STATE OF MINNESOTA IN COURT OF APPEALS

State of Minnesota,

Appellant,

vs.

Freeman Algot Wicklund, Althea Ruth Jean Schaffer, Peter Benson Eckholdt, Alissa Ifetayo Eggert,

Respondents.

TO: Clerk of Appellate Courts 25 Constitution A venue Minnesota Judicial Center St. Paul, Minnesota 55155

Clerk of District Court Fourth Judicial District - Division IV 7009 York Avenue Edina, Minnesota 55435 (612) 830-4877

John M. Sheran Leonard, Street & Deinard, P.A. 150 South Fifth Street, #2300 Minneapolis, Minnesota 55402 Telephone: (612) 335-1500 Attorney for Amicus Curiae Mall of America

APPELLANT'S MEMORANDUM ON CRITICAL IMP ACT AND APPENDIX

APPELLATE COURT CASE NUMBER: C7-97-1381

Hubert H. Humphrey III Attorney General 102 Capitol Building Aurora A venue St. Paul, Minnesota 55155 Telephone: (612) 296-6196 State Attorney General

Larry B. Leventhal Suite 420 - Sexton Building 529 South 7th Street Minneapolis, Minnesota 55415 Telephone: (612) 333-5747 Attorney for Defendants

Kathleen Milner 1021 West Broadway Minneapolis, Minnesota 55411 Telephone: (612) 522-3894 Attorney for Amicus Curiae Minnesota Civil Liberties Union

I. LEGAL ISSUE

Can appellant make a preliminary showing that the July 24, 1997, order of the Honorable Jack S. Nordby will have a critical impact on appellant's ability to prosecute respondents suc~essfully?

II. SUMMARY OF THE ARGUMENT

The critical impact of Judge Nordby's July 24, 1997, Order goes directly to the

State's ability to prove an essential element of the trespass charge against the defendants,

i.e., that they remained on the property without a claim of right. But for the trial court's

order, controlling authority in Minnesota held that individuals could not conduct

demonstrations on private property without the consent of the owner. See, State v.

Scholberg, 412 N.W.2d 339, 344 (Minn. App. 1986), rev. denied Dec. 23, 1986. Now,

based upon the trial court's unprecedented constitutional rulings, Respondents have a

claim that they had a constitutional right to remain on the premises to engage in free

expression. Given the equivocal language of the court's order, it is apparent that they are

not foreclosed from presenting this argument at trial. Indeed, counsel for Respondents has

publicly and privately indicated that this is precisely their strategy. Because the

evidentiary phase of this case is not closed and Respondents are not precluded from

premising a claim of right defense on the court's rulings, the critical impact of those

constitutional rulings on the State's ability to successfully prosecute is clear.

III. SUMMARY OF THE CASE

A. Procedural History

This case involves four prosecutions for misdemeanor trespass under Minnesota

Statutes Section 609.605, subd. l(b)(3), consolidated for purposes of trial pursuant to

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Rule 17.03 of the Minnesota Rules of Criminal Procedure. The charges are based upon

Respondents' May 16, 1996, refusal to leave the Mall of America when ordered to do so

by authorized agents of its private owner. Currently before the Court is a consolidated

appeal taken by the State pursuant to Rule 28.04, subd. 1(1), Minn. R. Crim. P., from the

pretrial order of the trial court entered on July 24, 1997.

At the July 31, 1996, preliminary conference in these cases the defense made an

oral motion for dismissal of the criminal trespass charges on the basis that the actions

herein at issue were protected by the First Amendment to the United States Constitution.

On December 12, 1996, Judge Nordby issued an order declining to decide the

issue on the record thus far developed and raising, sua sponte, two legal issues on behalf

of the defense claim of constitutionally protected activity, to wit: Whether or not the

Minnesota constitution's language regarding freedom of the press, Article I, Section 3,

would protect the activity at issue; Second, whether the "freedom of conscience" clause

in Article I, Section 16, of the Minnesota constitution might provide a safe harbor. Judge

Nordby held the motion to dismiss open and invited a second round of legal memoranda

on these new issues raised by the court. The State argued that neither the United States

Constitution nor the Minnesota Constitution provided an effective shield barring this

prosecution given the private nature of the property and the lack of state action.

On June 2 - 4, 1997, testimony was taken on the motion to dismiss.

On July 24, 1997, Judge Nordby issued his order denying the motion on the basis

of the record thus far developed but holding that the Mall of America's common areas

and corridors are for Constitutional purposes as public as any government grounds,

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subject only to such reasonable restrictions on time, place and manner of expression as

any government agency would be entitled to impose. He premised this holding on the

unprecedented declaration that the Minnesota Constitution's free speech provision is

broader than the First Amendment of the United States Constitution.

Trial scheduled on September 15, 1997, in front of Judge Nordby.

On August 7, 1997, defense counsel informed the State of its intent to prove at

trial: the futility of the application process at the Mall of America for private expressive

activity such as that herein at issue; that the restrictions in place at the Mall of America

exceed tolerable constitutional limits; and, hence based upon the court's earlier

declaration that the Mall of America is public property, that Respondents had a claim of

right to remain on the premises. [Affidavit of Sandra H. Johnson.]

B. Factual Background

All of the basic elements of criminal trespass, except as to "claim of right", have

been stipulated to by the parties. Respondents agree that they were in front of the Macy's

store at the Mall of America in Bloomington, Hennepin County, Minnesota, that some of

their conduct violated the Mall of America's private rules of conduct, that they were

informed of this and given the following options: a.) remaining on the property but

abiding by the rules; b.) taking their demonstration to the public sidewalk area; or c.)

being arrested for criminal trespass. Each of them chose to be arrested, refusing to either

leave or abide by the rules of conduct. [Stipulation of Facts, page A-22.]

The district court, for purposes of the defense motion, found that the Mall of

America permits some persons and groups to use its common areas to express their views

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but that the policy regulating this is "not clearly defined or consistently implemented, so

far as appears from the record." [Trial Court Order, page 4.] It went on to find that

Respondents failed to apply for permission to conduct their demonstration and that

limited permission might have been granted. [Id, at 4-5.] The court further found that

the Mall of America's policy of relegating protesters to the public sidewalks violates the

Constitution by being overly restrictive. [Id, at 61]. It also held that:

Because the record does not adequately establish that these defendants

would not have been given permission to demonstrate, subject only to

Constitutionally tolerable restrictions, .. .it cannot be said for purposes

of this motion, that enforcement of the trespassing law against them

violates their Constitutional rights. [Id, at 61 -62, emphasis added.]

Thus, although the Minnesota Constitution, as interpreted by Judge Nordby,

provides individuals, including Respondents, with a constitutional right to enter the Mall

of America to exercise free speech, subject only to "Constitutionally tolerable

restrictions," Judge Nordby could not determine as a matter of law, given the current

state of the record and for purposes of this motion, that enforcement of the trespass

charges here would violate Respondents' constitutionally protected right to the property.

Judge Nordby did not decide whether the Mall of America's policy regarding free speech

fell within constitutionally permissible standards, such that a person violating the private

rules of conduct of the Mall of America could "be told to cease," but he "suspect[ed]"

that it did not. [Id. at 60.] Hence, a determinative ruling on whether the prosecution of

these charges offends the Minnesota Constitution has been deferred to that point in the

proceedings where jeopardy attaches and the decision becomes unappealable by the State.

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Respondents have seized upon the equivocal nature of the trial court's order to

express confidently and publicly that they will be acquitted. [Statement of Larry

Leventhal, Minnesota Public Radio broadcast of August 4, 1997, page A-81.] Indeed, at

trial the defense will show that while the Mall of America has allowed some limited

private use of its common space area, it does not have a mechanism for accommodating

free expression of the sort contemplated here within its confines and that it was

reasonable for Respondents to conclude at the outset that seeking permission would have

been futile. [Affidavit of Sandra H. Johnson.] The evidence at the hearing on the motion

revealed that the only means by which these protesters could possibly have

communicated their views would have been at the highly restrictive WCCO community

booth. [Mall of America Community Booth guidelines, page A-39.]

In discussing the procedural posture of the case, Respondents have stated:

Now, on the factual issues, which are normally reserved for trial, he [Judge Nordby] said that it had not been established that the Mall would have refused permission and thus it is not established that the trespass charges should be dismissed on the record that was there. Once we get to trial, then it would be the burden of the State to show beyond a reasonable doubt that every circumstance leading to a guilty charge would be established, including that the Mall would not have given permission--they won't be able to show this, and we're awaiting trial, which is now set for September 15th. [Statement of Larry Leventhal, MPR broadcast of August 4, 1997, pg. A-71 -72.]

IV. ANALYSIS

The critical impact of the July 24, 1997, pretrial order goes directly to the

State's ability to prove an essential element of the trespass charges against

Respondents at trial, i.e., that they were on the property without a claim of right.

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There is no doubt that the sixty pages preceding the court's two page basis for

denial of the motion is more than mere dicta. Rather it establishes an effective "claim of

right" defense to the trespass charges deliberately reserved for trial whereupon jeopardy

attaches and the prosecution is precluded from appeal.

Based on the trial court's constitutional rulings, Respondents have a viable

argument that that they had a constitutional claim of right to enter and remain on the

property of the Mall of America to express their views, even after they were told to leave

by an authorized agent of the private owner. Given Judge Nordby's wording of his order,

wherein he bases his denial of the motion on the record thus far established and limits it

to the context of the motion to dismiss wherein the Respondents bore the burden of proof,

it is clear that Respondents are not precluded, but rather invited, to re-assert this defense

at trial. [Trial court order, pg. 61-62; Affidavit of Sandra H. Johnson.]

The district court order erects its hangman's scaffolding for the case of the

prosecution by setting forth the premise that the Mall of America is as public as any

government property where free expression must be allowed subject only to reasonable

time, place and manner restrictions. Adding to that the notion that the Mall of America's

directives to the defendants that they take their expressive activity to the public sidewalk

violates the Constitution by being overly restrictive, the platform is built. With the

finding that the Mall of America's current application process for expressive activity

within the confines of the mall is unclear and inconsistently applied the hangman's noose

is formed. That the court denied defendants' motion, where they bear the burden of

proof, finding that there was insufficient evidence of the futility of the application process

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does not save the day. The "claim of right" defense has been established by the court and

strategically reserved for that point in the proceedings after which the State may not

appeal its ruling. As soon as this case passes into the adjudicatory phase, the bottom falls

out for the prosecution as the burden of proof shifts and strengthens.

The State may appeal as a matter of right in any criminal case from any pretrial

order. Minn. R. Crim. P. 28.04, subd. 1(1). Once on appeal, to obtain a reversal of the

pretrial order, the State must show clearly and unequivocally that the trial court erred in

its judgment and that the error will have a critical impact on the outcome of the trial.

State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977). However, to ensure against

needless appeals, the Minnesota Court of Appeals may request a preliminary showing of

critical impact where it is not apparent on the face of the trial court's order. State v. Jones,

518 N.W.2d 67, 69 (Minn. App. 1994). Thus, the issue here is not whether the State will

ultimately carry its burden on appeal to demonstrate critical impact, but merely whether a

possibility of critical impact exists.

The critical impact standard is necessarily predictive in that the Court of Appeals

is not a fact finding tribunal and unable to assess witness credibility. However, to meet

its burden, the State should be able to supplement the record with information bearing on

critical impact. State v. Ronnebaum, 449 N.W.2d 722, 723 (Minn. 1990). To show

critical impact, it is not necessary to demonstrate that the pretrial order has eliminated all

possibility of a successful conviction or that its case has all but collapsed. State v. Joon

Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987). Instead, it need only show that the pretrial.

order has "significantly reduce[ d] the likelihood of a successful prosecution." Id.;

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Ronnebaum, supra at 724. Here, the analysis begins and ends with the elements of

criminal trespass.

Under Minnesota law, "[a] person is guilty of a misdemeanor if the person

intentionally ... trespasses on the premises of another and, without claim of right, refuses

to depart from the premises on demand of the lawful possessor." Minn. Stat. Sec.

609.605, subd. l(b)(3) (emphasis added.) The Minnesota Supreme Court has held that

"without claim of right" is an essential element of the State's case that must be proven

beyond a reasonable doubt. State v. Brechon, 352 N. W.2d 745, 750 (Minn. 1984). The

State may not shift the burden of proving claim of right to a defendant, "because to do so

would contravene the principle that the state must prove every element of the offense

beyond a reasonable doubt." Id

Here, but for the court's pretrial order, all of the elements of trespass had been

stipulated to by counsel, including that Respondents did not have title to the property,

which is privately owned, or have permission from the lawful possessor to remain on the

property; hence, that they had no claim of right. See, e.g., State v. Schol berg, 412

N.W.2d 339, 344 (Minn. App. 1986), review den. Dec. 23, 1986, (upholding trespass

charges against abortion protesters at the Meadowbrook Clinic who refused to go to the

public sidewalks at the request of the owner, asserting a right to free expression.)

Judge Nordby's order establishes the groundwork for an adjudication of 'not

guilty' based upon a constitutionally-guaranteed claim of right to enter the Mall of

America and engage in free speech, subject only to reasonable time, place and manner

restrictions. Although there was sufficient testimony presented at the hearing on the

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motion for the court to conclude that the Mall of America's restrictions on expressive

conduct went beyond what it would interpret as constitutionally tolerable limits, it denied

the motion ostensibly because Respondents did not test the Mall's willingness to

accommodate them.

The order declared that since the Mall of America is as public a property as any

government ground, it may not restrict speech based on content, even where the speech is

patently inconsistent with the use for which the property was dedicated. [Trial Court

Order, at page 53.] It found Respondents' speech to be purely political and ruled that all

laws abridging such speech are subject to strict scrutiny. [Id. at page 59.] The order went

on to declare that where a law, such as the trespass law herein at issue, effectively

operates to impose penal sanctions on political speech it is subject to the most rigorous

examination of all and if its application herein penalized such speech, that application is

invalid. [ Id.] The critical impact of the order on these ongoing prosecutions is obvious.

Judge Nordby takes a particularly expansive view, in general, of the claim of right

defense to trespass. In his August 5, 1997, adjudication of a similar trespass case

occurring at the Mall of America he ruled that even a mistaken, good faith belief of claim

of right protects one from the criminal charge. [State of Minnesota v. Michael Derwood

Jones, Hennepin County District Court File 96091947, page A-65.]

Therefore, the only way in which the pretrial order in this case could not have a

critical impact on the successful prosecution of these cases is if Respondents are

prohibited from any reliance upon the constitutional claim of right created by its first

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sixty pages because they failed to seek permission from the Mall of America. 1 This is

clearly not the case. Judge Nordby did not adjudicate Respondents guilty on the basis of

the undisputed facts and stipulation of counsel. The language of the court's order,

limiting its decision to the record thus far established, anticipates the receipt of further

evidence on the issue of seeking permission to demonstrate and claim of right at trial.

Defense counsel has proclaimed that Respondents intend to introduce evidence on the

futility of any such request for permission and, thereafter, to use the court's constitutional

analysis to construct a claim of right defense. Unless Respondents, in their submission to

this Court, admit that they are guilty of trespass based upon the pretrial order of the trial

court, critical impact has been established.

V. CONCLUSION

The State may appeal as a matter of right from any pretrial order of the trial court

in a criminal case. State v. Joon Kyu Kim, 398 N.W.2d at 550. The reason for this

expansive right is that the State is barred by the constitutional prohibition against double

jeopardy from appealing orders issued once the trial has commenced. See, State v.

Gilmartin, 550 N.W.2d 294 (Minn.App. 1996). While this Court may scrutinize pretrial

appeals in criminal cases to ensure that a preliminary showing of critical impact has been

made, the standard should not be applied as a mechanism to deprive the State of its right

1 The State, will oppose the introduction of any additional evidence regarding any constitutional claim of right at trial on this ground. The success of this motion, however, is questionable. In order for an accused to waive a constitutionally protected right, the waiver must be knowing, voluntary and intelligent. Waiver cannot be assumed by the Court. Hence, to succeed in opposing this evidence, the State need show that the Respondents knew that when they failed to ask permission to demonstrate that they were also waiving any constitutionally protected claim of right to the property.

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to appeal where the ramifications of moving forward with such an adverse ruling include

a significant possibility of acquittal and the attachment of double jeopardy.

The trial court's pretrial ruling in this case creates a colorable claim of right

defense for Respondents. Left unaltered it carries with it a significant possibility of

acquittal. It is analogous to one where the pretrial judge rules that a preliminary question

of law, such as the constitutional reasonableness of the officer's stop of a vehicle in a

Driving While Intoxicated case, is reserved for jury determination. While it may not

strike a fatal blow to the prosecution, it clearly has a critical impact.

For all of the foregoing reasons, the State requests that it be allowed to proceed

with the merits of this appeal pursuant to Rule 28.04, Subd. 1(1), Minnesota Rules of

Criminal Procedure.

Dated this/J'fl{ day of August, 1997

Respectfully submitted,

on (#120 49) Associate Bloomin on City ttomey 2215 West Old Shakopee Road Bloomington, Minnesota 55431 (612) 948-8753 Attorney for Appellant

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