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The owners of the Calumet Inn have lost an appeal of an earlier decision in favor of the city of Pipestone and former building and zoning official Doug Fortune. They plan to appeal the ruling to the United States Supreme Court. Photo by Kyle Kuphal
Owners say they plan to appeal the ruling to the United States Supreme Court
The owners of the Calumet Inn plan to take their case to the United States Supreme Court after the United States Court of Appeals for the Eighth Circuit recently affirmed a United States District Court decision in favor of the city of Pipestone and the city’s former building and zoning official, Doug Fortune.
“We’re asking the Supreme Court to ensure that no official can destroy a business with falsehoods and then claim immunity from accountability,” Grubbs said.
Grubbs and Vanda Smrkovski sued the city and Fortune in 2022 alleging that the city and Fortune violated their due process rights under the 14th Amendment to the U.S. Constitution and violated their Fifth Amendment rights by preventing them from using or occupying the Calumet Inn when the city condemned the property and ordered it to be closed from March 10, 2020 to April 30, 2020. In December of 2024, a United States District Court judge granted a motion for summary judgment by the city of Pipestone and Fortune, and dismissed all counts in the complaint. Then in April of 2025, Grubbs and Smrkovski appealed that decision, arguing in a 66-page document filed by their attorney Gregory Erickson that the district court erred in its conclusions and analysis, and that the city and Fortune did violate their rights.
The judgment from the Eighth Circuit Court of Appeals filed Dec. Dec. 23
indicates that “it is hereby ordered and adjudged that the judgment of the district court in this case is affirmed in accordance with the opinion of this court.”
According to an opinion filed Dec. 23 by Chief Judge Steven Colloton, Circuit Judge James Loken and Circuit Judge Duane Benton, the Appeals Court judges found that the Calumet Inn had a “history of disrepair causing safety risks.” It references a window that fell off the building in 2017, a stone that fell from it in 2018 and fire code violations found in 2019.
The opinion indicates that the “owners still fail to show an unconstitutional deprivation of their procedural due process rights” and that the risk of deprivation of the owners’ property rights was low because the regulations authorizing the closure were specific and provided for adequate post-deprivation due process.
“As District Court correctly noted, the Inn owners had at least three avenues to appeal the closure order: the City Council, the State Building Code Appeals Board, and certiorari review,” wrote Judge Benton.
In addition, it was the Appeals Court’s opinion that the city and Fortune had a substantial interest in protecting public health and safety and that “providing additional pre-deprivation process would have imposed an untenable burden on them.”
The judges also found that Fortune was entitled to qualified immunity. It was the judges’ opinion that Fortune’s temporary closure of the Calumet Inn did not amount to a regulatory taking under the Fifth Amendment, noting that “a lawful exercise of a state’s police power to regulate in the interest of public health and safety is generally not taking.”
“Here, Fortune, acting under Minnesota State Building Code, closed the Inn to preserve public health and safety,” Benton wrote. “The Inn owners may have been entitled to operate their retail business in the ordinary course, but they were not entitled to be free from temporary enforcement targeting well-documented safety deficiencies.”
The Calumet Inn has been closed since May of 2022. Grubbs said she plans to continue maintaining the property as well as possible, retain ownership and eventually reopen it.