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,

v.

 

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.

I.

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

Supreme Court of the United States - Docket No. 11-887

The case of:

Marvin Pirila, et al.
                    (Petitioners)

                              v.                                           No. 11--887

Thomson Township, et al.
                   (Respondent)

is now on docket at the Supreme Court of the United States at .......

All amicus curaie briefs are now due within 30 days.  If you are behind individual rights, the limited powers of government, and just plain decency, please file your briefs now.

Petition to U.S. Supreme Court

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

MINNESOTA SUPRREME COURT

PETITION FOR WRIT OF CERTIORARI

Marvin Pirila & Gail Francette

1 N Cloquet Rd W

Esko, MN 55733

(218) 391-2876

QUESTION(S) PRESENTED

1.      Did Minnesota courts overstep its authority in dismissing the findings of the Minnesota Department of Labor & Industry who censured defendant for failure to perform the ministerial and operational level (day-to-day) duties of a building inspector?

2.      Is Minnesota wrongly granting sovereign immunity under the guise of other immunities, even though sovereign immunity was abolished by judicial and legislative action in 1976?

3.      Did defendants violate the fourth, fifth, and fourteenth amendment rights of petitioners when defendants repeatedly trespassed?

4.      Is the exemption townships receive under the Minnesota Government Data (Minn. Stat. § 368.01) Practices Act unconstitutional, particularly when they refuse to provide data voluntarily or during official discovery attempts?

 

LIST OF PARTIES

[  ] All parties appear in the caption of the case on the cover page.

[X] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

Thomson Township Fire Department; John Gulland; Duane Grace; and Jeffrey Juntunen.

RULE 29.4(C) CERTIFICATION

Petitioner certifies that 28 U.S.C. 2403(b) may apply and that this Petition has been served upon the Attorney General of Minnesota.

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED.....................VII

OPINIONS BELOW................................................XI
JURISDICTION...................................................XIII
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED…………. ....................XV
STATEMENT OF THE CASE ................................1
REASONS FOR GRANTING THE WRIT ............22
CONCLUSION........................................................38

INDEX TO APPENDICES

APPENDIX A:  Decision of State Supreme Court Denying Review

APPENDIX B:  Decision of State Court of Appeals/Appellant's Brief

APPENDIX C:  Decision of State Trial Court (12/29/10)/Plaintiffs' Memorandum of Law in

Opposition to Summary Judgment

APPENDIX D:  Minnesota Data Practices Act; Relevant portions of Record

APPENDIX E:  Minnesota Department of Labor and Industry Findings; Site Inspection Card

APPENDIX F:  Constitutional and Statutory Provisions Involved

APPENDIX G:  Trespassing/Harassment Complaint

APPENDIX H:  Transcript of Proceedings – State Trial Court

APPENDIX I:  Motion to Dismiss Summary Judgment

APPENDIX J:  Relevant Documents

APPENDIX K:  Complaint

APPENDIX L:  Depositions

APPENDIX M:  Notice of Claim

APPENDIX N:  The Constitutionality of the MGDPA and Statute 466.02 Clarification

TABLE OF AUTHORITIES CITED

CASES PAGE NUMBER

Alden v. Main, 527, U.S. 706 (1999).......................22

Berkovitz v. U.S. 486 U.S. 531, 536 ('88)...............36

Copeland v. Hubbard Broadcasting Inc., 526 N.W.2d 405 (Minn App. 1995)................................19

Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997)....................................................27

DiQuinzio v. Panciera Lease Co., 612 A 2d 40 (R.I. 1992).........................................................................25

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

..................................................................................40

Elwood v. Rice County, 423 N.W.2d, 671 (Minn. 1988).........................................................................26

Ex Parte Young, 209 U.S. 123 (1908).....................33

Finney v. Barreau du Quebec, 2004 SCC 35..........40

Gonzales v. Hollins, 386 N.W.2d 8452 (845) (Minn. App. 1986)................................................................23

Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002)....................................37

Jinks v. Richland County (2003).......................22-23

Katz v. United States, 389 U.S. 347 (1967)...........30

King v. Brench, 115 Pa. Commonwealth 355, 540 A.2d 976, 981 (1988)...............................................31

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979)..........................................22

Mapp v. Ohio, 367 U.S. 643 (1961).........................30

McDonald v. City of West Branch, Michigan, 104 Sup. Ct. 1799 (1982)................................................32

Mitchell v. Forsyth, 457 U.S. 819...........................34

Monroe v. Pape, [506 U.S. 56, 61] 365 U.S. 167, 184 (1961)…………………………………………………...32

Northern Insurance Company of New York v. Chatham County (2006)..........................................22

Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. Dec. 31, 1992).........................................................................23

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

…………………...................................................26-27

Rieger v. Zackoskis, 321 NW.2d 16,20 (Minn. 1982).

..................................................................................19

Robert W. Macauley and James L.H. Sprague, Practice and Procedure Before Administrative Tribunals (Toronto:  Carswell, 1988-) at 5-7….

..................................................................................26

Ryan, 134 Ariz. at 309, 656 P.2d at 598, quoting Stone, 93 Ariz. at 393..............................................29

Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955).

..................................................................................40

Silverman v. United States, 365 U.S. 505, 511 (1961)………………..................................................31

Stenner v. British Columbia (Securities Commission)(1996) 141 D.L.R. (4th) 122 (B.C.C.A.)

..................................................................................34

Taylor v. Stevens County........................................28

Tennessee v. Garner, 471 U.S. 1 (1985).................30

U.S. v. Gaubert, 499 U.S. 315, 322 ('91).................36

United States v. Jacobsen, 466 U.S. 109, 113 (1984)

…………………….....................................................30

STATUTES AND RULES

Minn. R. Civ. P. 26.02(a)....................................24,39

Minn. R. 1300.0110 Duties and Power of Building Official……………………………………………......3, 7

Minn. R. 1300.0110 Subp.1…………………………..4

Minn. R. 1300.0110 Subp. 3………………………….3

Minn. R. 1300.0110 Subp. 4……………………........4

Minn. R. 1300.0110 Subp. 5………………………….8

Minn. R. 1300.0110 Subp. 7…………………………13

Minn. R. 1300.0110 Subp. 8…………………………19

Minn. R. 1300.0110 Subp.9......................................2

Minn. R. 1300.0210 Subp. 4....................................13

Minn. R. 1311 Rehabilitation of Existing Buildings

……………………...................................................3, 5

Minn. R. 1311.0010 Adoption by Reference of the Guidelines for the Rehabilitation of Existing Buildings...................................................................2

Minn. R. 1322.1101 IRC Section N1101, General

…………………..........................................................9

Minn. R. 7676.1400...................................................3

Minn. Stat. § 3.736 Tort Claims.............................29

Minn. Stat. § 13.02, Subd. 11..................................11

Minn. Stat. § 175.171 Powers and Duties, Department of Labor and Industry....................5, 22

Minn. Stat. § 299F.09 Building Entered Within Reasonable Hours....................................................17

Minn. Stat. § 326B.082 Enforcement..............….....7

Minn. Stat. § 326B.082 Subd. 11………………..5, 15

Minn. Stat. § 326.101 Policy and Purpose.........4, 20

Minn. Stat. § 326B.106 General Powers of Commission of Labor and Industry.........................5

Minn. Stat. § 326B.133 Building Officials.............13

Minn. Stat. § 326B.133 Subd. 4............................3-4

Minn. Stat. § 366.18…………………………………..6

Minn. Stat. § 368.01 Powers of Certain Metropolitan Area Towns………............................11

Minn. Stat. § 466.02 Tort Liability...................20-21

Minn. Stat. § 466.03 Exceptions; Subd. 1………….7

Minn. Stat. § 466.03 Exceptions; Subd. 5………….7

Minn. Stat. § 466.03 Exceptions; Subd. 6……..2, 26

Minn. Stat. § 473.121 Definitions; Subd. 2............11

Minn. Stat. § 609.605 Trespass .............................18

Minn. Stat. § 609.748 Harassment; Subd, 1..........18

Minn. Stat. § 626.556, subd. 4 (b)...........................37

OTHER

Congress Article I § 8………………………………...22

Eleventh Amendment.............................................32

Fourth Amendment............................................29-32

Fifth Amendment...............................................31-32

Fourteenth Amendment....................................29-32

International Building Code, Chapter 34………....9

Minnesota Government Data Practices Act…11, 24.

Section 1983, 42 U.S.C. Section 1983, Civil Rights Act of 1871....................................................29, 32-33

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix to the petition and is

[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished.

The opinion of the United States district court appears at Appendix to the petition and is

[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished.

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix to the petition and is

[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished.

The opinion of the court appears at Appendix to the petition and is

[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [X] is unpublished.

1.  JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case was.

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of Appeals on the following date:  and a copy of the order denying rehearing appears at Appendix .

[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. A .

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[X] For cases from state courts:

The date on which the highest state court decided my case was October 26, 2011.  A copy of that State Supreme Court decision denying review appears at Appendix A.

[ ] A timely petition for rehearing was thereafter denied on the following date: and a copy of the order denying rehearing appears at Appendix .

[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. A.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATUTES AND RULES

Minn. Stat. § 13.02, Subd. 11

Minn. R. Civ. P. 26.02(a)

Minn. R. 1300.0110 Duties and Power of Building Official; Subp. 3-5, 7-9

Minn. R. 1300.0210 Inspections; Subp. 3, 4

Minn. R. 1311 Rehabilitation of Existing Buildings

Minn. R. 1311.0010 Adoption by Reference of the Guidelines for the Rehabilitation

   of Existing Buildings

Minn. R. 1322.1101 IRC Section N1101, General

Minn. R. 7676.1400

Minn. Stat. § 3.736 Tort Claims

Minn. Stat. § 175.171 Powers and Duties, Department of Labor and Industry

Minn. Stat. § 299F.09 Building Entered Within Reasonable Hours

Minn. Stat. § 326B.082 Enforcement; Subd. 1, 7, 11

Minn. Stat. § 326.101 Policy and Purpose

Minn. Stat. § 326B.106 General Powers of Commission of Labor and Industry;

   Subd. 2

Minn. Stat. § 326B.133 Building Officials; Subd. 4

Minn. Stat. § 368.01 Powers of Certain Metropolitan Area Towns

Minn. Stat. § 466.02 Tort Liability

Minn. Stat. § 466.03 Exceptions; Subd. 5-6, and 8.

Minn. Stat. § 473.121 Definitions; Subd. 2

Minn. Stat. § 609.605 Trespass; Subd. 1, 4, and 9

Minn. Stat. § 609.749 Stalking; Penalties; Subd, 1,

  2, and 5

OTHER

Eleventh Amendment

Fourth Amendment

Fifth Amendment

Fourteenth Amendment

Section 1983, 42 U.S.C. Section 1983, Civil Rights

   Act of 1871

STATEMENT OF THE CASE

Plaintiffs bought property at 1 N Cloquet Rd W in Esko, MN, from defendant Thomson Township in 2006.  The main building was built in 1907 and the gymnasium in the 1930’s.  Defendants themselves occupied this property for roughly 13 years, with no accounting for the keys issued during their ownership.  All defendants routinely operated from the same building.  Defendant Juntunen had no knowledge of any key policy at Thomson Township [309a, 22].  Plaintiffs believe that defendants retained keys and used them to make illegal access to the property after their sale.

Problems originated from building inspector/defendant John Gulland immediately and throughout renovation.  Plaintiffs filed suit upon the conclusion of the Minnesota Department of Labor & Industry (MN DOLI) investigation [234a-243a].  Steve Sviggum, Commissioner of the Minnesota Department of Labor and Industry, stated verbatim “The following Order is in the public interest…” when censuring Gulland on 9/30/09 [241a].

The District Court (File No. 09-CV-10-934) granted defendants Summary Judgment request for dismissal on December 28, 2010 [103a-106a], stating that the officials were performing discretionary acts.  The Court states in its Memorandum that official immunity does not apply if an official's acts are ministerial, failing to account for the findings of the MN DOLI that specifically censured defendant for a failure of ministerial and operational level duties as mandated by Minnesota Statutes and Rules .  The Court of Appeals (Case A11-276) affirmed on August 22, 2011 per Judge Worke [12a-17a].  Appellants Brief [18a-97a].  The State Supreme Court denied review of the petition [3a-10a] on October 26, 2011 [1a-2a].  The petitioners challenge the constitutionality of the Minnesota Government Data Practices Act and clarification of the Minn. Stat. § 466.02, specifically exemptions to immunity.  Petitioners allege Minnesota continues to grant sovereign immunity to government officials at all levels despite its abolishment in 1976.

Censuring of Gulland for failure to perform ministerial and operational level duties

The district court transcript [283a-320a] clearly shows that defendants merely argued that all duties were discretionary and subject to immunity under Minn. Stat. § 466.03, Subd. 6 and Minn. R. 1300.0110, Subp. 9.  These defenses lack merit as the duties in question were operational and ministerial, and specifically cited in the Minnesota Department of Labor and Industry investigation and ultimate censuring of defendant Gulland.  Furthermore, the evidence of malice [303a-305a, 314a], the violation of several statutes, constitutional rights, and trespass [254a-282a, 291a, 308a-309a], makes this defense “moot”.  Petitioners argued their right to relaxed building rules (Guidelines for the Rehabilitation of Existing Buildings] per Minn. R. 1311 [295a-296a], that written orders are required by statute [236a, 6] and the failure of defendants to perform other ministerial and operational duties of the job [301a].

The Appellate Court's ruling was based on discretionary duties, instead of the operational and ministerial duties cited by the MN DOLI.  Both the District and Appellate Courts failed to properly account for the findings and jurisdiction of the MN DOLI; the state agency provided express powers by the legislature to oversee building inspectors.  These courts also failed to properly account for the other ministerial and operational level duties that defendants failed, including failing to complete record inspections on the on-site inspection card and records of inspections in township files.  There was also the issue of illegal trespasses.

            The MN DOLI "censured" defendant Gulland on September 1, 2009 [235a-238a].  “Based on all of the information obtained during the investigation, the Department has concluded that you engaged in the following violations of the statutes and rules that govern duties of a Minnesota certified building official:  Minn. Stat. § 326B.133, subd. 4 [235a-236a, 1-7]; Minn. R. 1305.[0]903.2.7 [Fire Sprinkler System]; Minn. R. 7676.1400 [Energy Code Exceptions][235a-236a,2]; Minn. R. 1311 [Guidelines for the Rehabilitation of Existing Buildings, commonly referred to as GREB]; Minn. R. 1300.0110 [236a]; Minn. R. 1300.0110, subp.3 [236a, 5] and subp. 4 [236a, 6].  You "did not maintain administrative control over this project, thus allowing others [Duane Grace] to dictate code compliance.  This resulted in confusion and/or delays [236a, 7].  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.

Minn. Stat. § 326B.133 Building Officials, Subd. 4 Duties.  Building Officials shall, in the municipality for which they are designated, be responsible for all aspects of code administration for which they are certified…

Defendant Gulland denied that Duane Grace dictated code compliance [333a, 103] despite the MN DOLI findings.

Minn. R. 1300.0110 Duties and Powers of Building Official, Subpart 1. General…The interpretations, policies, and procedures shall be in conformance with the intent and purpose of the code… 

Minn. Stat. § 326B.101 Policy and Purpose"…The construction of buildings should be permitted at   the least possible cost consistent with recognized standards of health and safety".

Minn. R. 1300.0110 Subp. 4. Notices and orders.  …Notices and orders shall be in writing unless waived by the permit applicant, contractor, owner, or owner’s agent…

Despite his censuring in part for failing to issue all correction orders in writing, defendant Gulland denies the claim [33a, 75].  Defendant Gulland issued all orders and requests verbally, despite the requirement that all orders were to be in writing, leading to needless, extensive ambiguity [41a-42a, 183a-184a, 364a-365a, 29].

Duties and Pwers of the Minnesota Dept. of Labor & Industry

Pursuant to Minn. Stat. § 326B.082 [239a] ENFORCEMENT, Subd. 11, "The [MN DOLI] commissioner may use any enforcement provision in this section...based on conduct that would provide grounds for action against a licensee, registrant, certificate holder or permit hold under the applicable law" [247a].  The MN DOLI has additional powers pursuant to Minn. Stat. § 326B.106 General Powers of Commissioner of Labor and Industry.

The MN DOLI is the official administrative department of Minnesota Building Codes, granted these powers by Congress in Minn. Stat. § 175.171.  Minnesota statutes clearly give them the legal authority to oversee building inspectors and take action when necessary.

Minn. Stat. § 175.171 states, "The Department of Labor and Industry has the following powers and duties:  (1) to exercise all powers and perform all duties of the department with the provisions of this chapter; (2) to adopt reasonable and proper rules relative to the exercise of its powers and duties…"

GREB (Guidelines for the Rehabilitation of Existing Buildings

Designer Greg Hallback argued initially for GREB [Minn. R. 1311] [117a, 406a], and once requested and applicable, its use becomes strictly a mandatory and ministerial duty.  Defendant Gulland insisted that a “change in ownership constituted a change in use” and subject to current codes for new construction, and not GREB [117a, 124a].  However, Gulland admits GREB rules are followed for an existing building [328a, 52].  The gym previously used for numerous events under defendants’ ownership [346a] became restricted from any use until it met current codes.  The MN DOLI ruled that GREB was correct and that energy codes did not apply when censuring defendant Gulland [235a-236a, 2].  Gulland, despite the ruling of the MN DOLI, denies his failure to address energy code exceptions [329a, 58].  Furthermore, Minn. Stat. § 366.18, states that the "zoning resolution shall not prohibit the continuance of the use of a building for any trade or industry for which it was used..."

            Defendant Gulland claims the architect did not request GREB and that was why he did not approve it [327a-328a, 47].  This is a known deceitful statement.  The architect did not enter the project until the second phase (after July 8, 2008), well after GREB was requested and denied by Gulland [125a-126a].  Additionally, once GREB is requested, an alternative building code must be requested by owner/contractor and approved by the building inspector.  The defendants have provided no evidence to prove such a request was made.  Gulland denies that GREB guidelines applied [328a, 48].

“The 2000 Guidelines for the Rehabilitation of Existing Buildings is not subject to frequent change…”  Minn. Stat. § 1311.0010 [GREB] is incorporated by reference and made a part of the Minnesota State Building Code.  Defendants Gulland and Grace have no reason for not being aware that GREB applied, after it had been in existence for more than a decade.  The failure of defendants Grace and Gulland to recognize GREB, existing buildings exceptions (crawl space, load occupancy, phased approval, energy codes, retaliation), "demonstrates incompetence, untrustworthiness, and financial irresponsibility".  These are reasons under Minn. Stat. § 326B.082 (ENFORCEMENT) [246a-248a] for the commissioner, among other options, to censure the person.  The defendants failed to exercise due care as required by Minn. Stat. § 466.03, Subd. 5.  Defendants failed to perform the duties that a reasonable person given the same circumstances, training, knowledge, and position would follow [407a].

Minn. Stat. § 466.03 Exceptions.  Subdivision 1.  Scope.  Section 466.02 does not apply to any claim enumerated in this section…Subd. 5. Execution of statute.  Any claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution, or rule.  The absence of due care is evidenced by the failure to complete on-site inspection cards, maintaining records of inspections at the township, trespass, failing to put orders in writing, failing to allow GREB ( a mandatory requirement), and failing to follow exceptions allowed for Existing Buildings, such as energy codes.  Likewise, these are all ministerial and operational level duties.

The MN DOLI could have cited defendant Gulland for failing to make any entries to the on-site inspection card as required by Minn. Stat. § 1300.0110 Subp. 5.  Building inspectors use this card to record inspection dates, areas inspected, noting approvals, or deficiencies.  Even throughout the MN DOLI investigation, defendant Gulland made no entries to the on-site inspection card [39a] or official record at Thomson Township as required.

Minn. R. 1300.0110 Duties and Powers of Building Official.  Subp. 5. Inspections.  …Results of inspections shall be documented on the job site inspection card and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection…

Negligence/Malice

Defendant Grace admits to not knowing what code was being applied nearly two years into the project [126a-129a, 343a].  Defendant Gulland's answer to why the gym could not be used, as it was when Thomson Township owned it is a blatant untruth [36a, 117a-118a].  Gulland claimed that it needed updating to meet current energy codes.  The MN DOLI investigation stated this was untrue [235a-236a, 2].  Defendant Gulland denies enforcing energy codes that were inapplicable and failing to use GREB, claiming plaintiffs failed to request the same.  This is categorically untrue, as shown in the original request [117a, 123a].  This denial came despite Gullands’ censuring for these two violations.  Petitioners stated their claims of gross negligence in their Notice of Claim [381a-383a, 407a], Plaintiffs’ Memorandum of Law in Opposition to Summary Judgment [166a-167a, 175a-176a], and petition to the State Supreme Court [84a-87a].

Defendants declared the area under the main building a crawl space requiring insulation throughout despite applicable exceptions under GREB and Section 1322.1101 IRC Section N 1101.1, Exceptions 2-4.  This was technically infeasible according to the International Building Code, Chapter 34, Existing Structures, Section 3402.  This long debated issue was null and void by the exceptions to the energy code that defendant Gulland refused to allow and was later censured for.

Section 3402.1, Definitions. "...TECHNICALLY INFEASIBLE.  An alteration of a building or a facility that has little likelihood of being accomplished...because other existing physical or site constraints prohibit modification or addition of elements...

Minn. R. 1322.1101 IRC Section N1101, General.  Subpart 1.  N1101.1 Scope.  This chapter regulates energy efficiency for the design and construction of buildings regulated by the International Residential Code (IRC) as adopted and amended by the state of Minnesota …Exceptions: 2.  Insulation R-values, air barrier, and vapor retarder requirements are not required for existing foundations, crawl space walls, and basements in existing dwellings or existing dwelling units whose alteration or repair require a permit if the original dwelling’s permit was issued before the effective date of this chapter.  3.  Additions to existing dwelling units may be made without making the entire dwelling or dwelling unit comply, provided the alteration complies with as many requirements of this chapter.  4.  Alteration or repairs to existing dwellings or dwelling units may be made without making the entire dwelling or dwelling unit comply, provided the alteration complies with as many requirements of this chapter as feasible, as determined by the designated building official.

As "John Gulland admits that he is considered an expert in the area of Minnesota Building Codes and Rules" [332a], it is highly unlikely the numerous decisions were made in error by accident [379a-380a, 407a].

Gulland presented false and misleading information to the Thomson Township attorney, which was used in a letter alleging various failures of the petitioners [360a-362a, 24].

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

Data Practices Act

Defendants denied access to relevant information to this legal matter pursuant to the Minnesota Government Data Practices Act (MGDPA) [222a-232a], even after learning it did not apply to them.  The MGDPA does not apply to towns, except those exercising special town powers under Minn. Stat. § 368.01 [246a] and located within the 7-county metropolitan area (Minn. Stat. § 13.02, Subd. 11) [245a].  Minn. Stat. § 473.121 Subd. 2 defines Metropolitan areas and does not include defendant Thomson Township [237a].

Townships are to provide access to public data upon reasonable requests [246a].  In this particular manner, the defendants refused to voluntarily answer information requests, letters, and emails.  Thomson Township attorney David Pritchett interfered with informal discovery by writing plaintiffs and stating they were “…hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town”[310a].  Such requests by a person acting pro se are legal and especially appropriate when the town continually fails to respond to requests.

Defendants failed to answer Plaintiffs’ Request for Production of Documents, Set I, Requests 8-10, 12, 18-22, 26-27, 30-32, 33, and 35 claiming that the “Request calls for private data under the Minnesota Data Practices Act”[222a-232a].  The MGDPA did not apply to defendants and was the basis by which they refused to answer previous requests for information.  All governments are bound by a duty to publish and promote openness, yet the MGDPA is being used to shield against openness and legal discovery processes.

Thomson Township conducted no identifiable inquiry into the reported behaviors of defendants Gulland and Juntunen.  Thomson Township denies that it has the obligation to oversee the actions of its employees and contractors [323a-324a, 23], even though it retains the authority under Minn. Stat. § 326B.133 to dismiss or suspend a building official at its discretion.

Entry without Consent/Trespass: 

Defendant Gulland accompanied Thomson Township Plumbing Inspector Paul Sandstrom on August 1, 2008, unbeknownst to plaintiffs [326a-327a, 42].  Building inspectors generally do not attend plumbing or electrical inspections, and should not without the consent of owners or the ones performing the work.  Plumber Leroy Lindstrom did not request building inspector John Gulland's presence.  This was simply one township employee inviting another [327a, 43] so he could perform an unauthorized search of premises.  Defendant Gulland used this opportunity to produce a letter alleging building code violations the same day.  Defendant Gulland’s attendance does not constitute consent, making his resulting report illegal.

The person doing the work authorized by permit is supposed to notify the building official that the work is ready for inspection per Minn. R. 1300.0210, Subp. 4.

Defendant Gulland is prohibited from entering “the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.” 

Minn. R. 1300.0110, Subp. 7 includes “…if premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry.  If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.”

Plaintiffs scheduled an inspection by defendant Gulland in March of 2009 in hopes of receiving a Temporary Certificate of Occupancy.  The plaintiffs asked Nick Perfetti to join them, as they wanted another person to witness the verbal discussions they had with defendant Gulland.  Gulland had failed up to this point and beyond to put orders in writing, despite several requests by petitioners.  Mr. Perfetti arrived around 4:25 pm and found locked doors.  He returned home for 20 minutes before returning at the same time as plaintiff Ms. Francette.  They found defendant Gulland’s unoccupied vehicle and entered the building to find that Gulland was already inside.  Petitioner Francette immediately confronted Gulland and asked him how he gained entrance and he ignored the question.  After plaintiff Pirila arrived, he also asked defendant Gulland how he got in through a locked door and received no response [317a].

During the hearing for summary judgment defendants acknowledged that entry was made without consent of owners, but that plaintiffs had no reasonable expectation of privacy [289a].  Petitioners moved into the residence on April 7, 2009.  The plaintiffs took the normal precautions of locked doors and posting "no trespassing" signs throughout property in order to maintain their privacy.  Some of these trespasses occurred during the petitioner's residency (May and June of 2009), and outside of their period of residency all of their personal effects were on site.

On the two occasions in May and June of 2009 defendant Gulland accompanied Architect Alan Adams on forced progress inspections [293a], both without consent of plaintiffs.  After the first surprise visit by the Architect and defendant Gulland, plaintiffs specifically objected to these inspections, and insisted that defendant Gulland contact them for inspections or wait for them to call.  He ignored their requests and made yet another unauthorized inspection with Architect Adams [281a], who also had his consent withdrawn by petitioners.  The MN DOLI was contacted [280a], and Barry Greive, Senior MN DOLI Investigator, immediately contacted Architect Adams, and defendant Gulland to discontinue what plaintiffs considered punishment and retaliatory visits.  These visits ended once the MN DOLI intervened clearly showing a lack of legitimacy.

Defendant Gulland forced plaintiffs out of work to make “his” scheduled weekly meetings that had little significance, done against the consent of plaintiffs, and were unreasonable, retaliatory, and illegal.  This retaliation [363a, 27] is subject to Minn. Stat. § 326B.082 Subd. 11 (7).  These forced inspections came only after the initiation of the MN DOLI investigation and during the residency of plaintiffs.  There was only one contractor working at that time and progress was slow.

Minn. Stat. § 326B.082 Subd. 11. Licensing orders; grounds; reapplication.  (7) retaliated in any manner against any employee or person who is questioned by, cooperates with, or provides information to the commissioner who seeks access to property or things under subdivision 2; (8) engaged in any fraudulent, deceptive, or dishonest act or practice; or (9) performed work in connection with the permit, license, registration, or certificate or conducted the person’s affairs in a manner that demonstrates incompetence, untrustworthiness, or financial irresponsibility.

These inspections were not consented to for Architect Adams [292a] and plaintiffs told defendant Gulland the same.  Lacking consent Architect Adams possessed no authority to invite or participate in these illegal visits.  Defendants chose a time they knew the plaintiffs were not home, expected no one on site, and had free reign to all areas inside the building, including petitioner’s personal belongings.  Defendant Gulland traveled from Duluth to Esko and must have possessed the keys necessary to grant him and Mr. Adams access to the locked building [308a-309a].

There are no records for defendants Gulland or Juntunen, as required by statutes, recording inspections on file at the Hall of Thomson Township or the Fire Department.

Defendant Juntunen does not disguise his entry without consent simply responding he “entered plaintiffs’ property to enforce fire code regarding large pile of debris” [327a, 46].  The large pile of debris defendant Juntunen refers to was a pile of slats piled near the west wall of the building, outside.  This pile did not constitute an immediate problem that would justify a visit without consent of plaintiffs.  There is not a single phone record, email, record of inspection, or any other document to substantiate any attempt at consent.  Juntunen also did not leave any notice that he had been inside plaintiffs building.  The building was vacant at the time and did not necessitate emergency access [308a].  Advance consent or a search warrant is a statutory requirement.  If this were an authorized inspection, there should have been a record on file at the Thomson Township Fire Department or proof of consent [302a].  Despite any lack of attempt at consent, including any evidence of the same, defendant Juntunen denies the charge [330a, 68-70].

Contractors Mark Blomquist and Jake Field entered the locked building to find defendant Juntunen already inside [282a].  Mr. Juntunen did not identify himself personally, but only as the fire chief, and declined to leave a message of any kind for plaintiffs.  In his Interrogatories defendant Juntunen acknowledges he does not know whom he talked to [Interr. 14, 27].  Defendant Juntunen claims, "The doors were open"[Interr. 23, 34].  Juntunen claims his "main concern was the lath from the demolition that was stacked on the exterior of the building...”[Interr. 41].  This pile was on the west side of the building and fails to explain his entry inside plaintiffs building from the east door.

Defendant fire chief Jeffrey Juntunen failed to follow Minn. Stat. § 299F.09...the chief of the fire department...at all reasonable hours may enter into all building 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.  Defendant Juntunen possessed neither.

The key words here are “after proper consent from the occupant or owner…”

Defendants entered plaintiffs' property at times they knew they would be working, easily verified by the lack of any vehicle in either parking lot.  Absent the cars and the consent of plaintiffs, both defendant Gulland and Juntunen, made their way to a door they reasonably expected as locked [302a].  Even so, they had every expectation of getting inside leading one to believe they possessed keys to the doors.  The lack of consent being sought before entry is evidence of ill intent/malice.

The plaintiffs expressed their concerns with trespasses to defendants Attorney Pritchett in their September 9, 2008 letter and received no response [271a-279a].  Mr. Pritchett, like Thomson Township and the Thomson Township Fire Department, failed to make any recognizable inquiry into the actions of either Gulland or Juntunen.

Plaintiffs filed trespassing charges against defendants Gulland and Juntunen with the Town of Thomson Police Department on June 24, 2010 [254a-256a].  The defendants violated the provisions of Minn. Stat. § 609.605 Trespass, a misdemeanor [249a-250a] and Minn. Stat. § 609.748 Harassment, Subd. 1 [261a].

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) [67a].  See also Rieger v. Zackoskis, 321 NW.2d 16,20 (Minn. 1982) (jury issue as to whether entrant became trespasser by exceeding scope of possessor’s invitation or permission).

The Carlton County attorney is investigating the trespassing charges. 

Building Permit Delays

Plaintiffs requested their first building permit and met with a 42-day review (December 4, 2007 - January 15, 2008) by defendant Grace before he passed it on to Gulland for final approval.  Defendant Gulland failed to act on the building permit in a timely manner (27 days) until plaintiffs contacted the MN DOLI.  This is a violation of Minn. R. 1300.0110, Subp. 8, Action on Application.  On February 11, 2008, Defendant Gulland finally issued a building permit with the expectation of a MN DOLI investigation [359a, 23].

Minn. R. 1300.0110, Subp. 8, Action on application states, "The building official shall examine or cause to be examined applications for permits and amendments within a reasonable time after filing.  If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject the application and notify the applicant of the reasons.  The building official shall document the reasons for rejecting the application..."  Defendant Gulland did not act on the application or reject it, but simply would do nothing without the threat of the MN DOLI intervening.

The second building permit took 72 days of review for approval.  Defendant Gulland failed to state his reasons for failing to take action on the building permit application in a reasonable time after filing.  The site inspection card did not state that anything was deficient, and was in fact; blank [355a, 16].  Again, the building permit was only issued after the intervention of the MN DOLI.

Instead of following Minn. Stat. § 326B.101, defendants made plaintiffs project take as long as possible at the highest possible cost.  The public good is not served by protecting those that refuse or neglect to perform their most basic duties, ministerial and operational level in nature.

The District Court granted defendants Summary Judgment despite the findings of the MN DOLI that defendant Gulland failed to perform several ministerial and operational level duties as required by Minnesota Statutes and Rules.  As these violations comprised the exceptions to immunity as listed in Minn. Stat. § 466.02, the court erred in making its ruling.  Instead, it rightfully should have gone to jury trial for deliberation.

In defining the protection of state officials, county officials, township officials, city officials, the Honorable Dale A. Wolf, stated, "in terms of tort action, what they do usually is enjoy a cloak of immunity."  Judge Wolf added, "The immunity applies, so long as they're acting under the color of their official capacity" [300a].  This statement lies in contrast to the statutory limitations to immunity under Minn. § 466.02.

Minn. Stat. § 466.02 Tort Liability.  Subject to the limitations of sections 466.01 to 466.15, every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a government or proprietary function.  Petitioners made intentional tort claims in their original complaint [364a, 28] and in depositions.

Judge Wolf's statement regarding a "cloak of immunity" suggests that "sovereign immunity" is truly being honored under the guise of official, vicarious, and statutory immunity.  Sovereign and absolute immunity principles are not in effect, yet a review of case law shows that the state courts are still granting the equivalent of the same.  The state has failed to move onto laws of limited immunity that are currently in effect and refuse to enforce them.

REASONS FOR GRANTING THE PETITION

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 under the guise of other immunities, 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 and 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 narrowly in favor of the states in a 5-4 vote.  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 in this case tried to fit the matter neatly into existing case law, when it also needed to properly account for the applicable statutes, rules, and laws.  The absence of case law enforcing the exceptions to immunity is the core problem.  The reluctance of the courts to enforce the existing legislation limiting immunity, particularly with respect to ministerial and operational level duties, has resulted in the absence of expected case history.  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 into account the operational level and ministerial duties that defendants neglected or refused to complete.  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).  Petitioners argued that the censuring of defendant Gulland by the Minnesota Department of Labor and Industry was proof that he failed to follow operational and ministerial duties.  Defendant Gulland also failed numerous other ministerial and operational level duties as stated herein.  The defendants simply made the argument that the duties were discretionary, when in fact they were operational and ministerial.  This question regarding this material fact alone warranted a dismissal of summary judgment.  The defendants claimed immunity, because of the discretion entrusted to a public official.  This argument lacks merit, as discretionary duties were not in dispute.  Even when discretion is involved, the public official is trusted to perform his duties in good faith, not as continually shown in this case.

The defendants failed to answer numerous requests for information claiming their right to protection under the Minnesota Data Practices Act, knowing it did not apply to them.  The court did not take the several areas of contention into account, simply dismissing all evidence, and ordering defendants right to statutory immunity.  Legal discovery under Minn. R. C. Proc. 26.02 was denied by improper means.

If the legislative intent was to immunize building inspectors and municipalities from all aspects of the building permit process, there wouldn’t be exceptions to immunity.

A typical immunity provision includes good faith and protection for execution of the respective discretionary duties or powers.  Defendants, knowing that GREB and Existing Building exceptions applied, denied them.  Defendants, knowing that trespassing and/or consent without entry are not an authorized duty, as well as illegal, committed them.  Delaying action on an application for a building permit was not done in good faith, nor was the long reviews.  The courts generally tend to interpret immunity provisions narrowly to limit their protection from liability, requiring them to defend the action.

Contrasting Admissions

Defendant Grace admits Plaintiff Pirila was acting as his own general contractor, whereas defendant Gulland claims he doesn’t know [325a, 34].  Pirila clearly acted as his own contractor throughout, conducting all inspections with Gulland.

Gulland denied the MN DOLI was the official authority in charge of the building inspectors charged to enforce provisions of the Minnesota State Building Codes [332a, 101].  Duane Grace admits they are.

Defendants had a duty to plaintiffs, and breached this duty [69a-77a, 167a-174a].

The question of whether trespassing occurred was also a question of material fact.  The defendants claimed non-applicable curtilage rights, while plaintiffs argued extensively that it was criminal trespass/entry without consent.  The entry of summary judgment is appropriate if no material facts exist, and the moving party is entitled to judgment as a matter of law.  DiQuinzio v. Panciera Lease Co., 612 A.2d 40 (R.I. 1992).  The District Court wrongly decided that all public official duties are discretionary and immune from suit.

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, it should be only the minimum necessary.  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, as already embedded in Minnesota Statutes 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.

Malicious means, “Nothing more than the intentional doing of a wrongful act without legal justification or excuse”, Rico v. State, id., or in other words committing acts “while having reason to believe they are prohibited”.  Davis v. Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997).  All of the items listed by the MN DOLI in their censuring of defendant Gulland were acts of malice, as were entry without consent, reports based on trespass, failing to maintain reports, failure to act on application, and deceptive statements via his admissions.  Defendant's counsel acted without legal justification when denying information inapplicable under the Data Practices Act.

Government officials have a duty to not knowingly act contrary to existing law.  The knowledge that a particular action is illegal creates a duty to avoid such action.  Defendants knew that GREB and Existing Building provisions applied when issuing a building permit that denied those provisions.  By doing so they knowingly violated state building codes and statutes, and breached their statutory duty when, acting in contravention of that knowledge issued the permit.  Trespassing by two different defendants on different occasions are also acts performed in known violation of existing law.

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.

Breach of Duty

In Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1988), the court held that the plaintiff must establish (1) direct contact or privity with the public official, (2) that the official in response to a specific inquiry represented the building complied with the building code, and (3) reasonable reliance on that representation.  Id. At 453.  Petitioners meet the requirements of this special relationship.  Petitioners acted as their own general contractors, working directly with defendants Gulland and Grace (1).  Petitioners specifically requested GREB and existing building provisions, yet defendants denied its applicability and insisted on codes for new construction (2); and there was reasonable reliance on that representation until the MN DOLI ruled otherwise.  The fact that defendants Gulland and Grace worked in tandem, with several decades of building code experience, led plaintiffs to believe they should have sufficient reliance on their representation of building code interpretations and meanings.

Tort Claims

Tort liability claims in this case are personal injury, negligence [84a-87a], and trespass.  Non-tort claims include Section 1983 claims, Fourth [353a-354a, 13] and Fourteenth Amendments.

Tort claims are claimed via Minn. Stat. § 3.736, Subd. 1.  General Rule.  The state will pay compensation for injury to or loss of property or personal death...under circumstances where the state, if a private person, would be liable to the claimant, whether arising out of a governmental or proprietary function.

"There is perhaps no doctrine more firmly established than the principle that liability follow tortuous wrongdoing; that where negligence is the proximate cuase of an injury, the rule is liability and immunity is the exception."  Ryan, 134 Ariz. at 309, 656 P.2d at 598, quoting Stone, 93 Ariz. at 393.

Fourth and Fourteenth Amendment Violations

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.  Petitioners 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 petitioners resided there, the property was privately owned, "no trespassing" signs were posted, 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).  Petitioners pleaded the sanctity of one's home in their testimony for dismissal of Summary Judgment [317a].

Because these searches were done without the advance knowledge of petitioners, they had no opportunity to deny or allow consent, or the chance to attend.  These were planned illegal searches and petitioners ' 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.

Fourth, Fifth, and Fourteenth Amendment violations were claimed in Plaintiffs’ Memorandum of Law in Opposition to Summary Judgment [196a-203a], [204a-205a], and [203a-204a].

Section 1983 Claims

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 4^th, 5^th, and 14^th Amendment violations used purposely to deprive petitioners 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 11^th 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, while reasonably aware that the information was gained through illegal means.  Petitioners 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 petitioners complaint on March 16, 2010 [87a-89a, 367a], depositions, and Plaintiffs' Memorandum of Law in Opposition to Summary Judgment [184a-186a].

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.

Absence of Good Faith

“Good faith,” a subjective test, means that the government actor must possess a sincere and honest belief as to the legality of his or her action.  Trespass is a commonly known violation of privacy rights and fully known by defendants Gulland and Juntunen.  If these were good faith entries, why was there no attempt to request entry?  The defendants state the door was open so they just let themselves in.  This intentional, dangerous, provocative action was taken to create problems for petitioners.  A building permit is not a license to trespass or make entry to another's property without consent or a warrant.  The immunity granted local officials by the court has emboldened many to dismiss good judgment, rules, statutes, and professional standards.  This case is a classic example of unbridled power, left unchecked, and empowered by the lack of accountability.

For "good faith" defenses, a person needed only to have acted honestly and to have had no reason to be aware of a mistake they were making.  Stenner v. British Columbia (Securities Commission) (1996) 141 D.L.R. (4th) 122 (B.C.C.A.).  Defendants showed knowledge of GREB and Existing Buildings exceptions, yet failed to allow them.  These are explicit acts of bad faith.

Constitutionally, can a statute stand that has no backbone?  As stated in Mitchell v. Forsyth, “where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate..." Id. at 457 U. S. 819 (emphasis added).  Statutes and rules without “true” meaning or possible punishment embolden, not hinder deviant behavior.  In petitioners case, not only did defendants know they were deviating from established and/or expected norms; they did so with no hesitation or worry of consequences.  This became highly apparent by the trespassing and forced inspections that took place during the ongoing investigation by the MN DOLI.  The defendants knew the legal system allowed them extraordinary latitude and they simply did what they wanted, caring less about doing it professionally or ethically.

Summary Judgment Proceedings

            The defendants made nothing less than a ridiculous defense for summary judgment.  Ms. Angolkar, counsel for all defendants except Grace, stated, "immunity provides protection to a public official from even the existence of a lawsuit, let alone liability.  It is effectively lost if erroneously permitted to go to trial" [287a].  This is unequivocably untrue.

Ms. Angolkar goes on to suggest that everything that the defendants did was within their discretion and thus immune [287a].  This is also untrue, because all positions, including those in the public sector are comprised of both discretionary and ministerial/operational level duties.  What they do that is within their discretionary capacity is in fact immune from liability if done in good faith, but their failure to complete ministerial and operational level (day-to-day) duties are grounds for liability.

Ms. Angolkar goes on to suggest that section 1983 claims were not applicable because petitioners didn't have the reasonable expectation of privacy, in part because the building was unoccupied.  This is a gross distortion, because petitioners were occupying the building during two illegal trespasses.  Secondly, she claims that "There's no dispute that these alleged entries happened before plaintiffs moved into the property" [289a].  Petitioner Pirila disputed the claim that the premises were unoccupied during every trespass [292a].  The other trespasses were done while the building was vacant, but were done without proper consent and truly constituted trespass [301a-303a].

The defendants simply made two unsupported claims:  One:  that all acts were discretionary and immune from liability.  Two:  that the petitioners has no reasonable expectation of privacy in regards to alleged trespasses.  Both of these claims were vigorously debated and left in question, leaving clear and genuine issues of material fact for trial.

Unfortunately, the court bought in completely on the idea that everything done by public officials is immune, suggesting nothing less than the concept of "sovereign" and/or "absolute immunity."  These immunities no longer exist for public officials, specifically at the township level.  Sovereign immunity was abolished by judicial and legislative action in 1976.

Petitioners debated ministerial and operational level duties with the Honorable Dale A. Wolf as the justification for dismissing immunity, but he would not hear it.  The exceptions under Minn. Stat. § 466.02 were dismissed without the proper consideration given to their ministerial and operational level nature [301a].

In determining whether conduct falls within the discretionary function exception, the courts rely on Berkovitz v. U.S. 486 U.S. 531, 536 ('88).  First the question must be asked whetherthe conduct involved "an element of judgment or choice.'  U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted).  The requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536.

A review of Minnesota statutory law shows that often when the Legislature intends for public employees to have immunity for their official conduct, it has expressly provided the scope and definition of the immunity.  See Minn. Stat. § 626.556, subd. 4 (b).  The statutes applicable in this case cite the exceptions to immunity, including their scope and definition.  ("If liability is premised upon the negligent performance (or non-performance) of a ministerial duty imposed by law or government policy, then immunity will not apply.").  Hancock v. W.S. Dakota Juv. Servs. Ctr., 647 N.W.2d 722, 725 (S.D.2002) (stating, "[A] state employee who 'fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty.'") (citation omitted).

The disputes over the nature of trespassing, as well as the dispute over the exact duties at question were enough reason to dismiss summary judgment and proceed to trial. 

CONCLUSION

The State courts denied all recourse to petitioners by granting immunity to defendants to which they were not entitled.  The rulings failed to acknowledge the powers and duties of the MN DOLI expressly granted them by Congress.  The MN DOLI found defendant Gulland in violation of several operational level and ministerial duties, citing him for numerous violations of Minnesota Building Codes and Statutes.  Ministerial acts are considered so straightforward and routine they are provided little to no protection.  Coupled with illegal searches and trespasses, defendants lost all defenses of immunity, pursuant to applicable statutory exceptions.  Immunity also does not extend to malice and failure to act in good faith.

The MN DOLI is the legal authority and administrator of Building Codes and employees, respectively, within its jurisdiction.  They are the rightful state body to determine the ministerial and operational level duties for a building inspector, not judges.  They determined that defendant Gulland failed his statutory duties and censured him for the same.  These findings support plaintiffs claim that immunity was lost, pursuant to immunity exceptions in Minn. Stat. § 466.02.  This case should have proceeded to jury trial as requested.

The Data Practices Act, as legislated in Minnesota, is unconstitutional as it denies access to records in all but seven metropolitan areas.  In other areas, information requests are voluntarily provided or not provided at all.  In this particular case, the defendants chose to share very little.  Their ability to deny information pertinent to the case clearly deprives petitioners of their constitutional right to due process.  This allows defendants, and every similar entity, to act prejudicially in their own favor, sharing only what does not hurt them.  This practice, affirmed by the Congress of Minnesota, is in direct conflict with the due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution.  The Minnesota Data Practices Act fails to balance the public's right to know about their government, the government's need to have/use data to do its work, and individual privacy rights.  How can it possibly balance these rights everywhere when it includes just seven metropolitan areas of the entire state?  Withholding information under the pretext of protection under the Data Practices Act, during discovery, especially when it is not applicable, contrasts with Minn. R. Civ. P. 26.02(a) that allows a party to obtain discovery of any matter “relevant to a claim or defense”.

Minnesota courts have not protected petitioners constitutional right to privacy in their own home as provided under the fourth, fifth and fourteenth amendments.  Defendants conducted searches without consent, a warrant, or prior knowledge of petitioners.

These several areas of contention, coupled with sound legal basis for trial, make the rulings of the lower courts dismissing the case based on immunity unjustified. 

Numerous actions of the defendants were seriously careless and reckless, leaving one to presume a lack of good faith.  Finney v. Barreau du Quebec, 2004 SCC 35.

           

            The moving party for summary judgment “has the burden of proof and…the nonmoving party has the benefit of that view of the evidence which is most favorable to him.”  Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955).  The defendants, as the moving party, failed to prove their case as they presented literally nothing in its defense.  Summary judgment is "inappropriate when reasonable persons might draw different conclusions from the evidence presented."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).

The petition for a writ of certiorari should be granted, reversing and remanding this matter to District Court with instructions to go to trial.

Respectfully submitted,

________________________

Marvin Pirila & Gail Francette, pro se

Date:  1/11/12