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CASE TITLE: State ofMinriesota.
Petitioner,
vs.
Freeman Algot Wicklund, Althea Ruth Jean Schaffer, Peter Benson
Eckholdt, Alissa Ifetayo Eggert,
Respondents.
STATE OF MINNESOTA IN SUPREME COURT
PETITION FOR REVIEW OF DECISION OF COURT OF APPEALS
Appellate Court Case No. C7-97-1381
Date of Filing of Court of Appeals Decision: September 3,
1997.
TO: The Supreme Court of the State of Minnesota:
The petitioner, State of Minnesota, requests Supreme Court
review of the above-entitled
decision of the Court of Appeals and in support thereof
states:
I. Petitioner is represented by Sandra Henkels Johnson,
Associate Bloomington
City Attorney, 2215 West Old Shakopee Road, Bloomington, MN
55431, (612) 948-8753.
Respondents are represented by Larry B. Leventhal, Esq., 529
South 7th Street, #420,
Minneapolis, MN 55415, (612) 333-5747. State Attorney General,
102 State Capitol, St. Paul,
l\l1N 55155, (612) 296-6196. Amicus Curiae Mall of America is
represented by John M. Sheran,
Esq., 150 South 5th Street, Minneapolis, MN 55402, (612)
335-1500. Amicus Curiae MCLU is
represented by Kathleen Milner, Esq., 1021 West Broadway,
Minneapolis, MN 55411, (612)
522-3894.
2. The decision of the Court of Appeals of which Petitioner
seeks review was filed
on September 3, 1997. The appeal was from a pretrial order of
the Honorable Jack Nordby,
Judge of Hennepin County District Court, Fourth Judicial
District, involving the offense of
Trespass in violation of Minn. Stat. Sec. 609.605, entered on
July 24, 1997.
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3. The legal issues presented for review and their resolution
below are as follows: a.) Whether the trial court's ruling that
individuals have a right under the Minnesota
Constitution, Article I, Section 3, to exercise the same rights
of free expression at the Mall of
America as they would at any traditional public forum, subject
only to reasonable time, place and
manner restrictions, is clearly erroneous and has a critical
impact on a trespass prosecution
situated at the Mall of America?
Court of Appeals held: NO.
b.) Whether the Minnesota Constitution confers free speech
rights beyond those
guaranteed under First Amendment to the United States
Constitution?
Trial Court: Yes.
Court of Appeals : No decision, appeal dismissed upon
determination that State failed to
demonstrate threshold requirement for review, critical
impact.
c.) Whether Article I, Section 3 of the Minnesota Constitution
constrains private
conduct in the same manner as it constrains the actions of
government?
Trial Court: Yes.
Court of Appeals: No decision, appeal dismissed upon
determination that State failed to
demonstrate threshold requirement for review, critical
impact.
d.) Whether public financing of the infrastructure supporting a
private development,
under the circumstances presented here, transforms the private
owner into a "state actor" and
transforms the otherwise private property into "public" property
for the purposes of Article I,
Section 3, of the Minnesota Constitution?
Trial Court: Yes. Court of Appeals: No decision, appeal
dismissed upon determination that State failed to
demonstrate threshold requirement for review, critical
impact.
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4. The procedural history of this case is as follows:
a.) At the July 31, 1996, preliminary conference Judge Nordby
joined these matters for
trial and Defendants made a motion for dismissal of the trespass
charges on the basis that
their actions were protected by the First Amendment to the
United States Constitution.
b.) On December 12, 1996, Judge Nordby iss~ed an order declining
to decide the
defendants' motion on the record thus far developed and
expanding that motion sua
sponte to encompass Article I, Sections 3 and 16 of the
Minnesota Constitution.
c.) In April, 1997, Judge Nordby granted leave to the MCLU and
the Mall of America to
participate as Amica Curiae and invited a third round of
Memoranda.
d.) On June 2 -3, 1997, as part of the pretrial conference,
Defendants waived ajury and
stipulated to all the elements of the charge of trespass, except
"claim of right". Both
parties agreed that the evidence presented on Defendants' motion
would not be repeated,
but simply re-submitted when the trial phase occurred.
e.) On July 24, 1997, Judge Nordby ruled that the Mall of
America's common areas and
corridors are, under the Minnesota Constitution, as public as
any government grounds
and that Defendants' right of access thereto was subject only to
those reasonable time,
place and manner restrictions as any government entity would be
entitled to impose, but
denied Defendants' motion to dismiss on the basis that they
failed to request permission
from the Mall of America to demonstrate and the record was
inadequate to establish
whether Defendants would have been granted permission.
f.) On July 30, 1997, the State filed its Notice of Appeal to
the Court of Appeals
pursuant to Rule 28.04, subd. 1(1), Minn.R.Crim.P ..
g.) On August 8, I 997, the Court of Appeals issued an Order
requiring the parties to
submit informal memoranda addressing whether appellant could
make a pr~liminary
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showing that the trial court's order would have a critical
impact on its ability to
successfully prosecute. Memoranda were submitted Augtist 18,
1997.
h.) On September 3, 1997, the Court of Appeals issued its Order
dismissing the State's
appeal based upon its finding that the State failed to
demonstrate that the trial court's
order, unless reversed, will have a critical impact on the
outcome of the prosecution. It
also held that the defendants enjoy a due process right to
testify as to their "claim of
right" in protesting at the Mall of America.
i.) On September 15, 1997, appearances were made before Judge
Nordby. To clarify the
procedural posture of the case, the State made a motion for an
adjudication of guilt as to
each defendant premised upon its position that the record was
closed only to be re-
submitted to the Court at the adjudicatory phase and that
Defendants were now
foreclosed from re-litigating the constitutional issue. Defense
counsel opposed the
motion arguing their entitlement to elaborate upon Defendants'
Constitutional "claim of
right" at trial, including evidence that there was no mechanism
by which they might
have been given permission to demonstrate at the Mall of America
and that it was
reasonable for them to believe that any such request would have
been futile. The trial
court took the motion under advisement and granted a stay in the
commencement of trial
pending this appeal. A tentative trial date of October 20, 1997,
was set.
5. The facts which give rise to this request for discretionary
review are as follows:
On May 16, 1996, Defendants were charged with trespass after
refusing to leave the
Mall of America upon the request of its security officers.
Defendants jointly made an oral,
pretrial motion to dismiss the charges against them, on the
basis that their actions were protected
by the First Amendment to the United States Constitution. Judge
Nordby expanded that motion,
sua sponte to encompass Article I, Section 3 and Article I,
Section 16 of the Minne~ota.
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Constitution. The trial court thereafter ruled that "the Mall of
America's common areas and
.~. corridors are, under the Minnesota Constitution, as public
as any government grounds" because
portions of its supporting infrastructure received public
financing, but denied Defendants'
motion to dismiss, on the record thus far developed, because the
court could not determine
whether or not the Mall of America would have granted them
permission to demonstrate. After
the State filed its Notice of Appeal to the Court of Appeals in
this case, that Court required a
preliminary, threshold showing of the trial court order's
critical impact on the prosecution. It
thereafter issued its Order dismissing the State's appeal based
upon an ultimate, rather than
preliminary, determination of critical impact. The Order
included a ruling that the defendants
enjoy a due process right to testify as to their "claim of
right" in protesting.
6. The reasons why the Supreme Court should exercise its
discretion to review this case are as follows:
a.) The Lower Courts Have So Far Departed From the Accepted
& Usual Course of Justice That an Exercise of the Supreme
Court's Supervisory Powers fs Necessary:
(i.) The Court of Appeals:
fn making an ultimate, rather than preliminary determination of
"critical impact'' the
Court of Appeals misapplied the procedure set forth in State v.
Joon Kyu Kim, supra at 550,
whereby it may request a threshold showing of "critical impact"
prior to briefing. Moreover, the
Court of Appeals too strictly applied the critical impact
standard in this case looking for a
completely destructive impact rather than one that simply so
disables the prosecution as to
"significantly reduce the likelihood of a successful
prosecution". State v. Ronnebaum, 449
N.W.2d 722, 724 (Minn. 1990). This is not a case where the clear
error of the trial court has but a
speculative impact on the likelihood of a successful
prosecution. Here, but for the court's
pretrial order, all of the elements of trespass had been
stipulated to, including that Defendants
did not have title to the property, which is privately owned, or
have permission froqi the~owner
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to remam; they have no other form of "claim of right" but that
bestowed upon them by the first
sixty pages of the trial court's order.
Second, the Court of Appeals premises its dismissal of the
State's appeal herein, upon
an erroneous interpretation of the holding and ramifications of
State v. Brechon, 352 N.W.2d
745 (Minn. 1984). The Court of Appeals by holding that, "[t]he
state has not shown that [July
24, 1997] order will affect the admission of evidence on behalf
of respondents, who enjoy in any
event a due process right to testify as to their 'claim of
right' in protesting at the Mall of
America", mistakenly equates the defendants' due process right
to "explain their conduct'' at
trial with their right to rebut the State's prima facie showing
of the absence of"claim of right''.
The import of this second ruling is significant in that
according to the Court of Appeals, the trial
court's order creating a constitutional claim of right where
none previously existed has no
critical impact because Defendants always had the right to argue
such a constitutional claim at
trial. The Court in Brechon held that subjective reasons for
remaining on the property not related
to an actual property right are not relevant to "claim of
right". Id at 750. But for the trial court's
order, no such constitutional, property right to remain existed
and hence, their 'free speech'
reasons for remaining on the property would not have been
relevant to "claim of right".
It is not necessary to speculate as to the district court's
evidentiary rulings at trial to
recognize the critical impact of its ruling that the Mall of
America is a public forum. The court
limited its denial of the defendants' motion to dismiss to the
record thus far developed and the
context of their motion where they bore the burden of proof. As
soon as this case enters the trial
phase where the burden of proof is on the State, to successfully
raise a "claim of right" defense
to trespass all Defendants need do to rebut the State's prim a
facie showing that they had no
"claim of right" to remain on the property over the expressed
objection of its owner is to present
testimony that they held the reasonable belief that their
constitutional right to free speech gave
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them a right to remain on this previously dermed public forum
and that it would have been futile
to request pennission from the property owner.
(ii) The Trial Court:
The trial court fashioned its unprecedented determination that
Article I, Section 3, of the
Minnesota Constitution confers rights to engage in expressive
activity beyond those already
guaranteed by the First Amendment to the United States
Constitution in both scope and
application (allowing the defense where the forum was clearly
private and the restriction on
expressive conduct imposed by an entirely private actor) after
first raising this issue sua sponte.
Such far reaching, unprecedented interpretations of
constitutional law must be left to the
Minnesota Supreme Court. In State v. Scholberg, 412 N.W.2d 339
(Minn.App. 1987), wherein
abortion protesters refusing to leave a private sidewalk raised
a "free speech" defense to the
prosecution and on appeal to the Minnesota Court of Appeals
urged it "to interpret the
Minnesota Constitution to protect their expressive activities on
private property", the Court
declined this invitation recognizing that, as an intermediate
court of appeals, its "function is not
to adopt constitutional principles more expansive under the
Minnesota Constitution than under
the United States Constitution" noting that, "such decisions are
more properly left to the
Minnesota Supreme Court." Id at 343-44.
While the Minnesota Supreme Court has yet to address the issue
of whether. the
Minnesota free speech guarantee extends to private property, it
has consistently rejected the notion that the free speech guarantee
of the Minnesota Constitution is any broader than the First
Amendment of the federal constitution in the areas of obscenity,
commercial speech and freedom
of the press. See, State v. Davidson, 481N.W.2d51 (Minn. 1992);
Knudtson v. City of Coates,
519 N.W.2d 166 (Minn. 1994); State by Humphrey v. Casino
Marketing Group, Inc., 491
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N.W.2d 882 (Minn. 1992), cert. denied, 507 U.S. 1006 (1993);
State v. Turner, 550 N.W.2d 622
(Minn. 1996); Cohen v. Cowles Media Co., 479 N.W.2d 387 (Minn.
1992).
The Scholberg court's conclusion that Minnesota has not
recognized more expansive
free speech rights under its own constitution than are found in
the.federal Constitution in this
context should have been binding precedent on the trial court
herein. See, Matter of Hague, 315
N.W.2d 524, 552 (Mich. 1982) (holding that a trial court judge
is bound by the decision of the
Court of Appeals "until another panel of the Court of Appeals or
[the Supreme] Court rules
otherwise, whether he agrees with the decision or not''); CODE
OF ruDICIAL CONDUCT,
Canon 3(A)(2) ("a judge shall be faithful to the law").
b.) A Decision bv the Supreme Court Wm Help Clarify the Legal
Issues Herein Which Have Possible Statewide Impact and Are Likely
to Recur:
The statewide impact of the Court of Appeals decision is
abundantly clear. In
potentially all State's appeals of a pretrial order, the Court
of Appeals' use of the "critical
impact" standard of review as a jurisdictional prerequisite
without ever reaching the merits of the
case severely restricts the State's right to appeal. Where the
pretrial order goes beyond the mere
suppression of evidence such that its impact on the State's case
cannot simply be measured in
terms of the quantity of evidence remaining, use of the
"critical impact" standard in this manner
virtually forecloses that right of appeal. For in such cases, it
will almost always be necessary to
examine the substance of the issues being appealed to recognize
the impact of the pretrial order
on the prosecution.
In State v. Joon Kyu Kim. 398 N. W.2d 544 (Minn. 1987), the
court, concerned about the
Court of Appeals' overly strict application of the critical
impact rule, clarified that critical impact
is shown not only in those cases where the pretrial order
completely destroys the state's case, but
also in those cases where its impact "significantly reduces the
likelihood of a succes
prosecution." Id at 5 51. Here, the Court of Appeals use of the
critical impact rul as a
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gatekeeper virtually defeats the State's right to appeal
non-suppression pretrial orders and hence,
hinders the proper development and harmonization of the criminal
law by allowing erroneous
trial court rulings on significant issues with far reaching
ramifications, such as are found in this
case, to stand without appellate court review.
In this case, the order of the trial court virtually eliminates
the State's ability to prove an
essential element of the crime of trespass, to wit: the absence
of a claim of right on the part of
the defendants to remain on the property. The trial court,
rather by its ordert creates a
constitutionally based "claim of right" for the defendant so
potent that it can withstand even the
clearly articulated order of the property owner to depart the
premises. It is a decision admittedly
not based on precedent and its source is not obvious from the
plain text of our constitution.
However, it implications are immense for it transforms otherwise
private property (imbued with
no governmental immunities) into public property for the purpose
of the constitution whenever
the unw~ted intruder can articulate some expressive quality to
their continued presence and the
private property received public financing of its supportive
infrastructure. This decision has led
to a great deal of confusion for both property owners and
demonstrators alike, as is evident in the
eight new trespass pr~secutions wherein the defendants all claim
to have been exercising their
constitutional rights at this newly proclaimed "public forum",
the Mall of America.
c.) Important Issues Are Presented Bv This Case Which Should Be
Ruled Upon Bv the Supreme Court:
The trial court's ruling establishes, in the context of a
trespass prosecution, a new form
of "claim ofright" argument premised on Article I, Section 3, of
the Minnesota Constitution,
empowering individuals to remain on the private property of
another over the owner's objection
where the intruder can attribute an expressive quality to their
continued, unwanted presence and
show that the private property at issue received public
financing of its supportive infras~cture.
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The decision has a clear critical impact OQ the present
prosecution, as well as future
prosecutions for trespass at the Mall of America and other
private developments receiving public
financing. The absence of "claim of right" on the part of the
defendant is an element which the
State must prove beyond a reasonable doubt. Once it presents
evidence from which it is
reasonable to infer that the defendant has no legal claim of
right to be present, the burden shifts.
However, all a defendant need demonstrate is an objectively
reasonable belief that he or she has
a legal right to remain on the property. State v. Brechon, 352
N.W.2d 745, 750 (Minn. 1984).
These defendants have already testified that they remained on
the property to engage in free
expression and should be exempt from prosecution. The trial
court's order transforms this
subjective reasoning into a heretofore unrecognized
constitutionally based property right which
is likely to overcome the State's prima facie showing of the
absence of any claim of right,
Moreover, unless clarified by the Supreme Court, the trial
court's order may arguably
create such a constitutional "claim of right" for any
demonstrator or protester where the private
property received public financing of infrastructure.
7. An appendix containing the written decision of the Court of
Appeals, the Memoranda on
Critical Impact and the trial court's Finding of Fact,
Conclusions of Law and Memorandum is
attached.
Dated: o
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INDEX TO APPENDIX
1. Court of Appeals Order dated 912191 . . . . . . . . . . . . .
. . . . . . . . . . . . . . . A-1
2. Appellant's Memorandum On Critical Impact And Appendix . . .
. . . . . A-3
3. Respondents' Informal Memorandum And Appendix . . . . . . . .
. . . . . . . A-106
4. Court of Appeals Order dated 8/8/97 . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . A-126
5. District Court Order on Motion to Dismiss dated 7/24/97 . . .
. . . . . . . . . A-134
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STATE OF MINNESOTA COUNTY OF HENNEPIN
CASE TITLE:
State of Minnesota, Appellant,
vs.
Freeman Algot Wicklund, Althea Ruth Jean Schaffer, Peter Benson
Eckholdt, Alissa Ifetayo Eggert,
Respondents.
TO: Clerk of Appellate Courts Minnesota Judicial Center St.
Paul, Minnesota 55155
DISTRICT COURT FOURTH JUDICIAL DISTRICT
NOTICE OF APPEAL TO COURT OF APPEALS
TRIAL COURT CASE # 96042987 96043228, 96044022, 96043061
DATE OF ORDER: July 24, 1997 OR
DATE JUDGMENT ENTERED:
Please take notice that the above-named plaintiff appeals to the
Court of Appeals
of the State of Minnesota from an order of the court filed on
the date shown, ruling on
defendants' motion for dismissal.
Named Attorney for Plaintiff: SANDRA HENKELS JOHNSON Associate
Bloomington City Attorney 2215 West Old Shakopee Road Bloomington,
Minnesota 55431 (612) 948-8753 Attorney Reg. No. 120649
Named Attorney for Defendant: LARRY B. LEVENTHAL Larry B.
Leventhal & Associates Suite 420, Sexton Building 529 South 7th
Street Minneapolis, Minnesota 55415 (612) 333-5747 Attorney Reg.
No. 62534
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State Attorney General: Hubert H. Humphrey, III Attorney General
of the State of Minnesota 102 State Capitol St. Paul, Minnesota
55155 (612) 296-6196
Attorney for Amicus Curiae Mall of America John M. Sheran, Esq.
Leonard, Street & Deinard, P.A. 150 South 5th Street
Minneapolis, Minnesota 55402 (612)335-1500 . Attorney Reg. No.
100195
Attorney for Amicus Curiae MCL U Kathleen Milner, Esq. Minnesota
Civil Liberties Union 1021 West Broadway Minneapolis, Minnesota
55411 (612) 522-3894 Attorney Reg. No. 239872