This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Redmond Burns,
Filed March 20, 2007
File No. 05049586
Lori Swanson, Attorney General, 1800
Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
F. DeVincke, Patrick G. Leach, Bonner
& Borhart, L.L.P., 1950 U.S. Bank Plaza, 220 South Sixth Street,
Minneapolis, MN 55402 (for respondent)
Todd W. Burns (pro hac vice), NBC
Building, 225 Broadway, Suite 900, San Diego, CA 92101 (for appellant)
Considered and decided by Halbrooks, Presiding Judge;
Kalitowski, Judge; and Collins, Judge.
U N P U B L I S H E D O P I N I O N
appeal from a conviction for violating a city trespass ordinance, Robert Burns
argues that the ordinance is invalid because it conflicts with the state
trespass statute and because the city council passed the ordinance without
following the procedure required by the city code. Because we find no conflict between the
ordinance and the statute, and the council validly enacted the ordinance, we
appeal arises from Robert Burns’s conviction for trespassing while
participating in a protest of an armaments manufacturer. In July 2005, a group of twelve people,
including Burns, arrived at Alliant Techsystems, Inc., in Edina. The group holds weekly protests and
vigils near Alliant, challenging what they contend is illegal and immoral
manufacturing of cluster bombs, landmines, and depleted-uranium munitions. On
this morning in July, the group stood at the entrance of Alliant’s property
chanting anti-war slogans, singing songs, and holding signs. The group then approached an Alliant security
officer and showed her a “liability document” that it wanted to present to the
company’s chief executive officer or one of the company’s vice presidents. The
security officer told the group that it could not deliver the document
personally, but she would deliver it on their behalf. The group refused her offer and then advanced
onto the premises. The security officer informed the members
of the group that they were trespassing and asked them to leave. Burns
and the others stood fast. Police
officers arrived and again the group was advised to leave or else the members
would be charged for trespassing. None
left the premises.
police cited Burns and each of the others of the group for trespassing in
violation of a city ordinance. Burns
pleaded not guilty and moved for dismissal of the charge. The district court denied the motion, and
following a trial, found Burns guilty of the petty misdemeanor. Burns appeals, arguing that the city trespass
ordinance is invalid because (1) it conflicts with the state trespass statute
and (2) the city council passed the ordinance through improper procedure.
D E C I S I O N
state statute may preempt a local ordinance in any of three ways: express
preemption, field preemption, and conflict preemption. State
v. Kuhlman, 722 N.W.2d 1, 4 (Minn. App. 2006), review granted (Minn.
Dec. 12, 2006). Burns argues that
conflict preemption applies in this case.
An ordinance must be in harmony with an enacted statute. Power
v. Nordstrom, 150 Minn.
228, 232, 184 N.W. 967, 969 (1921). Four
general principles guide an analysis of whether a local ordinance impermissibly
conflicts with a state statute. First, a conflict exists “only when both
the ordinance and the statute contain express or implied terms that are
irreconcilable with each other.” Mangold Midwest Co. v. Village
of Richfield, 274 Minn. 347, 352, 143
N.W.2d 813, 816 (1966). Second, a
conflict exists when an ordinance permits what a statute forbids. Id. A third and related principle is that an
ordinance may not forbid what a statute permits. Id. Finally, a conflict does not exist when an
ordinance differs from a statute but is “merely additional and complementary to
or in aid and furtherance of the statute.”
Id. at 352, 143 N.W.2d at 817. Whether an ordinance conflicts with a statute
is a question of law, which we review de novo.
See Buss v. Johnson, 624
N.W.2d 781, 784 (Minn. App. 2001) (reviewing de novo whether local zoning
ordinance conflicted with statute).
asserts that the city trespass ordinance conflicts with the state trespass
statute because the ordinance prohibits conduct permitted by the statute. The
statute prohibits a person from intentionally “trespass[ing] on the premises of
another and, without claim of right, refus[ing] to depart from the premises on
demand of the lawful possessor.” Minn.
Stat. § 609.605, subd. 1(b)(3) (2004).
The ordinance states that “[a] person who does not have a belief of
property interest shall not . . . [t]respass on the premises of another and
refuse to depart from the premises on demand of the lawful possessor.” Edina,
Minn., City Code § 1000.14(A)
(Apr. 7, 2005). The ordinance defines
“belief of property interest” as “a good faith belief that the person has a
possessory interest in the property as an owner, tenant, lessee, licensee or
§ 1000.14. The critical question
here is whether the ordinance’s definition of “belief of property interest” is
narrower than the statutory claim-of-right requirement. We conclude that it is not and hold that the
ordinance does not prohibit conduct permitted by statute.
claim of right” is an element of trespass that the state must prove, and claim
of right is a defense to a trespassing charge.
State v. Brechon, 352 N.W.2d
745, 750 (Minn.
Section 609.605 does not define “claim of right” but this legal
phrase generally refers to a property interest.
See Black’s Law Dictionary 266
(8th ed. 2004) (defining “claim of right” as “[a] criminal plea . . . by a
defendant asserting that the property was taken under the honest (but mistaken)
belief that the defendant had a superior right to the property.”) Caselaw addressing the trespass prohibition
in subdivision 1(b)(3) has similarly limited claim of right to a property
holding that claim of right is not limited to a claim of actual title, the
supreme court explained that an express or implied license or other consent
would serve as a defense. State v. Hoyt, 304 N.W.2d 884, 889
(Minn. 1981) (interpreting Minn. Stat. § 609.605(5) (1980), which was
nearly identical to provision now codified at Minn. Stat. § 609.605, subd.
1(b)(3)); see also State v. Quinnell,
277 Minn. 63, 67, 151 N.W.2d 598, 602 (1967) (holding that defendant trespassed
because he did not have an implied license to enter premises and that, even if
license existed, landowner affirmatively revoked license). When clarifying the burden-shifting in a
trespass case, the supreme court framed the issue in terms of property rights,
holding that “[i]f the state presents evidence that [the] defendant has no
claim of right, the burden then shifts to the defendant who may offer evidence
of his reasonable belief that he has a property right, such as that of an owner,
tenant, lessee, licensee or invitee.
Subjective reasons not related to a claimed property right or permission
are irrelevant and immaterial to the issue of claim of right.” Brechon, 352 N.W.2d at 750 (citation
omitted); see also State v. Scholberg,
395 N.W.2d 454, 456 (Minn. App. 1986) (holding that invitees on premises do not
have right superior to owner enabling them to grant license to third party), review denied (Minn. Dec. 23,
1986). Section 609.605 is limited to a
property interest or other permission to be on premises.
points to another provision of section 609.605 to support his interpretation of
subdivision 1(b)(3). Subdivision 1(b)(8)
prohibits a person from “return[ing] to the property of another within 30 days
after being told to leave the property and not to return, if the actor is
without claim of right to the property or consent of one with authority to
consent.” Minn. Stat. § 609.605,
subd. 1(b)(8) (2004). He argues that the
legislature’s specific use of “without claim of right to the property” in this
provision demonstrates its intent that claim of right used in subpart (3) is
not limited to property interests. But
subparts (3) and (8) were not enacted contemporaneously. The language in subpart
(3) was enacted in 1963. See 1963 Minn. Laws ch. 753, art. 1, at 1223-24
(adopting trespass statute with language materially the same as Minn. Stat.
§ 609.605, subd. 1(b)(3)). Subpart
(8), in contrast, was enacted in 1993.
Laws ch. 326, § 32, at 2042. That the legislature did not amend
subpart (3) following the intervening judicial interpretations of claim of
right may be viewed as tacit agreement with those interpretations. See Anderson-Johanningmeier v. Mid-Minnesota
Women’s Ctr., Inc., 637 N.W.2d 270, 276 (Minn. 2002) (noting that
legislature did not amend statutory provision court had interpreted despite
later amending other provisions in same section); see also Minn. Stat. § 645.17(4) (2004) (stating that, when
court has construed language of law, court may presume legislature intends same
construction of language in subsequent law on same subject matter).
Edina’s trespass ordinance
is consistent with section 609.605. The
ordinance excludes from its definition of trespass persons with a property
interest as an owner, tenant, lessee, licensee, or invitee. And the ordinance requires a good-faith
belief of a possessory interest to avoid liability, which follows the statutory
intent requirement. See Hoyt, 304 N.W.2d at 890 (holding that good-faith claim of right
negates required criminal intent).
Although the ordinance defines trespass in more specific terms than
section 609.605, the ordinance does not conflict impermissibly with the
does not dispute the facts underlying his conviction. He was on private property and did not have a
good-faith belief that he had a property interest or consent to be on the
property. He was twice asked to leave
the premises, and he refused. We affirm his conviction for violating
the city ordinance.
The Edina city code provides that, when the city
council seeks to enact an ordinance, “[e]very ordinance shall be presented in
writing, except in emergency situations.
Every ordinance shall receive two readings before the [c]ouncil prior to
final adoption. The two readings shall
be at [c]ouncil meetings held on different days. The second reading may be waived by an
affirmative vote of not less than four [c]ouncil [m]embers.” Edina,
Minn., City Code § 115.10,
subd. 1 (Aug. 26, 1992). When enacting the trespass ordinance, the
council members read the ordinance at a March 2005 meeting, waived the second
reading, and then voted to add the ordinance to the city code. Burns does not contest the city council’s
authority to enact a trespass ordinance, but argues that the council did not
follow the plain language of section 115.10 when amending the city code because
it did not hold a second meeting before adopting the ordinance. We
review the validity of the procedure surrounding enactment of an ordinance de
novo. DI MA Corp. v. City of St. Cloud, 562 N.W.2d 312, 318 (Minn. App.
1997), review denied (Minn. July 28,
construe an ordinance according to the plain and ordinary meaning of its
terms. Save Lantern Bay v. Cass County Planning Comm’n, 683 N.W.2d 862, 865 (Minn. App. 2004). The
district court did not err by finding that the council followed the plain
meaning of section 115.10, subdivision 1. The ordinance requires two readings of an
ordinance before adoption, but provides for waiver of the second reading upon agreement
of at least four of the five council members.
Unless waived, the second reading must occur at a different meeting than
the first reading. But nothing expressly
or logically requires the matter to be taken up at a subsequent meeting when
the second reading has been duly waived and the ordinance is enrolled. Burns does not dispute that the second
reading was properly waived. The council
amended the city code validly under section 115.10 by adopting the trespass
ordinance after the first reading and waiver of the second reading.