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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