Petition for Writ of Certiorari — Donald Esslinger, et ux., Petitioners v. Shawn Bass, et ux.

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No.

23SH1

ORIGINAL

II THE

Supreme Court or the United States

DON ESSLINGER AND

JENNIFER ESSLINGER,

Petitioners,

SHAWN BASS AND LAREE BASS,

Respondents.

On Petition for Writ of Certiorari to

The Supreme Court of Idaho

PETITION FOR WRIT OF CERTIORARI

Don Esslinger, Petitioner Pro Se

P.O. Box 806

Grangeville, Idaho 83530

Telephone: (208) 839-2369

Jennifer Esslinger, Petitioner Pro Se

P.O. Box 806

Grangeville, Idaho 83530

Telephone: (208) 839-2369

FILED

MAY 3 1 2023

I

1

QUESTIONS PRESENTED

In an Idaho civil trespass case petitioners were

denied a first-time continuance of a summary

judgment hearing after they asserted their Fifth

Amendment privilege against self-incrimination

because of risk of conviction in a “parallel” criminal

trespass case. The trial court failed to hold an in

camera hearing balancing the harm to parties from a

delay of the civil case versus the potential for a 6month jail sentence to the petitioners as a result of

criminal trespass citations issued by the respondents

that blocked petitioners testimony in the civil case.

This petition presents the following questions

regarding the superiority of the 5th Amendment right

to remain silent over procedural considerations in a

civil case when criminal charges are pending in a

“parallel” proceeding.

1. Whether in deciding a motion to continue a hearing

on summary judgment after assertion of the right to

remain silent to avoid self-incrimination in a parallel

criminal case, it was necessary for the trial court to

conduct an in camera hearing to determine if the

harm caused by the delay of the civil proceeding would

exceed the harm caused by denying the continuance.

2.

Whether a state court’s procedural rule requiring

14-day’s advance notice for a motion to continue is

preempted by a 5th Amendment claim that testimony

would risk self-incrimination.

•\

f

11

QUESTIONS PRESENTED—Continued

3.

Whether constitutional safeguards are

necessary when a party is charged with a

criminal offense under a “citizen citation”

rule of criminal procedure.

4. Whether it is overbearing and oppressive

for a civil litigant to demand sanctions

against a party seeking 5th Amendment

protection.

Ill

PARTIES

Petitioners: Don Esslinger (misnamed “Donald

Esslinger” by Respondents in the proceeding below)

and Jennifer Esslingers as defendants in both the civil

trespass case and in the criminal trespass cases.

Respondents: Shawn Bass and Laree Bass as

plaintiffs in the civil trespass case, with Shawn Bass

as the issuer and complainant against the Esslingers

in the criminal trespass cases he filed under Idaho’s

“Citizen Citation” Criminal Rule 5(c).

RELATED PROCEEDINGS

CIVIL TRESPASS CASE:

Court: District Court, 2nd Judicial District,

Idaho County, Idaho: Case No.: CV25-20-0513

SHAWN BASS AND LAREE BASS,

Husband and Wife, Plaintiffs

vs.

DONALD (sic) ESSLINGER AND

JENNIFER ESSLINGER,

Husband and Wife, and

DOES I - IX., Defendants.

Date Case Filed: November 10, 2020

Memorandum Opinion re Various Motions:

Date of Memo Opinion: July 20, 2021

Date of Judgment: July 27, 2021

Memorandum Opinion re Motion to Reconsider:

Denial of Reconsideration: September 14, 2021

Appealed to: Court: Supreme Court of Idaho

Docket No.: 49240 Published Opinion: March 2, 2023

525 P.3d 737 (Idaho 2023)

1

IV

RELATED PROCEEDINGS—Continued

CRIMINAL TRESPASS CASES

Criminal Case No. 1:

Court: District Court, 2nd Judicial District,

Idaho County, Idaho

Idaho County Sheriff

ICS7100000082

IDAHO UNIFORM CITATION

State of ID vs. Jennifer A. Esslinger

Misdemeanor Citation Date/Time:ll/12/2020

4:02PM

Violation #1: Idaho Code §18-7008(3)(a)(l)(2)

Trespass with property damage ($0 TO

$1,000)

Comment: CITATION SIGNED BY

SHAUN BASS

Date Case Served: November 12, 2020

4:02PM

Re filed in the District Court, 2nd Judicial

District

Idaho County, Idaho as Case No.: CR25-201679

STATE OF IDAHO,

Plaintiff,

vs.

JENNIFER ESSLINGER,

Defendant.

Date of Dismissal: February 22, 2022

V

RELATED PROCEEDINGS—Continued

Criminal Case No. 2:

Court: District Court, 2nd Judicial District,

Idaho County, Idaho

Idaho County Sheriff

ICS7100000083

IDAHO UNIFORM CITATION

State of ID vs. Don Esslinger

Misdemeanor Citation Date/Time: 11/12/2020 4:02PM

Violation #1: Idaho Code §18-7008(3)(a)(l)(2)

Trespass with property damage ($0 TO $1,000)

Comment: CITATION SIGNED BY SHAUN BASS

Date Case Served: November 12, 2020 4:02PM

Refiled in the District Court, 2nd Judicial District

Idaho County, Idaho as

Case No.: CR25-20-1680

STATE OF IDAHO,

Plaintiff,

vs.

DON ESSLINGER,

Defendant.

Date of Dismissal: February 22, 2022

VI

TABLE OF CONTENTS

QUESTIONS PRESENTED,

1

PARTIES...............................

m

RELATED PROCEEDINGS

m

TABLE OF CONTENTS......

vi

DECISIONS BELOW..........

1

JURISDICTION..................

1

CONSTITUTIONAL PROVISIONS IMPLICATED.. 1

2

STATEMENT OF THE CASE...........................

ARGUMENT.......................................................

4

CONCLUSION....................................................

13

Appendix (Cover Sheet - separate booklet)......

1

District Court Grant of Summary Judgment

2

District Court Denial of Reconsideration......

21

Idaho Supreme Court Bass v Esslinger .....

29

Alabama Supreme Court Coastal Training...

48

Declaration of Don Esslinger..........................

59

Declaration of Jennifer Esslinger...................

64

Deputy Cody Killmar’s Transcript.................

68

Motion for Sanctions.......................................

90

Shaun Bass Citizen Citation vs. Don............

99

Shaun Bass Citizen Citation vs. Jennifer.....

103

Dismissal Criminal Trespass Don.................

106

107

Dismissal Criminal Trespass Jennifer..........

Certificate of Compliance................................

108

109

Certificate of Service.......................................

1

DECISIONS BELOW

■Bass v. Esslinger, No. 49240, Supreme Court of Idaho,

Published Opinion Rendered: March 2, 2023,

525 P.3d 737 (Idaho 2023).

State v. Jennifer Esslinger, 2nd Judicial District of Idaho Co.

Case No. CR25-20-1679-Dismissal: February 22, 2022

State v. Don Esslinger, 2nd Judicial District of Idaho County

Case No. CR25-20-1680-Dismissal: February 22, 2022

JURISDICTION

Petitioners rely upon 28 U.S.C.§2101(c) and USSC

Rule 12(b) as their basis of jurisdiction as follows:

§2101(c) Am^ other appeal or any writ of certiorari

intended to bring any judgment or decree in a civil

action, suit or proceeding before the Supreme Court

for review shall be taken or applied for within ninety

days after the entry of such judgment or decree.

Rule 12(b) [quoting in relevant part]: “...a state court

of last resort has decided an important federal

question in a way that conficts with the decision of

another state court of last resort....”

CONSTITUTIONAL PROVISIONS IMPLICATED

V AMENDMENT TO THE U.S. CONSTITUTION:

[quoting in relevant part]: “No person shall be ...

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law....”

i

2

STATEMENT OF THE CASE

Petitioners were deprived of property when denied

due process of law as they asserted their Fifth

Amendment privilege against self-incrimination

while seeking a continuance of the hearing on

summary judgment that should have caused the trial

court to conduct an in camera evaluation to determine

whether a stay would cause greater harm to

respondents by delaying the proceeding until

disposition of pending “parallel” criminal charges that

respondents had self-initiated as “citizens” or if

proceeding against petitioners by summary judgment

without their testimony would be more detrimental.

Criminal trespass charges had been issued

personally by respondents under Idaho’s “citizen

citation” rule1 (two days after filing the civil trespass

case) despite the advice of Deputy Sheriff Cody

Killmar that there was no probable cause to believe a

crime had been committed and that his investigation

revealed that this was a “civil” matter. These criminal

charges kept petitioners from testifying as to the June

28, 2021 summary judgment hearing because of the

fact that petitioners reasonably believed would likely

lead to self-incrimination (see Appendix, Declarations

of Don Esslinger and Jennifer Esslinger.)

1 Idaho Misdemeanor Criminal Rule 5(c): “Citizen Citation. The

uniform citation may be signed by any person in whose presence

an alleged offense occurred and be witnessed by a peace officer

whose name shall be endorsed on the citation.

3

The District Court superficially considered the

Motion to Continue, taking jurisdiction of the motion,

even though it was late-filed, then denied it because

petitioners did not file the same 14-days or more

before the hearing on summary judgment, and such

denial was without conducting an in camera

evidentiary hearing as to the comparative harm to the

litigants in granting or denying said stay.

Idaho’s Supreme Court followed suit and decided the

stay issue on procedural grounds, holding that a

general 14-day notice must control over the

fundamental constitutional right to remain silent.

(See appendix page 29). Because the Supreme Court

of Idaho is a court of last resort and because the courts

of last resort of other states ruled in favor of staying

civil cases under similar circumstances, especially

after the application of a balancing test, there is a split

of authority that can only be reconciled by the U.S.

Supreme Court.

It should be noted that, instead of sanctions for

asserting the Fifth Amendment privilege, petitioners

were punished by an award of treble damages of

$107,134.32 for performing statutorily mandated

weed removal from the Disputed Area of land and by

the loss of 1/3 of an acre they had just bought and paid

for as bona fide purchasers for value without notice

that respondents claimed said property.

4

ARGUMENT

In an Idaho civil trespass case that was filed

November 10, 2020, after fast-tracking the summary

judgment to a June 2021 hearing and without discovery

or testimony from petitioners, the respondents were

awarded damages of $107,134.32 for petitioners’ work

in clearing invasive species of vegetation with huge

thorns dangerous to humans that harbored ticks

carrying limes disease plus respondents were awarded

title to one-third (1/3) acre (the “Disputed Area”) being

land that was a part of petitioners’ 2019 seven-acre (“7Ac.”) acquisition.

Petitioner’s discovery depositions were set to occur on

April 7, 2021 by respondents’ counsel at Grangeville,

Idaho, a location 1-1/2 hours from his office in Lewiston,

Idaho. The venue for the case was at the courthouse in

Grangeville, Idaho where the case was filed by

respondent’s counsel and in the city where the

depositions were set. Counsel complained of

inconvenience when respondents refused to answer

case specific questions at the deposition by taking the

Fifth Amendment and became visibly frustrated as said

depositions were essentially fruitless. Contrary to U.S.

Supreme Court holdings, respondents’ counsel filed a

motion for sanctions against petitioners, which, in

addition to the citizen criminal citations added to the

intimidation of petitioners.

Eight weeks later, at the summary judgement

hearing, respondents pushed for a ruling on sanctions

5

and petitioners were denied a continuance when they

asserted the Fifth Amendment privilege as the basis

to stay the proceedings.

The case proceeded to judgment without

consideration of petitioners’ Fifth Amendment claims

and was solely based on evidence presented by

respondents as petitioners declined to present any

potentially self-incriminating rebuttal testimony that

would have demonstrated genuine issues of material

fact as they were facing pending parallel criminal

trespassing charges arising from the same facts and

circumstances. (See Appendix for Declarations of Don

Esslinger and Jennifer Esslinger.)

The reason Petitioners “took the 5th” was that they

were each subject to a jail sentence stemming from the

criminal trespass charges that had been initiated by

Shaun Bass as “citizen citations” issued contrary to a

law enforcement advisory that there was no probable

cause to believe that a crime had been committed and

that this was just a “civil” matter. These criminal

citations were an afterthought, issued two days after

the civil trespass case was filed, but were effectively

used to silence any opposition to summary judgment.

Under Idaho’s “citizen citation” rule2

respondents were personally allowed to charge

the

2 Idaho Misdemeanor Criminal Rule 5(c): Citizen Citation. The

uniform citation may be signed by any person in whose presence

an alleged offense occurred and be witnessed by a peace officer

whose name shall be endorsed on the citation.

6

petitioners with criminal trespass, giving them the

tactical advantage of silencing petitioners, so their

testimony could not be heard at summary judgment

which was only in their own self-interest. Criminal

trespass in Idaho has the potential for up to 6-months

of imprisonment.3

It is beyond reason to believe that the Idaho

Supreme Court (“ISC”) would create a rule vesting

probable cause determinations in the hands of random

citizens with no due process protections; and further

beyond reason to believe the ISC would not enforce the

right of petitioners to protect themselves from self­

incrimination by reversing the district court’s

unevaluated and unjustified denial of a continuance.

Under the Idaho trespass statute,4 the probable

cause standard was whether the petitioners knew or

had reason “... to know that [their] presence is not

permitted”5 on the subject property. Ironically, the

property in this case involved ground that petitioners’

had just bought and paid for in May of 2019. Given

that the trespass statute itself was new in 2018 and

3 Idaho Code §18-7008(3)(i)(2) ,..[T]he person may be sentenced

to jail for a period of no more than six (6) months and shall be

fined in an amount no less than five hundred dollars ($500)

and no more than one thousand dollars ($1,000).

4 Id.

5 Idaho Code §18-7008(2)(a). A person commits criminal trespass

and is guilty of a misdemeanor, except as provided in subsection

(3)(a)(i) of this section, when he enters or remains on the real

property of another without permission, knowing or with reason

to know that his presence is not permitted.

7

had not been tested and remains unchanged to this

day,6 the full reach of that statute is yet unknown; but,

when placed in operation against petitioners in

conjunction with “citizen citations” issued by

respondents it worked a grievous injustice in this case.

To be guilty of criminal trespass, there must be

evidence that the accused actually knew or had reason

to know (mens red) that the purported landowner

claimed the Disputed Area as their property and that

their presence on the land was not permitted by the

owner.

There was ample proof from the petitioners’

testimony that would have shown they never knew

about respondents’ well-kept secret of claiming

ownership of the Disputed Area before petitioners

purchased the real estate in 2019 or before improving

the land in 2020. Such testimony would have included

the fact that for 30 years before the purchase took

place, the petitioners home overlooked the Disputed

Parcel. During that time they watched as title to the

7-Ac. tract including the Disputed Area changed

hands multiple times and never once did respondents’

assert a claim of ownership.

Further, at the time of their purchase in 2019,

petitioners made a personal inspection of the property

looking for encroachments and contra-indications of

ownership such as painted rocks that would give

notice of a different boundary or other party owners.

[18-7008, added 2018, ch. 350, sec. 6, p. 828.]

8

There were no “No Trespassing” signs or other

evidence of encroachments.

Before purchase, petitioners also had a

professional boundary survey performed confirming

the perimeter of the property with the Disputed

Area inside the petitioners’ boundaries. In 2019,

Petitioners also engaged a title search, purchased

title insurance and paid full value for the entire 7Ac. tract which included the Disputed Parcel.

The evidence was beyond a reasonable doubt that

petitioners did not know or have reason to know that

respondents held a claim of ownership as to the

Disputed Area before they began clearing it of

noxious vegetation as ordered by the State of Idaho.

(See Appendix for Declaration of Jennifer Esslinger.)

Hence, there was no mens rea (making the criminal

charges meritless); but for the petitioners to testify

to these facts, that they had indeed gone onto the

property and had indeed removed vegetation,

despite such action was with the imprimatur of the

State of Idaho Department of Agriculture and with

the pending criminal cases, it would likely open the

door to other potentially incriminating cross

examination and created a risk not worth taking.

Instead, waiting for the Magistrate Judge to

dismiss the meritless cases on February 22, 2022,

was the prudent course of action. (See Appendix, for

criminal case Dismissal Orders.)

9

Since as far as petitioners knew, the respondents’

assertion of their ownership claim was being

presented for the first time on November 10, 2020, and

since it was the respondents who never recorded their

purported ownership claim, and since it was the

respondents who signed the “citizen citations”

initiating the meritless criminal prosecution, then on

balance it would have been equitable to delay the

respondents civil summary judgment hearing until

petitioners could testify without risk of self­

incrimination.

Whereas, a fair minded district court judge using a

balancing test after an in camera hearing on the

comparative harm of a continuance vs proceeding to

hearing without testimony from petitioners would

have found that extreme unfair prejudice would result

from requiring petitioners to go to an immediate

summary judgment hearing on June 28, 2021 as long

as there was unresolved self-incrimination issues,

while petitioners were holding their silence pending

resolution of the criminal cases.

The idea that the Disputed Area or one-third of an

acre of the 7-Ac. tract didn’t belong to the petitioners

or to their predecessors in interest was unimaginable

to petitioners as there were no title issues presented

at the petitioners’ closing and certainly by waiting a

full year and one-half (1-1/2) after purchase before

raising the issue made their claim appear highly

suspicious as if it was a manufactured claim.

10

Because of the proximity to their adjacent five-acre

home site respondents could see that petitioners were

pouring in large amounts of sweat equity as they

beautified the 7-Ac. former strip mine site that

overlooks the Salmon River. Respondents could observe

the petitioners’ improvements to the land, reclaiming it

from mining destruction, with deep pits, trenches and

tall mounds of tailings all of which needed to be

resurfaced by petitioners who were in the business of

using earth moving equipment.

Because respondents never in 30 years took any

action to maintain the land they claimed to have owned

since 1975, there were huge patches of Canadian thistle

and thorn bushes so toxic that the State of Idaho

ordered the petitioners as landowners to eradicate these

invasive species in order to prevent them from

spreading; which is exactly what the petitioners were

doing when the respondents filed the civil suit on

November 10, 2020 and issued their companion “citizen

citations” on November 12, 2020 all complaining that

the petitioners were improperly removing vegetation

from respondents’ property.

If Idaho had chosen to place Constitutional

‘guardrails’ on the citizen citation rule (first effective in

1979) the abuses experienced by petitioners in this case

would have been prevented. Instead, there was a

‘stampede’ environment created where an unwitting

neighbor (petitioners) were charged with jailable

offenses by a “citizen” for merely cleaning up the

property they reasonably believed was their own land

11

then severe civil consequences were perpetrated on

them when deprived of their opportunity to share the

facts and circumstances at the hearing on summary

judgment presenting genuine issues of material fact

to rebut the assertions by respondents. And then, the

criminal trespass charges that held petitioners at bay,

were merely dismissed on February 22, 2022 as they

were baseless, meritless and without foundation.

The Idaho Supreme Court (“ISC”) held7 that

granting a continuance was simply a discretionary

procedural matter for the trial court and since

petitioners violated the 14-day rule, petitioners must

pay the consequences for late filing by having their

7 “The Esslingers challenge the district court’s denial of their

motion to continue the summary judgment hearing, contending

that the invocation of their Fifth Amendment rights precluded

them from submitting material evidence in opposition to the

Basses’ motion for summary judgment. The district court denied

the motion because it was untimely and also because the

Esslingers had failed to provide legal authority supporting their

position.

“The decision to grant or deny a motion for continuance is within

the discretion of the judge.” State v. Payne, 146 Idaho 548, 567,

199 P.3d 123, 142 (2008). The criminal charges were initiated in

November of 2020, and the Essliiigers did not file their motion

until two days before the summary judgment hearing in June

2021. Idaho Rule of Civil Procedure 7(b)(3)(A) requires motions

to be filed at least fourteen days prior to the hearing. The district

court’s decision to deny a continuance on timeliness grounds was

consistent with the time standards set forth in Rule 7. As such,

the Esslingers have failed to demonstrate an abuse of discretion.”

525 P.3d 737, 742.

12

continuance denied and proceed to judgment

without being able to testify with information

that clearly would have provided a genuine issue

of fact for a jury, rather than a judge to decide.

The issue was notice. Were the petitioners

bona fide purchasers for value without notice of

any claim by the respondents. If so, respondents

ownership claims would have failed and their

$107,134.32 damage claim would have been

baseless.

It is ironic that neither the District Court nor

the ISC considered the supremacy of rights a

party faced with double-jeopardy from the

respondents civil and criminal claims. First,

under the US Constitution their right to remain

silent should have been premiere and protected

by both the district and supreme courts; and

second, when the plaintiffs in the civil case were

also prosecuting the criminal charges, the

District Court should have made certain that

those criminal charges were disposed of before

proceeding with any civil remedies, especially

when sanctions were sought, this scenario gives

the appearance of being overbearing and

oppressive conduct, especially when the threat

of treble damages is considered.

Because other states8 have encountered

similar quandaries whether a trial court should

continue civil

8 Ex parte COASTAL TRAINING INSTITUTE (Re Leslie

SAWYER) v. COASTAL TRAINING INSTITUTE, et al.)

13

proceedings with a criminal action pending and

potential self-incrimination, there is a split of

authority that can only be reconciled by the U.S.

Supreme Court.

In Idaho the court of last resort decided an

important federal question in a way that conflicts with

the decision of another state court of last resort.9

CONCLUSION

Certiorari to the Idaho Supreme Court should issue

and the case be reversed and remanded to the trial

court for further proceedings on the motion for

summaiy judgment.

583 So.2d 979, 69 Ed. Law Rep. 644 (Ala. 1991) “It applies alike

to civil and criminal proceedings, wherever the answer might

tend to subject to criminal responsibility him who gives it.

Quoting from McCarthy v. Arndstein, 266 U.S. at 40, 45 S.Ct.

at 17; see also: In Ex parte White, 551 So.2d 923 (Ala.1989),

“[TJhis Court followed Baugh and again held that the privilege

against self-incrimination required that the petitioner's civil

action be stayed until the criminal process against him was

completed. The Court noted that in balancing the interests of the

parties, we must favor the constitutional privilege against self­

incrimination over the interest in avoiding the delay of a civil

proceeding.”

9 Rule 12(b) “...a state court of last resort has decided an impor­

tant federal question in a way that conficts with the decision of

another state court of last resort....” Compare the Idaho Supreme

Court decision with the Alabama Supreme Court decision in

Coastal Training, Id.

14

We declare under penalty of perjury that the

foregoing is true and correct. Executed on

September 13. 2023.

(§)^

Don Esslinger. Pro Se

Jennifer Esslinger, Pro Se