Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
December 21, 2011
Eric H. Holder Jr, U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Solicitor General of the United States
Room 5614, Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530-0001
Lori Swanson, Attorney General
Minnesota Attorney General's Office
1400 Bremer Tower
445 Minnesota Street
St. Paul, MN 55101
Attn: U.S. Attorney General Eric Holder, Minnesota Attorney General Lori Swanson, Solicitor General of the United States
One: In their petition to the U.S. Supreme Court, petitioners Marvin Pirila and Gail Francette challenge the constitutionality of the Minnesota Government Data Practices Act. This case is Appellate Court Case No. A11-276, Petitioners, Marvin Pirila & Gail Francette vs. Respondents, Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen.
Only five metropolitan areas are required to follow the Data Practices Act, leaving all citizens outside of those areas at the mercy of townships and cities. In our case, Thomson Township agreed to provide information voluntarily, and then never delivered on that promise, despite numerous requests. A legislator said they amended the reach of the Data Practices Acts reach to alleviate costs for smaller municipalities and townships and those excluded were to provide the information voluntarily. This was a monumental mistake as there are no repercussions for their failure to provide transparency to their actions. This is a violation of the public citizens’ right to know what his and her taxes are paying for. Ironically, after discovering they were not subject to the Data Practices Act, Thomson Township suddenly would not provide the information requested. However, during legal discovery they used the objection that the Data Practices Act forbade them from sharing information. On one hand, they do not have to provide information because they are not subject to the Data Practices Act, and on the other, they do not have to give the information because of the Data Practices Act. The MGDPA fails to uphold the need for transparency, the rights of citizens, and the principles of the U.S. Constitution.
The Act is unconstitutional, we argue, because it is not serving the citizens of this state equally.
Two: Is the Department of Labor and Industry, not the courts, the correct and legitimate authority to determine ministerial and operational level duties of building inspectors? Petitioners are also arguing that the Exceptions to Immunity under Minn. Stat. § 466.02 require clarification, as they are unrecognized by the Minnesota courts. Almost every exception to immunity applied in this matter, yet the lower courts ignored them in favor of granting immunity. The case history of Minnesota shows a cloak of sovereign immunity being granted to all levels of government under the guise of qualified, statutory, official, and vicarious immunities. Even if this guise did not exist, the exceptions to immunity existed and should have defeated any request for summary judgment.
There is a nationally renowned problem of blanket, unwarranted immunity granted to county, municipal and township officials. Only States and arms of the State possess immunity from suits authorized by federal law". Northern Insurance Company of New York v. Chatham County (2006 emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power'". Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979). Thus, the state courts practice of granting blanket sovereign immunity, while ignoring Minnesota Statutes exceptions to immunity to township officials, is unconstitutional. The courts ruled contrary to the powers expressly granted Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution” [Congress’s Article I § 8]. These powers included those that Congress expressly granted the MN DOLI in Minn. Stat. § 175.171.
Rather than limiting immunity, Minnesota like several other states, are essentially granting sovereign immunity to township officials in error. The U.S. Supreme Court has undertaken the rights of states to be sued in Alden v. Main, 527, U.S. 706 (1999), deciding in favor of the states in a 5-4 vote. This close vote shows the contention in the U.S. Supreme Court as to whether states should be granted sovereign rights. The sovereign rights of the state are being too broadly applied to include municipalities and townships in the courts despite the ruling in Jinks v. Richland County (2003).
The failure of the judicial courts to enforce notable exceptions to immunity has the broadest impact upon citizens of the United States. The power to create law exists strictly with Congress, yet the courts are creating law when routinely ignoring the statutes, rules, and laws rightfully created by the legislative branches of government. Without strict adherence to the laws, as well as the constitution of the U.S. and states, individuals are stripped of their rights and left without proper, due recourse in the court system.
In this specific case, the lower courts failed to take into account the numerous violations of Minnesota Rules and Statutes, criminal trespass, the censuring of defendant Gulland, and State and U.S. Constitutional violations. Moreover, the courts did not take the operational level and ministerial duties that defendants neglected or refused to complete into account. These are clear reasons for defeating summary judgment as they meet the definitions of exceptions to immunity under Minn. Stat. § 466.02.
An operational level decision involves “conduct which merely puts into effect a predetermined plan”. Gonzales v. Hollins, 386 N.W.2d 8452, 845 (Minn. App. 1986). Operational level decisions are not protected. Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. Dec. 31, 1992). Plaintiffs argued that the censuring of defendant Gulland was proof that he failed to follow operational and ministerial duties. The Minnesota Department of Labor and Industry was expressly granted powers by congress to oversee Minnesota State Building Codes and its inspectors (Minn. Stat. § 175.171). The MN DOLI, a department of the state, has the legal authority to determine the operational and ministerial duties of building inspectors.
Statutory Immunity (Minn. Stat. § 466.03, Subd. 6) is improperly granted when the dispute involves day-to-day (operational) duties. Similarly, official immunity is defeated when ministerial duties are involved. A ministerial act is “absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). By default, if official immunity is lost, so is vicarious immunity. Malicious conduct is not immunized. Elwood v. Rice County, 423 N.W.2d 671 (Minn. 1988).
"A person who is under a duty to act has no discretion and must act whenever that duty arises while a person with a power to act can do so as he or she feels appropriate in his or [her] discretion". Robert W. Macauley and James L.H. Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Carswell, 1988-) at 5-7. The defendants were required to act or exercise discretion within narrow confines set by statutes and Minn. Rules. Instead, the defendants acted arbitrarily and beyond their statutory authority.
A citizen's ability to access the courts to enforce their rights should not be restricted, and if restricted, be kept to a minimal as much as possible. The real threat of legal action is the only effective way to ensure individuals take proper care in carrying out their duties. This case is indicative of what occurs in the absence of true accountability, the accountability already embedded in Minnesota Statutes and Federal Laws as exceptions to immunity, but not enforced by Minnesota and other state courts. There is no case history to show that Minnesota or other states are enforcing these exceptions. This leaves private citizens no legal recourse to which they are entitled.
Three: We find equally appalling that the lower courts do not allow Admissions be admitted when the other party fails to submit them on time, particularly when represented by counsel. We would like the constitutionality of this matter addressed by the U.S. Supreme Court. The purposeful delay of submitting admissions in a timely manner only delay proceedings and increase costs to all involved. This reduces the matter to a law of economic advantage rather than one of justice. Many states have ruled that late admissions are granted as acknowledged, allowing the case to proceed as properly scheduled.
Minnesota is holding onto old interpretations of these matters, long ago abandoned by other states that realized the importance of holding public officials accountable for malicious conduct.
Fourth, were the unconsented entries/trespasses violations of petitioners fourth, fifth, and fourteenth amendment rights?
Trespassing by two different defendants (building inspector and fire chief) on different occasions were in known violation of existing law, including the fourth, fifth, and fourteenth amendments. The U.S. Supreme Court needs to define the rules regarding entry for building inspectors and fire chiefs for the states.
The Attorney General of Minnesota has claimed that this is a matter left to the discretion of the County Attorney because of the autonomy involved. However, these are state laws, and more importantly Federal laws, involving constitutional rights of individuals. As previously stated, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power'". The county attorney has been reluctant to say the least in pursuing the responsible defendants for obvious political reasons.
If a building permit were to allow free and legal access to property as defendants suggest, building inspectors would have “bullet-proof” protection against the fourth, fifth, and fourteenth amendments. Similarly, if a fire chief can merely enter into the private property of another because he has the right to “interpret” a possible situation as a fire danger, he, or she would be receiving unjust immunity to trespass. There is nothing reasonable about entering the private property of another, minus emergency conditions, without the simplest attempt at consent. It is not relevant if the door was locked or unlocked. If it was, we would be again be suggesting it is reasonable to enter the unlocked doors of anyone possessing a building permit or reasonable for a fire chief to enter under the pretext of an “interpreted” potential fire hazard.
The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. Defendants failed to seek consent, possessed no warrant, and lacked probable cause when making entry to plaintiffs' personal property. Plaintiffs argue that it unreasonable for searches to take place without their consent or the consent of the contractors on site.
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that the amendment's protections apply only when the searched party has a "reasonable expectation of privacy". As these trespasses included times in which plaintiffs resided there, the property was privately owned, and their personal belongings were always there, they had every expectation of privacy.
The defendants’ entries without consent/trespasses lacked reasonable cause. The reasonableness requirement applies not just to a search in combination with a seizure, but also to a search without a seizure, as well as to a seizure without a search. Tennessee v. Garner 471 U.S. 1 (1985)
A "seizure" of property, we have explained, occurs when "there is some meaningful interference with an individual's possessory interests in that property". United States v. Jacobsen,
466 U.S. 109, 113 (1984). "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home". Silverman v. United States,
365 U.S. 505, 511 (1961).
Because these searches were done without the advance knowledge of plaintiffs, they had no opportunity to deny or allow consent, or the chance to attend. These were planned illegal searches and plaintiffs' have no way of knowing if there was a seizure or what areas the defendants freely explored. This “willful misconduct” is synonymous with the term “intentional tort”. King v. Breach, 115 Pa. Commonwealth 355, 540 A.2d 976, 981 (1988).
The rights to privacy, like due process, are fundamental rights with special significance under the 14th Amendment to the Constitution. Pursuant to the equal protection clause of that amendment, the Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose. The Supreme Court has legally recognized some fundamental rights not specifically enumerated in the Constitution, including the right to privacy.
Title 42 U.S.C. 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress". Minnesota courts failed to uphold the constitutional rights under the guise of immunity. See Monroe v. Pape, [506 U.S . 56, 61] 365 U.S. 167, 184 (1961). Section 1983 liability punishes only purposeful “deprivations” of constitutional rights, such as the trespassing/illegal searches committed by defendants Gulland and Juntunen. These were 4th, 5th [151a], and 14th Amendment violations used purposely to deprive plaintiffs of due process, the Constitutional right to privacy, and equal protection of the law. Section 1983 lawsuits for money damages are allowable against local government officials in their individual capacity, since local officials acting in an individual capacity are “persons” for Section 1983 liability, and thus are not protected by the 11th Amendment. McDonald v. City of West Branch, Michigan, 104 Sup. Ct. 1799 (1982).
Both defendants Gulland and Juntunen were the final policymakers for the local government entity when they committed constitutional violations. Defendant Thomson Township was aware of these violations and engaged in them by writing letters citing concerns and alleged code violations. Plaintiffs wrote letters to Thomson Township expressing their concerns with trespasses and the conduct of defendants Gulland and Juntunen. A section 1983 claim was made in the complaint on March 16, 2010, depositions, and Plaintiffs' Memorandum of Law in Opposition to Summary Judgment.
In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court ruled that federal courts may enjoin state officials from violating federal law. Defendant Gulland, while hired by Thomson Township, was performing the duties as determined by the MN DOLI, a department of the state. If the state can be held accountable for federal violation, it reasons that those without any rights to sovereign immunity would be accountable.
Respectfully,
Marvin Pirila & Gail Francette, pro se
1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
marvindp@msn.com
