Unconstitutional Inspection Scheme

By Dana Barliner

 On December 28, 2011, the Minnesota Supreme Court handed down an important victory for Red Wing property owners and renters, and for citizens across the state of Minnesota. The court allowed a property rights case to go forward that had been tied up by procedural wrangling for more than five years. The case challenges Red Wing’s rental inspection program, under which the city can enter and inspect people’s homes without any evidence that a code violation has taken place. The decision, which seriously examined the facts of the case and the practical impact of the law on plaintiffs’ rights, is a model of judicial engagement.

Nine landlords and two tenants from Red Wing, Minn.—who are represented by IJ—object to Red Wing’s rental inspection law. Many cities across Minnesota—including Minneapolis, St. Paul, Duluth and Rochester—have ordinances like Red Wing’s that allow government officials to conduct housing inspections of all rented homes in the city, even if the tenant refuses to consent to the search and even if the government has no reason to believe there is a problem with the rental home or even with the building.

Red Wing’s unconstitutional inspection program allows government inspectors to poke around in practically every nook and cranny of rented homes—even closets and bathrooms. Over the past four years, Red Wing had tried three times to get what are called “administrative” warrants to force entry into these homes after the tenants and landlords refused to consent to the searches. Unlike a typical search warrant, an “administrative” warrant does not require individual probable cause—in other words, the government does not need any evidence that the law has been violated. It simply says there is a general reason to search. In the case of rental inspection programs, cities simply say that they have an inspection program and that they need to conduct searches in order to make sure everyone is complying with all housing codes. If the administrative warrant is granted, the government is then free to search the homes of renters against their wishes.

Even though Red Wing had been trying aggressively to get these warrants to search our clients’ homes and properties, and even though Red Wing had stated unequivocally that it would continue to seek entry to the homes, both the trial and appeals courts had said that the tenants and landlords did not have standing to challenge the rental inspection law. It looked like our clients were going to have to wait until after an unconstitutional search in order to challenge it. Now, thanks to the Minnesota Supreme Court, the courthouse door is open and our clients will find out if the law is constitutional before it is used against them.

As the Minnesota Supreme Court pointed out, “The City has actually begun enforcing the rental inspection ordinance against appellants.” Therefore, there is a real dispute over our clients’ rights, and the courts can proceed to address whether the law is unconstitutional.

Landlord Robert McCaughtry, one of our clients, has had enough of the city’s inspection program. He said, “It is wrong for the city to force its way into people’s homes without any evidence of a problem or code violation. I’m grateful that we’ll finally get our opportunity to show that this program is unconstitutional.”

The Minnesota Supreme Court sent the case back to the Minnesota Court of Appeals to consider whether the Minnesota Constitution forbids administrative search warrants, particularly administrative search warrants for people’s homes. We argue, to the contrary that the Minnesota Constitution requires actual probable cause to believe that someone is violating the law before the government may conduct a search against someone’s will. If we are successful, the decision will protect all Minnesotans and set important precedent throughout the country.

Dana Berliner is IJ's [Institute of Justice] litigation director.  Take this link to the Institute of Justice Newsletter....

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Petition filed with State Supreme Court

APPELLATE COURT CASE NUMBER A11276

STATE OF MINNESOTA

IN COURT OF APPEALS

CIVIL SUIT

PETITION FOR REVIEW OF
Petitioners, Marvin Pirila & Gail Francette

DECISION OF COURT OF APPEALS

vs.

APPELLATE COURT CASE NUMBER: A11-276

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

DATE OF FILING OF COURT OF APPEALS DECISION: 8/22/11

TO: The Supreme Court of the State of Minnesota

The petitioners Marvin Pirila and Gail Francette requests Supreme Court review of the above-entitled decision of the Court of Appeals on the following grounds.

1. Statement of legal issues [A-572 - A-605] and their resolution by the Court of Appeals

Legal Issue #1: Did defendants fail to perform the ministerial and operational (day-to-day) duties entrusted them [A-572 -581]: Appellate Court did not address.

Legal Issue #2: Did Defendants commit trespass? [A-581-587] Appellate Court did not address.

Legal Issue #3: Did Defendants have a duty to Appellants? [A-63-67, 587-593] Appellate Court did not address.

Legal Issue #4: Do the personal injury requirements of duty, breach, causation, and harm exist? [A-593 - A-595] Appellate Court did not address.

Legal Issues #5-8: Do applicable exceptions void claims of official, vicarious official, statutory, and qualified immunities? [A-595 - A-600] Appellate Court affirmed immunity applied, without addressing statutory exceptions.

Legal Issue #9: Are defendants guilty of gross negligence? [A-600-603] Appellate Court did not address.

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. Appellate Court did not address. [A-603 - A-605]

2. Statement of the criteria relied upon to support the petition

The Minnesota Dept. of Labor & Industry censured [A-5 - A-9] the building inspector (file # 09.1244) stating, “… 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, Minn. R. 1300.0110, subp.3 and subp. 4 [A-7]. The MN DOLI also concluded that Defendant Gulland "did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays.

The application of the “immunity” defense in this case by the District Court and Appellate Courts implied there was a cloak of “sovereign and absolute immunity” to all duties of a local government official. The lower courts failed to consider the numerous exceptions to immunity that applied in this matter, leaving the impression that individuals are at the complete mercy of government officials. This interpretation contrasts sharply with the Minnesota Constitution Bill of Rights, Article 1 and 8, guaranteeing rights to the people, and specifically individuals. The public good is not served by protecting those that refuse or neglect to perform their most basic duties, ministerial and operational level in nature. The clarification of these exceptions, and possible consequences, would serve all citizens of this state that work with government officials. The award of immunity should only come through good faith efforts, and the strict adherence to ministerial and day-to-day (operational level) duties. The lower courts dismissed charges of trespassing/entry without consent under the defense of immunity.

3. Statement of the case

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

Respondents had operated out of this same building for 13 years, yet determined once sold that it was a new construction and not a rehab project under the Guidelines for the Rehabilitation of Existing Buildings (GREB) (Minn. R. 1311). Once requested, as it was by petitioners, GREB's use is mandatory [A-5]. Nonetheless, respondents refused to follow GREB and demanded building codes that were far more expensive to follow.

The Minnesota Dept. of Labor & Industry was involved twice in an effort to get the project moving. The MN DOLI investigation that ensued resulted in retaliation by building inspector John Gulland. The MN DOLI had to intervene to stop this retaliation [A-83 - A-84]. Both the building inspector and fire chief in question both trespassed and currently being investigated by the Carlton County attorney.

Summary Judgment was granted at District Court and affirmed at the Appellate Court based on claims of immunity, without due consideration of exceptions that applied.

4. A brief argument in support of petition

Minnesota Statutes and Rules include exceptions where immunity is lost, specifically in cases of bad faith and the failure to follow ministerial duties. “Sovereign Immunity” is being enforced under the guise of other immunity defenses. The blanket “immunity” that is applied to cases such as this is unconstitutional as it fails to protect any rights of individuals subjected to abuses. Exceptions to immunity were intended to provide recourse to individuals and protect them from such abuses that petitioners endured (trespassing, bad faith, retaliation, intentional delays, failure to complete on-site inspection cards, failure to keep records of inspections at the township, failure to put orders in writing). Petitioners routinely requested orders in writing to avoid the resulting ambiguity only to see their requests ignored. If this is the best one can expect of building code administrators and expert plan reviewers, what should one expect of those they oversee and/or mentor? One should be able to expect a basic framework from which everyone operates. Minus this framework, there is too much power left in the hands of some unscrupulous and malicious individuals. This individual in turn decides whether or not the project will succeed or fail, based on his or her own objectives. Without the proper checks and balances, injustice is inevitable, and when it is without recourse, unconstitutional.

Constitutionally, can a statute stand that has no backbone? As stated in Mitchell v. Forsyth, “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). Statutes and rules without “true” meaning or possible punishment embolden, not hinder deviant behavior. In petitioners’ case, not only did defendants know they were deviating from established and/or expected norms; they did so with no hesitation or worry of consequences. This became highly apparent by the trespassing and forced inspections that took place during the ongoing investigation by the MN DOLI. The defendants knew the legal system allowed them extraordinary latitude and they simply did what they wanted, caring less about doing it professionally or ethically.

The Supreme Court is the right authority to determine whether there is going to be a continuance of this enormous latitude, striking all exceptions, or to rule in favor of “limited” immunity. The responsibility of all workers, both private and government, is to follow the basic rules (ministerial duties) of their positions. The law needs to clarify what truly constitutes an exception to immunity as this has statewide implications. A clarification is needed as to what “consent to entry” consists of for building inspectors and fire chiefs. In petitioners’ case, entry was made with no notification, or emergency need. They made no attempt before or during the entry to justify themselves. These were illegal searches, done by local government officials, who hang their hat on the defense of immunity. These searches were clear violations of the 4th Amendment and Constitution of the State of Minnesota.

Minnesota Statutes and Rules were not intended to grant government employees “absolute” immunity, but to hold them responsible for ministerial and operational level duties. Although immunity is granted in most discretionary functions, it is lost when malice or bad faith is established. Article 1, Bill of Rights (MN) Section 1, includes, “…Government is instituted for the security, benefit and protection of the people…” Section 8: “…Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character…”

The constitutionality of the Data Practices Act is at question as well. In this matter, the township failed to answer several requests for information, because the Data Practices Act does not apply to them [A-184 - A-186]. Thomson Township withheld information that may have helped with this case because there is no accountability for failing to do so.

For these reasons, the petitioner seeks an order granting review of the decision of the Court of Appeals.

DATED: September 6, 2011

PIRILA & FRANCETTE

By Marvin Pirila
Pro Se - Appellant
1 N Cloquet Rd W
Esko, MN 55733

Building Codes Life-Issue Hypocrits

Everyday our ex-building inspector, John Gulland, climbs the stairs of the Duluth City Hall to his Building Codes Administration job he ignores the same "life-safety" issues he strongly endorses.  The railings are too low and there are no guard rails.  These are "life-safety" items pursuant to the building codes, argued by Mr. Gulland, to those building new homes or renovating.  True "life-safety" items are ignored in existing structures while required of those seeking building permits.  Are we to believe that there is some "magical" safety net for "grandfathered" buildings, well remaining true life-safety issues for new or renovation projects?  The argument lacks common sense and logic.  Is there some "mystical" reason that a life-safety issue is not the same life-safety issue under similar circumstances? 

For the record, when Mr. Gulland inspected our building he didn't use either the guard rail or railing when walking up and down the stairs.  Isn't this a life-saving requirement?  Was he risking his life and our liability by acting so recklessly?

While we're talking about ridiculous codes, and ridiculous acts of building inspectors, lets address hand rails some more.  Hand rails have to run continuously without breaks from beginning to end.  If there was a break, a person would have to find the next section that might be as far away as two feet.  They would perish for sure before they figured that out.  This too is a life-safety issue.

Doors likewise must open outward with panic door handles.  Why?  When there is a panic of people in a fire they may run into each other and all perish because they can't turn a regular handle.  With our apartment complex, we might have as many as six or eight people wanting to get out a single door and they wouldn't know what to do.

Then there are the door closers...in a fire it is assumed that everyone will panic and forget to close the doors on the way out allowing the fire to spread.  The theme throughout these requirements is that people are "too stupid" to keep their head in emergency situations.  The dozens of fire drills and emergency procedures we have programmed into our heads must be compensated for by these "wise" building inspectors that know so much more than us.

Building codes, much like most government regulations, have spun out of control and overly oppressing to anyone wanting to do work requiring a building permit.  If there is a single incident, someone wants to enact another building code requirement to cover it.  If the same rules were applied to driving, all of us would be driving about 5 mph, with surround air bags, there would be guard rails, our cars would have to have government checks every 5,000 miles, and we would be restricted from traveling on any day the weather was bad.  Look around you...how many of the existing buildings and homes were built before there were thousands of pages of building codes that are still standing strong.  The answer is...nearly every one.  The only ones benefitting from over-regulation are building inspectors, plan reviewers, architects, designers, and government.  It's difficult to earn equity when you start with a loss of several thousands of dollars lost to ridiculous building codes and unreasonable enforcement.

Private Property

The Founders believed the basic rights of mankind came directly and exclusively from God. Therefore, they were to be maintained sacred and inviolate. William Blackstone, in “Commentaries on the Laws of England,” wrote “…natural rights...no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to forfeiture.” (Commentaries, 1:93).
These “natural” rights are inherent rights given to us by the Creator, and thus “UNALIENABLE.” Among Unalienable Rights are 1) the right to own, develop, and dispose of property and 2) The right to privacy.

As owners of the Old Washington School in Esko, Minnesota, we were told by building inspector John Gulland what and when we could do something. Even though he was wrong on several accounts, Thomson Township (Esko) officials stood behind him under the guise of “immunity.” The argument of the state is that individuals would not take these jobs (building inspectors, guardian ad litems, fire chiefs, etc.) if they were held liable. All of us in one capacity or another are liable for our actions. Why would a person turn down these jobs, which are like any other job? The argument is moot and has been largely discarded by the majority of the states. Minnesota, however, holds onto this “false” concept, refusing to allow exceptions to immunity that are written into law and is there to afford individuals some form of protection.

Case law and appellate court decisions continue to support the ideology of “absolute immunity” to all city, state, county, and local municipal workers. Without liability, there are many individuals being persecuted and forced into secrecy. They are afraid of retaliation or future problems. From my own personal experiences, these fears are well founded. The protection afforded these protected individuals is so great they embolden them to take whatever actions they want without fear of liability or consequence.

The building inspector and local fire chief made entry onto our private property without consent, or even attempted consent. They also had no subpoena or emergency reason for justifying entry. These were clear trespasses. These were continued attempts by local officials to thwart progress and create problems. More disturbingly is how they may have gained entrance in the first place. As the building was locked, how did they gain entry? The best guess is that they had retained their keys to the building after Thomson Township sold it. Many of the doors had not had their locks changed and they simply let themselves in. It turned out that Thomson Township didn't have a full accounting of keys for the building and these individuals would potentially have had these keys.

There were no vehicles in either lot when entry was made, so consent could not possibly have been sought. Both owners were just a simple phone call away and yet no attempt was made.

These entries were clear violations of the Fourth Amendment. The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.

Blackstone included the right of “private property” as one of the three principals or primary articles of “natural rights.” He wrote that this right was our civil immunity “in their largest and most extensive sense (Blackstone, Commentaries on the Laws of England, 1:219-220: emphasis added.)

Frederic Bastiat, in “The Law,” pages 5-6, wrote “…the fact that life, liberty, and property existed beforehand [before law] that caused men to make laws [for the protection of them] in the first place [Irvington-on-Hudson, N.Y.: The Foundation for Economic Education, Inc, 1974.

The Creator has imposed on every human being of normal mental capacity, among other, “The duty not to trespass on the property or privacy of another.” They also include the “duty to support personal and public standards of common decency” and “the duty to follow rules of moral rectitude.”

Gods’ revealed law provided true “justice” by requiring the wrong to pay the damages for losses he had caused. Punitive damages were assessed for the trouble he had caused and to remind him not to do it again. This was the law of “reparation” – repairing the damage.

As laws followed the need to protect the unalienable rights to property, trespasses lacking emergency life measures cannot be taken lightly. The fact that police require subpoena’s to search one’s property when the owner refuses shows the importance of private property rights. Even when a search is agreed too, consent may be withdrawn at any time by the owner.

Subpoena’s themselves are restricted, allowing its carrier to search only those areas specifically agreed to by the court. These are not intended to be mere fishing expeditions, but specific searches.

The manner in which the building inspector and fire chief made entry to our private property lacked proper consent, subpoena, or emergency justification. The right to privacy on ones property preceded law, and the law ultimately was created to legalize enforcement.

There is no law, nor could there be among man, that can supercede the unalienable right provided to all of us by our Creator. The duty of the court, judges, police, legislators, and county prosecutors is to protect this right to private property. There are only limited exceptions, when missing, must result in trespassing charges.

The biggest question in this matter is why the County Attorney, Thomas Pertler, has drug his feet on this matter for a year and a half. Is he afraid of upsetting Thomson Township and its Fire Department, perhaps wanting their vote for his elected position? One broken promise after another leaves one to wonder what justice is truly being served when the law is not upheld by those entrusted to enforce them.