STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2554

State of Minnesota,

Respondent,

vs.

Robert Redmond Burns,

Appellant.

Filed March 20, 2007

Affirmed

Collins, Judge*

Hennepin County District Court

File No. 05049586

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Thomas 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

COLLINS, Judge

On 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 affirm.

FACTS

This 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.

The 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

A 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).

Burns 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 invitee.” Id. § 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.

“Without 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. 1984). 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 interest.

In 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.

Burns 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. 1993 Minn. 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 statute.

Burns 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.

II.

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, 1997).

We 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.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.