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Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts
Friday, February 3, 2012
Saturday, November 5, 2011
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
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
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
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