Monday, February 20, 2012

Trespassing without consequence

Carlton County, as well as the higher courts of Minnesota, would have you believe that building inspectors and fire chiefs can simply enter your building at any time they like.  The laws are clearly against such trespasses or "entry without consent", yet like many laws they are of no effect if they are consistently not enforced.

We bought property at 1 N Cloquet Rd W in Esko, MN, from Thomson Township in 2006.  The main building was built in 1907 and the gymnasium in the 1930’s.  Thomson Township themselves occupied this property for roughly 13 years, with no accounting for the keys issued during their ownership.  The township routinely operated from the same building. 

           Fire Chief Jeffrey Juntunen had no knowledge of any key policy at Thomson Township.  The owners believe Thomson Township users retained keys and used them to make illegal access to the property after their sale.

 These trespasses, along with the "censuring" of building inspector John Gulland, led to the owners filing a lawsuit against Thomson Township, Jeffrey Juntunen, Duane Grace (Plan Reviewer), and John Gulland.  The owners shared the facts of case, seemingly egregious in nature, to the court under Judge Dale A. Wolf.  Judge Wolf has the belief, or would have us (owners) believe that local officials can do anything they desire under their cloak of immunity.  In fact, he went so far to suggest that the building inspector would have to be off duty, make illegal entry to our building and rape one of the tenants for this immunity to be lost.  The insanity of this explanation was baffling and outright outrageous.  We were in civil proceedings and he was talking about a criminal matter and in his mind that was the only way immunity was lost.  The laws of this state clearly say immunity is lost when officials fail to do their ministerial (mandatory) and operational level (day-to-day) duties.  It is lost when there is a failure to act in good faith, malice, and/or gross negligence.  Trespass itself is an intentional tort and should have dismissed any claims to immunity.

 From the beginning of the hearing it was clear that the Township was getting a clear pass, citing case history taken out of context.  It didn't matter at all what the facts were, it was merely one government agency giving a secret handshake to another under the guise of immunity.  Finding any case where immunity has been waived is nearly impossible because the courts are too busy creating law rather than enforcing it.  Legislators don't care because they are only interested in passing laws to appease their current constituents.    Passing a law is nothing without enforcement, but that's why no one likes his or her politicians.  On its face they sell the bill as noteworthy, but could care less about its' long term effects.

Facts

Defendant Gulland accompanied Thomson Township Plumbing Inspector Paul Sandstrom on August 1, 2008, unbeknownst to plaintiffs1.  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.  His [Gulland's] presence was a surprise to the plumber as well as everyone else.  This was simply one township employee inviting another2 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.”  This is covered by Minn. R. 1300.0110, Subp. 7 which 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 response3.

During the hearing for summary judgment defendants acknowledged that entry was made without consent of owners, but that plaintiffs had no reasonable expectation of privacy4.  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 inspections5, 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 Adams6, who also had his consent withdrawn by petitioners.  The MN DOLI was contacted, 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 retaliation7 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 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 building8.

            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”9.  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 access10.  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 consent11.  Despite any lack of attempt at consent, including any evidence of the same, defendant Juntunen denies the charge.

Contractors Mark Blomquist and Jake Field entered the locked building to find defendant Juntunen already inside12.  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 to13.  Defendant Juntunen claims, "The doors were open"14.  Juntunen claims his "main concern was the lath from the demolition that was stacked on the exterior of the building...”15.  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 locked16.  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 response17.  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, 201018.  The defendants violated the provisions of Minn. Stat. § 609.605 Trespass, a misdemeanor and Minn. Stat. § 609.748 Harassment, Subd. 1.

 Whether a party has given consent is a fact question for the jury.  Copeland v. Hubbard Broadcasting Inc., 526 N.W.2d 405 (Minn App. 1995).  See also Rieger v. 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, Thomas Pertler, claims his department is investigating the trespassing charges.  As of yet, in a year and eight months all we have gotten are promises to investigate and nothing more. 

On 1/4/12, Thom Pertler sent us an email with that included the following, "The last time I updated you on this matter I think I told you we needed some follow up and Tom Foldesi wasn’t comfortable handling the investigation so he asked FDL investigator Rule to help out. I’m not sure if we have seen the investigative materials yet, but I’ll ask around the office to see if anyone knows. As soon as I get the follow up, I’ll have one of my attorneys go through it and give me their opinion." 

Now its February 21, 2012, and still nothing.  The six year statute of limitations is likely to run out before anything is done by this inept department of Carlton County.  It's hard to maintain faith in a system ill-equipped and unwilling to pursue justice on behalf of its citizens.  This is an open and shut case of trespassing and yet nothing has been done in 20 months.  Like the courtroom, this is pure politics and nothing more.  There is no law here other than that written by the judges based on their latest whim.  Why aren't our judges and county attorneys overseen by a department to ensure they are doing their duties, instead of deciding which ones, if any, they will follow?  Why aren't random cases pulled from the files and re-examined by other professionals not personally positioned among those they are determining justice for. 

Since 2000, I have personally seen a guardian ad litem (Annette Jantzen) do nothing in my child custody case, the guardian ad litem coordinator disrupt the closing arguments of a child custody trial without any chance of cross-examination, which was then used by judge Robert Macauley to dismiss the properly done evaluation by the Carlton County Custody Evaluator (recommending joint physical and joint custody).  After dismissal of charges brought by my ex-wife, Judge Robert Macauley committed res judicata and collateral estoppel, by including them yet again in a rehearing. 

I have seen Judge Dale A. Wolf dismiss charges against Thomson Township etal., based on unfounded immunity rights and disregarding well-founded trespassing charges. Judge Wolf refused to hold Admissions admitted when very late stating that Minnesota is a liberal state.  When Heat Mechanical Inc. completed destroyed the discovery process with the intent of filing bankruptcy they were given a pass by Mr. Wolf. In my experiences with Carlton County, everything is construed against the individual representing themselves.  The facts and the results of discovery are supposed to have some meaning in court proceedings. 

Child Support Magistrate Steven Running is perhaps the most biased of all Carlton County self-appointed "Kings of the Court."  In each hearing with Mr. Running he would grill me on my submitted paperwork, item for item, while giving my ex-wife a complete pass.  She showed up several times with no paperwork but was given a pass.  It was only when I threatened to take it to the Appellate Court that I finally received a just decision.  In my last hearing, following the decision of my girls to move in with me half time, Running played games about how child support would be adjusted.  My ex said that that her and her current husband split their bills and Mr. Running claimed that he couldn't tell her what her belief system was when I questioned him on it.  Running did not want to give me a break even though the law clearly stated the rules by which adjustments were given and they had nothing to do with "beliefs".  The Department of Human Services (DHS) has a website where a person can calculate exactly what they should expect, and amazingly it has no section on "beliefs."  Magistrate Running simply chose to play another round of legal roulette. 

Now we wait endlessly for trespassing charges to be brought against our intruders.  Carlton County should come with a warning sign that says, "You're looking for justice in the wrong place if you're looking here!".

References


1 Defendants Thomson Township, Thomson Township Fire Department, John Gulland, and Jeffrey Juntunen's Response to Plaintiff's First Request for Admissions (Revised), #42, 8/16/10.
2Id., #43.
3Transcript of District Court Proceedings, 10/14/10.
4 Id.
5 Id.
6Plaintiff email to MN DOLI senior inspector Barry Grieve, 5/13/09.
7Summons and Complaint, #27.
8 Transcript of District Court Proceedings, 10/14/10.
9 Defendants Thomson Township, Thomson Township Fire Department, John Gulland, and Jeffrey Juntunen's Response to Plaintiff's First Request for Admissions (Revised), #46, 8/16/10
10 Transcript of District Court Proceedings, 10/14/10.
11Id.
12Building contractor Mark Blomquist statement.
13Interrogatory 14, 27.
14Interrogatory 23, 34.
15Interrogatory 41.
16 Transcript of District Court Proceedings, 10/14/10.
17Letter to Attorney Pritchett, 9/9/08.
18Trespassing charges filed with Town of Thomson Police Department, 6/24/10.

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