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UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

David James Carlson

Plaintiff-Appellant

Case No. 16cv765SRNBRT Appeal No. 162793

vs.

Defendants-Appellees

County of Ramsey, State of Minnesota

County of Anoka, State of Minnesota

Independent School District No. 624 (ISD #624) White Bear Lake, Minnesota

AFFIDAVIT OF APPELLANT DAVID J. CARLSON

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COMES NOW Appellant David J. Carlson, who, after being duly sworn on Oath,

states and affirms:

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1.

Appellant has not seen or spoken with his children since 11 July, 2016, in

violation of the standing temporary order for visitation for Appellant and his minor

children in Ramsey County Family Court.

  • 2. Since Appellant’s last filing with this Honorable Court, further

circumstances have developed which necessitate being brought to the immediate attention

of this court.

  • 3. Proceedings continue in Ramsey County Family Court. Petitioner filed

for a Motion for Continuance on 26 October, 2016 with Ramsey County Judge Robyn A.

Millenacker.

  • 4. The basis for Appellant’s motion for continuance was that he had sought

emergency assistance from the Minnesota Supreme Court, seeking both a Writ of

Prohibition and Writ of Mandamus, in order to obtain a stay of the proceedings in

Ramsey County Family Court.

  • 5. Ramsey County Judge Millenacker denied the motion, and stated that it

“was filed in bad faith,” despite the fact that the court record clearly showed that

Appellant had in fact filed for such relief with the Minnesota Supreme Court.

  • 6. In filings with the Ramsey Family Court, counsel for Appellant’s former

spouse, Mr. Justin Terbeest, repeatedly misstated the facts regarding communications

between Appellant and Mr. Terbeest in and around October 2016.

  • 7. Judge Robyn A. Millenacker wholly adopted Mr. Terbeest’s false and

inaccurate representations of the record, and included them, in toto, in her order of 14

November, 2016.

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8.

Specifically, Judge Millenacker falsely stated that the proceeding “has

been extended several times for the benefit of the Petitioner.” (Mr. Carlson)

  • 9. In fact, Mr. Carlson had not previously requested any continuance in this

matter since it was reopened in May 2015.

  • 10. Additionally, Judge Millenacker states that Mr. Terbeest “claims to have

not been properly served with the Motion for Continuance.” As a matter of fact, both Mr.

Carlson and Mr. Terbeest are registered in the Minnesota Courts ‘E-File’ system, which

instantly provides electronic service of all court filings in this matter to parties and

attorneys of record. Therefore, it is impossible for Mr. Terbeest not to have been

properly served, since he references specifics of Mr. Carlson’s filing, and Mr. Carlson

had only filed the documents exclusively on the E-File system.

  • 11. Judge Millenacker’s failure and apparent refusal to provide any oversight

and accountability of Mr. Terbeest is apparent in this situation, as the court is the

gatekeeper of the E-File system, and Judge Millenacker would have known from Mr.

Carlson’s filing that Mr. Terbeest was in fact properly served; therefore, Mr. Terbeest

was either intentionally or negligently informing the court in bad faith.

  • 12. Mr. Terbeest has exhibited a pattern of unorthodox, inappropriate,

improper, misleading, and factually unsupported filings in this case, yet, Judge

Millenacker has failed to address these matters, and has failed to sanction Mr. Terbeest in

any manner.

  • 13. Mr. Terbeest’s claim of Mr. Carlson not proceeding “in good faith” was

presented in a manner not set forth in the rules of civil procedure. In fact, Mr. Terbeest

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responded to Mr. Carlson’s Motion with a “letter to the court,” rather than filing a

resistance to the motion, or other proper pleading.

  • 14. Yet again, Judge Millenacker failed to address these improprieties and

perform her constitutionally mandated judicial duties of oversight and supervision.

  • 15. It is worth noting to this Honorable Court that Judge Millenacker again

includes in her ‘Appendix A’ to her order on 14 November, 2016, Mr. Carlson’s right to

have “reasonable telephone access,” and court-ordered “highly supervised visitation at a

safety center.”

  • 16. It is also worth noting to this Honorable Court again that Mr. Terbeest and

Mrs. Dickenson continue to refuse to participate in Mr. Carlson’s court-ordered visitation

and they continue to refuse Mr. Carlson access rights to his children.

  • 17. The first evidentiary hearing to be held in this matter since the initial filing

in May 2015 was scheduled for the 28 th and 29 th of November, 2016, in Ramsey County

Family Court before Judge Robyn A. Millenacker.

  • 18. On 17 November, 2016 Mr. Carlson was involved in a motor vehicle

collision, wherein he was struck from behind as he waited for students to disembark from

a school bus in Maplewood, Minnesota. Mr. Carlson immediately called 911, and

Maplewood Police Department (MPD) and Maplewood Fire Department (MFD)

responded to the collision (Report No. 16034511)

  • 19. Mr. Carlson received a concussion from the impact of being struck while

at a complete stop by a vehicle traveling at 40 MPH, and was taken by ambulance to

Woodwinds Hospital Emergency Room (ER) in Woodbury, Minnesota and was

discharged after multiple tests later the evening of 17 November, 2016.

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  • 20. The following day, on 18 November, 2016 after the post-concussive

symptoms had worsened, Mr. Carlson was admitted and seen at the Department of

Veterans Affairs (VA) Hospital ER in Minneapolis, Minnesota (VATC), where he was

discharged later that evening after being treated for residual symptoms from his accident.

  • 21. Mr. Carlson was admitted into the ER at VATC again on 23

November, 2016 as he was still suffering from post-concussive symptoms. Mr.

Carlson was again evaluated, treated, and released the same evening. On this third

ER visit in under one (1) week, Appellant received medical treatment from Dr.

Edward Ford, M.D., of VATC, who submitted a medical release stating Mr. Carlson

was unable to appear in court for the two (2) day hearing to be held on the 28 th and

  • 29 th and November, 2016.

    • 22. Dr. Ford’s medical letter that was submitted to Ramsey County

Family Court, dated 23 November, 2016, stated Mr. Carlson was unable to

represent himself in court due to “persistent physical symptoms from a recent motor

vehicle collision,” and further states that Mr. Carlson “is to be cleared by Dr. prior

to rescheduling.” (Exhibit 1)

  • 23. Appellant hereby also submits to this Honorable Court a medical

letter dated from 28 November, 2016, from Dr. Azber A. Anzar, MD, VATC,

which further substantiates his current temporary medical limitations, stating Mr.

Carlson “is in no condition to represent himself at this time in upcoming court

hearing.” (Exhibit 2)

  • 24. As a result of Dr. Ford’s professional medical recommendation and

opinion, Mr. Carlson submitted a Motion to Continue to Ramsey County Family

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Court on 25 November, 2016, as well as a supporting affidavit and Dr. Ford’s

medical release letter.

  • 25. A hearing was held on 28 November, 2016 in Ramsey County

Family Court before Judge Millenacker.

  • 26. Following the hearing, Judge Millenacker issued a Findings of Fact

and Continuance Order on 29 November, 2016.

  • 27. Mr. Carlson had previously sought the removal of Ramsey County

Judge Robyn A. Millenacker for bias, pursuant to a Motion to Remove, which

Judge Millenacker denied.

  • 28. Pursuant to the rules of civil procedure, Mr. Carlson submitted an

appeal for Judge Millenacker’s removal for bias to the Hon. Judge John H.

Guthmann, Chief Judge of Second Judicial District of the State of Minnesota.

  • 29. Due to Mr. Carlson’s genuine fear of Judge Millenacker, he felt it

was appropriate to submit his Motion to Continue and supporting Affidavit, dated

25 November, 2016, to Chief Judge Guthmann.

  • 30. Judge Millenacker appears to take great offense at Mr. Carlson’s

submission to the Chief Judge, and interjected a personal and angry tone into her

most recent order of 29 November, 2016.

  • 31. Judge Millenacker appears to imply numerous times throughout her

order that Mr. Carlson fabricated the entire car accident, and also fabricated his

injuries. Further, Judge Millenacker seems to imply that Mr. Carlson forged a

federal document, which would constitute a felony offense.

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  • 32. Mr. Carlson wishes to inform this Honorable Court that in addition

to being honorably discharged from the U.S. Marine Corps, and in addition to being

the recipient of a Good Conduct Medal, that he is also a currently licensed teacher

in the State of Minnesota and he has no criminal record whatsoever that would

constitute a reasonable basis for Judge Millenacker’s implication that he was in fact

committing a felony, and misleading the court.

  • 33. There is nothing in the court record that would provide a rational

basis for Judge Millenacker’s implication that Mr. Carlson would forge a federal

document, and then submit it to a court of law.

  • 34. Judge Millenacker repeatedly throughout her order uses the word

“alleged” when describing the accident, despite Mr. Carlson providing the accident

number and documentation from a federal agency, the Department of Veterans

Affairs, which substantiate his statements about the accident.

  • 35. Mr. Carlson wishes to impress on this Honorable Court that even the

very factually supported claim that he was in fact involved in a motor vehicle

collision appears to be considered highly dubious by Judge Millenacker.

  • 36. Mr. Carlson is troubled by the tone of Judge Millenacker’s order,

and is further troubled by her word choice, both of which indicate to him that the

court is biased against him.

  • 37. Judge Millenacker--even a day later following the hearing, and with

ample abilities under her authority to validate the accident report, still insists on

casting unsupported and felonious accusations about Mr. Carlson’s conduct, and

disparages his conduct and character throughout her order of 29 November, 2016.

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  • 38. Furthermore, Judge Millenacker draws improper and incorrect

conclusions, wholly without substantiation, about Mr. Carlson’s ER visits, stating

“The Court finds it worth noting that it was not until his third time seeking

treatment, which occurred on November 23, 2016, that Mr. Carlson finally received

a doctor’s opinion that he was unable to appear in court. November 23, 2016 was

also the last business day prior to the November 28, 2016 hearing.”

  • 39. The statement by Judge Millenacker is a complete misconstruction

of events, as Judge Millenacker was not privy through attendance at Mr. Carlson’s

ER visit(s). Therefore, Judge Millenacker could not possibly attest to what he had

asked for, when he had asked for it, or, when he received any supportive medical

documentation regarding his injuries.

  • 40. Furthermore, the fact that Judge Millenacker is comfortable stating

such assumptions so blatantly towards Mr. Carlson is further evidence of her bias

against him in these matters.

  • 41. Judge Millenacker construes the medical documentation on VA

letterhead as such:

“This note appears to be electronically signed by Edward Ford from the

Minneapolis VA Health Care System. The Court finds this record to be suspect as

it designates Petitioner fit to return to work or school, but specifically exempts him

from the court hearing for which his continuance request was previously denied.

Beyond this very brief, vague note, Petitioner submitted no medical records

supporting his alleged debilitating injuries”

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  • 42. Judge Millenacker’s characterizations and treatment of Dr. Ford--

similarly to her treatment of Dr. Tuorila, PhD, Mr. Wittenberg, MSW, LICSW, and

Mr. Carlson, MS, before him, show a deliberate pattern of treatment towards any

and everyone who has submitted anything positive about Mr. Carlson during these

proceedings.

  • 43. Judge Millenacker further misconstrues the official medical

statement from Dr. Ford, MD, to immediately release Mr. Carlson to work/school

when the letter specifically states otherwise. Dr. Ford states:

“David should be able to return to work or school after release by the

Doctor. David needs the following work limitations: Excuse from anticipated court

date due to persistent physical symptoms from recent motor vehicle collision. To

be cleared by Dr. prior to rescheduling.”

  • 44. Additionally, Judge Millenacker falsely states that “Mr. Carlson has

tried to delay these proceedings numerous times as indicated in MNCIS records.”

  • 45. Judge Millenacker then goes on to list Mr. Carlson’s filing on 26

October, 2016, as the sole example of Mr. Carlson delaying the proceedings

“numerous times.” Mr. Carlson wishes to notify this Honorable Court that Judge

Millenacker lists no other filings for continuances from Mr. Carlson.

  • 46. Judge Millenacker could not cite another example of Mr. Carlson

requesting any continuance--which would be necessary to constitute “numerous

times,” as it is factually dishonest and implausible for her to make a claim that has

no basis in the factual record. Therefore, she was either negligent in her

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mischaracterization, or she intentionally misstated the court record in regards to Mr.

Carlson and his request for continuance.

  • 47. Mr. Carlson seeks to impress upon this Honorable Court yet another

example of Judge Robyn A. Millenacker either negligently or intentionally

misstating the record, constituting further evidence of her bias against him, which

runs rampant throughout these proceedings.

  • 48. Mr. Carlson seeks to impress upon this Honorable Court the fact that

Judge Millenacker, from the bench, ordered his former spouse’s attorney, Mr. Justin

Terbeest, to draft the medical releases and other documents in the 28 November,

2016 hearing for Mr. Carlson. Further, she ordered that the releases specify that his

medical records are to be released to Mr. Terbeest, and not Ramsey County Family

Court.

  • 49. Mr. Carlson again strongly reiterates his right to privacy with regard

to his medical record under 28 U.S.C. 7332, HIPPA, and PIPPA to name a few

protections afforded to American citizens under the law. Mr. Carlson opposes in

the strongest terms possible, the overreaching request from a former spouse with

dubious and ulterior motives to directly acquire and retain confidential medical and

psychological records.

  • 50. More specifically, Judge Millenacker orders Mr. Carlson to turn over

psychological records, which bear no relationship to the auto accident he recently

suffered. Nor do they bear any relationship to the post-concussive injuries that

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occurred as a result of the accident; nor do they bear any relationship to the actual

Motion for Continuance that Mr. Carlson filed in Ramsey County Family Court.

  • 51. This overreaching demand by the Court is further evidence of the

pattern of bias shown by Judge Millenacker towards Mr. Carlson, which again runs

rampant throughout these court proceedings.

  • 52. Mr. Carlson seeks to impress upon this Honorable Court that Judge

Millenacker has decided in advance that she will impose very serious sanctions against

Mr. Carlson if he refuses to comply with the demand drafted by his former spouses

attorney, Mr. Terbeest.

  • 53. This ultimatum given to Mr. Carlson further highlights the need of this

Honorable Court to intervene in these matters since Mr. Carlson has repeatedly stated he

will not authorize the release of any and all of his medical or psychological records from

the VA, or any other entity that has treated him in the sacrosanct tradition of medical

confidentiality between a Doctor and patient.

  • 54. As Mr. Carlson has stated in previous filings with this Honorable Court, in

addition to his unwillingness to release his records to Mr. Terbeest and the court, VA

counsel has informed Ramsey County Family Court, through the Guardian Ad Litem Ms.

Ramona M. Olson, that “a state court judge does not have authority over a federal

agency, the Department of Veterans Affairs,” and will not release his records without the

express written consent of Mr. Carlson.

  • 55. Once again, the immovable federal obstacle placed before this court by the

VA and Mr. Carlson begs this Honorable Court to intervene on behalf of Mr. Carlson and

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his minor children, with whom he has not been allowed to have any contact since 11 July,

2016 to present day.

  • 56. The constitutional collision taking place between a private citizen, a state

court judge, and a federal agency, continues to be used as the basis for the denial of Mr.

Carlson’s constitutionally protected right to have a relationship with and to parent his

children; and his children’s right to have a relationship and communicate with their

father.

  • 57. Without the intervention from this Honorable Court, the Carlson family

stands to continue to be forcibly separated by Ramsey County Family Court and Judge

Millenacker well into next year with no sign of reprieve.

  • 58. Mr. Carlson notes to this Honorable Court that he has informed a

multitude of Ramsey County officials, going back to at least since 16 November, 2015,

that he and his children have repeatedly been denied their rights to a relationship with one

another.

  • 59. Specifically, Mr. Carlson has informed the Guardian Ad Litem in this

case, Ms. Ramona M. Olson, and he has informed the presiding judge in this matter,

Judge Robyn A. Millenacker, of these facts, and he has also presented these facts, along

with supporting evidence, to the Chief Judge of the Second Judicial District.

  • 60. Additionally, the previous safety center provider, FamilyWise,

communicated to the court and Judge Millenacker in July 2016 the fact that Mr. Carlson

was no longer seeing his children at the center. Mr. Carlson has also provided the court

with documentation from Relationships, LLC, another safety center provider, that both

Mrs. Dickenson and her attorney, Mr. Terbeest are wantonly disobeying a standing court

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order that orders two (2) hours of supervised parenting for Mr. Carlson per week. In

violation of these orders, Mr. Carlson has received no parenting time since 11 July, 2016.

  • 61. Despite all these facts, submissions, and direct evidence, at the 28

November, 2016 hearing in Ramsey County Family Court, Judge Millenacker again

failed to address, in any capacity, the denial of parental and children’s rights afforded to

the Carlson family, and failed to address as well the deliberate disregard for her visitation

order by both Mrs. Dickenson and Mr. Terbeest as set forth in the Relationships, LLC

letter submitted repeatedly to the Ramsey County Family Court.

  • 62. Astoundingly, Judge Millenacker does not address the denial of Mr.

Carlson’s and his children’s right to even the most basic human right of parent-child

communication guaranteed in the U.S. Constitution. Judge Millenacker’s failure to

address in any capacity in her most recent order this egregious denial of fundamental

rights is made even more serious by her direct knowledge of ongoing and overt non-

compliance by Mrs. Krista A. Dickenson and her attorney with the judge’s own orders.

  • 63. Since the Appellant’s Reply Brief was submitted, this case has grown even

more complicated and toxic, as set forth herein, with increasingly more and more severe

consequences for Mr. Carlson and his twin daughters.

  • 64. In direct violation of Minnesota Statutes, Mr. Carlson has been given no

information regarding the children’s recent medical treatment or hospitalizations, and has

been given no information about their schooling and extra-curricular activities; nor has he

been given any telephone or other electronic access to his children, again in direct

violation of Minnesota law. Yet these violations continue to go unaddressed by Judge

Millenacker and the Ramsey County Family Court.

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  • 65. With each passing week, this case becomes more complicated, and more

of Mr. Carlson’s and his children’s rights continue to be violated. The record in Ramsey

County Family Court clearly shows that Mr. Carlson and his children have no redress of

their grievances, nor redress of their rights violations, within the Minnesota Court

System.

  • 66. Therefore, it is now more compelling than ever for this Honorable Court

to grant expedited hearing to Appellant, to grant oral argument to Appellant, and to grant

relief to the Appellant and his children as previously prayed for.

Subscribed and sworn to before me this _____

day of November, 2016.

Notary Public in and for the State of Minnesota

Dated: 30 November, 2016

Respectfully Submitted,

David J. Carlson

65. With each passing week, this case becomes more complicated, and more of Mr. Carlson’s and

Signature of Party

_______________________________________

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CERTIFICATE OF SERVICE

I certify that on 30 November, 2016, the Affidavit 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 ATTORNEY’S OFFICE Suite 720 2100 Third Avenue Anoka, MN 55303-0000

Mr. Robert B. Roche RAMSEY COUNTY ATTORNEY’S 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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