applicable energy code exceptions (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400) [A-5]. [This demand resulted in Plaintiffs having to put new 2x6 walls throughout the building, as well as new insulation, sheetrock, wiring, and plumbing. This included ceilings. Duane Grace admits he insisted that energy codes applied [A-246, Adm. 128; A-262, Adm. 259]. Defendant Gulland denied he failed to follow Chapter 1322 of the MSBC – Residential Energy Code exceptions for existing buildings [A-26, Adm. 58] despite the conclusion of the MN DOLI stating otherwise.]

c. GREB (Minn. R. 1311) and exceptions for existing buildings were specifically to be used for the project unless an alternate method or code was requested and approved (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110) [A-3 - A-4, A-66 – A-69]. [Both Gulland and Grace expressed their knowledge of GREB and provision for Existing Buildings and statutory requirements that obviously applied to a building built in 1907 and a gymnasium built in the 1930’s. Their knowledge and the expressed request by Plaintiffs for their use, as well as the statutory requirement, leaves no explanation other than one based on malice for their failure to allow GREB. There was 10 months from the first request for GREB until the first building permit, and nothing to overcome the argument that no alternative building codes were requested, nor approved. Another year passed before the issuance of the 2^nd permit and still GREB was improperly refused. Defendant Gulland had worked out of the Plaintiffs building from March 16, 1995 to the summer of 2006, or roughly 11 years as a building inspector when Thomson Township owned it.]

Defendant Gulland claims he did not use GREB because Plaintiff’s architect did not select GREB. Admit Mr. Adams elected to use the 2007 MSBC, IBC, and amendments for this project [A-24, Adm. 47]. This admission is made contrary to known facts. Mr. Adams (architect) was not on board until midway through the second phase of this project. The decision to use GREB was requested by designer Greg Hallback at the very beginning in both writing and verbally. Gulland denies that GREB guidelines applied [A-25, Adm. 48] despite being censured in part for failing to allow it unless another code was requested and approved. The Plaintiffs request is in writing and was requested verbally, yet Mr. Gulland has nothing to show as evidence that another code was requested and subsequently approved by him in writing. Gulland admits GREB rules are followed for an existing building [A-25, Adm. 52]. Gulland denies he followed the rules for Existing Buildings in the 2006 IBC [A-25, Adm. 57]. There is no factual evidence to validate this claim.

Defendant Grace admits he didn’t follow GREB guidelines for Plaintiffs project [A-256 - A-257, Adm. 214]. However, he denies that he failed to interpret codes accurately for plaintiff’s project [A-232, Adm. 19]. Grace admits he eventually learned that GREB could be used for Plaintiff’s project [A-238, Adm. 63), but unfortunately this admission came after the second permit had already been issued. Notably, Grace acknowledged the applicability of GREB as early as July 16, 2007, well before the first permit was issued in February of 2008. Prior to the second permit, Mr. Grace acknowledges GREB once again on December 11, 2008. Grace further admits GREB could have been used [A-238, Adm. 65]. Grace admits he should follow the GREB code when applicable [A-238, Adm. 62]. Grace admits being familiar with GREB [A-242, Adm. 99]. Grace admits he used GREB for other projects after Plaintiff’s project…[A-242, Adm. 102], yet still denies GREB was never used on Plaintiffs project [A-243, Adm. 104]. Grace admits he has followed GREB guidelines in all renovation/rehabilitation projects, unless other alternate methods are approved [A-256, Adm. 213]. He admits an experienced plan reviewer would not mistake a rehab project for new construction [A-259, Adm. 234].Grace denied he had a statutory obligation to treat this project under GREB [A-265, Adm. 281], even though the MN DOLI stated otherwise. There is no evidence to support GREB’s use anywhere.

d. Approving documents showing a code edition that was not adopted by the State of Minnesota (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110) [A-66 - A-69]. [This is common knowledge of building inspectors, and should be for plan reviewers as well [A-5]. Grace denied this charge [A-242, Adm. 95].

Defendant Grace is also responsible for the four above-mentioned violations of Minn. Statutes and Rules regarding ministerial and operational duties. Defendant Juntunen was also responsible for the violations regarding the required fire suppression system. The Commissioner of Labor and Industry have the power to enforce the State Building Code under Minn. Stat. § 326B.106, Subd. 2 and Minn. R. 1300.0070 Subp. 24. The MN DOLI also censured Gulland for:

e. Allowing work to continue without first issuing the proper permits is a violation (Minn. Stat. Minn. R. 1300.0070 Subp. 24, 326B.133, subd. 4, and Minn. R. 1300.0110, subp.3 [A-66]) [A-5].

f. Failure to issue all correction orders in writing (Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4 [A-66]). [Issuing correction orders in writing is ministerial. This repeated failure created ambiguity [A-5]. Despite the findings of the MN DOLI, Gulland denies he did not respond to multiple requests to put orders in writing [A-27, Adm. 75]. He also denied he failed to issue correction orders in writing [A-31, Adm. 102] but there is no evidence to support his claim.]

g. You did not maintain administrative control over this project, thus allowing others [Duane Grace] to dictate code compliance. This resulted in confusion and/or delays [A-5]. [It also created ambiguity.]

The District Court misunderstood the significance of the censuring of Defendant Gulland, failing to recognize those items cited were clearly ministerial duties. If they were not, there would have been nothing to censure. The MN DOLI, under Minn. Stat. § 326B.082, uses enforcement provisions under Subdivision 1 for conduct that would provide grounds for action under a licensee...under the applicable law." The MN DOLI was prepared to pursue civil penalties of $10,000 per violation and another $5,000 if he failed to agree to other terms of the Order to be censured. This amounts to as much as $75,000 and cannot be considered a minor reprimand. The administrative order to penalize Mr. Gulland $10,000 per violation is due to the applicable laws he broke (Minn. Stat. § 326B.082, Subd. 7). Mr. Gulland waived his right to fight the charges and chose to agree to informal proceedings. The censuring of Gulland is strictly based on his violations of the law. The amount the MN DOLI was prepared to pursue is indicative of the amount of harm they considered Mr. Gulland was responsible for.

The MN DOLI could have elected to charge Defendant Gulland for failure to complete other ministerial and operational duties such as:

a. Completing on-site inspection cards showing work and areas inspected, noting deficiencies or approvals (Minn. Stat. § 1300.0210 Subp. 3 [A-86] and 1300.0110 Subp. 5 [A-66]). [The requirement to complete the on-site inspection card is ministerial, the terms of how this is completed is discretionary. These cards would have reduced ambiguity and provided a framework for making necessary corrections [A-1].]

b. Records of inspections were not kept at Thomson Township as required. Defendant Juntunen did not keep any records of inspections at the Thomson Township Fire Department. Defendant Gulland failed to document inspections on the job site inspection card and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection (Minn. R. 1300.0110 Subp. 8 [A-67]). [This is a statutory requirement, and thus ministerial. It serves the additional purpose of validating legal entries and the purpose of the inspection(s).]

c. Failing to allow exceptions when known and ministerial in nature, such as those for the crawl space and occupancy loads. [The emails show the Defendants knowledge of these exceptions during the process, and the subsequent refusals to allow them (A-121, A-124 - A-128).]

d. Failing to conduct plan reviews in a timely manner. [These long reviews came after numerous revisions, evidenced by emails and drawings, considered final submissions.]

e. Failing to act on applications for building permits in a timely manner. [After the lengthy plan reviews by Defendant Grace, Defendant Gulland refused to act on the application, failing to state reasons for not approving them. It was not until the MN DOLI was contacted the first time, and not until the MN DOLI initiated its investigation the second time.]

f. Violating rules regarding entry. (Minn. R. 1300.0110 Subp. 7 [A-66 - A-67] and 1300.0210, Subp. 4 Inspection [A-86]). Trespass: Minn. Stat. 609.605 Subd. 1, 4, and 9. These entries constitute illegal and unreasonable searches. A reasonable search, pursuant to the Fourth Amendment requires a warrant or the owner's consent, balancing the need to search against the invasion that the search entails [A-62].

Defendant Juntunen failed his ministerial duties by failing to follow Minn. Statutes and Rules regarding:

a. Rules regarding entry (Minn. Stat. ¶ 299F.09, 299F.08, Subd. 1, 609.749 Subd, 1, 2, and 5)

b. Keeping reports of inspections on file at the Thomson Township Fire Department.

"Reasonableness" is the ultimate standard of the Fourth Amendment in determining whether an action is constitutionally permissible. Given the number of statutes Defendant Gulland was censured for, as well many more Minnesota Statutes and Rules that he, Grace, and Juntunen are responsible for violating, the standard of reasonableness has failed.

Every occupation has required duties that are necessarily followed, or it would lack the traits necessary for classification as an “occupation.” The court has taken “discretionary” too far in this case, ruling that building inspectors, plan reviewers, township officials, and the fire chief have within their power to do anything they desire under the guise of immunity. This is basically "sovereign immunity" and wrongly granted. Building inspectors are subject to oversight by the MN DOLI, who was given this power through legislation. The MN DOLI censured Defendant Gulland for what they considered a derelict of duties, clearly ministerial in definition.

Thomson Township, subject to certain exceptions under Minn. Stat. § 466.02, may be held liable for the torts of its officials under the Minnesota Tort Claims Act. Contrary to the courts ruling, these were not discretionary functions or duties, but ministerial and operational duties. They are clearly stated within the State Building Code, applicable Minnesota Statutes and Rules.

Defendants argue that the issuance of building permits and certificates of occupancy and the interpretation of building codes are discretionary acts, and municipalities are immune from tort liability for those acts. Anderson v. City of Minneapolis, 287 Minn. 287, 289, 178 N.W.2d, 215, 217, 1970). Anderson, however, does not address the forfeiture of claims to immunity when ministerial and operational level (day-to-day) duties are violated during the process. The issuance of building permits and certificates themselves may be discretionary, but immunity is premised on a process where ministerial duties and operational duties are followed. This includes: completion of on-site inspection cards [A-1], records of inspections, proper consent for entry, and adherence to applicable rules, laws, and duties. Anderson preceded the abolishment of sovereign immunity by judicial and legislative action in 1976.

If the legislative intent was to immunize building inspectors and municipalities from all aspects of the building permit process, there wouldn’t be exceptions. Statutes would simply not be needed to guide them in the process, as all functions would be “discretionary,” nor would the MN DOLI be needed to oversee. The State has moved in the direction of holding public officials more accountable in their positions by ending "sovereign immunity" and intended to hold them accountable for certain abuses, including ministerial and operational duties.

The imminent risk to the public is that individual rights are dismissed throughout the process, and the project they undertook is determined in whole by a corrupt building inspector. This case is instructive in showing exactly the problems that result from the belief that all duties are discretionary for building inspectors and they are entitled to immunity, regardless of their conduct. In this particular case: the wrong building codes were purposely enforced; illegal entries were made; the building inspector and fire chief failed to keep records of inspections; there was no written orders; no on-site inspection card [A-1] ; no clear cut instructions for certificates of occupancy; unjustified and unanswered delays in taking action upon application for permit; unjustified delays in the plan review process; retaliation for MN DOLI investigation [A-144]; broken verbal promises; intentionally created ambiguity; and malicious, corrupt motive.

Malicious means “nothing more than the intentional doing of a wrongful act without legal justification or excuse” or committing acts “while having reason to believe they are prohibited.” Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997). The record clearly shows that Defendants Gulland and Grace knew that GREB applied, but adamantly refused its application. Given the years of experience, training, and positions held by Defendants Gulland, Grace [A-167 – A-168], and Juntunen, it is unreasonable to believe these mistakes were simply done in error. The refusal to use GREB establishes intent, without just cause or reason, to commit a wrongful act that will result in harm.

Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) states, "[A] state employee who 'fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.'

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23. The defendants both violated known statutes, constitutional rights, and laws; they also committed discretionary duties with malice.

2. Trespass/Entry without Proper Consent

Defendant Gulland entered Appellants property on several occasions without consent or attempt at consent in violation of Minn. R. 1300.0110, Subp 7 [A-66 - A-67]. There was no unsafe, dangerous, or hazardous situation to prompt entry and entry is subject to consent or a search warrant. Appellants work as local postmasters and were simply a phone call away. The building was vacant and no certificate of occupancy was issued. Defendant Jeffrey Juntunen also made entry without consent, or even an attempt at consent [A-218, 22]. Defendants made entry to a locked building suggesting they used keys possessed from Thomson Township's previous ownership of the same building. All of the doors had not been replaced, nor locks changed, in the building after appellants took ownership.

Building inspectors and fire chiefs are expected to make allowable inspections, with consent or search warrant, at reasonable times. Defendants Juntunen and Gulland both made entries during the day knowing appellants were working [A-63 - A-65]. The absences of vehicles at a vacant building were obvious, the doors were locked, and yet both made entries. Defendant Gulland made the drive from Duluth on different occasions, knowing he could enter a locked building, to make illegal inspections. Defendant Juntunen made the drive from just two miles away from the property and chose to make entry without consent, rather than waiting to visit while appellants were home or pick up the phone to seek consent. Making inspections without the knowledge of appellants is unreasonable, trespass, and a violation of ministerial rights dictated by Minn. R. 1300.0110 Subp. 7 [A-66 - A-67]. Defendant Gulland is prohibited from entering "the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.” Subp. 7 includes, "... if premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.”

Minn. R. 1300.0210, Subp. 4, Inspection requests include, “The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection [A-86]. The person requesting an inspection required by the code shall provide access to and means for inspection of the work.” Inspector Gulland did not wait for the respective party to schedule an inspection; instead he decided when he would perform inspections without the benefit of consent. Plaintiff Marvin Pirila was acting as his own general contractor and should have been contacted to arrange inspections. Surprisingly Defendant Gulland denied during admissions that Mr. Pirila was acting as the general contractor [A-23, Adm. 34]. This admission was made in contradiction to known facts. Grace however admits that Marvin Pirila was always acting as his own general contractor [A-261, Adm.249].

Defendant Juntunen does not have the authority or right to enter private property, even if the door was open [A-218, 22(1)]. The mere act of entering private property, occupied or unoccupied, through a locked or open door is trespass. The common law of trespass dictates you stop at the door and knock, or leave a note. The Plaintiffs were just a phone call away. There was nothing of significance to justify immediate entry. All Defendant Gulland or Juntunen had to do was call one of the Plaintiffs and ask for an inspection that evening. Plaintiffs had never denied an inspection that was properly requested and arranged. Defendants elected to enter known, unoccupied premises at the time, without allowing Plaintiffs the opportunity to attend. The entries made by Defendant Juntunen were clearly trespassing and the entry of Defendant Gulland constitutes both trespass and corrupt motive.

“…The Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law.” Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH).

The Plaintiffs, Nick Perfetti, and contractors, Mark Blomquist [A-116] and Jake Fjeld, all verified locked doors that both Defendants Gulland and Juntunen bypassed. Defendants claimed they simply entered by an open door [A-218, 22 (1)]. Thomson Township has admitted it has no key policy and would have no way of knowing those who retained their keys for the Old Washington School (Plaintiffs property).

These trespasses and entries without consent were clear unlawful interference with plaintiffs “constitutionally protected property rights” and unconstitutional deprivation of property without due process (Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10) [A-57]. Defendants routinely violated the common law of property, the rights of ownership that include the right to control, possess, and enjoy property.

The entries by Defendants Gulland and Juntunen constitute trespass pursuant to Minn. Statute 609.605, Subd. 1 (2007) that states, (b) a person is guilty of a misdemeanor if the person intentionally: (4) occupies or enters the dwelling or locked or posted building of another, without claim of right or consent of the owner or the consent of one who has the right to give consent, except in an emergency situation; (9) enters the locked or posted construction site of another without the consent of the owner or lawful possessor, unless the person is a business licensee [A-53 - A-54].

If the statute's language is unambiguous, we must apply its plain meaning (Minn. Stat. § 645.16 (2008)). Under the basic canons of construction, no word or phrase should be deemed superfluous, void, or insignificant.

Defendant Gulland has a ministerial duty of documenting all inspections on-site [A-1], and along with Juntunen have the ministerial duty of recording inspections in the Thomson Township and Thomson Township Fire Department files, respectively. There are no files of any kind to support entries without consent, and by definition illegal.

Minn. Stat. ¶ 299F.09 clearly states that entry by fire chiefs (Jeffrey Juntunen) may be made only “after proper consent” or “pursuant to an administrative search warrant” [A-56 - A-57]. Defendant Juntunen had neither.

Minn. Stat. 299F.08, Subd. 1 states [A-56] a fire marshal, even when investigating the origin of a fire, may enter premises, but this search must be “reasonable within the meaning of this subdivision. The need for investigatory search for the cause of the fire shall be balanced against the privacy rights of the occupant or owner of the building or premises.” Defendant Juntunen is the local Deputy Fire Marshal and is reasonably aware of this requirement. It reasonably follows that if the privacy rights are weighed in the event of even “suspicious” fires, in the absence of such situations, privacy rights would weigh much heavier.

Defendant Gulland "harassed" plaintiffs by engaging in intentional conduct (trespass) which: (1) he knew or had reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim [A-51]. Both Defendant Gulland and Juntunen committed acts that constitute violations of Minn. Statute § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5 [A-50 - A-52, A-58 - A-61]. Plaintiffs constantly feared entry by Thomson Township officials and anyone else that ever had a key to the building. All of the Plaintiffs possessions were within their property while they lived at Plaintiff Pirila’s sister’s house awaiting a Temporary Certificate of Occupancy [A-120, A-145]. Nearly the only written correspondence Gulland managed were alleged code violations he ascertained via entry without consent/trespass [A-81 -A82].

Whether a party has given consent is a fact question for the jury. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 405 (Minn.App.1995); See also Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982) (jury issue as to whether entrant became trespasser by exceeding scope of possessor's invitation or permission).

In Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986) the Supreme Court’s ruling showed that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. If this unlawful action is prohibited and cause for liability for local policies, it follows that state and federal laws would also be applicable. This case has several cases of trespass, claims made based on these trespass, and numerous violations of state statutes and rules.

Once inside the building, without the consent of Plaintiffs, defendants had free reign to the entire building and their personal possessions. Inspections, like legal searches, are limited to certain areas, with either proper consent or a search warrant as needed.

The building official may not arbitrarily enter any existing building unless they have proper (legal) permission. MINNESOTA STATE BUILDING CODE ADOPTION GUIDE,

Minnesota Department of Labor and Industry Construction Codes and Licensing Division

Minnesota Building Codes and Standards Unit - January 2006.

Choosing to make entry secretly into Plaintiffs property without just cause or reason, such as an emergency situation, is clearly intent to abuse the scope of official authority. The failure to record these entries as required by statute is knowingly violating the law. Common law trespass has existed for hundreds of years and is too simple a concept to misunderstand.

3. Breach of Duty

There is a common law implied contract that exists between a building inspector and the homeowner. The building inspector is obliged to take reasonable care in administering building projects, following ministerial and operational duties, while using reasonable discretion where necessary to ensure proper building codes are followed. Both the building inspector and plan reviewer received fees based on their services, paid directly from plaintiffs. An implied-in-fact contract clearly existed betwen plaintiffs and the building inspector (Gulland) and plan reviewer (Grace).

Defendant Grace admits he was expected to review the building codes involved and aid in deriving the proper codes [A-239, Adm. 77].

Clearly stated statutes dictating aspects of building code administration placed Defendant Gulland in a position of “conduct, which merely puts into effect a predetermined plan.” Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986). The Minnesota Building Codes, Minnesota Rules, and Minnesota Statutes dictate what rules a building inspector must follow and where discretion is allowed.

The Supreme Court stated that the primary consideration in determining whether statutory immunity applies is whether the legislature intended to immunize the particular governmental function that gave rise to the tort action. If the intent of the legislature were to grant immunity for all acts and functions of the building official, they would have specified the same or simply eliminated exceptions from statutes. Plaintiffs argue that ministerial and operational level duties exist because of the need for maintaining a delicate balance between government and individual interests. Ministerial and operational level duties provide the basic framework that everyone expects to be followed methodically, providing both interests (government and individual) a common thread in which to manage their objectives. The absence of liability for these mandated duties would not serve the public or individual as there would be no form of accountability.

Thomson Township owes a duty to plaintiffs because it assumed the duty. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979). Thomson Township “assumed” this duty by filling four factors identified as tending to show an assumption of a “special” duty. These are: (1) Actual knowledge of a problem; (2) Plaintiffs’ reasonable reliance on representations and conduct of city officials; (3) An ordinance mandating acts by city officials for the protection of a class of persons; and (4) Actions by the city officials that increase the risk of harm.

In Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988) the court defined what constitutes a special relationship in the building code context. The plaintiff must establish (1) direct contact or privity with the public official, (2) that the official in response to a specific inquiry represent that the building code complied with the building code, and (3) reasonable reliance on the inspector’s assurances and the building permit. Id. At 453. The facts in this case satisfy the special relationship defined by Taylor.

Knowledge of the Problem: Thomson Township assumed a duty to Plaintiffs by taking active roles in meetings at the Thomson Town Hall regarding building permits. Both Marvin Bodie and Rhonda Peleski took meeting notes in their positions as Administrative Clerk and Deputy Clerk, respectively, and would have been responsible for typing the final notes. It is noteworthy to mention that Thomson Township claimed Mr. Bodie was never acting as a clerk for them, an admission clearly made contrary to the facts [A-20, Adm. 8-9]. Additionally, Town Board Supervisor Ruth Janke participated in one of the meetings. Attorney Pritchett also consulted Zoning Official Rick Bassett and former Zoning Official Marvin Bodie on the building and fire code allegations [A-87]. Thomson Township voluntarily and actively assumed a duty through its active participation in the building permit process.

Defendants Gulland and Grace received numerous emails and phone calls from Plaintiffs with their concerns and requests to put orders in writing. Plaintiffs requested Defendant Gulland’s removal from their project on September 11, 2008.

Defendants Thomson Township, Gulland, and Grace were all aware of Plaintiff’s complaint to the MN DOLI regarding the first building permit delays, as well as the call for an investigation by the MN DOLI when the second permit also experienced unexplainable delays.

Assumption of Duty by Jeffrey Juntunen: Defendant Juntunen trespassed into the personal premises of Plaintiffs, allegedly looking for them. Defendant Juntunen claimed he entered to discuss the pile of slats located outside the west side of the main building. This external situation, and the fact that it had been in place for a period of time, did not merit entry. He made no attempt to contact Plaintiffs prior to entry. He willfully committed an illegal action upon which he proceeded to make claims against the Plaintiffs. Acting as the fire chief he voluntarily and willfully assumed a duty to Plaintiffs.

Also, Defendants Jeffrey Juntunen voluntarily assumed a duty to Plaintiffs by developing fire orders for their property, unbeknownst to them. The fire department has discretionary rights to develop plans, but in this instance they included staying external and letting the building burn. This demands consultation with Plaintiffs as there was a serious life issue. Defendant Juntunen also helped develop the fire alarm system to be used at Plaintiffs property.

Assumption of Duty by Thomson Township and John Gulland: Thomson Township has no key policy and doesn’t know who retained keys for Plaintiffs property when they sold it to them. They assumed a special duty as they permitted unknown parties to retain keys that gave them direct access to the Plaintiffs building and personal effects.

Plaintiffs’ reasonable reliance on representations and conduct of city officials: Defendants Gulland [A-29, Adm. 87] and Grace have extensive expertise in the administration of Minnesota Building Codes. Thomson Township Attorney David Pritchett was aware of the Plaintiffs claims of trespass. Mr. Pritchett has an ethical, moral, and legal responsibility to make sure claims he reasonably knew were false or based upon a crime were dealt with accordingly.

Plaintiffs were led to believe they could trust Defendants Gulland to derive the right building codes and provisions. Defendant Gulland was reasonably relied on to follow “clearly established” constitutional rights, and in the absence of “good faith” there is no defense of immunity. Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871.

Defendant Juntunen is the Thomson Township Fire Chief and the local Deputy State Fire Marshal. Both positions dictate rules regarding entry that Plaintiffs reasonably relied on to be followed. Defendants relied on Thomson Township officials to oversee the actions of their employees, contractors, and volunteers. Thomson Township denies they have this responsibility [A-21, Adm. 23].

An ordinance mandating acts by city officials for the protection of a class of persons: Thomson Township has no such ordinance, nor is it required. Cracraft, 279 N.W.2d at 806-807. It is not necessary to satisfy all four of these factors. “Our cases have never held that the absence of third factor is dispositive. The third factor is but one of four factors. If it were to have more significance, it would be an element and not just a factor.”

Actions by the city officials that increase the risk of harm: Thomson Township’s failure to conduct a reasonable inquiry into the actions of Defendants Gulland and Juntunen emboldened the likelihood and probability of further transgressions. In fact, Defendant Gulland continued to make “Entries without Consent” onto Plaintiff’s Property.

This case holds a special relationship or duty between plaintiffs and defendants. Thomson Township owned the Old Washington School property since 1980 and sold it to the Plaintiffs in 2006. Plaintiffs endured four hours of questions and answers by the Thomson Township Zoning Board, and discussed several restrictive covenants. Defendant Gulland, as a part-time building inspector for Thomson Township, retained an office in the Thomson Township Hall, as he did in the Old Washington School (1995-2006) when the township owned it. Plaintiffs relied on Thomson Townships’ building permits and inspection to be accurate, honestly derived, and fair. When the use of GREB was argued, Gulland said it did not apply. Plaintiffs were not expecting the Township to have retained keys after the sale of the property, or that any employee/contractor would be in possession of keys. Thomson Township didn't even know who had keys because they had no key policy.

"[A] legal duty of care is imposed either by the common law rule requiring exercise of ordinary care not to injure another, or by a statute designed for the protection of others." Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 554 (Minn. App. 2003). The Plaintiffs reasonably expected the ministerial and operational level duties of building inspectors, township officials, and fire officials to follow applicable Minnesota rules, statutes, and basic individual rights.

Legal issue #4: Personal Injury Claims (Duty, Breach, Causation, and Harm)

Element One (Duty): Defendant Gulland was a part-time building inspector for Thomson Township, delegating several of his duties to Defendant Grace, used by Thomson Township to assist on Commercial projects. Defendant Grace did the plan review and other building inspector duties, except for some inspections and issuing building permits/certificate of occupancies. The MN DOLI cited Defendant Gulland for not maintaining administrative control when it censured him [A-5] because he allowed Grace to dictate code compliance, when that duty belonged to him. Defendants Grace and Gulland supported each other's errors. Thomson Township uses Defendant Grace more as a subordinate building inspector than a plan reviewer. Defendant Grace tends to control the process when involved, rather than conducting a mere outside review. The near absence of written communication by defendant Gulland is indicative of his refusal to perform his mandatory duties.

The common law imposes a duty upon each person to exercise reasonable care under the circumstances to avoid injuring others. The degree of care required may be increased as the apparent danger from failure to exercise that care increases. Rieger v Zackorski, 321 N.W.2d 16, 20 (Minn. 1982). The degree of care increased when: Plaintiffs explained the problems to Thomson Township officials, notably Attorney David Pritchett, yet nothing was done. Thomson Township failed to respond to Plaintiff’s request for the removal of Gulland and failed to respond to information requests they promised (Pritchett). The refusal to put orders in writing or to allow GREB resulted in lengthier, most costly plans. It also killed all plans for using the gymnasium immediately as it had been used.

Element Two: Breach of the Duty of Reasonable Care. Defendant Gulland failed to conduct himself in a reasonably prudent and careful manner by failing to perform operational level duties, trespassing, and retaliating. The failure to allow GREB, the illegally exploratory invasions of privacy, long plan reviews, and unexplained delays in permitting led to extensive damages. Defendant Gulland’s retaliation for the MN DOLI investigation constitutes a violation of Minn. Stat. § 326B.082, Subd. 11 (7).

Element Three: The Defendant’s Breach Must Proximately Cause the Plaintiff’s Damages. The defendant’s negligence resulted in the loss of the gym for rentals, room rentals, and caused enforcement of non-applicable energy codes [A-2]. The refusal of Defendants to allow GREB and provisions for Existing Buildings was devastating to the project in terms of time and costs [A-2 - A-4]. Thomson Township building has no gymnasium and Plaintiffs would have had a distinct advantage for renting. This constitutes tortuous interference. Plaintiffs were restricted from using the gym, leading to the problems that Defendant Gulland wrongfully claims [A-71, Interr. 1]. These problems occurred because of his insistence that GREB didn’t apply. In fact, the Plaintiffs received many inquiries into use of the building facilities.

In the absence of GREB, the construction process became far more detailed, costly, and time intensive.

Element Four: The Plaintiff Must Suffer Compensable Injuries or Damages. Government officials have a duty to not knowingly act contrary to existing law. The knowledge that a particular action is illegal creates a duty to avoid such action. Thomson Township, via its attorney David Pritchett, was fully aware of Plaintiffs claims that Defendants Juntunen and Gulland trespassed, yet did nothing to prevent its reoccurrence.” The Plaintiffs have detailed their actual and imputed financial losses due to the negligence of defendants. Medical claims were also made including TMJ (jaw problems from grinding/clenching), increased depression, and emotional distress.

5. Official Immunity [A-426]

Official immunity does not apply to ministerial duties and operational duties. Susla v. State, supra, 247 N.W.2d at 677, 912. Willfulness or malice overcomes official immunity. State by Beaulieu v. City of Moundsview, 518 N.W.2d 567, 570-71 (Minn. 1994). When an official willfully exercises his or her discretion in a manner that violates a known right, the protection of official immunity evaporates. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). The malicious actions are summarized in part in legal issue # 1 arguments.

The test for determining whether common law doctrines apply to legislative enactments is whether the doctrine is consistent or inconsistent with the legislative intent in enacting the statute. A review of Minnesota statutory law shows that often when the Legislature intends for public employees to have immunity for their official conduct, it has expressly provided the scope and definition of the immunity. See Minn.Stat. § 626.556, subd. 4 (b). The statutes applicable in this case cite the exceptions to immunity, including their scope and definition. Stated herein are numerous actions that meet the exceptions to immunity that Plaintiffs have substantiated via testimony, written records, and exhibits.

Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability) [A-67]. The MN DOLI investigation clearly outlines the numerous ministerial duties that Defendant Gulland failed to perform. A building inspector, given the required training and expertise boasted by Defendants Gulland and Grace, would not reasonably violate so many ministerial and operational duties of their positions, some extremely egregious (trespass, failure to allow GREB, failure to allow exceptions for existing buildings) [A-3 - A-4, A-47-A-48]. The failures of Defendants to perform the most basic, expected, and statutory requirements of their positions were clearly done in malice. These acts were done intentionally and it is highly unjust that their resulting costs should be passed onto Plaintiffs.

From the enactment of the Human Rights Act's first provisions in 1955, until sovereign immunity was abolished by judicial and legislative action in 1976, official immunity was a dormant doctrine. A review of the case law reveals that during those two decades immunity for public officials from common law tort claims was given only one vague reference. See Johnson v. Callisto, 287 Minn. 61, 176 N.W.2d 754 (1970). The dormancy of the doctrine during the decades when the Human Rights Act was evolving bolsters the conviction that the Legislature intended to hold public officials liable for their discriminatory acts without regard for official immunity.

6: Vicarious Official Immunity [A-427]

Defendants were stripped of vicarious immunity via the malicious acts of building inspector John Gulland, trespassing by Jeffrey Juntunen and John Gulland, and a failure to follow the ministerial, and day-to-day (operational level) duties of both.

Respond eat superior is a common law doctrine under which an employer may be vicariously liable for the torts of an employee under the course and scope of employment. Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999).

In its claim of official immunity, the city has not distinguished its liability from the liability of the officers. See Pletan v.Gaines, 494 N.W.2d 38, 42-43 (Minn.1992) (no bright-line rule defines when vicarious official immunity extends to the governmental employer).

7: Statutory Immunity [A-422 –A-426]

Statutory immunity does not extend to acts absent of good faith or those involving malice. Similarly, statutory immunity is lost when there is the failure to perform operational (day-to-day) and/or ministerial duties.

The Defendants argue that they are entitled to Statutory Immunity as ruled In Universal Circuits, Inc., et al., v. City of Maple Grove, (Minn. 1996). However, in Universal Circuits the court did not undertake the argument that the city acted outside its allowed discretion in the decision-making process as Plaintiffs are alleging. The Defendants have taken Circuits too broadly in its defense. In Plaintiffs case, it was Defendant Gulland that denied GREB during the initial discussions and designed the rules, along with Defendant Grace, that would result in a building permit. Nearly everything from Defendant Gulland was kept verbal, despite numerous requests by Plaintiffs that orders be put in writing. Defendant Gulland created the variables that would result in a building permit, even though he intentionally delayed issuing building permits until intervention by the MN Department of Labor each time. By steering Plaintiffs, Defendant Gulland assumed a duty to them. In Circuits the arguments are based just on the issuance of building permits and certificates and their interpretations, after the fact. It fails to go into the ministerial and operational level duties involved in the performance of a building inspector’s duty up to and including the final issuance of a certificate of occupancy or building permit. Immunity is limited to discretionary conduct done in good faith and is not applicable to ministerial conduct. Spring Lake Park, 580 N.W.2d at 23. The legislature did not intend to protect municipalities through immunity, for the failure to perform ministerial and operational level duties. This intent also included liability for discretionary duties performed in bad faith or malice.

"And because the actions at issue were ministerial, for which official immunity does not apply, the district court did not err by finding that appellants are not entitled to vicarious official immunity." Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants State of Minnesota in Court of Appeals, A08-1580 (August 11, 2009).

Minn. Stat. § 586.09 is an “applicable statute” which defeats defendants statutory immunity claim pursuant to three enumerated exceptions—discretionary acts, execution of a valid or invalid ordinance, and no loss of property, personal injury, or death – none of these apply in this case.

8: Qualified Immunity [A-427 – A-431]

The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is not legally reasonable to violate a known right (trespass) and so many Minn. Statutes and Rules. Trespass is an intentional tort and dismisses all claims to immunity. Defendants, given their years of experience and training, knew better than to trample numerous, unambiguous statutes, rules, and constitutional rights. Any building inspector or fire chief, given the same training, years of experience, and knowledge of ministerial/operational duties, would not reasonably disregard the most basic rights of individuals.

The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U. S. 800 (1982), is that "where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences.'" This case, as proven within the record and the censuring of Gulland shows that clear established rights were implicated and would not be in the interest of the public to ignore.

Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate. . . . " Id. at 457 U. S. 819 (emphasis added). This is as true in matters of national security as in other fields of governmental action. The District Courts’ ruling that the disputed duties are “discretionary” fails to acknowledge the guiding statutes, rules, building codes, and Constitution. The summary judgment ruling by the District Court is basically a claim to “sovereign immunity,” when immunity, in this matter, can only be granted, upon a showing that the duties in question are discretionary, done in good faith, and without malice. The Defendants offered no evidence to show good faith, lack of malice, or that the duties were discretionary. Their whole case rested on the premise of “immunity” based on discretionary duties.

Qualified immunity sufficiently protects the legitimate needs of public officials, while retaining a remedy for those whose rights have been violated.

9. Gross Negligence

Intentional torts, such as trespass, are subject to liability (Minn. R. 1300.0110, Subp. 7 and 9) [A-66 - A-67]. Personal injury is also possible via Minn. Stat. § 3.736 Tort Claims.

Both Gulland and Grace failed to use that degree of care that a reasonable and prudent person would under like circumstances. Negligence, under the law of some states, is proved simply by the violation of some statutes. In others, it requires more than this and must breach the "reasonable" under the circumstances. Defendants have acted with negligence and failed to be reasonable as defined by case law.

Defendants failed to exercise the degree of care rendered appropriate by the particular circumstances and that of an individual of ordinary prudence in the same situation and with equal experience. The intentional failure to perform a manifest duty affecting the life or property of another constitutes “gross negligence.”

Limited by several enumerated exceptions, “every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.” Minn. Stat. § 466.02 (2008) (emphasis added). Thus, section 466.02 specifically states that, absent a statutory exception found in subsequent sections of the statute, municipalities are liable for their torts. The MN DOLI investigation shows a failure to meet the statutory exceptions under Minn. Stat. § 466.03, Subd. 5, 8, and 10. Although the statute does not define “tort,” a tort is “[a] civil wrong . . . for which a remedy may be obtained, usu[ally] in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.” Black’s Law Dictionary 1526 (8th ed. 2004).

The plain language of the MTCA establishes that it applies to tort actions, and had the legislature intended the MTCA to apply to causes of action other than in tort, it would have said so. See Minn. Stat. § 645.19 (2008) (stating that statutory provisions are read to limit rather than extend operation of clauses to which they refer). Because mandamus is a separate and distinct cause of action, defendants cannot seek immunity protection pursuant to the MTCA.

Because the legislature modified the common-law mandamus action to include the automatic award of damages, we presume that it did so specifically to permit a private party to recover damages from government entities. Throughout the advent of statutory-immunity law, there has been no cross-reference between immunity statutes and the damages provision in the mandamus statute, and at no time has the Minnesota Supreme Court held that government entities are immune from damages that have been awarded under the mandamus statute. Pigs R Us, LLC, Respondent, vs. Compton Township, et al., Appellants.

Punitive Damages are available against individual state actors upon a showing that the conduct was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade 461 U.S. 30, 56, 75 L. Ed. 2d. 632, 103 Sup. Ct. 1625 (1983).

The Federal Tort Claims Act provides in part that "The U.S. shall be liable...relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." Even when suit against the government or agency is unavailable, actions may be taken against the individual officers who committed the wrong. Such suits, generally, may be based on common law principles of liability, various civil right statutes, or the Constitution itself. The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84).

Torts include the intentional infliction of mental distress, trespass to land and personal property, fraud, libel, nuisance, negligence, recklessness, and invasion of privacy.

The clear cause of action for gross negligence is the MTCA, Minn. Stat. § 466.02, and the FTCA.

(“If liability is premised upon the negligent performance (or non-performance) of a ministerial duty imposed by law or government policy, then immunity will not apply.”). Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) (stating, “[A] state employee who ‘fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.’ ”) (citation omitted).

10. Unaddressed Claims

Summary judgment proceedings did not address claims of Deliberate Indifference [A-401 – A-402], Section 1983 [A-406 – A-407], Section 1985 [A-407 – A-409], Tortious Interference [A-410], Fraud [A-411 – A-415], Perjury, Fourth Amendment [A-415 – A-420], Fifth Amendment [A-422], and the Fourteenth Amendment [A-421 – A-422].

Fourth Amendment and Section 1983 claims were made in Plaintiffs Summons and Complaint and is not a new claim. This case was supposed to have a scheduling hearing to determine time frames for dispositive and non-dispositive motions, but was postponed pending the summary judgment motion. New claims may be made at the hearing, and may be accepted by the judge, especially when they are relevant, as they were in this case.

The major purpose of Section 1983 is to provide a tangible legal remedy in the form of an injunction, monetary damages, as well as the recovery of attorneys’ fee for the violation of constitutional rights by government, government officials, administrators, and employees. The “tort” element of the legal wrong includes the recovery of compensatory, emotional distress, and punitive damages. Section 1983 liability punishes only purposeful “deprivations” of constitutional rights. The Supreme Court case of City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) described a “policy” of “deliberate indifference” to citizens rights as a purposeful deprivation of a constitutional right. Deliberate indifference can be demonstrated when managers and supervisors knew of, or should have know of, frequent constitutional violations, but nonetheless allowed their subordinates to act without any rehabilitative warnings, discipline, or training.

This particular case shows knowledge by Thomson Township officials that constitutional violations had occurred, and through admissions, no one received discipline of any kind [A-26, Adm. 26, 66; A-194, 7]. Likewise there was no showing of rehabilitative warnings or training. The MN DOLI disciplined Defendant Gulland for his statutory violations as they occurred within their jurisdiction, but did not address those outside of Minnesota Building Codes. That was left to Thomson Township officials who simply ignored the pleas of its citizens. Thomson Township admitted they did not have any job description detailing duties of fire chief [A-189], nor that of state fire marshal, or Town Board Supervisor [A-190, 18]. Thomson Township has no documentation showing Duane Grace's duties [A-193, 3; A-194, 6]. Defendant Juntunen admitted that notes weren't kept for fire orders for Plaintiff's building [A-217].

Deliberate indifference is defined as the conscious or reckless disregard of the consequences of one’s acts or omissions [A-402].

Section 1983 attaches when a deliberate choice to follow a course of action is made from among various alternatives by the officials or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986). This case shows that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. Defendants Gulland and Juntunen chose to make entry to Plaintiffs building via trespass rather to seek entry legally.

CONCLUSION

The Defendants violated numerous exceptions to immunity by failing to perform the required ministerial and operational duties. Exceptions to immunity were clearly intended to provide relief and recourse to those injured by the malicious and willful acts of building inspectors and fire chiefs. The defendants also failed to perform their discretionary duties in good faith and reasonable care.

The Defendants colluded to prevent Plaintiffs from the reasonable time period in which a building permit could be obtained. They drug out the review process, refused to follow GREB, failed to allow exceptions for Existing Buildings, and failed to issue a building permit after the review process was completed until the intervention of the MN DOLI each time. Thomson Township turned a blind eye to the problem, exacerbating the situation. Their attorney blatantly interfered with the discovery process, dared Plaintiffs to sue, and promised information he never delivered.

The discovery process was wrought with late admissions, contradictory answers, and blatant admissions made contrary to evidence. There were numerous attempts made to get information via formal and informal discovery that were buried in legalese, omission, and obstructions. This may be popular legal strategy, but in this case it leaves many questions and genuine issues of material fact for trial. The many opposing positions Defendants took on discovery attempts proved futile and deserves to be addressed at trial in front of a jury that can witness the same.

The Defendants made no case other than they have immunity for any action taken. The party asserting immunity has the burden of showing that it is entitled to the immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). Summary judgment is “inappropriate when reasonable persons might draw different conclusions from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). The defendants simply stood behind their basic right to immunity as public officials and those working for them. The burden of proof that the duties, censured by the MN DOLI, and other duties in contention, simply weren’t proven to be discretionary. One of the controlling issues of this case was whether the duties being disputed were discretionary or ministerial/operational level duties. Recording inspections, putting orders in writing, and similar job duties play no role in the discretion of building inspectors deciding what provisions of the State Building Code apply. Ministerial/Operational duties are clearly distinctive from discretionary ones where independent judgment is used. The defendants didn’t provide any proof they were discretionary and entitled to immunity. The MN DOLI disciplined Gulland for duties it considered ministerial and violations of applicable statutes.

Several genuine issues as to material facts remain that entitle plaintiffs the right to a jury trial. These include: trespass; civil right violations; negligence; ambiguity; malice; and intentional tort. Summary judgment hinges in part on whether the case, on the merits, makes a claim that is sham or there is no real defense. There are strong claims of defense in this case and summary judgment must fail. Similarly, summary judgment rests in part on the claim being defective. That cannot be said without first determining the ministerial duties of the defendants. All duties involved with the issuance of building permits and fire inspections are not discretionary. If they were, you could simply throw out every statute and provision of the State Building Code and let each individual inspector decide what should or shouldn’t be done in the pursuit of a building permit. Reasonable men would very likely differ as to the result derived by the District Court. Summary judgment may be properly denied if the court finds there is an issue as between the theories.

There was no evidence from Defendants that their actions were proven discretionary or done in good faith. As the moving party, they have the burden of substantiating their claim for immunity. The facts clearly show that the MN DOLI did not consider the acts of Defendant Gulland reasonable by censuring him, and those same acts were similarly done by Defendant Grace. The facts alleged by plaintiffs support a claim of violation of clearly established law.

Intentional tort and negligence claims are soundly established in this case, and deserve to be tried at jury trial. The facts in this case were clearly in dispute and deserve a denial of summary judgment.

"The judgment sought [in a summary judgment motion] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.Rule Civ.Proc. 56(c).

Cases in which the official did violate a clearly established legal norm should proceed as expeditiously as possible to trial.

An appellate court is best able to decide whether given conduct was prohibited by established law if the record in the case contains a full description of that conduct. See Kenyatta v. Moore, 744 F.2d 1179, 1185-1186 (CA5 1984).

Appellants request this matter be remanded to District Court with instructions to proceed to jury trial on all matters.

Respectfully submitted,

PIRILA & FRANCETTE

By Marvin Pirila

Pro Se - Appellant

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

APPENDIX AND INDEX

On-Site Inspection Card…………………………………………………………………………...1

Greg Hallback Letter (1/20/10)…………………………………………………………………2-4

Minnesota Department of Labor & Industry Investigation…………………………………....5-15

Stop Work Order……………………………………………………………………………..16-18

Defendants (Except Grace) Response to Plaintiffs’ First Request for Admissions (Revised).19-36

Defendant Duane Grace’s Response to Second Request for Admissions……………………37-41

Blank………………………………………………………………………………………….42-43

Defendant Duane Grace’s Email to Hallback and Gulland…………………………………..44-45

Greg Hallback Letter (5/17/07)………………………………………………………………46-49

Tom Pertler Fax (8/10/10)……………………………………………………………………50-54

Tom Pertler Fax (7/21/10)……………………………………………………………………55-63

Town of Thomson Police Department Complaint……………………………………….…...64-65

Duties and Powers of Building Inspector……………………………………………….……66-69

1322.1101 IRC Section N1101………………………………………………………….……….70

John Gulland’s Answers to Plaintiffs’ Interrogatories……………………………………….71-78

Thomson Township Meeting Minutes – Plumbing Inspection (8/1/08)……………………...79-80

John Gulland Letter (8/1/08)…………………………………………………………………81-82

Barry Greive, MN DOLI, Email (5/13/09)………………………………………………………83

Alan Adams email (Architect) (6/17/09)………………………………………………………...84

Barry Greive email (8/17/09)…………………………………………………………………….85

Minnesota Rule 1300.0210 Inspections…………………………………………………………86

Letter from Thomson Township (Pritchett) (9/5/08)…………………………………………….87

Letter to Pritchett (9/9/08)……………………………………………………………………88-91

Greg Hallback email (12/4/07)……………………………………………………………….92-93

Letter from Duane Grace (12/19/07)…………………………………………………………94-96

Greg Hallback email (1/15/08)……………………………………………………………….97-99

Building Permit (2/11/08)………………………………………………………………………100

Association of MN Townships printout………………………………………………………...101

Defendants Response to Plaintiffs’ Request for Documents, Set I………………………..102-111

Minn. R. 1300.0110 Duties & Powers of Building Official……………………………….112-113

Greg Hallback Letter (5/15/07)…………………………………………………………………114

Blank……………………………………………………………………………………………115

Mark Blomquist Statement regarding entry by Juntunen………………………………………116

Duane Grace email (12/15/08)………………………………………………………………….117

Duane Grace email (2/2/09)…………………………………………………………………….118

Duane Grace email (1/28/09)…………………………………………………………………...119

Gail Francette email (12/15/08)………………………………………………………………...120

Duane Grace (12/18/08) regarding Load Occupancy…………………………………………..121

Pritchett Letter regarding Notice of Claim………………………………………………...122-123

Greg Hallback regarding Occupancy Load (12/28/08)……………………………………124-127

Greg Hallback email (12/29/08)………………………………………………………………..128

Order and Memorandum of Court (12/29/10)……..………………………………………129-134

Summons and Complaint (3/16/10)………. ………………………………………………135-149

Defendant Grace’s Memorandum of Law in Support of his Motion for Summary Judgment (9/13/10)……… …………………………………………………………………………..150-166

Duane Grace’s Experience Summary (LinkedIn)…………………………………………167-169

Blank……………………………………………………………………………………………170

Affidavit of Duane Grace …………………………………………………………………171-174

Thomson Township’s Answers to Interrogatories…………………………………………175-183

Defendants (Except Grace) Supplemental Response to Plaintiffs’ Request for Production of Documents, Set 1…………………………………………………………………………..184-186

Response to Plaintiffs’ Request for Production of Documents, Set 2……………………..187-190

Defendant Duane Grace’s Responses to Plaintiffs Request for Production of Documents, Set I ……………………………………………………………………………………………..191-198

Defendant Duane Grace’s Answers to Complainant’s Interrogatories……………………199-214

Fire Chief Jeffrey Juntunen’s Answers to Plaintiffs’ Interrogatories……………………...215-221

Affidavit of John Gulland………………………………………………………………….222-229

Defendant Duane Grace’s Response to First Request for Admissions……………………230-269

Depositions of Plaintiff’s…………………………………………………………………..270-313

Notice of Claim……………………………………………………………………………314-335

Admissions by Grace made contrary to facts……………………………………………...336-346

Plaintiffs’ Memorandum of Law in Opposition to Summary Judgment (10/1/10)………..347-432

Defendants Memorandum in Support of their Motion for Summary Judgment (9/10/10)..433-458

Proposed Order and Memorandum of Defendants for Summary Judgment………………459-482

Defendants Reply Memorandum in Support of their Motion for Summary Judgment……483-488

Defendant Grace’s Response to Plaintiffs’ Request for Documents, Set 2………………………..

Defendants Response to Plaintiffs’ Second Request for Admissions……………………………..

Notice of Appeal………………………………………………………………………………….

The trial court in this case was the Sixth Judicial Court with judge Dale A. Wolf presiding.

Minnesota Building Codes

Saturday, August 27, 2011

Appellate Decision - What about the exceptions to immunity? They ignored them.

Building Codes Dispute Goes to the Appellate Court