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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

AFFIDAVIT OF APPELLANT
DAVID J. CARLSON

Independent School District No. 624 (ISD #624)


White Bear Lake, Minnesota
-----------------------------------------------------------------------------------------------------------COMES NOW Appellant David J. Carlson, who, after being duly sworn on Oath,
states and affirms:

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 Appellants 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 Appellants 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 Appellants 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. Terbeests false and

inaccurate representations of the record, and included them, in toto, in her order of 14
November, 2016.

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. Carlsons filing, and Mr. Carlson
had only filed the documents exclusively on the E-File system.
11.

Judge Millenackers 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.
Carlsons 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. Terbeests 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

responded to Mr. Carlsons 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. Carlsons 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. Carlsons 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 28th and 29th 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.

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 28th and
29th and November, 2016.
22.

Dr. Fords 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. Fords professional medical recommendation and

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

Court on 25 November, 2016, as well as a supporting affidavit and Dr. Fords


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 Millenackers 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. Carlsons 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. Carlsons

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.

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

38.

Furthermore, Judge Millenacker draws improper and incorrect

conclusions, wholly without substantiation, about Mr. Carlsons 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 doctors 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. Carlsons
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

42.

Judge Millenackers 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. Carlsons 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

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 spouses 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.
Carlsons constitutionally protected right to have a relationship with and to parent his
children; and his childrens 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 childrens 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.

Carlsons and his childrens right to even the most basic human right of parent-child
communication guaranteed in the U.S. Constitution. Judge Millenackers 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 noncompliance by Mrs. Krista A. Dickenson and her attorney with the judges own orders.
63.

Since the Appellants 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 childrens 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. Carlsons and his childrens 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

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 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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