Court affirms finding: Minnesota State Patrol used deception

| 5/2/2011

The Minnesota Attorney General’s office recently asked the U.S. District Court in Minnesota to revisit its finding, from the evidence it heard at trial in September 2010, that the Minnesota State Patrol’s inspectors used deception when inspecting truck drivers for fatigue. The focus of this new request was an email by Lt. Steven Lubbert to the entire Commercial Vehicle Enforcement section of the MSP concerning the use of the patrol’s fatigued driver checklist. 

That email, which was introduced at trial, stated:

Due to much publicity, both on a local and national level, several inquires [sic] are being made about our Fatigue report by the State legislature, news media, etc. We as an organization do not want to damage what we have worked so hard to accomplish.

Please use your interviewing skills to determine if the driver is fatigued. I ask that you do not tell the drivers that you need to fill out a checklist (worksheet), that you are taking a survey or any other statements that you use to reference the report. The report is for you to use to document what you observed, statements by the driver, notes for you to reference to about the event and as a guide to gather the various indicators from the different areas on the report.

Please feel free to call either Lt. Thooft or me if you have any questions about the report or the way you are using it. Attached is the most current report you should be using.

Lt. Steve Lubbert,
Minnesota State Patrol-District 4700, Commercial Vehicle Enforcement.

According to testimony heard at trial, when plaintiff Stephen K. House was inspected by MSP employees Christopher Norton and James Ullmer, they told House they were simply conducting a sleep study, and that “nothing will come of the interview.” 

After trial, U.S. District Judge Donovan W. Frank wrote: “There is no dispute that none of the defendants at any time informed House of the purpose of their questions or that they were engaged in a saturation exercise specifically intended to identify fatigued drivers that could result in an OOS order.” Judge Frank found that Norton and Ullmer’s inspection of House was consistent with the Lubbert email, describing it as a “planned deception” and “unprofessional at best.”

The MSP’s lawyers at the Minnesota Attorney General’s office asked the court to revise this finding, arguing that “there was no evidence in the record that anyone in authority at the Minnesota State Patrol ever instructed inspectors to engage in “planned deception.’” 

OOIDA’s attorneys opposed this request by arguing that there was more than enough evidence introduced at trial to support the court’s finding, and that the MSP had no permissible legal basis to ask the court to revisit this issue now. OOIDA’s attorneys argued that the MSP had every opportunity at trial to tell its side of the story. For example, they could have called Lt. Lubbert to the stand to testify about his email, but they did not. 

On April 27, 2011, Judge Frank refused to change his finding that Norton and Ullmer used deception. The court noted that this finding “must be viewed in the context of all of the evidence in the case” and “that the record supports the findings and conclusions of the court.”

According to OOIDA’s lawyer, Paul D. Cullen, Jr., of The Cullen Law Firm, PLLC, this ruling is important because the court’s findings of fact and conclusions of law will be the basis for Judge Frank’s next major ruling expected in the case. OOIDA has asked the court to issue an order instructing the MSP what it must do and not do in the future to respect the constitutional and legal rights of drivers.

Editor’s note: The OOIDA v. Minnesota State Patrol trial wrapped up Sept. 21, 2010, in U.S. District Court in St. Paul, MN. For more on the trial, click here.