Minnesota Building Codes: fourth amendment

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Friday, February 10, 2012

Supplement to Petition for Writ of Certiorari

No. _____________

IN THE SUPREME COURT OF THE UNITED STATES

Marvin Pirila & Gail Francette - PETITIONERS

vs.

Thomson Township Et al. — RESPONDENT (S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

SUPPLEMENTAL BRIEF WITH APPENDIX

Marvin Pirila & Gail Francette

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

INDEX TO APPENDICES

APPENDIX A: Minnesota State Supreme Court decision in case: Robert McCAUGHTRY, et al., Appellants, v. CITY OF RED WING, Respondent.

No. A10–0332 -- December 28, 2011

Pursuant to Supreme Court Rule 15.8 the Petitioners are filing a supplemental brief calling attention to a recent ruling by the Minnesota Supreme Court on December 28, 2011 of Robert McCaughtry, et al., Appellants, v. City of Red Wing, Respondent. No. A10–0332.

This ruling addresses the blanket policy of forced rental inspections for several cities of Minnesota having ordinances granting the same. These forced inspections allow government officials to conduct housing inspections of all rented homes 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. The cities use “administrative” warrants when needed in an attempt to coerce tenants and/or owners into complying.

In our case that is now on docket, the building inspector and fire chief did never sought consent before entering our building to conduct inspections. They hid their illegal entries by failing to record them in the record at the Township, only to later reveal them in letters from their attorney. In several instances, they lacked probable cause for inspections when petitioners were forced out of work to attend. Also in petitioner’s case there is no local ordinance granting the right to entry without consent via an “administrative” warrant. 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. The constitutionality of this practice is being challenged.

There is no doubt that entry without consent and without an administrative warrant is unconstitutional, but there is even a question of constitutionality regarding the purpose and issuance of an administrative warrant. Additionally, petitioners in our case proved injury and fourth amendment violations.

Minnesota Supreme Court Ruling Advances Property Owners’ and Renters’ Challenge To Unconstitutional Inspection Scheme [Full case in Appendix A]

By Dana Berliner

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 litigation director.

Respectively submitted,

Marvin Pirila and Gail Francette, pro se

2/13/12

No. ___________

_________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_____________________ _

Marvin Pirila & Gail Francette,

Petitioners,

Thomson Township Et al.

Respondents.

_______________________

On Petition For A Writ Of Certiorari

To The United States Supreme Court

_______________________

APPENDIX TO PETITION FOR

SUPPLEMENT TO WRIT OF CERTIORARI

_____________________

Marvin Pirila & Gail Francette

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

Counsel, Pro Se for Petitioner

__________________ _

APPENDIX A

_____________ _

Minnesota State Supreme Court decision in case: Robert McCAUGHTRY, et al., Appellants, v. CITY OF RED WING, Respondent. December 28, 2011

_____________ _

No. A10–0332

_______________________

McCAUGHTRY v. CITY OF RED WING

Robert McCAUGHTRY, et al., Appellants, v. CITY OF RED WING, Respondent. No. A10–0332. -- December 28, 2011

Lee U. McGrath, Institute for Justice, Minnesota Chapter, Minneapolis, MN; and Dana Berliner, Institute for Justice, Arlington, VA, for appellants. John M. Baker, Kathryn M.N. Hibbard, Greene Espel PLLP, Minneapolis, MN, for respondent. Teresa Nelson, Jessica Arck, St. Paul, MN, for amicus curiae American Civil Liberties Union of Minnesota.David F. Herr, Haley N. Schaffer, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, for amici curiae Dean Eric Janus and Professors Roger S. Haydock and Gregory Sisk.Charles R. Shreffler, Shreffler Law, PLLC, Hopkins, MN, for amicus curiae Minnesota Family Institute.Jarod M. Bona, DLA Piper LLP, Minneapolis, MN, for amicus curiae St. Paul Association of Responsible Landlords. Erick G. Kaardal, Mohrman & Kaardal, P.A., Minneapolis, MN, for amici curiae legal scholars Ryan Scott and Samuel Bray.

OPINION

The issue in this case is whether landlords and tenants whose properties have been subject to repeated applications for administrative warrants may bring a declaratory judgment action challenging the constitutionality of a rental property inspection ordinance. The ordinance, enacted by respondent City of Red Wing, requires inspections of rental property before landlords may obtain operating licenses. The City may conduct inspections with the consent of the landlord or tenant or, in the absence of consent, by application for and judicial approval of an administrative warrant. Appellants are nine landlords and two tenants who have refused to consent to inspections of their properties and have successfully challenged three separate applications for administrative warrants. This appeal concerns the justiciability of appellants' declaratory judgment action seeking to have the rental inspection ordinance declared unconstitutional. The court of appeals affirmed the district court's dismissal of the declaratory judgment action for lack of standing, concluding that appellants had not alleged an injury that was actual or imminent. McCaughtry v. City of Red Wing, No. A10–332, 2010 WL 3744638, at *2–4 (Minn.App. Sept. 28, 2010). We reverse, concluding that the challenge to the constitutionality of the rental inspection ordinance presents a justiciable controversy.

In 1997 the City of Red Wing commissioned a study of housing needs and conditions in the City. City of Red Wing, Red Wing Housing Study 2 (2003). The study found significant problems in the City's rental housing stock, “including health and safety issues, age of the housing stock, older converted buildings, lack of maintenance of rental properties, ․ absentee landlords, [and] violations of codes.” Id. at 77–78. The study, noting “the success other cities have had in implementing rental inspection programs,” recommended that the City implement its own rental inspection program. Id. at 78. The study was updated in 2003. Id. at 2. The update repeated the original study's recommendation that the City adopt a rental inspection program “to assure that all rental units in Red Wing comply with housing laws and codes,” thus “removing blighted and unsafe conditions.” Id .

The City adopted the recommendation and enacted a rental inspection and licensing ordinance in February 2005 as part of its Housing Maintenance Code (HMC) and Rental Dwelling Licensing Code (RDLC). See Red Wing, Minn., City Code §§ 4.03–.04 (2011). The RDLC requires inspections of residential rental dwellings every seven years. Id. § 4.04, subd. 1(A)(2), (C). Property must be inspected before the City will issue or renew a seven-year operating license, although landlords may obtain temporary two-year permits allowing them to rent property for which an operating license has not yet been issued. Id. § 404, subd. 1(A)(1).

Under the ordinance, the City may inspect rental properties either by consent or by judicial issuance of a warrant. Id. § 4 .04, subd. 1(C)(8)-(9). The ordinance calls for the City to seek consent from landlords and tenants to perform an inspection. Id. § 4.04, subd. 1(C)(8). If consent is withheld, the City must “seek permission, from a judicial officer through an administrative warrant, for its enforcement officer or his or her agents to conduct an inspection.” Id. § 4.04, subd. 1(C)(9). The ordinance does not describe the procedures for seeking a warrant or the conditions under which a warrant should be granted; the ordinance simply provides that “[n]othing in this Code shall limit or constrain the authority of the judicial officer to condition or limit the scope of the administrative warrant.” Id. In addition, the ordinance does not require that the City provide notice to a landlord or tenant that the City is seeking an administrative warrant. See id.

In 2006 the City sought its first administrative warrant in Goodhue County District Court in connection with appellants' rental properties. Appellants challenged the warrant application on several grounds, including claims of unconstitutionality. The district court denied the application on nonconstitutional grounds, finding that the rental inspection ordinance authorized an inspection only when (1) a rental license application had been executed, and (2) there was reason to believe a code violation exists. The City subsequently amended the ordinance, adding language that limited the scope of inspections to that necessary to determine whether the rental properties conformed to the HMC. See Red Wing, Minn., City Code § 4.04, subd. 1(C)(10).

At the same time appellants were opposing the City's application for an administrative warrant, they filed a separate declaratory judgment action in Goodhue County District Court, challenging the City's rental inspection ordinance on Fourth Amendment grounds. Appellants sought declaratory and injunctive relief. The City removed this action to federal district court. The federal court granted the City's motion for summary judgment. Stewart v. City of Red Wing, 554 F.Supp.2d 924, 931 (D.Minn.2008). The court determined that appellants had not suffered an actual injury in fact or “demonstrated that injury to their Fourth Amendment rights is imminent.” Id. at 929. The court reasoned: Plaintiffs' properties have not in fact been searched or inspected by the City, and no search warrants have been issued by a reviewing state court judge. To the extent plaintiffs contend that the RDLC coerces their consent to an illegal search, none of the plaintiffs in this case has yet consented to a search of his or her rental property. Rather, plaintiffs have insisted on exercising their Fourth Amendment rights, demanding that the City seek an administrative warrant from a reviewing state court judge. Indeed, plaintiffs successfully challenged the City's first warrant application, effectively insulating their constitutional rights from injury through state court litigation. Further, plaintiffs continue to rent property through the use of temporary rental permits․ Id. The court also stated that “[n]othing in the record suggests to this Court that a reviewing state court could not adequately review and limit the city's warrant application to ensure the warrant complies with the Fourth Amendment.” Id. at 930. Therefore, the court concluded the alleged constitutional injury is “too speculative” to afford relief under Article III. Id. at 931. The court did not address the substance of appellants' constitutional challenge, but did observe that the issues “present difficult questions of Fourth Amendment doctrine.” Id. The court ultimately remanded the matter to state court.

On remand, the Goodhue County District Court consolidated three different matters: (1) the remanded action from federal court; (2) a new declaratory judgment action brought by appellants challenging the constitutionality of the rental inspection ordinance; and (3) the City's second application for an administrative warrant, which had been stayed pending the federal court's decision. The state court denied the City's second application for an administrative warrant on the basis that the City had not put limits on the hypothetical future use of information that might be gained through the inspection program.

Following this ruling, the Red Wing City Council amended the rental inspection ordinance a second time. Under the amended version of the ordinance, an administrative warrant is required before the City may inspect a nonconsenting tenant's unit or the common areas of a nonconsenting landlord's property. Red Wing, Minn ., City Code § 4.04, subd. 1(C)(8)-(9). The City also amended the ordinance to address the state court's privacy concerns. See id. § 4.04, subd. 1(C)(16)-(17).

In 2009 the City submitted a third application for an administrative warrant to inspect appellants' rental properties. In the state court proceeding that is the subject of this appeal, appellants made a number of arguments challenging the constitutionality of the ordinance. Appellants argued that the administrative warrant mechanism violates Article I, Section 10, of the Minnesota Constitution, which appellants contend requires individualized probable cause to search an occupied building. Appellants also argued that the City's third application for an administrative warrant failed to satisfy minimal federal constitutional standards for housing inspections.¹ The City defended the application for an administrative warrant and challenged appellants' standing to assert the constitutional claims in the declaratory judgment action. The district court denied the City's third application for an administrative warrant.² But the court granted the City's motion for summary judgment on appellants' declaratory judgment claims and dismissed the declaratory judgment claims without prejudice.

As relevant to the justiciability issues raised in the declaratory judgment action, the district court concluded that appellants lack standing to challenge the constitutionality of the rental inspection ordinance. The court found that appellants “have not suffered an injury that is actual or imminent.” Although the court shared appellants' concerns about continuing “to expend significant time and resources fighting warrant applications,” the court stated that it could not conclude that “the mere presence” of an application for an administrative warrant creates an imminent injury. In addition, the court noted that under the plain language of the ordinance, the reviewing judge is expressly authorized to condition or limit the scope of the warrant as appropriate. The court rejected appellants' argument that “the ‘seeds' of this controversy are so ripe that they are practically falling off the vine.” Accordingly, the court dismissed the declaratory judgment claims without prejudice.

Although the district court concluded that appellants lack standing, in the interests of “judicial economy,” the court considered appellants' argument that the Minnesota Constitution prohibits the use of administrative warrants to search rental property in the absence of individualized probable cause. The district court noted that the United States Supreme Court has applied a reasonableness standard in connection with administrative warrants. See Camara v. Mun. Court of S.F., 387 U.S. 523, 538 (1967) (holding that “ ‘probable cause’ to issue a warrant to inspect [private property] must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling”). But the district court also noted that Minnesota appellate courts have not previously applied the Minnesota Constitution in this context. The district court ultimately held that it lacks the authority to conclude that Art. 1, Sec. 10 of the Minnesota Constitution provides greater protection than the Fourth Amendment of the U.S. Constitution by forbidding the use of administrative warrants to enter dwellings without consent or that individualized probable cause is necessary to search occupied buildings pursuant to an administrative warrant.

On appeal, appellants challenged the district court's ruling on standing and asked the court of appeals to conclude that the City must obtain an administrative search warrant supported by individualized probable cause before conducting an inspection under the ordinance. The court of appeals affirmed the dismissal of the declaratory judgment claims, concluding that appellants lack standing to challenge the constitutionality of the rental inspection process. McCaughtry v. City of Red Wing, No. A10–0332, 2010 WL 3744638, at *3–4 (Minn.App. Sept. 28, 2010). The court of appeals held that appellants have not demonstrated any other imminent injury. Id. at *3. The court of appeals did not address the merits of appellants' challenge to the RDLC. We granted review to consider the justiciability requirements for declaratory judgment actions.

At issue here is the justiciability of appellants' declaratory judgment claims. A justiciable controversy exists if the claim “(1) involves definite and concrete assertions of right that emanate from a legal source, (2) involves a genuine conflict in tangible interests between parties with adverse interests, and (3) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion.” Onvoy, Inc. v. Allete, Inc., 736 N.W.2d 611, 617–18 (Minn.2007). “We do not issue advisory opinions, nor do we decide cases merely to establish precedent.” Jasper v. Comm'r of Pub. Safety, 642 N.W .2d 435, 439 (Minn.2002). Justiciability is an issue of law that we review de novo. See in re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn.2011) (reviewing jurisdictional issues de novo).

This appeal involves the justiciability of appellants' declaratory judgment claims challenging the constitutionality of the Red Wing rental inspection ordinance with respect to administrative warrants. Minnesota adopted the Uniform Declaratory Judgments Act in 1933. Uniform Declaratory Judgments Act, ch. 286, 1933 Minn. Laws 372 (codified as amended at Minn.Stat. §§ 555.01–.16 (2010)). Under the Declaratory Judgments Act, courts have the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Minn.Stat. § 555.01. The Declaratory Judgments Act “is remedial, intended to settle and to afford relief from uncertainty with respect to rights, status, and other legal relations.” Holiday Acres No. 3 v. Midwest Fed. Savs. & Loan Ass'n of Minneapolis, 271 N.W.2d 445, 447 n. 2 (Minn.1978); see also Minn.Stat. § 555.12 (stating that the Act “is to be liberally construed and administered”).

The Declaratory Judgments Act specifically provides for challenges to the validity of a municipal ordinance that “affect[s]” the rights of a person. The Act provides:

Any person ․ whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the ․ statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Minn.Stat. § 555.02. Accordingly, we have long held that a declaratory judgment action is proper to test the validity of a municipal ordinance, regardless of whether another remedy exists. Barron v. City of Minneapolis, 212 Minn. 566, 569–70, 4 N.W.2d 622, 624 (1942); see, e.g., Koppinger v. City of Fairmont, 311 Minn. 186, 200–01, 248 N.W.2d 708, 716 (1976) (holding municipal nudity ordinance unconstitutional on its face because of substantial overbreadth); Constr. & Gen. Laborers Union Local 563, AFL–CIO v. City of St. Paul, 270 Minn. 427, 435, 134 N.W.2d 26, 32 (1965) (concluding that municipal ordinance compelling all contractors performing work for St. Paul to employ only Ramsey County residents was unconstitutional and void).

Nonetheless, like every other action, a declaratory judgment action must present an actual, justiciable controversy. Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. 802, 804 (1940). To establish a justiciable controversy in a declaratory judgment action challenging the constitutionality of a law, a plaintiff must show “ ‘a direct and imminent injury which results from the alleged unconstitutional provision.’ “ Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn.1996) (quoting State v. Colsch, 284 N.W.2d 839, 841 (Minn.1979)). As we explained in State ex rel. Smith v. Haveland:

Among the essentials necessary to the raising of a justiciable controversy is the existence of a genuine conflict in the tangible interests of the opposing litigants. Complainant must prove his possession of a legal interest or right which is capable of and in need of protection from the claims, demands, or objections emanating from a source competent legally to place such legal interest or right in jeopardy. Although complainant need not necessarily possess a cause of action (as that term is ordinarily used) as a basis for obtaining declaratory relief, nevertheless he must, as a minimum requirement, possess a bona fide legal interest which has been, or with respect to the ripening seeds of a controversy is about to be, affected in a prejudicial manner. 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946), quoted in Kennedy, 544 N.W.2d at 6. An injury that is merely possible or hypothetical “is not enough” to establish justiciability. Kennedy, 544 N.W.2d at 6. Further, the Supreme Court has held that an issue is not fit for review when “further factual development would ‘significantly advance [the court's] ability to deal with the legal issues presented.’ “ Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 812 (2003) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)).

In this case, the court of appeals affirmed the district court's dismissal of appellants' claims due to lack of standing, and appellants have asked us to clarify the standing requirements applicable to declaratory judgment actions. “Standing is a legal requirement that a party have a sufficient stake in a justiciable controversy to seek relief from a court.” Lorix v. Crompton Corp ., 736 N.W.2d 619, 624 (Minn.2007) (citing Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972)). In this case, there is no dispute that appellants are landlords and tenants subject to the Red Wing RDLC and that the City has sought administrative warrants since 2006 to inspect their properties. Consequently, appellants have “legally cognizable interests” that are “distinguished from the general public.” St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 588 (Minn.1977); see Pennell v. City of San Jose, 485 U.S. 1, 7–8 (1988) (concluding that landlords had standing to challenge hardship provision of rent control ordinance even though hardship provision had not yet been enforced against them where landlords alleged that their properties were “subject to the terms of” the ordinance and they had many hardship tenants (citation omitted) (internal quotation marks omitted)).

The district court concluded, however, that “the mere presence” of an application for an administrative warrant does not create “an imminent injury.” The court suggested that because a judicial officer must first approve an administrative warrant and the judicial officer may condition or limit the scope of the warrant, appellants' challenge to the constitutionality of the RDLC would not be appropriate until after the court has granted an application for an administrative warrant. Because the justiciability issue in this case focuses on when the landlords and tenants may challenge the RDLC—not who may bring the challenge—we believe that the relevant issue here is ripeness, not standing. See McKee v. Likins, 261 N.W.2d 566, 569–70 n. 1 (Minn.1977) (explaining that standing “is concerned with ‘who’ may bring a suit,” whereas the Declaratory Judgments Act “is directed towards the ‘ripeness' of a dispute, i.e., ‘when’ it may be brought”).

Therefore, we proceed to examine whether appellants' constitutional claims are ripe. A party challenging the constitutionality of a law must show that the law “is, or is about to be, applied to his disadvantage.” Lee v. Delmont, 228 Minn. 101, 110–11, 36 N.W.2d 530, 537 (1949); see also Haveland, 223 Minn. at 94, 25 N.W.2d at 478 (explaining that litigants must be able to show that they have sustained or are immediately in danger of sustaining some direct injury). “Issues which have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable.” Lee, 228 Minn. at 110, 36 N.W.2d at 537. At the same time, we have recognized the “preventative” purpose of declaratory judgment actions. Petition for Improvement of Cnty. Ditch No. 86 v. Phillips, 625 N.W.2d 813, 821 (Minn.2001). Declaratory judgment actions allow parties “to be relieved of an uncertainty and insecurity arising out of an actual controversy” with respect to their legal rights before those rights actually have been invaded:

Jurisdiction exists to declare the rights, status, and other legal relations of the parties if the complainant is possessed of a judicially protectible right or status which is placed in jeopardy by the ripe or ripening seeds of an actual controversy with an adversary party, and such jurisdiction exists although the status quo between the parties has not yet been destroyed or impaired and even though no relief is or can be claimed or afforded beyond that of merely declaring the complainant's rights so as to relieve him from a present uncertainty and insecurity. Minneapolis Fed'n of Men Teachers, Local 238, AFL v. Bd. of Educ. of Minneapolis, 238 Minn. 154, 157, 56 N.W.2d 203, 205–06 (1952) (footnote omitted).

We conclude that appellants' challenge to the constitutionality of the administrative warrant provisions in the RDLC presents a justiciable controversy. Appellants have opposed three separate applications for administrative warrants to inspect their properties. Appellants contend that they “want to know if the City's underlying inspection ordinance is constitutional before City officials apply for another warrant, show up at their door with a warrant, or search their homes.” According to appellants, the Minnesota Constitution forbids housing inspections without some evidence to believe that a code violation exists—that is, an administrative warrant application requires individualized probable cause. In addition, appellants argue that the City's inspection program “runs afoul of the Minnesota Constitution's yet-to-be developed administrative-warrant doctrine because it authorizes searches of occupied buildings.”³

We note that appellants are presenting a facial challenge to the constitutionality of the ordinance.⁴ The appellants' constitutional challenge does not depend on the contents of any administrative warrant application because a facial challenge asserts that a law “always operates unconstitutionally.” Black's Law Dictionary 261 (9th ed.2009) (emphasis added). Therefore, because this case presents a purely legal question that does not require the development of a factual record, there is no reason to delay resolution of the constitutional questions. See, e .g., Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir.2009) (stating that “a purely legal claim is presumptively ripe for judicial review because it does not require a developed factual record”). The Eighth Circuit Court of Appeals has explained that “[p]laintiffs have standing to challenge the facial validity of a regulation notwithstanding the pre-enforcement nature of a lawsuit, where the impact of the regulation is direct and immediate and they allege an actual, well-founded fear that the law will be enforced against them.” Gray v. City of Valley Park, 567 F.3d 976, 984 (8th Cir.2009).

The constitutional issue that the landlords and tenants have raised is neither hypothetical nor abstract. The City has actually begun enforcing the rental inspection ordinance against appellants. The City has sought not just one but three separate administrative warrants over a four-year period to inspect their properties, which appellants have been forced to defend. And the City has indicated that it will continue to seek administrative warrants to inspect appellants' properties. Accordingly, the claims here are based on an actual controversy, and appellants are seeking specific declaratory relief—a judgment on the constitutionality of the administrative warrant provisions in the RDLC.

The City argues that the constitutional claims are not justiciable at this time because the landlords and tenants have successfully challenged the previous administrative warrant applications. Although the district court denied each of the City's warrant applications on other grounds, the landlords and tenants are not required to continue expending resources to oppose serial warrant applications. The legal interest at stake here is the right to be free from allegedly unconstitutional searches. In this situation, the landlords and tenants do not have to wait until such a search is ordered or carried out to establish ripeness. The Declaratory Judgments Act is designed to resolve the uncertainty over a party's legal rights pertaining to an actual controversy before those rights have been violated. Culligan Soft Water Serv. of Inglewood, Inc. v. Culligan Int'l Co., 288 N.W.2d 213, 215–16 (Minn.1979). A disruption of the status quo is not “a prerequisite to the establishment of a justiciable controversy.” Minneapolis Fed'n of Men Teachers, 238 Minn. at 158, 56 N.W.2d at 206. Further, we have explained that “[i]t is no defense” that a court has acted to prevent “the ripening seeds of a controversy from becoming ripe.” Id. at 158, 56 N.W.2d at 206.⁵

We also reject the City's argument that appellants may not challenge the constitutionality of the ordinance outside a warrant-application proceeding. “The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” Minn. R. Civ. P. 57; see Minn. Chippewa Tribe v. Dep't of Labor & Indus., 339 N.W.2d 55, 56 (Minn .1983) (concluding that declaratory judgment action to resolve applicability of workers' compensation laws to Minnesota Chippewa Tribe was ripe notwithstanding “the existence of pending workers' compensation claims against two of the six bands comprising the Tribe”); Barron, 212 Minn. at 569–70, 4 N.W.2d at 624 (concluding that plaintiff did not have to wait for prosecution to determine validity of municipal ordinance imposing annual licensing fee on vending machines).

In arguing that appellants' claims here are not justiciable, the City also relies on the fact that “a judge always stands between the City and its ability to conduct any inspection of Plaintiffs' properties.” However, there is no probable cause or other standard set out in the ordinance, and the City essentially is arguing that appellants must wait and hope that a judge will “write in” the correct constitutional limitations on the warrant power. The possibility that a judge might in the future limit the City's administrative warrant application to ensure that the warrant comports with the Minnesota Constitution does not make the challenge here premature. Cf. Blanchette v. Conn. Gen. Ins. Corps., 419 U .S. 102, 142 (1974) (explaining that “the possibility that a court may later decline to enforce [a law] as written because of its unconstitutionality cannot constitute a contingency itself pretermitting earlier consideration of the constitutionality” of the law). Moreover, the district court has acknowledged that the appropriate standard under the Minnesota Constitution is not clear. In fact, the appropriate constitutional standard is the precise legal issue the landlords and tenants are seeking to resolve in this declaratory judgment action. Further, appellants' constitutional challenge goes beyond individual warrant applications; they are making a broader challenge to the constitutionality of the entire administrative warrant scheme based on the lack of a requirement for individualized probable cause to conduct housing inspections. Accordingly, we conclude that the landlords and tenants here have presented a justiciable controversy. We reverse the court of appeals' decision affirming summary judgment on the declaratory judgment claims based on lack of standing. Because the issue raised in this court is one of justiciability, “we need not reach the merits of the underlying controversy at this time.” Holiday Acres No. 3, 271 N.W.2d at 447. Therefore, we remand to the court of appeals to consider the merits of appellants' challenge to the Red Wing rental inspection ordinance under the Minnesota Constitution.

Reversed and remanded.

FOOTNOTES

1. In addition, appellants argued that the rental inspection ordinance violates their right to procedural due process by failing to specify how citizens may challenge an administrative warrant application. Appellants abandoned this claim on appeal after the district court concluded that any future warrant applications would have to be conducted under the procedures used in the third warrant application, which involved the same notice, briefing, and hearing opportunities allowed for dispositive motions under the Minnesota General Rules of Practice for the District Courts. See Minn. Gen. R. Prac. 115.03.

2. In denying the third application for an administrative warrant, the district court concluded that the warrant application was “not reasonable” because “the invasion the search entails outweighs the public interest at stake.” In reaching this conclusion, the court cited privacy concerns related to the dissemination of data collected during the inspections. The court also indicated that “the scope of the RDLC is overly broad in that it grants inspectors too much discretion in deciding whether or not to search cabinets and closets.” The denial of the warrant application is not at issue in this appeal.

3. Before the district court, appellants also raised claims under the United States Constitution, but the issue before us is the justiciability of appellants' claim that the Minnesota Constitution provides greater protection from unreasonable searches than the United States Constitution.

4. Before the district court appellants also made as-applied challenges to the ordinance. After the district court denied the City's application for an administrative warrant, the court declined to consider “the facial/as-applied distinction.” The court explained that it expected the City would amend the ordinance after the district court's decision to deny the application for the administrative warrant; therefore, any analysis of “the facial/as-applied distinction would become outdated as the ordinance will have very likely changed.” The City's amendment of the ordinance, however, will not have any bearing on appellants' facial constitutional challenge—that the Minnesota Constitution prohibits the use of administrative warrants to search homes.

5. Although the issue is not before us, appellants also claim that there is no clear right to appeal from a district court order granting an application for an administrative warrant. Cf. N.D. State Elec. Bd. v. Boren, 756 N.W.2d 784, 788–89 (N.D.2008) (holding that district court order issuing administrative warrant and compelling an electrical inspection of home was interlocutory and not a final appealable order).

MEYER, Justice.

STRAS, J. took no part in the consideration or decision of this case.

Marvin Pirila and Gail Francette, pro se

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

marvindp@msn.com

Thursday, January 12, 2012

Appendix (2) to Petition for Writ of Certiorari to U.S. Supreme Court

IV. ARE DEFENDANTS ENTITLED TO OFFICIAL IMMUNITY?

Official immunity protects a public official charged by law with duties that call for the exercise of judgment or discretion unless he or she is guilty of a willful and malicious wrong. Gleason v. The Metro. Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998). Official immunity only applies when the officer's acts are judgmental or discretionary. It does not apply to ministerial duties. Id. at 677, Susla v. State, supra, 247 N.W.2d at 912. It is important to identify the specific conduct at issue in the case. Gleason, 582 N.W.2d at 219.

Even if the tasks of public officials Defendant Juntunen, Gulland, and Thomson Township were discretionary, a showing of 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).

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

The willful failure of a public official, namely Defendants Gulland and Juntunen, to comply with a statutory requirement or agency rule is deemed to be an act committed outside the scope of authority.

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.”

V. ARE PLAINTIFFS’ CLAIMS AGAINST THE TOWNSHIP BARRED BY VICARIOUS OFFICIAL IMMUNITY?

Thomson Township is not entitled to vicarious immunity. 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). Thomson Township is vicariously liable due to the loss of immunity of its employees who engaged in malicious acts, trespassed, and failed to follow the ministerial, and day-to-day (operational level) duties.

VI. ARE PLAINTIFFS CLAIMS BARRED BY QUALIFIED IMMUNITY?

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)).

Because officials Gulland and Juntunen acted without legal reasonableness in violating a known right, their right to immunity is stripped. Both Defendant Gulland and Juntunen intentionally committed acts they had reason to believe are prohibited and constitute a willful wrong. By unlawfully discharging duties and acting outside of the rights afforded by the building and fire code, Defendants Gulland and Juntunen have committed an intentional tort subject to liability (Minn. R. 1300.0110, Subp. 9). Trespass is just one way in which defendants Gulland and Juntunen have unlawfully discharged their duties.

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). Defendants effectively leave out the “under certain circumstances.”

Trespass: Defendant Gulland trespassed on numerous occasions in violation of state law as well as Minn. R. 1300.0110, Subp 7, which states,

“If it is necessary to make an inspection to enforce the code or if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or to perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or 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.”

There was no unsafe, dangerous, or hazardous situation. These were non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away.

Nothing in Minn. R. 1300.0110 Subp. 7 allow Defendant Gulland, as his counsel suggests to “be authorized to enter the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.”

Minn. R. 1300.0210, Subp. 4, Inspection requests states, “The building official shall provide the applicant with policies, procedures, and a timeline for requesting inspections. The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection. The person requesting an inspection required by the code shall provide access to and means for inspection of the work.”

The key portion here is that “the person doing the work authorized by permit shall notify the building official that the work is ready for inspection.” Defendant Gulland made several entries without consent or even attempting to seek consent, as well as requiring inspections when work wasn’t ready for inspection.

Defendant Juntunen does not have the authority or right to enter private property, even if the door was open. The mere act of entering private property, occupied or unoccupied, through a locked or open door is trespass, pure and simple. The common law of trespass dictates you stop at the door and knock, maybe even leave a note. The Plaintiffs were just a simple phone call away. Plaintiffs are both small office Postmasters in the local area, and easy to reach. 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. They did not, electing to enter known, unoccupied premises at the time. 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).

Defendants Gulland and Juntunen have no plausible explanation on how they made entry to a known locked building. The Plaintiffs, Nick Perfetti, and contractors, Mark Blomquist and Jake Fjeld, all verified locked doors that both Defendants Gulland and Juntunen bypassed Depo., Pirila, 37:9-25,38-53:1-25, 54:1-3. Defendants Gulland and Juntunen said they simply entered by an open door. Thomson Township has admitted it has no key policy. [Depo., Pirila, 47:10-16], and therefore they would have no way of knowing who retained their keys for the Old Washington School.

Assuming the door was open, the policy remains the same. No one has the right to enter private premises, door open or not, to conduct any search or otherwise, without the consent of the property owner. A person cannot deny personal knowledge of commonly known property rights as a pretext for trespass.

The absence of a key inventory at Thomson Township invited criminal/unethical activity. It provided an opportunity for anyone with a key to do illegal/unethical things with little chance of detection. Because a corrupt individual is engaging in behavior that could affect their livelihood, such as trespassing in this case, it makes sense they would remove items from the files that would damage their standing.

These trespasses and entries without consent were clear unlawful interference with plaintiffs “constitutionally protected property rights” and unconstitutional deprivation of property without due process. Entry without consent is prohibited by Minn. R. 1300.0110 Subp. 7 and the Constitution of the State of Minnesota, Article 1^st Bill of Rights, Section 10. The common law of property, the rights of ownership that include the right to control, possess, enjoy, and dispose of the property, was not honored by Defendants Gulland and Juntunen.

The 2007 Minn. Statute 609.605, Subd. 1 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.

Defendant Gulland should have documented all inspections on-site, and both Defendants Gulland and Juntunen should have documented these visits in the Thomson Township and Thomson Township Fire Department files. There are no files of any kind. There is no reason consent wasn’t sought other than corrupt motive.

Defendants understate the intent and meaning of Minn. Stat. ¶ 299F.09 regarding entry by Fire Chiefs. This clearly states that entry may be made only “after proper consent” or “pursuant to an administrative search warrant.”

Pursuant to 299F.08, Subd. 1, 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 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. Both Defendant Gulland and Juntunen committed acts that constitute violations of Minn. Statute § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5. 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.

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.

VII. DO PLAINTIFFS’ PURPORTED VIOLATIONS OF MINNESOTA RULES OR STATUTES FAIL TO STATE A CLAIM?

Stated herein are claims under the Fourth, Fifth, and Fourteenth Amendments. They also make valid claims under Sections 1983 and 1985, as well as Gross Negligence.

CONCLUSION

Defendants owed a duty to plaintiffs because it assumed the duty. Defendants subsequently breached this duty, were the proximate cause of injury, and actual injury occurred. This constitutes negligence. Defendants have failed to follow the ministerial and operational level duties of their positions thereby discharging rights to immunity. The conduct discussed herein is not about discretionary acts, but those duties that are mandatory via State Statutes and Rules. There are no immunity rights to officials not acting in good faith or acting with malice. In the presence of malice and lack of good faith, all immunity defenses are moot.

Defendants have arguably committed perjury in their responses to Admissions and Interrogatories.

Because the standard of care required to fulfill a duty is a question of reasonableness, a court may grant judgment as a matter of law only if no reasonable jury find the defendant’s conduct unreasonable. Markowitz. Trespass itself is an intentional tort. Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960).

Tort claims have been made as a private cause of action and negates counsels claim that no legitimate claims exist. The Plaintiffs make clear charges of gross negligence, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, Section 1983, and Section 1985 claims.

In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

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). At dispute is whether Defendants Gulland and Juntunen trespassed, and what knowledge did Thomson Township and the Thomson Township Fire Department possessed about these trespasses.

Summary Judgment is unwarranted as several genuine issues of material facts remain in dispute. These include: GREB’s applicability, Energy Code applicability, malice, perjury, false statements, and the scope of culpability of defendants from the Minnesota Department of Labor & Industry investigation censuring Defendant Gulland.

Ambiguity presents a genuine issue of material fact necessitating a trial. Minn. Stat. § 645.16. “If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding that a fact issue exists.” State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

By_/s Marvin Pirila

Marvin Pirila & Gail Francette, Plaintiffs Pro Per1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

Dated October 1, 2010

APPENDIX D

_____________ _

Minnesota Data Practices Act; Relevant portions of Record.

_____________ _

TABLE OF CONTENTS

Page

plaintiffs request for production

of documents, set 1………………………221-a

LETTER FROM THOMSON TOWNSHIP REGARDING NOTICE OF CLAIM (1/15/10)..230-a

STATE OF MINNESOTA

SIXTH JUDICIAL DISTRICT

COUNTY OF ST. LOUIS

DISTRICT COURT

CASE TYPE: CIVIL LAWSUIT

FILE NUMBER: 69DU-CV-10-801

Marvin Pirila & Gail Francette

Plaintiffs,

vs. PLAINTIFFS REQUEST FOR PRODUCTION OF DOCUMENTS, SET 1

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

Defendants

TO: DEFENDANTS:

8. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested hiring of a new building inspector.

RESPONSE: Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see Thomson Town Board Meeting Minutes for official actions. Discovery continues.

9. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested contract for John Gulland and Duane Grace.

10. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested discipline of building inspector John Gulland.

12. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested discipline of fire chief Jeffrey Juntunen.

18. All documents that support, tend to support, prove, or tend to prove any of the allegations, facts, defenses, denials, or other matters asserted in the Answer or other response to the Complaint in this lawsuit.

RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.

19. All documents that refute, or tend to refute, any claims asserted in Plaintiff’s Complaint in this lawsuit.

20. All documents, regarding, reflecting, concerning, pertaining to or evidencing any action or inaction taken by Defendant with respect to obtaining a temporary certificate of occupancy for plaintiff’s property referred to in this lawsuit.

21. All documents, regarding, reflecting, concerning, pertaining to or evidencing any action or inaction taken by Defendant with respect to requests for information referred to in this lawsuit.

22. All documents regarding, reflecting, concerning, pertaining to, evidencing, or supporting the Minnesota Department of Labor and Industry investigation referred to in this lawsuit.

26. All documents regarding, reflecting, concerning, pertaining to, evidencing, or supporting any contention discussed in meetings about plaintiff’s property referred to in this lawsuit.

27. All documents, including written orders and instructions, regarding, reflecting, concerning, pertaining to, evidencing, or supporting any contention made on plaintiff’s property referred to in this lawsuit.

33. All documents, including emails and meetings, reflecting any communications between John Gulland, Duane Grace, Alan Adams, Greg Hallback, Heat Mechancial/Rick Hatanpaa, plaintiffs, Jeffrey Juntunen, Rick Bassett, Rhonda Peleski, Terry Hill, Ruth Janke, Brent Pykkonen, David Pritchett, Marvin Bodie, Barry Greive/MN DOLI, Mark Blomquist, Paul Sandstrom, all contractors, all Thompson Township employees, all Thomson Township Fire Department employees/volunteers, and all others regarding the plaintiffs project referred to in this lawsuit.

The addresses of owners, with first and last names, of John Gulland’s last five GREB projects, with priority given to those he administered in Thomson Township.

Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, no other GREB projects in Thomson Township.

Dated: May 28, 2010

By Stephanie A. Angolkar

Paul D. Reuvers, #217700

Stephanie A. Angolkar, #388336

Attorneys for Town of Thomson Defendants

9321 Ensign Avenue South

Bloomington, MN 55438

Telephone: (952) 548-7200

JOHN M. GASSERT*^↑ SENIOR COUNSELORS:

FRANK YETKA FLOYD D. RUDY*

DAVID C. PRITCHETT**

WILLIAM T. hELWIG^↑↑***LAWRENCE R. YETKA, SARAH B. HELWIG Retired

Rudy, Gassert, Yetka & Pritchett, P.A. ATTORNEYS AT LAW

January 15, 2010

Mr. Marvin Pirila

Ms. Gail Francette

1 N. Cloquet Road W.

Esko, MN 55733-9533

RE: Town of Thomson

Request for Information, etc.

Our File No. 81076

Dear Mr. Pirila and Ms. Francette:

As you are aware, I am the attorney for the Town of Thomson, and my law office represents the Town on various matters which arise from time to time. I am in receipt of letters and requests you have written to the Town office, to me, and to others, and this letter will attempt to address the issues raised by your letters/requests.

1. Notice of Claim to Personal Injury. This document has no date on its face but was attached to an email sent by you on January 6, 2010, to John Gulland's work email address, City of Duluth Mayor Don Ness, via his public email address, the Town of Thomson via its public email address, and the Thomson Township Fire Department. The 22 page document sets forth various grievances alleged by you and seeks redress for $3,270,220 in damages you allege to have suffered "due to three years of intentional personal injury, disparity, and indifference." The Town acknowledges receipt of your letter, but in no way acknowledges any right to damages on your part or that you have complied with Minnesota statutory requirements in bringing any claim for damages. Please also be advised that the Town of Thomson denies responsibility for all damages you allege to have suffered.

2. Request for Information. Versions of this document dated January 9, 2010, and January 11, ______________________________________________
813 CLOQUET AVENUE • CLOQUET, MINNESOTA 55720-1613 • TELEPHONE (218) 879-3363 • FAX (218) 879-4033 • Email: office@cloquetlaw.com_____________________________________

•Also Licensed to Practice in Wisconsin

Real Property Specialist, Certified by the Minnesota State Bar Association

••Also Admitted in Texas

Patent Attorney, Registered to Practice before the U.S. Patent & Trademark Office

•••Also Admitted in Virginia and the District of Columbia

2010, are addressed to the Town of Thomson, John Gulland, the Thomson Township Fire Department, myself (at both home and office), and possibly others. It appears you are seeking information under the Minnesota Government Data Practices Act. Rhonda Peleski, the Clerk/Treasurer of the Town of Thomson, is the responsible authority (as defined in M.S. Section 13.02, Subd. 16) for the collection, use and dissemination of the Town's data. You have requested a significant volume of information from various sources. Please be advised that your request for information from Mr. Gulland, the Town's Volunteer Fire Department, and individuals who are employed by the Town is inappropriate, and you are hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town. Every effort will be made to accommodate your request for information. However, your request must first be analyzed in order to determine whether you have requested private data or protected nonpublic data. To the extent you have requested data that is accessible to the public, you will be afforded an opportunity to review such data during regular office hours at the Town Hall, by appointment and subject to availability of Town staff. You will be required to pay for copies and, if Town staff is required to redact or assist your review of such data, you will be required to pay the costs of time spent by staff on this matter.

3. Request for division of property. I am in receipt of an email you sent on Saturday, January 9, 2010, to the Town office requesting information relative to division of your property at 1 N. Cloquet Rd W., desiring to parcel off a 1/2 acre. I am attaching a copy of the deed by which the Town conveyed this property to you, to which is attached specific restrictive covenants relating to the use of your property. I assume you have already reviewed the Town's subdivision and zoning ordinances; if not, you can certainly obtain copies from the Town Hall, and I have copies in my office. I would be happy to meet with you to learn exactly how you plan to divide your property, to review the restrictive covenants, and to assist your process of subdividing according to Town ordinances. Please contact my office for an appointment at your earliest convenience.

Very truly yours,

/s David C. Pritchett

David C. Pritchett

cc: Town of Thomson

Pirila.ltr.wpd

APPENDIX E

_____________ _

Minnesota Department of Labor and Industry Findings

_____________ _

09-CV-10-934

_____________ _

table of contents

Page

MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY FINDINGS…………………………235-a

STATE OF MINNESOTA COMMISSIONER OF LABOR AND INDUSTRY – CONSENT ORDER…..

………………………………………………………239-a

MINNESOTA DEPARTMENT OF

LABOR & INDUSTRY

443 Lafayette Road N. (651) 284-5005

St. Paul, Minnesota 55155 1-800-DIAL-DLI

www.doli.state.mn.us TTY: (651) 297-4198

September 1, 2009

Mr. John Gulland VIA CERTIFIED AND

6917 Three Lakes Road FIRST CLASS MAIL

Canyon, MN 55717

RE: Conclusion of our investigation into 1 North Cloquet Rd. (file #09.1244).

Dear Mr. Gulland:

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:

1. Allowing a building to be constructed without a required fire suppression system is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1305.903.2.7.

2. Requiring a structure to comply with the current energy code despite applicable energy code exceptions is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400.

3. You were not aware that Minn. R. 1311 was specifically to be used for the project unless an alternate method or code was requested and approved. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.

4. You approved documents showing a code edition that was not adopted by the State of Minnesota. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.

5. Allowing work to continue without first issuing the proper permits is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 3.

6. Failure to issue all correction orders in writing, is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4

7. You did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.

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 would be stayed conditioned upon your compliance with the provisions of the Consent Order.

John Gulland

September 1, 2009

Page Two

If you wish to consent, please sign the "Consent to Entry of Order form" (page 3 of the Consent Order) in front of a notary public, and return the signed and notarized Order to my attention at the Department of Labor and Industry, no later than Tuesday, September 15, 2009.

Should you decline to enter into the Consent Order, or if a signed Consent Order is not received by September 15, 2009, the Department will issue a Licensing Order outlining the Department's conclusions and a civil penalty. Please be advised that the Department may seek civil penalties of $10,000 for each violation outlined in the Order. Once the Licensing Order is issued, you would have the right to request a hearing to contest the Licensing Order. The request would have to made in writing, within 30 days of the issuance of the Licensing Order.

You would be afforded all of their rights pursuant to the provisions of Minn. Stat. § 14 of the Administrative Procedures Act. A contested case procedure would involve the scheduling of a hearing before and Administrative Law Judge during which you and the Department would present evidence in support of our positions. You have the right to be represented at the hearing by legal counsel. The Administrative Law Judge would draft findings based on the evidence presented at the hearing and forward these findings to the Commissioner of Labor and Industry. The Commissioner would then make a final decision as to the appropriateness of the Licensing Order.

Please feel free to contact me at the number listed below if you have any questions or need clarification.

Sincerely,

/s Barry Greive

BARRY GREIVE

Senior Building Code Representative

Construction Codes and Licensing Division

Tel: (651) 552-5041

Enclosure (Consent Order)

STATE OF MINNESOTA

COMMISSIONER OF LABOR AND INDUSTRY

In the Matter of Building Office CONSENT

John Gulland ORDER

Certification No. 1438

To: John Gulland

6917 Three Lakes Road

Canyon, MN 55717

Commissioner of Labor and Industry Steve Sviggum (“Commissioner”) has determined as follows:

1. The Commissioner has advised John Gulland (“Respondent”) that he is prepared to commence formal action against Respondent’s building official certification pursuant to Minn. Stat. § 326B.082, subd. 11, and § 326B.133, subd. 5 (2008) based on allegations that Respondent engaged in violations of Minn. Stat. § 326B.133, subd. 4 (2008) and Minn. R. 1300.0110 (2007).

2. Respondent acknowledges that he has been advised of his right to a hearing in this matter, to present argument to the Commissioner and to appeal from any adverse determination at a hearing, and Respondent hereby expressly waives those rights. Respondent further acknowledges that he has been represented by legal counsel throughout these proceedings, or has been advised of his right to be represented by legal counsel, which right he hereby waives.

3. Respondent has agreed to informal disposition of this matter without an admission of wrongdoing and has agreed to waive a hearing as provided under Minn. Stat. § 14.59 (2008) and Minn. R. 1400.5900 (2007).

4. The following Order is in the public interest.

NOW THEREFORE, IT IS ORDERED as follows that:

A. Respondent John Gulland, building official certification No. 1438, is hereby censured.

B. Respondent agrees to obtain not less thant five (5) continuing education units (CEU’s) over and above the number of CEU’s required to maintain his building official certification. These additional CEU’s must be related to the State Building Code, specifically regarding the proper procedures for administration of the Code. This additional education shall be in addition to, and not claimed for the continuing education requirements of Respondent’s building official certification. Proof of this additional education shall be submitted to the Commissioner within 12 months of the date of this Order and shall have been attended within the same time period.

C. Respondent is assessed a civil penalty of $5,000; however, payment of the civil penalty is STAYED so long as Respondent complies with this Consent Order and following its entry commits no subsequent violation of any law, rule or order related to the duties entrusted to the Commissioner. If Respondent violates this Consent Order or any other law, rule or order, the stay shall be lifted, and the civil penalty shall become due and payable. Respondent may challenge the Commissioner’s factual basis for lifting the stay, but not the appropriateness of the stayed civil penalty.

This Order shall be effective upon signature on behalf of the Commissioner.

Dated: 9/30/09

STEVE SVIGGUM

Commissioner

By:s/Charlie Durenberger
Manager, Enforcement Services
Construction Codes and Licensing Division

443 Lafayette Road North
Saint Paul, MN 55155
Telephone: (651) 284-5069

CONSENT TO ENTRY OF ORDER

The undersigned, John Gulland, states that he has read the foregoing Consent Order; that he knows and fully understands its contents and effect; that he has been advised of his right to a hearing; that he has been represented by legal counsel in this matter, or that he has been advised of his right to be represented by legal counsel and that he has waived this right; and that he consents to entry of this Order by the Commissioner of Labor and Industry. It is further expressly understood that this Order constitutes the entire settlement agreement between the parties hereto, there being no other promises or agreements, either express or implied.

JOHN GULLAND

By: s/John Gulland
(Signature)

STATE OF Minnesota

COUNTY OF Carlton

This instrument was acknowledged before me on 9/29/09 by John Gulland.

(stamp) DIANE MARIE BONG
Notary Public-Minnesota
My Commission Expires Jan 31, 2013

Diane Marie Bong
(Signature of notary officer)

                        notary public
                        Title (and Rank)
                        My commission expires: 1/31/2013

APPENDIX F

Constitutional and Statutory Provisions Involved

_____________ _

09-CV-10-934

_____________ _

TABLE OF CONTENTS

Page

MINN. STAT. § 13.02 DEFINITIONS…………245-a

MINN. STAT. §473.121 DEFINITIONS………245-a

MINNESOTA ASSOCIATION OF TOWNSHIPS….

……………………………………………………….246-a

MINN. STAT. § 368.01 POWERS OF CERTAIN METROPOLITAN AREA TOWNS……………..246-a

MINN. STAT. § 326B.082 ENFORCEMENT...246-a

MINN. STAT. § 326B.106 GENERAL POWERS OF COMMISSIONER OF LABOR AND INDUSTRY….

……………………………………………………….248-a

MINN. STAT. § 326B.133 BUILDING OFFICIALS.

………………………………………………………248-a

MINN. STAT. § 609.605 trespass………….249-a

MINNESOTA RULE 1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL…………250-a

MINNESOTA RULE 1300.0210 INSPECTIONS….

……………………………………………………….251-a

MINN. STAT. § 13.02 DEFINITIONS

Subd. 11. Political subdivision. "Political subdivision" means any county, statutory or home rule charter city, school district, special district, any town exercising powers under chapter 368 and located in the metropolitan area, as defined in section 473.121, subdivision 2, and any board, commission, district or authority created pursuant to law, local ordinance or charter provision...

MINN. STAT. §473.121 DEFINITIONS

Subd. 2. Metropolitan area or area. "Metropolitan area" or "area" means the area over which the Metropolitan Council has jurisdiction, including only the counties of Anoka; Carver; Dakota excluding the city of Northfield; Hennepin excluding the cities of Hanover and Rockford; Ramsey; Scott excluding the city of New Prague; and Washington.

MINNESOTA ASSOCIATION OF TOWNSHIPS

"While all townships except urban townships located in the seven county metropolitan area are exempt from the Minnesota Government Data Practices Act (a decision made by the legislature in recognition of the fact that most townships do not have the type of staffing required by the Act), members of the public can still obtain information in a number of ways. First, townships voluntarily provide access to public data upon reasonable requests...

Minn. Stat. § 368.01 POWERS OF CERTAIN METROPOLITAN AREA TOWNS

Subd. 19. General Welfare. The town board may provide for the government and good order of the town, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefit of residence, trade, and commerce, and the promotion of health, safety, order, convenience, and the general welfare by ordinances consistent with the Constitution and laws of the United States and this state as it deems expedient.

MINN. STAT. § 326B.082 ENFORCEMENT

Subd. 6 Notices of violation. (a) The commissioner may issue a notice of violation to any person who the commissioner determines has committed a violation of the applicable law. The notice of violation must state a summary of the facts that constitute the violation and the applicable law violated. The notice of violation may require the person to correct the violation. If correction is required, the notice of violation must state the deadline by which the violation must be corrected.

Subd. 7. Administrative orders; correction; assessment of monetary penalties. (a) The commissioner may issue an administrative order to any person who the commissioner determines has committed a violation of the applicable law. The commissioner shall issue the administrative order on the person. The administrative order may require the person to correct the violation, and may assess monetary penalties...Except as provided in paragraph (b), the commissioner may issue to each person a monetary penalty up to $10,000 for each violation of applicable law committed by the person....

Subd. 11. Li censing orders: grounds: reapplication. (a) The commissioner may deny an application for a permit, license, registration, or certificate if the applicant does not meet or fails to maintain the minimum qualifications for holding the permit, license, registration, or certificate, or has any unresolved violations ....related to the activity for which the permit, license, registration, or certificate has been applied or was issued.

(b) The commissioner may deny, suspend, limit, place conditions on, or revoke a person's permit, license, registration, or certificate, or censure the person holding the permit, license, registration, or certificate, if the commissioner finds that the person:

(1) committed one or more violations of the applicable law;

(2) submitted false or misleading information to the state in connection with activities for which the permit, license, registration, or certificate was issued, or in connection with the application for the permit, license, registration, or certificate.

Subd. 15. Effect on other laws. Nothing in this section shall be construed to limit the application of other state or federal laws, including specifically but not exclusively section 270C.72, that require suspension of, revocation of, denial of, or refusal to renew a permit, license, registration, or certificate issued by the commissioner.

Subd. 16. Misdemeanor penalties. Except as otherwise provided by law, a person who violates an applicable law is guilty of a misdemeanor.

MINN. STAT. § 326B.106 GENERAL POWERS OF COMMISSIONER OF LABOR AND INDUSTRY

Subdivision 1. Adoption of Code. Subject to sections 326B.101 to 326B.194, the commissioner shall by rule and in consultation with the Construction Codes Advisory Council establish a code of...duties and responsibilities for code administration, including procedures for administrative action, penalties, and suspension and revocation of certification...Except as otherwise provided in sections 326B.101 to 326B.194, the commissioner shall administer and enforce the provisions of those sections.

MINN. STAT. § 326B.133 BUILDING OFFICIALS

Subd. 5. Grounds. The commissioner may use any enforcement provision in section 326B.082 against an applicant or individual holding a certificate, if the applicant or individual;

(1) violates a provision of sections 326B.101 to 326B.194 or rule adopted under those sections; or

(2) engages in fraud, deceit, or misrepresentation while performing the duties of a certified building official.

Nothing in this subdivision limits or otherwise affects the authority of a municipality to dismiss or suspend a building official at its discretion, except as otherwise provided for by law.

MINN. STAT. § 609.605 trespass

Subdivision 1. Misdemeanor

(4) "Owner or lawful possessor," as used in paragraph (b), clause (9), means the person on
whose behalf a building or dwelling is being constructed, altered, painted, or repaired and the
general contractor or subcontractor engaged in that work.

(5) "Posted," as used:

(i) in paragraph (b) in clause (9), means the placement of a sign at least 11 inches square in a conspicuous place on the exterior of the building, or in a conspicuous place within the property on which the building is located. The sign must carry a general notice warning against trespass.

(7) (b) A person is guilty of a misdemeanor if the person intentionally

(3) trespasses on the premises of another and, without claim of right, refuses to depart from
the premises on demand of the lawful possessor;

(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;

(7) returns to the property of another with the intent to abuse, disturb, or cause distress in or
threaten another, after being told to leave the property and not to return, if the actor is without
claim of right to the property or consent of one with authority to consent;

(8) returns to the property of another within one year after being told to leave the property
and not to return, if the actor is without claim of right to the property or consent of one with
authority to consent;

(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; or

(10) enters the locked or posted aggregate mining site of another without the consent of the
owner or lawful possessor, unless the person is a business licensee.

MINNESOTA RULE 1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL.

Subp. 7. Right of entry. If it is necessary to make an inspection to enforce the code if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or 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.

Subp. 9. Liability. The building official...or employee charges with the enforcement of the code, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by the code or other pertinent laws or ordinances, is not rendered personally liable...

MINNESOTA RULE 1300.0210 INSPECTIONS

Subp. 4. Inspection requests. ...The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection...

APPENDIX G

_____________ _

Trespassing/Harassment Complaint

_____________ _

09-CV-10-934

_____________ _

table of contents

Page

TRESPASSING COMPLAINT FILED WITH TOWN OF THOMSON POLICE DEPARTMENT

(6/24/10..........……………………………………254-a

FAX TO COUNTY ATTORNEY REGARDING TRESPASSING COMPLAINT (8/10/10)…….257-a

FAX TO COUNTY ATTORNEY REGARDING TRESPASSING COMPLAINT (7/21/10)…….265-a

MEETING MINUTES OF THOMSON TOWNSHIP

8/1/08……………………………………………….270-a

PETITIONERS LETTER TO THOMSON TOWNSHIP ATTORNEY PRITCHETT (9/9/08)…..

……………………………………………………….271-a

EMAIL FROM PLAINTIFF PIRILA TO MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY INVESTIGATOR BARRY GREIVE REGARDING TRESPASSES (5/13/09).............280-a

EMAIL FROM PLAINTIFF PIRILA TO ARCHITECT ALAN ADAMS REGARDING ENTRIES TO BUILDING WITHOUT CONSENT OF OWNERS (6/17/09)…………………………..281-a

STATEMENT FROM ELECTRICIAN/BUILDING CONTRACTOR MARK BLOMQUIST REGARDING TRESPASSES OF FIRE CHIEF JEFFREY JUNTUNEN…………………………282-a
TOWN OF THOMSON POLICE DEPARTMENT

1 NO. CLOQUET RD. W. PAGE 1 OF 2

ESKO, MINNESOTA, 55733

Case No. PD10309104

=====================================

TO BE COMPLETED BY THE OFFICER

=====================================

^Name Marvin Dean Pirila |^DOB04 / 04 / 1966___

^Address 1 North Cloquet Rd West Esko, MN 55733

Phone | Phone Ext.

Home:AC(218) 391-2876|Work: AC (218) 389-6904

=======================================

THIS FORM IS USED BY VICTIMS/WINESSES/SUSPECTS TO VOLUNTARILY PROVIDE INFORMATION TO THE TOWN OF THOMSON POLICE DEPARTMENT. THE INFORMATION IS NECESSARY FOR THE COMPLETE AND SUCCESSFUL INVESTIGATION OF A CRIMINAL CASE. FAILURE TO RETURN THE COMPLETED STATEMENT WITHIN TEN (10) DAYS CAN RESULT IN THE CASE BEING CONSIDERED INACTIVE/CLOSED._____________

|I acknowledge that |^{Signature |Date |}

|I have read and |s/Marvin Pirila |6/24/10|

| understand the above |________________________

Directions: Please be as complete and accurate as you possibly can. Include full names, addresses, telephone numbers, and relationships whenever possible. Describe unknown persons/vehicles/places as best you can. Try to determine dates and times of incidents as closely as you can. Your cooperation is appreciated.________

On or about September 5, 2008, Jeffrey Juntunen was witnessed by contractors Mark Blomquist and Jake Fjeld, on two different days, inside the building at 1 N Cloquet Road W in Thomson Township. Mr. Juntunen was inside the locked building upon their arrival one day, and entered on his own yet another day, through a locked door. Mr. Juntunen did not identify himself and simply wandered about the building at will. He neither had the consent of owners, nor requested it. There was also no notice of his visit either by phone or in writing. The first official notice that he had been in the building was via a letter by David Pritchett on September 5, 2008, stating that “There are large piles of demolition materials both within and outside the building, in violation of state fire code.” It is believed that Jeffrey Juntunen possessed his old key for the Old Washington School and used it to grant himself access these days. [Statutes violated: Minn. Stat. 299F.08, subd. 1, 299F.09, 541.05, subd. 1 (3)]

Jeff Juntunen, 55 E Highway 61, Esko (218) 879-3893. Jake Fjeld, 312 17th ST, Cloquet, MN 55720 (218) 879-4928. Mark Blomquist, 1930 County Rd. 142, Mahtowa, MN 55707 (218) 393-3142.

On 2/15/07 John Gulland entered premises illegal and later based a “Stop Work Order” on this trespass.

On 8/1/08 John Gulland accompanied Paul Sandstrom on a plumbing inspection without consent from owners. In March of 2009 John Gulland was found inside the locked building when Marvin Pirila, Gail Francette, and Nick Perfetti showed up for a scheduled inspection. Mr. Gulland would not explain how he entered the building when it was locked when confronted by Gail Francette. John Gulland confessed to Marvin Pirila on the phone that he had let himself in.

Between April and June of 2009, John Gulland accompanied Alan Adams on two to three building inspections without consent of owners. [Minn. Stat. 541.05, subd. 1 (3) and Minn. R. 1300.0110]

John Gulland, 6917 Three Lake Rd, Canyon, MN 55717. (218) 730-5163, (218) 345-6791___________

WITNESS: |I have read each page of

|this statement which

Nick Perfetti, |consists of ___page(s),

91 Stillmeadow Rd |and I hereby certify that

Esko (218) 591-7453 |the facts contained

Gail Francette |herein are true and

1 N Cloquet Rd. W. |correct.

Esko, MN 55733 |

(218) 590-3585 |______________________

FAX

To: Tom Pertler From: MARVIN D. PIRILA

Fax: (218) 384-9181 Date: 8/10/10___________

Phone:(218) 384-9166 Pages: 5_______________

Re: Harassment/Trespassing Complaint CC:_____

[] Urgent [X] For Review [] Please Comment [] Please Reply [] Please Recycle

__________________________________________

*Comments:

Mr. Pertler,

Please read attached documents for applicable statutes regarding harassment and trespassing. We would like a prompt response as to that action your office will be taking and when.

Thanks you.

Marvin Pirila

(218) 391-2876
MARVIN PIRILA & GAIL FRANCETTE allege trespass and harassment by

JOHN GULLAND and JEFFREY JUNTUNEN

John Gulland and Jeffrey Juntunen are criminally harassed property owners Marvin Pirila and Gail Francette. Both Mr. Gulland and Mr. Juntunen engaged in intentional conduct which they knew or had reason to know would cause the owners, under the circumstances, to feel threatened, oppressed, persecuted, and intimidated; and caused this reaction on the part of the owners. These are violations of Minn. Stat. § 609.749, Subd. I. Mr. Gulland and Mr. Juntunen both engaged in conduct that included returning to owners property without consent.

The intentional and reckless act by Jeffrey Juntunen and John Gulland has caused harm by entering Mr. Pirila and Ms. Francette’s property without their permission (trespass), and dangerous conduct (intentional infliction of emotional distress).

Property owners have suffered tremendous familial, financial, and emotional distress from ongoing harassing conduct from Mr. Gulland and Mr. Juntunen.

The acts of the Mr. Gulland and Mr. Juntunen, including trespassing and allegations based on trespass, showed deliberate disregard for the rights of property owners.

These violations require no proof of specific intent (Minn. Stat. § 609.749, Subd. 1a)

609.749 HARASSMENT; STALKING; PENALTIES.

Subdivision 1. Definition.

As used in this section, "harass" means to engage in intentional conduct which:

(1) the actor knows or has 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.

Subd. 1a. No proof of specific intent required.

In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Subd. 2. Harassment and stalking crimes.

(a) A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:

(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;

(2) stalks, follows, monitors, or pursues another, whether in person or through technological or other means;

(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;

Subd. 5. Pattern of harassing conduct.

(a) A person who engages in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction on the part of the victim, is guilty of a felony and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

(b) For purposes of this subdivision, a "pattern of harassing conduct" means two or more acts within a five-year period that violate or attempt to violate the provisions of any of the following or a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories:

609.748 HARASSMENT; RESTRAINING ORDER.

Subdivision 1. Definition.

For the purposes of this section, the following terms have the meanings given them in this subdivision.

(a) "Harassment" includes:

(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;

609.605 TRESPASS.

Subdivision 1. Misdemeanor.

(a) The following terms have the meanings given them for purposes of this section.

(1) "Premises" means real property and any appurtenant building or structure.

(2) "Dwelling" means the building or part of a building used by an individual as a place of residence on either a full-time or a part-time basis. A dwelling may be part of a multidwelling or multipurpose building, or a manufactured home as defined in section 168.002, subdivision 16.

(3) "Construction site" means the site of the construction, alteration, painting, or repair of a building or structure.

(4) "Owner or lawful possessor," as used in paragraph (b), clause (9), means the person on whose behalf a building or dwelling is being constructed, altered, painted, or repaired and the general contractor or subcontractor engaged in that work.

(5) "Posted," as used:

(i) in paragraph (b), clause (4), means the placement of a sign at least 8-1/2 inches by 11 inches in a conspicuous place on the exterior of the building, or in a conspicuous place within the property on which the building is located. The sign must carry a general notice warning against trespass;

(ii) in paragraph (b), clause (9), means the placement of a sign at least 8-1/2 inches by 11 inches in a conspicuous place on the exterior of the building that is under construction, alteration, or repair, or in a conspicuous place within the area being protected. If the area being protected is less than three acres, one additional sign must be conspicuously placed within that area. If the area being protected is three acres but less than ten acres, two additional signs must be conspicuously placed within that area. For each additional full ten acres of area being protected beyond the first ten acres of area, two additional signs must be conspicuously placed within the area being protected. The sign must carry a general notice warning against trespass; and

(iii) in paragraph (b), clause (10), means the placement of signs that:

(A) carry a general notice warning against trespass;

(B) display letters at least two inches high;

(D) are posted in a conspicuous place and at intervals of 500 feet or less.

(7) "Building" has the meaning given in section 609.581, subdivision 2.

(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;

609.795 LETTER, TELEGRAM, OR PACKAGE; OPENING; HARASSMENT.

Subdivision 1.Misdemeanors.

Whoever does any of the following is guilty of a misdemeanor:

(3) with the intent to abuse, disturb, or cause distress, repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, or packages.

FAX

To: Tom Pertler From: MARVIN D. PIRILA

Fax: (218) 384-9181 Date: 7/21/10___________

Phone:(218) 384-9166 Pages: 3_______________

Re: Trespassing Complaint CC:_____

[] Urgent [X] For Review [] Please Comment [] Please Reply [] Please Recycle

__________________________________________

*Comments:

Attn: Tom Pertler

In addition to state statutes regarding trespass, these rules apply regarding entry for fire marshals/fire chiefs and building inspectors.

Thanks,

Marvin Pirila

(218) 391-2876

299F.08 PREMISES, WHEN ENTERED

Subdivision 1. Immediate entry. In the performance of the duties imposed by the provisions of this chapter, the state fire marshal and subordinates, during and within a reasonable time after a fire has been extinguished, may enter any building or premises where a fire has occurred and other buildings and premises adjoining or near thereto to investigate and gather evidence. In determining whether a search is 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. This does not apply to Jeffrey Juntunen in this incident.

Subd. 2. Administrative search warrant. (a) After the reasonable time prescribed by subdivision 1 for an investigatory search has expired, subsequent entries to the building or premises to investigate and gather evidence may be made only if there is consent from the owner or occupant of the building or premises or pursuant to an administrative search warrant issued by a judge.

(b) In determining whether to issue an administrative search warrant for the purposes of this subdivision, the judge, in conforming the decision to constitutional doctrine governing warrant procedures for administrative searches, shall consider but not be limited to the following factors:

(1) scope of the proposed search;

(2) number of prior entries by fire officials;

(3) time of day when the search is proposed to be made;

(4) lapse of time since the fire;

(5) continued use of the building; and

(6) the owner's or occupant's efforts to secure the building against intruders.

Subd. 3. Criminal search warrant. If during the course of an investigatory search under an administrative search warrant issued in accordance with subdivision 2, the fire marshal or subordinates find probable cause to believe arson has occurred and require further access to the building or premises to gather evidence for possible prosecution, a criminal search warrant must be obtained from a judge.

299F.09 BUILDING ENTERED WITHIN REASONABLE HOURS.

The state fire marshal, chief assistant, deputies, and subordinates, the chief of the fire department of each city where a fire department is established, the mayor of a city where no fire department exists, or the clerk of a town in territory without the limits of a city, at all reasonable hours may enter into all buildings and upon all premises within their jurisdiction for the purpose of examination, after proper consent from the occupant or owner or pursuant to an administrative search warrant. If the examination occurs subsequent to a fire, entry into a building or premise is governed by section 299F.08. History: (5960) 1913 c 564 s 11; 1973 c 123 art 5 s 7; 1981 c 106 s 3; 1986 c 444 As discussed no consent was sought.

CONSTITUTION OF THE STATE OF MINNESOTA, ARTICLE I BILL OF RIGHTS

Sec. 10. Unreasonable searches and seizures prohibited. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL, Subp. 7. Right of entry. If it is necessary to make an inspection to enforce the code or if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or to perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or 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. Mr. Gulland made no such attempts.

Meeting Minutes

Date: August 1, 2008

Location: One North Cloquet Road West, Esko, MN

Former Washington Community Center

Persons Present: Brad Jensen - State Plumbing Inspector (218) 733-7839

Paul Sandstrom - Town of Thomson Plumbing inspector (218) 879-9719

North Star Plumbing - Plumbing Contractor - Leroy Lindstrom (Owner) North Branch, Minnesota (651) 775-0063

John Gulland - Town of Thomson Building Inspector (218) 879-9719

RE: Plumbing Inspection for project located at above location.

The second floor, west side, is roughed-in for waste and vent only on 5-22-08. This is the only work Paul Sandstrom has looked at this time.

The upper floor, east side, is not ready for inspection at this time. Plumber needs more work done on this building so plumber can complete this work on upper floor, east side.

Paul Sandstrom - Thomson Township Plumbing Inspector -- Inspection notes to date - 1 North Cloquet Rd. J.G.

Marvin Pirila & Gail Francette

1 N Cloquet Rd W

Esko, MN 55733

September 9, 2008

David C. Pritchett

813 Cloquet Ave

Cloquet, MN 55720-1613

Re: Former Washington Community Center Renovation Project

Dear Mr. Pritchett,

The files you have reviewed are apparently missing significant information regarding this project. Once you read this letter you’ll have some sense of the frustration we have experienced with Township and some of its staff, particularly Mr. John Gulland.

Let me begin with the violations of law we have experienced from Township officials. Mr. Gulland and the fire chief have both entered the premises without the knowledge of owners. In fact, we believe they have entry keys, because on at least one occasion, the doors were locked when the building was entered. Regardless of whether they gained access with a key, they cannot legally access private property without the owners’ permission. We are requesting the dates the fire chief entered illegally so we may bring it to the attention of the police department. We also request that both Mr. Bassett and Mr.Gulland be dismissed immediately from their positions.

Issues you noted:

Missing information on mechanical engineer: Heat Mechanical (Rick Hatanpaa) is in the process of doing the mechanical drawings and plumbing designs for unfinished portions of the building. His number is 390-1933. We had previously informed Mr. Gulland that we had engaged the services of a mechanical engineer.

Building designs: These are being done by Greg Hallback (879-6068.) Mr. Gulland is and has always been very aware that Greg works with architect Alan Adams, who has been on board, as needed, from the first day Greg became involved.

No structural engineer has been required by Mr. Gulland at any time. He has suggested we have one look at the gym roof. We have already talked to Greg Hallback about possible structural engineers. Scott Erickson is scheduled to visit on Wednesday, September 10, 2008, to review the project, but again, this has continued to be at our option only. Scott called Wednesday morning to say he was too busy to accept this job.

A plumbing inspection, to our knowledge, is scheduled September 10, 2008, by the State. This was delayed because the Township plumbing inspector, Paul Sandstrom, withdrew from his position on this project. We received no notification and only found out through one of our contractors. No official reason has been provided.

We have seen no written notice of any violations of fire codes by any person at any time during our ownership of this building. We have contractors who witnessed a fire official walking through the building illegally, twice. Mr. Gulland brought it up only after we questioned Mr. Gulland on how he managed to be in the building without us present when the doors were locked. (Mr. Gulland was supposed to be waiting outside the building to meet us for a walk through.) He then brought up the fireman’s concerns (but no fire code violations) when I questioned how many Township officials were giving themselves illegal access to the building. And again, there was no mention of actual fire code violations, only concerns. We still ask where is the actual fire code violation in writing, supported by Minnesota State Statute. Either way, we have people taking this wood and have hired others to move it out into the parking lot.

The I-Joists claim is just another classic example of ongoing delay tactics. Initially, Duane Grace (the collaborative building inspector of this project) agreed to look up the specifications of the I-Joists during a scheduled walk-through. Later, Mr. Gulland requested the building owners get them. The first information we received from the material provider was not acceptable to Mr. Gulland. He requested certain specific numbers which were provided. Again this was not good enough. We then called the building division of the material provider in Eau Claire and also the manufacturer itself for yet more information requested by Mr. Gulland. This proved the adequacy of the installation of the I-Joists in the building. And, again, this was not enough. We turned in yet more information on September 10, 2008, showing that no lateral support was needed. Furthermore, we have completed all the requests made by Mr. Gulland regarding the installation of these I-Joists, and he approved the project to go ahead. Now, months later, this is being thrown into the mix. This is just another frustrating inconsistency of position taken by Mr. Gulland and the Township.

The I-joists were not in the original plans, but were put in the newer ones to satisfy Mr. Gulland’s request. This is a past tense item and needs no further mention other than the request regarding information on the need, or lack of, intermittent structural supports. The I-joists were installed with 2x4’s run perpendicular to the I-joists every 8’. This was unnecessary per the manufacturer, who neglected to send this information originally with their fax since it isn’t a needed feature.

Mr. Gulland has requested numerous drawings which we have provided – we would say to excess. Few projects are without on-site changes. At what point is the Township going to foot the expenses that are being requested, and not supported by the code or common logic?

Mr. Gulland has harassed virtually every contractor we’ve had on this job. This includes insulting them, suggesting they were acting as a general contractor when they weren’t, and questioning their work (without the benefit of specific codes to support his inquisitions). Further, he has attempted to question them on facets of the construction of which they do not, and would not, have knowledge. Now, he has resorted in part, to attacking them personally on other jobs they have in the area.

The preceding information appears to be conveniently missing from the file:

In the quest for fairness, we must now start asking questions that relate to a disparity in enforcing the building codes. Some troubling problems have come to our attention since taking ownership of this building.

Mr. Gulland maintained an office here for 13 years, looking the other way on dangerous building changes:

Who oversaw the changes in this building when the Township owned it and who sanctioned them? Where are the plans? We have requested them for continuity and they have not been provided.
The electrical panel upstairs was not secured properly. This was discovered when it fell, unexpectedly and dangerously, during demolition.
A wall erected between two rooms upstairs was improperly secured. It was held by a narrow chain and two coat hooks supporting it mid-wall.
We are attempting to continue the gym as an assembly area, yet Mr. Gulland claims it is a change in use. How can it be fine for them and not for us? The wheelchair accessible bathrooms there are also, inexplicably, not up to code.
Did Mr. Gulland okay the floating, unsupported floor of the men’s bathroom on the main floor, knowing the other end was supported by a floor jack under two floor joists?
Did Mr. Gulland approve the sewer venting terminating in the second attic?
Who okayed funds to put in drop ceilings when there was absolutely no insulation in the attic?
We heard that the Township received an 18-month stay from Mr.Gulland on building code violations while they were here. Is that true? This will become relevant in future proceedings.
Mr. Gulland even made a comment about having to upgrade wiring in the gym that the Township had put in and clearly not up to code. Did a state electrical inspector inspect all wiring changes here? If so, where are the records?
If this building was perceived as dangerous in any manner why wasn’t a structural engineer requested when the Township owned it? The many groups and employees that met here constantly, as Mr. Gulland would now suggest, would have been at great risk.

Another related concern we have is Mr. Marv Bodie’s participation in the meeting when the building permit was issued. This appears on its face to be an ethical violation. You cannot participate in a process which could possibly be appealed back to you (as County Commissioner). He has since left, but not before being in a position considered incompatible. Even his position at Carlton County appeared incompatible. He has also left that job, returning to his position in St. Louis County. I have been informed that we can have just one 8’ x 8’ sign on our property (and only related to a personally owned business), yet during the county commissioner race, Mr. Bodie had them in numerous places around the Township. What zoning ordinance allows that?

Other answers we would like answered as citizens of this township.

How much did the Township pay for their new building?
How much additional money did they pay for improvements?
Is it common practice for members of the zoning committee to hide certain violations of the zoning code when the error originated from them?
When we took ownership of this building, wasn’t it true that the Township had no monies allotted to cover its ongoing costs?

The township seems under question with regards to the very rules they enforce on others.

We have had both a building contractor and master plumber say they would never do business in Thomson Township again because of the ridiculous hurdles they are facing.

John Gulland failed to respond to a message at his Duluth office and appears to be unplugging his home phone number as that rings through continuously. We confirmed that he was in the office last night, but failed to call us. Our designer, Mr. Hallback, wasn’t able to reach him as well, but did leave a detailed message. Mr. Pritchard has also not answered messages left for him on September 10, 2008 by Mr. Pirila.

We view the detailed items as shameful conduct, unethical, and unprofessional for any public official or government employee. Clearly, we have some strong arguments that we intend to present to State Attorney General and an attorney regarding abuse of position, intent, and financial harm. It has been nearly impossible to move ahead consistently with Mr. Gulland’s constant shifting of positions. His requests have seemed to lack solid support from code regulations and his actions cause constant delays. We understand we have made our mistakes and been working in unfamiliar territory, but we have tried the best we can to follow all codes and regulations. However, a person with knowledge of the code should certainly do better than Mr. Gulland.

Thank you for your anticipated response.

Respectfully,

/s Marvin Pirila

Marvin Pirila & Gail Francette

(218) 391-2876