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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT


David James Carlson

Plaintiff-Appellant

vs.

Case No. 16cv765SRNBRT


Appeal No. 162793

Defendants-Appellees
County of Ramsey,
State of Minnesota
County of Anoka,
State of Minnesota
Independent School District #624 (ISD #624)
White Bear Lake, Minnesota

BRIEF FOR APPELLANT


DAVID J. CARLSON

TABLE OF CONTENTS
Page
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT..6
TABLE OF CONTENTS.2
TABLE OF AUTHORITIES...4
JURISDICTIONAL STATEMENT7
ISSUES PRESENTED FOR REVIEW...8
STATEMENT OF THE CASE9
A.

BACKGROUND...9

B.

FACTS ABOUT THE PARTIES .9

C.

DIVORCE ACTION ..9, 10

D.

ANOKA COUNTY ACTIONS...11


1. HRO ..10, 11

E.

RAMSEY COUNTY ACTIONS .11, 12


1. FILINGS & RULINGS ...12-19

F.

GAL ...12-19
1. FAMILYWISE ...15, 16

G.

ISD 624 6, 13, 14

H.

FEDERAL COURT.....19
1. FILINGS & RULINGS ...19

SUMMARY OF ARGUMENT....20, 21

ARGUMENT22-36
I.

SUPREMACY OF UNITED STATES CONSTITUTION


A.

ROOKER-FELDMAN DOCTRINE.22

B.

YOUNGER ABSENTION DOCTRINE..24

C.

SEPARATION OF POWERS...22, 24, 25, 26, 34

II.

CONFLICTS BETWEEN FEDERAL AND STATE COURTS

III.

APPELANTS UNIQUELY FEDERAL STATUS AS A UNITED


STATES VETERAN SUBJECT TO THE AUTHORITY OF THE
FEDERAL GOVERNMENT

CONCLUSION (RELIEF)37
STANDARD OF REVIEW...38
CERTIFICATE OF COMPLAINCE.39

TABLE OF AUTHORITIES
Page(s)
CASES
Younger v. Harris, 401 U.S. 37 (1971)...8, 20, 22,23
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)..8, 20, 22, 23, 24, 26, 35
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)8, 23
Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423
(1982).8, 23
Sprint Communications, INC., v. Jacobs, 690 F 3d 8648, 23
Garcia v. San Antonio Metropolitian Transit Authority, 469 U.S. 528 (1985).8, 24
Colo. River Water Conservation Dist. v. United States, 428 U.S. 800, (1976).....24
Quackenbush v. All State INS. Co., 517 U.S. 706 (1996)..24
Juidice v. Vail 430 U.S. 327 (1977)...25
Fielder v. Credit Acceptance Corp., 188 F. 3d 1031.25
Hageman v. Barton, No. 14-3665, 8th Circuit ...26
New Orleans PUB. Serv., INC. (NOPSI) v. City Counsel, 109 S Ct. 2506 (1989)26
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)34
Horton v. Reliance Standard Life Ins. Co., 141 F. 3d 1038, 1040 (11th Cir. 1998)...38
Pillow v. Bechtel Const., INC. 201 F. 3d 1348, 1351 (11th Cir. 2000).............................38

STATUTES
28 U.S.C. 1331: US Code - Section 1331:
28 U.S.C. 1367: US Code - Section 1367:
28 U.S.C 7332: US Code - Section 7332:
42 U.S.C. 1983: US Code - Section 1983:
28 U.S.C. 1291: US Code - Section 1291:

OTHER AUTHORITIES
U.S. CONST., Art. III, Section 2:
U.S. CONST., Art VI, Clause 2:
Minnesota CONST., Art. III 1:
State of Minnesota, Office of the Legislative Auditor. Evaluation Report: Guardians Ad
Litem. (1995)
The Supreme Court of Minnesota.Advisory Task Force on the Guardian Ad Litem
System: Final Report. (1996)
State of Minnesota, Office of the Legislative Auditor: Executive Summary. (1995)
The Supreme Court of Minnesota. Progress Report on Minnesotas Guardian Ad Litem
System in Response to the 1995 Minnesota Legislative Auditors Report. (2004)
State of Minnesota, Office of the Legislative Auditor. Chronology of Key Highlights in
the History of the Minnesota Guardian Ad Litem Program. (2011)

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT


Appellant David J. Carlson (Carlson v. County of Ramsey et al) appeals the
dismissal of his complaint against defendants, County of Ramsey Minnesota; County of
Anoka, County of Minnesota; and Independent School District #624 (ISD #624) (White
Bear Lake, Minnesota).
Appellees violated a number of Carlsons Constitutional and Civil Rights, and
committed additional violations against him under the United States Code.
This case involves substantial federal questions, and presents uniquely and
distinctly federal issues.
Appellant is appealing the decision from the Hon. Judge Susan R. Nelson issued
on 15 June, 2016, in the District Court of Minnesota, U.S. Eighth Circuit Court.
Because of the scope of the alleged violations, Carlson requests fifteen minutes
for Oral Argument.

JURISDICTIONAL STATEMENT
The United States District Court for the District of Minnesota had jurisdiction
under 28 U.S.C. 1331. The United States District Court for the District of Minnesota
also had jurisdiction pursuant to Article III, 2 of the United States Constitution.
Jurisdiction was additionally conferred upon the United States District Court for the
District of Minnesota pursuant to Title 42 U.S. Code 1983 for violations of certain
protections guaranteed to Appellant by the First, Fourth, Fifth, Sixth, Seventh, Eighth,
Ninth, and Fourteenth Amendments of the Federal Constitution.
The United States Court of Appeals for the Eighth Circuit has appellate
jurisdiction under 28 U.S.C. 1291 from a final order or judgment of the District Court
that disposed of all parties claims. The date of entry of the judgment sought to be
reviewed is 15 June, 2016.
On 15 June, 2016 Carlson timely filed his Notice of Appeal.

ISSUES PRESENTED FOR REVIEW


1.

Whether the District Court erred in finding that Rooker-Feldman

prohibited the Court from examining the Constitutional claims and substantial federal
questions raised in the Appellants complaint.
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)
Younger v. Harris, 401 U.S. 37 (1971)

2.

Whether the District Court erred in finding that Younger v. Harris

prohibited the Court from examining the Constitutional claims and substantial federal
questions raised in the Appellants complaint.
Younger v. Harris, 401 U.S. 37 (1971)
Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S.
423 (1982)
Sprint Communications, INC., v. Jacobs, 690 F 3d 864
Garcia v. San Antonio Metropolitian Transit Authority, 469 U.S. 528 (1985)

3.

Whether the District Court erred in failing to give adequate weight to the

Supremacy of the United States Constitution, pursuant to Article VI, Clause 2,


particularly in regard to issues arising from Appellants unique status as a United States
Veteran.
Sprint Communications, INC., v. Jacobs, 690 F 3d 864
Garcia v. San Antonio Metropolitian Transit Authority, 469 U.S. 528 (1985)

STATEMENT OF THE CASE

Appellant David J. Carlson is a 34 year-old disabled combat veteran from the Iraq
War, Honorably Discharged from the U.S. Marine Corps (2003 to 2007) and the recipient
of a Good Conduct Medal.
He married Mrs. Krista Ann Carlson n/k/a Dickenson in August of 2006, and they
shared equal parenting time and joint legal custody of their children, A & C Carlson,
since their birth in September 2006.
He was consistently active in all aspects of the childrens lives, and was primarily
responsible for their medical care. Appellant and Mrs. Dickenson were divorced in
Ramsey County Family Court in 2012 after being separated and pursuing divorce for four
years.
Appellant received a Bachelors of Arts degree from the University of Minnesota
in 2010, and a Master of Science Degree from the University of Minnesota in 2013. He
has continued to pursue graduate and post-graduate work at Florida State University and
Texas A&M University to present day. Since 2012, Appellant has taught, part-time and
full-time, as a teacher in the Saint Paul Public School District (SPPS).
Following their divorce in 2012, Appellant and his ex-wife had no disputes
regarding parenting issues for approximately 15 months until several months after his
former spouse married Andrew Dickenson, fall 2013.
Appellant and Mrs. Dickenson resolved any differences they may have had
without the involvement of law-enforcement from 2006 until 27 December, 2013, when
Mr. Dickenson called the Blaine Police.

Due to the parties increased disputes in 2013, Appellant filed a Motion for
Modification of Custody Parenting Time on 21 January, 2015 in Ramsey County Family
Court.
One day after Appellants filing in Ramsey County Family Court, Mrs. Dickenson
filed a Petition for Harassment Restraining Order (PHRO) against Appellant in Tenth
District Court, Anoka, Minnesota. Despite a mediation clause in their Joint Stipulation
and Divorce Decree reached in 2012 in Ramsey County, Mrs. Dickenson did not attempt
to utilize mediation prior to filing her PHRO.
Appellants ex-wife made allegations against him in her PHRO request, including
but not limited to: Physically and/or sexually assaulted the petitioner; Followed, pursued,
or stalked the Petitioner; Made unwanted visits to the petitioner; Made harassing phone
calls to the petitioner; Made threats to the petitioner; Frightened petitioner with
threatening behavior.
Anoka County granted the Harassment Restraining Order (HRO) on 18 April,
2014, despite Appellants objections, and ordered the parties to pursue mediation. The
parties attended mediation in July of 2014, culminating in an agreement signed 31 July,
2014 and sent to both Ramsey County and Anoka County.
Appellants reputation has been harmed by entry of the HRO, which negatively
affects his ability to obtain employment in his specialized field, which is security
intelligence, and the HRO impacts his teaching position and it damages his personal
relationships as well.

10

In the agreement reached in mediation in July 2014, Appellant agreed to a number


of concessions in order to secure the removal of the HRO, including: ceding six (6) days
per month to Mrs. Dickenson--roughly 45% of his parenting time per month during the school
year. Appellant further agreed to drop his then pending Parental Assistance hearing before Judge
Millenacker in Ramsey County Family Court. He also agreed to allow the children to transfer
schools to White Bear Lake, where the Dickensons resided, instead of the school district in which
Appellant resided. Appellant agreed to roll over all the HROs conditions and restrictions into the
mediated agreement, which agreement was to be approved by both Anoka and Ramsey County
Courts.

On 10 September, 2014, Ramsey County Judge Millenacker signed into effect a


new joint stipulation and custodial agreement reflecting the quid pro quo agreement
Appellant and Mrs. Dickenson had reached in mediation.
Unbeknownst to Appellant for another year, the HRO was not dismissed in Anoka
County. Anoka County issued no order on the matter, nor was any opportunity afforded
to Appellant to object to the courts failure to dismiss the HRO, pursuant to the
agreement.
From the summer of 2014 to January 2015, Mrs. Dickenson attempted to have
Appellant arrested at least five (5) times, and Mr. Dickenson attempted such on at least
one occasion. Law enforcement declined to arrest Appellant on all such occasions.
On or about 16 June, 2015, Mrs. Dickenson filed for Modification of Parenting
Time and Custody in Ramsey County Family Court.
On 9 July, 2015, Appellant was informed by his daughter A.C. that her sister C.C.
had been struck by her step-father, Mr. Andy Dickenson, at least twice in the preceding
year, and that her special-needs step-sister A.D. had also been repeatedly struck on a

11

monthly basis for sometime as well. Appellant was distraught about the child abuse
report, which he believed to be true.
Appellant, a licensed teacher in the State of Minnesota, was legally obligated
pursuant to Minnesota State Law to report abuse against children to Lino Lakes Police
Department (LLPD) and Anoka County Child Protective Services (CPS), and did so on 9
July, 2015. Appellant made an appointment for his daughters to be interviewed with a
female police officer with LLPD for 11 July, 2015. On 10 July, 2015 two male LLPD
police officers interviewed the children in front of the mother and the step-father
regarding abuse in the home of the alleged abuser.
On 15 July, 2015, a hearing occurred in Ramsey County Family Court, at which
time a Guardian ad Litem (GAL) was appointed to investigate. The GAL appointed was
Ms. Ramona M. Olson.
Appellant applied for and was granted an In Forma Pauperis Status (IFP) by
Judge Millenacker of Ramsey County Family Court on or about 15 August, 2015 to cover
Appellants costs for the GAL portion of the case.
On 26 October, 2015, Appellant submitted a Motion to Dismiss along with
evidence for his hearing, which was rejected by the court. Judge Millenacker stated that
Appellant did not have a current IFP on file with the Court.
The next hearing in Ramsey County Family Court occurred on 26 October, 2015
before Judge Millenacker. GAL had earlier submitted a report to the court that was
ordered to be completed by no later than 19 October, 2015. However, her report was not
completed until 22 October, 2015, but was not received by Appellant prior to the hearing.
It was, however, received by counsel for Mrs. Dickenson.

12

Appellant was given 30 minutes to read the 46-page report from the GAL during a
recess, which report recommended a transfer of custody to Appellants ex-wife.
Appellant stated a number of objections to the lack of fairness in the GAL report.
Appellant raised objections regarding lack of transparency throughout her report.
Appellant questioned her fairness, lack of verification, and the lack of factual
substantiation to support GALs findings and recommendations.
Otter Lake Elementary School--the childrens school, is a public elementary
school within the ISD #624 district in White Bear Lake, Minnesota. Otter Lake
Elementary School allowed the GAL to interview each minor child in the school
principals office without him in the building, and without his knowledge beforehand.
Also, the interview was conducted without oversight or knowledge of other qualified
personnel from either the school or district.
GAL appeared to have quoted selectively from her conversations with multiple
persons throughout her investigation, including employees within ISD #624.
Quotations within her report, along with her selective paraphrasing and deductions, raise
questions about her fairness. Throughout GALs report, negative statements about
Appellant do not appear within direct quotations.
Statements made by ISD #624 employees formed a significant basis for GAL
recommendation that custody be transferred. ISD #624 did not provide, nor did it take
any steps to provide, supervision, oversight, or protection of the children during her
interview. ISD #624 provided no documentation or verification of what transpired
between GAL and the minor children at Otter Lake Elementary School.

13

ISD #624 failed to provide emotional support or protection for the minor children
throughout the GAL processes, during which time the children were under the care of
ISD #624.
Principal stated that school policy is that parents are welcomed every day, and he
had not been informed of the issues that either of the teachers had stated either before
their statements to the GAL, or afterwards. GAL paraphrased the childrens teachers as
being critical of Appellant for visiting three (3) times during the first five (5) weeks of the
childrens third grade year, including the first day of school.
Appellant attended every first day of his childrens school year. Principal
Timothy Schochenmaier stated, due to facts Appellant presented him in January 2016,
that he took action to correct what he stated was improper reporting that the teachers did,
and instructed the two teachers, Mrs. Lesley Vollhaber, and Mrs. Jill Peterson to stick to
the facts in the future.
Additionally, both teachers had only had the children in class for no more than
one month, and GAL failed to attempt to contact any of the previous educational
professionals from preschool through second grade, who had more knowledge and
experience with Appellant, his ex-wife, and their children.
Judge Millenacker did no independent verification of the GALs work, nor did
she question whether the GAL had conducted her investigation in a fair, unbiased, and
transparent manner.
Judge Millenacker failed to allow questioning of the GAL herself, nor did she
allow Appellant in the October 2015 hearing to question the GAL and her findings.
Judge Millenacker failed to ascertain whether the GAL had any factual substantiation of

14

her conclusions. Judge Millenacker failed to supervise GAL so as to ensure that the
reports were sent at all to Appellant.
Judge Millenacker failed to give credence to Appellants statement that he had not
received GALs report prior the October 2015 hearing.
Ramsey County Family Court entered an Emergency Temporary Order on 27
October, 2015, transferring custody to Appellants former spouse. Pursuant to that Order,
Appellants visitation was limited to 120 minutes per week at a highly supervised safety
center named FamilyWise.
Ramsey County Family Court issued an Order adopting the GAL report on 6
November, 2015.
Following the 26 October, 2015 hearing, Judge Millenacker issued an order
requiring Appellant to undergo a psychological assessment from a provider of his
choice. Appellant informed the GAL of his choice of provider and professional
information in a facsimile sent on 15 November 2015, which included the date and time
of the assessment to be administered in January of 2016. In this fax, Appellant also
informed GAL that, as of that date, he had gone over 30 days with no contact whatsoever
with his children.
Appellant completed the court-ordered assessment with Dr. James Tuorila, PhD,
on or about 6 January, 2016. Appellant signed a release of medical information
authorizing Dr. Tuorila to share his report with GAL. Dr. Tuorila sent his report to GAL
on 9 February, 2016, several days before the scheduled court hearing before Ramsey
County Family Court.

15

Appellant did not see or speak to his children for 100 days consecutively, from
mid October 2015 until the end of January 2016. It would take a total of 130 days--or
four (4) months and seven (7) days--from Judge Millenackers Order before it went into
full effect at FamilyWise.
Consequently, the children were forced to go throughout the entire 2015 holiday
season with no communication with their father until 25 January, 2016, which was the
first visit granted by FamilyWise to Appellant.
In February 2016, Judge Millenacker refused to accept a Motion and IFP petition
from Appellant for the second consecutive hearing.
On 11 February, 2016, another non-evidentiary hearing took place in Ramsey
County Family Court before Judge Millenacker. Appellant informed the Court that once
again he had not received the GAL report prior to the hearing. Judge Millenacker again
failed to give Appellants statement any credence. From the moment Appellant informed
the Court he had not received the GAL report, Judge Millenacker acted in a hostile
manner towards Appellant.
Judge Millenacker rejected Appellants statement, and implied that she felt
Appellant was lying to the Court. GAL incorrectly informed the Court that Appellant
had not cooperated with the Court regarding the ordered psychological assessment.
Additionally, GAL indicated Appellant had not been cooperative with requirements
relating to FamilyWise, his court-ordered highly supervised visitation center.
Appellant was forced to call for a recess to contact Dr. Tuorila in order to confirm
Appellants compliance with the Order regarding a psychological assessment.

16

When the Court reconvened, GAL was forced to admit that she had received the
psychological assessment sent by Dr. Tuorila to her office two (2) days prior, on 9
February, 2016.
Despite receipt and acknowledgement of the expert report, GAL maintained that
Appellant still had not cooperated with signing a release for her to receive a
psychological report as ordered by the Court.
Dr. Tuorila found Appellant was not a threat to his children, and recommended a
full return of his custodial rights.
Dr. Tuorila stated there was no need for Appellant to continue any visitations at
any safety center and stated, I have no professional doubts that Mr. Carlson is and can
continue to be a good father and role-model for his children.
Dr. Tuorila also stated, I have no fears that Mr. Carlson would harm his
daughters in any way.
Dr. Tuorila stated that Appellant cooperated fully in his assessment.
Dr. Tuorila stated that Appellant was not defensive, and found Appellant to be an
effective communicator.
Dr. Tuorila found Appellant did not have Narcissistic Personality Disorder.
Dr. Tuorila reported he had administered GAD-7 ANXIETY TEST, among
others, to Appellant, and found that Appellant suffered only mild anxiety.
Dr. Tuorila is considered to be an expert on veterans mental health issues, as well
as an expert on PTSD, with an emphasis on veterans.
Appellants Department of Veterans Affairs (VA) psychologist, Mr. Eric
Wittenberg, MSW, LICSW, was present at the hearing in a professional capacity.

17

Mr. Wittenberg informed Judge Millenacker that Dr. Tuorila was immediately
available by telephone during the hearing from his office, roughly 75 miles away.
Judge Millenacker rejected the offer by Mr. Wittenberg to contact Dr. Tuorila,
despite the repeated requests of Appellant, who wished to confirm his cooperation with
the Court order.
At the February hearing in Ramsey County Family Court, no evidence was
submitted to show that Appellant was a physical or emotional threat to his children.
No witnesses were presented to the Court to substantiate any claims made by
Appellants ex-wife and family.
Appellant attempted to raise objections to the GAL report, but was denied
adequate opportunity to do so.
At the February 2016 hearing, Appellant maintained a serious demeanor, in
accord with the gravity of the hearing, but did not stare in an intimidating fashion at
Judge Millenacker, nor at anyone else in the court.
At the February 2016 hearing, Judge Millenacker cut off Appellant from stating
his objections to GAL report, and found him in contempt of court, and subsequently
incarcerated Appellant for approximately eight (8) plus hours in Ramsey County Jail.
At the 11 February, 2016 hearing, Judge Millenacker Ordered the VA to turn over
any and all records they held regarding Appellant.
Judge Millenacker also ordered VA Psychologist, Mr. Eric Wittenberg, who was
present in Court, to turn over all records to GAL.

18

After at least eight (8) hours of incarceration, Appellant was again brought before
Judge Millenacker, who told him that he could either sign a release of all his medical
records, or face 90 days incarceration.
During this appearance before the Court, Judge Millenacker stated to Appellant
from the bench, I think youre mentally ill.
Appellant has lived in fear of Judge Millenacker since the February hearing, given
the fact that she had stated to him that she could incarcerate him for no reason if I
wanted to--do you understand me, Mr. Carlson?
Because of Appellants fear of Judge Millenacker, he did not appear at the 23
May, 2016 non-evidentiary hearing before the Ramsey County Family Court.
On the same day, Appellant filed a formal complaint with the Minnesota Board of
Judicial Standards against Judge Robyn A. Millenacker, and also filed a complaint
against the appointed GAL, Ms. Ramona M. Olson.
On 24 March, 2016, Appellant filed his complaint in U.S. District Court. On 15
June, 2016, Hon. Judge Susan R. Nelson issued a dismissal of Appellants complaint. On
15 June, 2016, Appellant filed a Notice of Appeal with the U.S. Court of Appeals for the
Eighth Circuit.

19

SUMMARY OF ARGUMENT

I.

Constitution Supremacy Clause - Article VI, Clause 2 of the U.S. Constitution:


This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any thing in the Constitution or Laws of any state to the Contrary
notwithstanding.

Article III - Section 2 of U.S. Constitution:


Vests sole authority with Congress to create Law governing federalism.
The structure of the Constitution itself demonstrates that Congress is the body
entrusted with the task of defining the relationship between federal and state
courts.
The Supreme Court does not have the Constitutional Right to present its
own personal opinion regarding the scope of federal and state authority under the
guise of the judicial opinion.
Consequently, the Abstention Doctrine set forth in Younger v. Harris is seriously
flawed. So, too, is the doctrine set forth in Rooker-Feldman.

II.

State and Federal Courts both have authority to hear cases under the
Constitution, but when there are conflicts between the two, and there are
substantial federal question(s) presented, and, no adequate state remedies remain
for a litigant, the federal courts are duty-bound to take the case.

III.

Appellants uniquely federal status as a United States veteran, subject to


the authority of the federal government, raises a substantial federal question pursuant
to Title 28 U.S. Code 1331, in claims arising from violations of federal

20

Constitutional rights. The confidentiality of Appellants military records presents


uniquely federal issues, which have the potential to affect tens of millions of
veterans and their families across the nation.

IV.

When the very integrity of a state judicial action is the central question in
a case, the only possible impartial arbiter can be a federal court.

V.

When civil rights form the basis of a complaint, Congress has entrusted a
special responsibility to the federal judiciary.

END OF PAGE

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ARGUMENT OF LAW
I. Constitution Supremacy Clause - Article VI, Clause 2 of the U.S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any thing in the Constitution or Laws of any state to the Contrary
notwithstanding.

Article III - Section 2 of U.S. Constitution:


Vests sole authority with Congress to create Law governing federalism.
The structure of the Constitution itself demonstrates that Congress is the
body entrusted with the task of defining the relationship between federal
and state courts.
The Supreme Court does not have the Constitutional Right to present its
own personal opinion regarding the scope of federal and state authority
under the guise of the judicial opinion.
Consequently, the Abstention Doctrine set forth in Younger v. Harris, 401
U.S. 37 (1971) is seriously flawed. So, too, are the doctrines set forth in the
Rooker-Feldman Doctrine.

Did Judge Nelson err in her broad application of Rooker-Feldman?


The structure of the Constitution itself demonstrates that Congress is the body
entrusted with the task of defining the relationship between the federal and state
sovereigns. The Supreme Court does not have the Constitutional right to present its own
personal opinion regarding the scope of federal and state authority in the guise of a
judicial opinion.
The problem with the Rooker-Feldman Doctrine is that it is non-statutory in
nature, so, too, the problem with the Younger Abstention Doctrine. Under the separation

22

of powers doctrine, the judiciary may not execute a power delegated to Congress by the
Constitution. The Rooker-Feldman Doctrine stems from two cases decided sixty years
apart.
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) was decided by the U.S.
Supreme Court in 1923. For six (6) decades, federal district courts applied Rooker
sporadically. Then, in 1983, the Supreme Court issued an opinion in District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), which clarified Rooker and
gave the Rooker-Feldman Doctrine its name.
The Supreme Court has not held a case barred by Rooker-Feldman since 1983,
and has only mentioned the doctrine 3 times in the last 15 years. Nonetheless, the
doctrine has experienced explosive growth in the district courts. In fact, between the
years of 1990 and 1999, federal district courts used Rooker-Feldman to find jurisdiction
lacking in more than 500 cases.
Though Judge Nelsons decision would have us believe that Rooker-Feldman is
an immutable bar to Appellants case, a more careful review of the law shows otherwise.
In support of her decision, Judge Nelson cites Middlesex County Ethics Committee v.
Garden State Bar Association, 457 U.S. 423 (1982), but the U.S. Supreme Court said in
Sprint Communications, Inc. v. Jacobs, 690 F. 3d 864 that Middlesex, supra, is not
dispositive because it involved a procedure akin to a criminal proceeding. The Court
said Middlesex, supra, ought not to be applied outside that narrow, limited context. In
Sprint, supra, the Supreme Court said that federal courts have an unflagging obligation
to hear cases. Sprint, supra, is notable, particularly for our Supreme Court, in that it was

23

a unanimous ruling emphasizing that abstention under Younger v. Harris, supra, is not
appropriate merely because a state court is considering a case involving the same subject.

Did Judge Nelson err in applying the Younger Abstention Doctrine so broadly?
Similar to her approach to Rooker-Feldman, Judge Nelson approached the
Younger Abstention Doctrine as though it, too, were a blanket bar to Appellants case.
As time goes on, federal courts have limited and narrowed the application of Younger
considerably. Many judicial commentators and law professors from across the nation
have opined that Younger is bad law, in that, through Younger, the judiciary has sought
to usurp the power of Congress in setting the laws on federalism.
In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),
the Supreme Court declared that questions of federalism were conclusively committed by
the Constitution to a coordinate branch of government; namely, the Congress. Thus, the
Garcia Court declared federalism issues off-limits to the federal judiciary. Garcia stands
in stark contrast to Younger, and numerous legal commentators have opined they do not
see how Younger can still stand, even if the Supreme Court has not expressly denounced
it.
In Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, (1976),
the Supreme Court stated, only exceptional circumstances justify federal courts refusal
in deference to the States. Other cases stand for the principle that abstention abdicates
the federal judiciarys obligation to hear cases under Article III. Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 716 (1996).

24

Many legal commentators argue that it violates Constitutional separation-ofpowers principles when Courts decline jurisdiction expressly granted by Congress. Other
commentators have noted that the reasoning for certain kinds of abstention is not clear.
A broad body of legal scholars insists that the Supreme Courts attachment to
principals of comity and federalism has led it to fashion bad jurisdictional law, thereby
eviscerating Section 1983. Juidice v. Vail 430 U.S. 327, 346 (1977) (Brennan, J.,
Dissenting.) Critics particularly fear such an attachment downgrades the role of federal
courts in vindicating federal rights.
A federal Plaintiff such as the Appellant comes to the district court armed with a
federal course of action under Section 1983, plus an underlining provision of federal law,
usually the Constitution. To send Appellant packing, Judge Nelson interposes neither the
Constitution, nor statutory interpretation, but the Courts own notions of comity and
federalism. This would seem to flout the will of Congress in an area over which
Congress has clear authority, the jurisdiction of the federal courts. Such a step is
surprising for a court that often emphasizes the authority of Congress over federal
jurisdiction, a Court that is generally deferential to the Legislative branch.
Younger Abstention is viewed by many legal scholars solely as a separation of
powers issue. It is such in the literal sense in that the Court is making law regarding
federal jurisdiction that seems at odds with Congressional statutes. For the Court to
develop a body of jurisdictional law is to exceed the judiciarys Constitutional bounds;
further, it trespasses on the Legislatures domain.
Judge Nelsons decision accentuates the inextricably intertwined issue in
Fielder v. Credit Acceptance Corp., 188 F. 3d 1031. But such an emphasis again

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illustrates the separation of powers problem that lies at the root of this matter. Judicial
emphasis on judicially created doctrines cannot supersede the Constitutions grant of
authority to Congress for legislating the law on federal jurisdiction.
Further, Rooker-Feldman does not bar jurisdiction over actions alleging
independent claims arising from conduct in the underlined state proceedings. Hageman
v. Barton, No. 14-3665, 8th Circuit; and Appellant asserts that claims he has raised in his
federal complaint are, in many instances, wholly independent from state proceedings.
Appellants Constitutional claims, in particular, as well as his claims of civil rights
violations, are but some examples of the independent nature of his claims.
Recent abstention cases indicate that the Supreme Court is aware of the separation
of powers problem and is deeply troubled by it. New Orleans Pub. Serv., INC (NOPSI) v.
City Counsel, 109 S. Ct. 2506 (1989). In NOPSI, the Court went so far as to state, our
cases have long supported the proposition that federal courts lack the authority to abstain
from the exercise of the jurisdiction that has been conferred.
Critics of the Younger Abstention Doctrine have a fundamental argument: that the
Court has raised notions of judicial federalism over proper concern for the role of
national tribunals in the vindication of national rights.
Judge Nelson seems to opine that Appellant has an adequate state remedy. In
fact, Appellant is barred by Minnesota Law in appealing to the Minnesota Court of
Appeals anything less than a final decision. The action in Ramsey County Family Court
continues, and is likely to continue for some time. The Ramsey County Family Court
Judge has repeatedly continued pre-evidentiary hearings to the point where no
evidentiary hearing has yet been granted. The Ramsey County Family Court Judge

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refuses to grant Appellants request for hearings with less than a gap of one hundred days
in between hearings, thereby denying Appellant an opportunity to present his case for
reunification of his children. In the meantime, harm to Appellant and his children
continues and he has no practical equitable remedy if the Federal court declines this case.
Further on the issue of a so-called adequate state remedy, the Ramsey County
Family Court Judge has refused to accept Appellants motions and filings. Appellant has
had no opportunity to present witnesses or evidence to the Ramsey County Family Court,
yet he continues to be barred from seeing his children other than under highly
supervised visitation at a safety center once a week. Ramsey County Family Court has
repeatedly rescheduled hearings throughout the summer of 2016, setting each one even
further out to the point where, again, Appellant has no adequate state remedy.
Since at least 1995, the Minnesota State Legislature has attempted repeatedly to
exercise its constitutionally-mandated duty of providing checks and balances over the
Judiciary in regard to the GAL Program. Numerous remedies have been attempted, yet
there remain widespread complaints about the program. Possible issues of impropriety
and even corruption have been raised about the Minnesota State Court System and the
GAL program. Therefore, Appellant asserts that Minnesota Courts cannot be expected to
conduct an independent, unbiased investigation into itself.
Only federal courts can possibly address such a matter. This does not violate
principles of comity or Our Federalism, which underscore both the judicial doctrines
strongly relied upon by Judge Nelson as a basis for her decision.

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Federal jurisdiction of such a matter is not only appropriate under Section 1331 of
the United States Code; Appellant submits there is no remedy other than federal
jurisdiction to address this issue.

VETERANS RIGHTS AS A FEDERAL ISSUE


Judge Nelson found a state interest in the domestic relations nature of
Appellants case, but Appellant asserts that such a state interest is superseded by the
federal question presented through Appellants status as a United States veteran. As a
result of that unique status, Appellant, as well as all United States veterans, are under the
exclusive authority of a federal agency, the Department of Veterans Affairs. Veterans
issues present national rights, which are not best decided by state courts.
State Courts have no authority beyond their borders. Highlighting this is the
statement from the Guardian ad Litems report that she had been directly informed by VA
counsel that state court judges do not have authority over the Department of Veterans
Affairs, and therefore Judge Millenackers Order that the VA turn over any and all
records to the GAL and the Court was without legal effect, force, or validity.
This matter raises the potential problem that may ensue from different state court
decisions addressing the issue of confidentiality of veterans health and service records.
Appellant asserts that the federal courts are uniquely positioned to address this issue of
urgent national concern.
This Court is asked to take judicial notice of the fact that approximately 22
veterans commit suicide every day in this country. The issue of veterans mental health
is of critical national importance, and President Barack H. Obama has termed this matter

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a national epidemic. It is crucial that there be national uniformity and consistency of


law on this issue. To place this issue in the hands of state courts is to invite chaos.
There is a critical national interest in our veterans seeking out mental health care,
which interest is endangered by destruction of the doctor-patient privilege. Veterans
rely on their right of confidentiality and their doctor-patient privilege when they seek
care. If state courts can get at not just some, but any and all privileged communications
without a signed release, a fundamental privacy right long held sacrosanct will be
decimated further.
Veterans will inevitably be discouraged from seeking the mental health care they
desperately need.
The Court is also asked to take judicial notice of the history of mistrust and
conflict between the veteran community and the Department of Veterans Affairs, its
subsidiaries, and counterparts in the private care industry. Although there have been
great strides made over the decades, much work remains to be done, and the delicate trust
that many are trying to rebuild cannot be accomplished overnight.
In view of an increased demand by veterans for VA assistance, and cognizant also
of shootings allegedly involving veterans, Appellant submits that now more than ever the
need for confidential care and treatment for veterans must be ensured and protected.
A central tenet within the VA system, as well as throughout our entire medical
and mental health system across America, is the belief that conversations between
veterans and their health care providers are held in confidence. There is a sacred trust
between health care providers and patients, and this trust is at the root of any person
seeking health care who may have reservations about what could happen down the road.

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This case presents a potentially catastrophic destruction of the very confidence the
VA and medical professionals seek to have veterans understand: That they can receive
the care they need in confidentiality and in privacy, and not lose their families and
livelihoods in the process. Judge Millenacker has sought not just to examine a small part,
or a specific incident, within Appellants care history, but seeks any and all records
from the VA, which include but are not limited to Appellants entire United States
Marine Corps Service Records, his VA educational records, VA vocational rehabilitation
records, medical care, and mental health records dating back to at least 2002. Many such
records pre-date the birth of his twin daughters by several years.
The very prospect of a former spouse who may have questionable motives, and
who may have no evidentiary basis for demanding such records, being able to access
such an enormous amount of private, personal, and highly protected data stands to
decimate the confidence a veteran or person needing help would naturally expect they
possess. This leaves any and every conversation between a veteran and his or her health
care provider open to examination by a court or a former spouse.
28 U.S.C. Section 7332 sets limits on what health care information can be
divulged, how it can be divulged, and what it can--and more importantly, what it cannot-be used for. Investigating a patient is not a valid purpose under the law and Appellant
asserts that this is precisely what is being done to him on a highly discriminatory basis,
merely because of his status as a three (3) time combat veteran of the Iraq War in the U.S.
Marine Corps infantry.

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Neither prior to joining the Marines in 2002, nor at any time since, has Appellant
had a criminal record; further, he has been an example of a veteran father doing the right
thing.
The prospect of using privileged conversations against Appellant, merely because
he may have experienced traumatic events as a veteran, is a violation of long-established
protections inherent in the law.
Where there are conflicts involving veterans who have served under the
Commander in Chief of the Armed Forces of the United States, a state court is not
capable of adjudicating resultant issues. Such issues are uniquely federal, and the federal
government, as the holder and protector of VA records, has responsibility for protecting
veterans relationships with their health care providers. It also has a duty to protect the
privileged nature of the data is has collected on military, veterans, and/or their families.
Military members, veterans, and their families, due to the nature of military life,
can be transferred from base to base, state to state, and even from country to country, but
one constant remains: these person(s) are still members of the Armed Forces of the
United States of America, under direction from the Department of Defense and the
President of the United States. No matter what base they call home today or tomorrow,
that base will be considered sovereign U.S. territory, with the all of the rights and
protections of any place in the continental United States.
The likelihood of federal troops living in more than one state, and having records
of services in more than one state, is more probable than not. Therefore, there must be
uniformity of law on this issue, and veterans, our military, and their families must know
they have the same protections regardless if they are stationed in Minnesota, Texas, or

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Guam. It is the sole responsibility of the federal government to ensure that this special,
quasi-protected class is protected from the actions of a state judge who may wish to
overreach. Such judicial overreaching places in jeopardy the conversations and medical
treatment received during their time in service, and places in jeopardy the services they
and/or their families receive once they are veterans and living throughout the entire
nation, and even around the world.
Some states, including the State of Minnesota, have gone so far as to create
special state courts for veterans, thus affirming veterans unique status. In many ways,
states, including Minnesota, have afforded veterans, military members, and their families
a quasi-protected class designation.
There appears, however, to be conflict between states, and even between federal
circuits on veterans, medical records, and privacy. Again, when there are such conflicts
present, the federal courts must step in to adjudicate and provide clarity and uniformity to
such protected classes similar to how they did in desegregation cases.
In an analogous way, veterans issues are federal ones and they raise a
substantial federal question under Section 1331 of the United States Code. Judge
Nelson states that Appellant has an adequate opportunity to raise federal challenges in
state court, but as a practical matter, this is simply not true especially with regard to
veterans rights.
A fact that underscores this conflict appears in the GAL May 2016 report. GAL,
Ms. Ramona M. Olson, states, after attempting to seize Appellants records, that VA
counsel had instructed her that neither she nor a state court judge had legal authority over

32

a federal agency. Thus, VA counsel placed an immovable federal obstacle to the state
court judges request; such a dispute cannot possibly by remedied by a state court.
An issue of such national scale demands the full force of the federal judiciary.
This conflict highlights the arguable error in Judge Nelsons finding that Appellant has
state remedies available to him.
With regard to our nations veterans and their health care, piecemeal state rules,
which vary from jurisdiction to jurisdiction, fall far short of the national unity and
consistency needed for such a critical area of the law.
There must be a national uniform standard, one that all military, veterans, and
their families can not only know and understand, but can rely upon. Such a standard can
only be enforced and guaranteed through the full force and power of the federal court
system, under the supremacy of the United States Constitution.
The fact that Appellant, due to the nature of his job and mission, had earned a
Top-Secret Clearance in the U.S. Marine Corps raises additional problems with his
Marine Corps records and his VA medical records. Release of such records could
possibly endanger classified, secure, and/or Top Secret information and events. This
raises further substantial federal questions under Section 1331. Consequently,
Appellant makes a very strong case herein for federal jurisdiction of his claims.
Additionally, due to the unusually transient nature of military service, military
members, veterans, and their families, cross state lines and international borders far more
frequently than the rest of the population. This fact raises possible federal protection
issues under the Commerce Clause of the United States Constitution, again underscoring
the substantial federal question aspect of Appellants jurisdictional claim.

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Did Judge Nelson err in dismissing Appellants claim against Defendant ISD #624
because the claim presents a state tort question?
28 U.S.C. Section 1367 permits federal courts to take jurisdiction over state law
claims over which there was no independent basis of jurisdiction, so long as they were
anchored to a claim in the action over which federal jurisdiction was appropriate.
In Appellants matter, the federal district court had subject matter jurisdiction
under Section 1331. The claim against Defendant ISD #624 derives from a common
nucleus of operative facts so that the Appellant would ordinarily be expected to try all of
his claims in one judicial proceeding. When the entire action before the federal court
comprises a single Constitutional case, the Court may, under Article III, exercise
jurisdiction over the entire action, including any state law claim. United Mine Workers v.
Gibbs, 383 U.S. 715 (1966).
Assuming that the Court has subject matter jurisdiction over other claims of
Appellant, the practical effect of Judge Nelsons dismissal of the claim against ISD #624
would be to force Appellant to re-litigate all of the same facts in a separate state court
action. Principles of judicial economy and res judicata do not permit such a result.

Did Judge Nelson err in Appellant had an adequate state court remedy?
Article III, Section 1, of the Minnesota Constitution sets forth the separation of
powers in this state and provides: The powers of government shall be divided into three
distinct departments: legislative, executive, and judicial.

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From at least 1995, the state legislative branch has sought to express legitimate
grievances from the citizens of the State of Minnesota regarding the Minnesota Guardian
ad Litem Program, as evidenced by its 108 page legislative audit thereof.
In response to that legislative audit, the Minnesota Supreme Court issued a 175
page final report and task force recommendations intended to set forth reforms and to
meet the demands asserted by the Minnesota Legislature.
Concurrently, the Minnesota Legislature took the uncommon and noteworthy
steps of additionally issuing multiple reports and analyses in at least 2004 and 2011.
These reports sought to reexamine and issue progress reports to the people of Minnesota
about the results of the legislative inquiry, and to inform them of reformation plans put
forth from the Minnesota Judicial branch.
To date, many of the recommendations have not been given effect, with some
effectuated only just this year, 2016, a full 21 years after being addressed during the 1995
legislative session.
The Minnesota Legislature, on numerous occasions, has attempted to exercise its
Constitutional duties and oversight abilities, to little or no avail. The lack of adequate
corrections indicates the Minnesota Courts cannot be expected to address this problem
now, when they havent done so for at least 21 years. Appellant asserts that federal
jurisdiction must be exercised to address this matter.
Giving additional weight to Appellants argument is the fact that there currently
exists widespread divergence of opinion within the federal circuits on the RookerFeldman and Younger Doctrines. Further on this point, is the Supreme Courts

35

unanimous opinion in Sprint, supra, directing the 8th Circuit Court of Appeals not to
dismiss 1983 jurisdictional claims so readily.
The claims presented by Appellant to seek federal redress, which he brought in
good faith before the United States District Court, can only be decided and remedied by
the federal court, as no state court has the jurisdiction or ability to enforce such critical
matters of national importance. Appellant again claims that the federal questions
presented in Carlson v. County of Ramsey et al must be adjudicated by the federal court,
and further claims that no state options remain available to him.

END OF PAGE

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CONCLUSION
Appellant asserts federal jurisdiction under the Supremacy of the Constitution and
through substantial federal questions by virtue of 28 U.S.C. Section 1331. For the
reasons discussed, Appellant requests reversal of the District Courts dismissal of his
Complaint, and remand, so that this important federal action may move forward; and any
additional or alternative relief the Court deems just and proper.

Dated: 1 August 2016

Respectfully Submitted,

Signature of Party

_________________________________________

STANDARD OF REVIEW
37

The standard of review for conclusions of Law is de novo. Horton v. Reliance


Standard Life Ins. Co., 141 F. 3d 1038, 1040 (11th Cir. 1998).
The standard of review for issues of subject matter jurisdiction is de novo. Pillow
v. Bechtel Const., INC. 201 F. 3d 1348, 1351 (11th Cir. 2000).

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CERTIFICATE OF COMPLIANCE
The undersigned certifies that the foregoing brief of Appellant David J. Carlson
complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), because it
contains 8,395 words, including the parts of the brief exempted by Fed. R. App. P
32(a)(7)(B)(iii). The undersigned further certifies that this brief complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed.
R. App. P. 32(a)(6) because this brief has been prepared in a proportional typeface using
Microsoft Office for Apple on a MacBook Air, using a 12 and 14 point font in Times
New Roman. The brief and addendum had been scanned for viruses and the brief is
virus-hyphen free.
Dated: 1 August 2016

______________________________________________
David J. Carlson

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CERTIFICATE OF SERVICE
I certify that on 1 August, 2016, the Brief of Appellant David J. Carlson was filed
with the Clerk of the Court by the United States Court of Appeals for the Eighth Circuit
by using the appellate CM/ECF system.
The following participants in the case are registered on CM/ECF users, and will
be served by the appellate CM/ECF System:
Mr. Scott Thomas Anderson
RUPP & ANDERSON
SUITE 1200
527 Marquette Avenue, S.
Minneapolis, MN 55402
Ms. Kristin C. Nierengarten
RUPP & ANDERSON
SUITE 2800
333 S. Seventh Street
Minneapolis, MN 55402
Mr. Andrew T. Jackola
ANOKA COUNTY ATTORNEYS OFFICE
Suite 720 2100 Third Avenue
Anoka, MN 55303-0000
Mr. Robert B. Roche
RAMSEY COUNTY ATTORNEYS OFFICE
Suite 4500
121 Seventh Place, E.
Saint Paul, MN 55101
Mr. Richard Sletten
U.S. DISTRICT COURT
District of Minnesota
202 U.S. Courthouse
300 S. Fourth Street
Minneapolis, MN 55415-0000

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