McFeely: Glyndon woman, wrongly convicted over backyard chickens, fought the system and won

After 27-month battle with Clay County, her conviction is overturned by the Minnesota Court of Appeals.
Pam Thesing of rural Glyndon, Minn., holds one of the chickens she keeps on her property. Thesing was convicted in a Clay County court of illegally keeping the animals, but the conviction was overturned by a state appeals court. The court fight lasted more than two years. Mike McFeely / The Forum
Pam Thesing of rural Glyndon, Minn., holds one of the chickens she keeps on her property. Thesing was convicted in a Clay County court of illegally keeping the animals, but the conviction was overturned by a state appeals court. The court fight lasted more than two years. Mike McFeely / The Forum

GLYNDON, Minn. — Pam Thesing sits at the kitchen table in her rural Glyndon home, a three-ring binder thick with 2 1/2 years' worth of legal papers in front of her, and takes more than 30 minutes to explain how Clay County tried to give her jail time for keeping chickens on her 8 1/2 acres of property.

She doesn't sound angry, although she probably has a right to be. She taps the table for emphasis every so often, and Thesing's voice rises when getting into a particularly irksome part of the story. But her tale is more incredulous than anything, and she tells it with a sense of weary frustration rather than fury.

Thesing wants to make clear: She didn't ask for a reporter to make a story out of her fight and is, in fact, wary about the publicity that will come from it. The Forum contacted Thesing after learning of her story from a social media post by a local lawyer who doesn't know Thesing.

In the end, she offers cautionary wisdom spoken from experience.

"It's a flipping mess," Thesing said. "When you get charged in the court system and you don't got money for representation or you don't got the know-how to represent yourself, they nail you to the cross. And that's just not right."

The quick version of Thesing's story, by her account, goes like this: She got into a dispute with neighbors over her backyard chickens, the Clay County Planning and Zoning Office tried to muscle her into getting rid of the chickens, she refused, the county charged her with illegally keeping chickens, her court-appointed public defender tried to convince her to get rid of the chickens, she refused and fired him, the county wouldn't allow her another public defender so she represented herself, county prosecutors tried to convince her to get rid of the chickens, she refused, judges wouldn't listen to her when she tried to explain why the county didn't have a case, a jury convicted her, she was sentenced to 30 days in the county jail, she appealed and a sympathetic state public defender learned of her case and took it up.

On Feb. 4, 27 months and thousands of taxpayer dollars after Thesing's neighbors raised a stink about the dozen or so chickens, the Minnesota Court of Appeals reversed her conviction, saying that Clay County charged her with a crime that doesn't exist. Judge Diane Bratvold wrote in her decision that the county criminally charged Thesing under a development code definition and that even under that definition, Thesing's property is excluded.

With the reversal, Bratvold wrote that she didn't need to rule on whether Thesing validly waived her right to counsel, but Bratvold said Clay County did not adequately make clear "the nature of her charges, her rights, or even the punishment that it could entail." In other words, Bratvold believed the county violated Thesing's constitutional right to representation.

"I loved this case, and I was horrified by it," said state public defender Veronica Surges, who filed the appellate court brief on behalf of Thesing. "I'm proud of her, but this was the first time in my life that I had somebody convicted of a law that doesn't exist. That is scary."

Thesing said she is considering a civil suit against the county.

Thesing and her husband Jim bought property and a small home east of Glyndon, not far from U.S. Highway 10, in 1992. She's kept chickens ever since, putting up fencing around a 1-acre parcel that is adjacent to a separate 7 1/2-acre parcel. She said all was fine until the fall of 2016, when one of her neighbors tried to sic his dog on a chicken that had apparently gotten over the fence and onto his property. Thesing admits she had an animated discussion with the neighbor.

Assistant Clay County Attorney Pam Foss remembers the genesis of the case differently, saying there had been "overwhelming outcry" from neighbors over the chickens. Foss said she advised against taking the case to trial, but said Assistant County Attorney Jenny Samarjza forged ahead with Thesing's case "because there had been a lot of complaints about the chickens."

Samarjza, who no longer works for Clay County and is an assistant professor at the University of North Dakota, disputes Foss' characterization and said she took over Thesing's file "a day or two" before the trial began. Samarjza agreed with Foss that complaints about the chickens were an ongoing issue and that the planning and zoning commission had heard from Thesing's neighbors many times.

"I was not advised on that case. That is not accurate. I was not hellbent on bringing the charges," Samarjza said. "It was just another case that landed on my desk, and I dealt with it."

Thesing said two days after the dispute with her neighbor, she received a letter from Clay County Planning and Zoning Director Tim Magnusson, stating she had to get rid of her chickens. She didn't remove the chickens and continued to receive letters from Magnusson, saying that she was in violation of the development code and needed to move the chickens.

Magnusson cited Section 8-3-15 of the county's development code, which outlines provisions for keeping animals on residential parcels, in pressuring Thesing to remove the chickens. Subpart A of that section defines a residential parcel: "(A) parcel of land that meets the criteria set forth either in Minnesota Statute 273.12, as amended, or by the Clay County Assessor for classification as 'residential' (Class 1) for property taxation purposes. This definition does not apply to parcels in legally platted subdivisions."

Subpart B goes on to list provisions for keeping animals on residential parcels.

On June 29, 2017, Thesing was charged in Clay County District Court with violating subpart A of Section 8-3-15.

The problem for the county was that subpart A isn't an ordinance. It is literally the definition of a residential piece of property.

It should also be noted, as Bratvold did in overturning the conviction, that Thesing lives in a legally platted subdivision, which is explicitly excluded from the definition.

"All this would have been fine if there was an ordinance that fit the situation, but there was not," Surges said. "She was charged with a definition. There's no crime. It's a definition. And nowhere, by the way, does it say she can't have chickens. If you read the transcripts, Ms. Thesing kept saying this. She was right."

Thesing, indeed, said that from the start of court proceedings she tried to tell her appointed public defender, judges and prosecutors that she wasn't clear why she was being charged because she wasn't violating the section of code Magnusson said she was.

"From the very beginning I couldn't explain my situation to anybody. This could've been dropped from the very beginning, but nobody would let me explain," Thesing said. "Every time I tried to speak, they'd just shut me down."

Five different Clay County judges were involved in Thesing's case: Peter Irvine, Galen Vaa, Michael Fritz, Tammy Merkins and Amber Gustafson.

Thesing said she indicated she wanted a different public defender, but was ignored. So she went home and studied online, watched YouTube videos and prepared the best she could. Even when she showed willingness to plea, Thesing said county prosecutors would insist the only condition they'd agree to was that she get rid of the chickens.

"For the first year, I didn't have any support. Even my family was saying, 'Is it worth it? Are the chickens worth it?'" Thesing said.

Thesing made three motions to dismiss, which the court denied. A jury trial was set for July 10, 2018, with Thesing representing herself, Samarjza acting as prosecutor and Gustafson presiding. Thesing objected to jury instructions, continually arguing that the statute being cited did not prohibit any behavior and didn't apply to her. Gustafson overruled. Thesing argued in closing, over sustained objection from Samarjza, that the definition of a residential parcel did not prohibit her from having chickens.

A transcript of the trial shows that Gustafson, even though she overruled Thesing's objection during jury instructions, had questioned the validity of the charge.

"... the name of the charge and the description, as well as the subpart that's referenced, don't seem to align as currently listed in the complaint," Gustafson said, according to court documents.

Samarjza responded by arguing that "uses of your property are not allowed unless they are specifically allowed."

The jury found Thesing guilty, and she was sentenced to 30 days in jail, with all 30 days stayed if she removed the chickens from her property within 90 days.

Thesing began the appeals process shortly afterward, again representing herself impressively. For example, she obtained transcripts by filing affidavits for proceeding in forma pauperis. She eventually requested a public defender from the state, and Surges took over the case in October.

Surges' appeals court brief opens with a line from "It's Always Sunny in Philadelphia," a television comedy: "It's just that bird law in this country — it's not governed by reason."

In an interview, she also used a line from an insurance commercial to describe how Clay County handled Thesing's case: "That's not how this works. That's not how any of this works."

"This is one of my favorite cases. I loved it and was honored to do it. I mean, it involves chickens so it's funny," Surges said. "At the same time, it's not funny. It's disconcerting to see how the wheels of justice begin rolling, and they just don't stop even if they should. This was a misdemeanor, and she was sentenced to 30 days. She had jail time coming over chickens in her yard. What if it was somebody who was wrongly charged with a felony? Even after I got involved, the machine just kept plowing forward."

The chickens are still in Thesing's yard, spending the winter in a heated coop. Thesing gets a handful of eggs from them each. Every once in awhile, she said, she'll eat a chicken. She said she's heard nothing from her neighbors about the birds since the court battle started.

There is a conspiratorial tone to some of what Thesing says. She believes the county and some of her neighbors hold a grudge against her going back years, partially stemming from other disputes. Thesing said she's ready to "go off the grid" after the fight, but said the county will probably harass her if she tries to build an earth lodge in which to stay "to get away from the electronics and online."

"I have disabilities and I wasn't sleeping at night, they doubled my blood pressure medicine, they doubled my depression medicine. It was a battle emotionally, physically, spiritually, everything," Thesing said. "It was the craziest thing I ever went through."