State of
No. 50889
Supreme Court of
304 N.W.2d 884
PRIOR HISTORY: [**1]
Appeal from District Court,
DISPOSITION: Reversed.
SYLLABUS:
1. Although defendant has asserted a first amendment claim,
we do not reach the constitutional issue presented because the case has been
disposed of on other grounds.
2. 42 C.F.R. 405.1121(k) (1980) and Minn. Stat. ß 144.651 (1980) grant
enforcement authority to patients, residents or guardians, not to third
persons.
3. A license to be on property constitutes a claim of right defense to a charge
of criminal trespass.
4. Express or implied consent of a nursing home resident or a resident's
guardian to visitation by a third-party gives rise to a license to use the
means of ingress and egress to make such visitation possible.
COUNSEL: Robins,
Robert Alfton, City Attorney, Edward Backstrom, III, Asst.
K. Craig Wildfaug,
Amici Curiae, Briggs & Margan, Leonard J. Keyes and John R. Kenefick, St.
Paul, Minnesota (for St. Mary's Rehabilitation [**2] Center)
Toby S. Edelman, National Senior Citizens Law Center, Washington, District of
Columbia.
Laurie N. Davison, Legal Aid Society of Minneapolis, Inc.,
Linda M. Ojna,
JUDGES: Heard, considered and decided by the court en banc. Amdahl,
Justice. Scott, Justice (dissenting).
OPINIONBY: AMDAHL
OPINION: [*886] Defendant appeals from an order of a
Hennepin County District Court appellate panel affirming her conviction of
trespass upon the premises of St. Mary's Rehabilitation Center.[1]
Prior to trial an evidentiary hearing [**3] was held to determine
the admissibility of defendant's proffered testimony as to her defense of claim
of right. Defendant made an offer of proof and the trial court ruled the
testimony of 21 witnesses inadmissible in total; the testimony of 3 witnesses,
including defendant, partially inadmissible; and the testimony of one witness
admissible. Following the trial court's ruling on the evidentiary issues,
defendant waived trial by jury specifically reserving, through stipulation with
the prosecution, all issues for appeal.[2]
On
Sharon Siebert is a brain-damaged resident of St. Mary's Skilled Nursing Home.
In April 1977, when defendant, who is not related to Ms. Siebert, first began
visiting her, the latter was in a vegetative or semi-vegetative state, unable
to speak, to take food orally, or to respond to stimuli to any significant
sense. For approximately 22 months, commencing on
St. Mary's Skilled Nursing Home is licensed by the state as a skilled nursing
facility which is defined by the state as one providing care ordered by
physicians and delivered by licensed nursing personnel 24 hours a day, 7 days a
week.
Most of the residents of the skilled nursing [**6] home are
essentially restricted to the facility due to physical and mental infirmities.
The facility provides basically all of the residents' needs including meals,
linen, personal care items, recreation, educational programs, religious
facilities and all medical services. A substantial number of the residents are
bedridden and few leave the facility for social or other purposes.
The stipulated facts presented to the trial court are substantially these:
On
In view of the Center's obligation to preserve a tranquil atmosphere for
patient care and employee morale, you are advised that your privilege to enter
the premises of St. Mary's
On
Whoever intentionally does any of the following is guilty of a misdemeanor:
(5) Trespasses upon the premises of another and, without claim of right,
refuses to depart therefrom on demand of the lawful possessor thereof * * *.
(Emphasis added.)
Defendant also concedes that she was not at the time of her arrest acting as a
representative of any group or organization and that she was on the premises
for the sole purpose of visiting Sharon Siebert, a resident of the Skilled
Nursing Home.
Before Mr. Brenny sent his letter barring defendant from the premises of St.
Mary's
Defendant asserts that she had a claim of right as contained in the trespass
statute to enter St. Mary's
(1) The first and fourteenth amendments to the United States Constitution;
(2) Standard: Patients' Rights, 42 C.F.R. ß 405.1121(k) (1980) and Patients and
Residents of Health Care Facilities; Bill of Rights, Minn. Stat. ß 144.651
(1980).
(3) A bona fide claim of right in that she believed she had a right to enter
St. Mary's and that she had reasonable grounds for such belief.
The state concedes that if defendant had either a constitutional or statutory
right to be on the premises, the trespass statute is inapplicable.
[*888] (I) The United States
Constitution
Although St. Mary's Rehabilitation Center is privately owned, it is defendant's
position that her first amendment rights of speech and association cannot be
abridged by the facility because it is the functional equivalent of an ordinary
town under Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276
(1946). In Marsh, a Jehovah's Witness was arrested and convicted under a
state trespass statute while distributing religious literature [**9]
on the streets of a business district located in a company owned town. The town
and business district were open and freely accessible to the public in general.
The Court noted that although privately owned, the town had the earmarks of an
ordinary municipality and functioned no differently than any other town. In
reversing the trespass conviction, the Supreme Court held that the company
could not curtail the exercise of first amendment rights on its property just
as it would be improper for a municipality to do so.
We are aware that one court to date has held that a privately-owned nursing
home is the "functional equivalent" of a town and therefore subject
to first amendment proscriptions. Teitelbaum v. Sorenson, Civ. No.
79-199 PHX WEC (D. Ariz. July 3, 1979) (order denying motion to dismiss and
granting preliminary injunction), judgment entered, (D. Ariz. August 6,
1979) (granting permanent injunction), appeal docketed, No. 793530 (9th
Cir.
(II) The Federal Regulations and the
Minnesota Statute
Defendant asks us to hold that she had the authority to enforce the rights
granted to Ms. Siebert by Standard: Patients' Rights, 42 C.F.R. ß 405.1121(k)
(1980) and Patients and Residents of Health Care Facilities; Bill of Rights,
Minn. Stat. ß 144.651 (1980). While there may be some argument as to a
guardian's authority under the federal regulations because only certain of the
listed rights devolve to a guardian, there can be no argument under the statute
for it provides "any guardian or conservator of a patient or resident * *
* may seek enforcement of these rights on behalf of a patient or
resident."
The statute accords certain rights to patients and residents of nursing
facilities including facilities such as St. Mary's Skilled Nursing Home, and
further provides that the facility may not require a waiver of the rights as a
condition of admission to the facility. The express intent of the
statute [**11] is to "promote the interests and well being of
the patients and residents of health care facilities."
Among the rights enunciated by the statute is:
(17) Every resident may associate and communicate privately with persons of his
choice * * * unless medically contraindicated and documented by his physician
in the medical record.
The state is correct in its argument that neither 42 C.F.R. 405.1121(k) (1980)
nor Minn. Stat. ß 144.651 (1980) grant enforcement authority to a person in
defendant's position. The regulations and the statute give enforcement
authority to the patient or resident or, if a guardian has been appointed, to
the guardian. The reference to the rights is made, however, because it
reinforces defendant's claim of right as discussed below in that a resident or
a resident's guardian, not the nursing home administration[4],
is given the right to [*889] determine who may associate with,
i.e., visit, the resident, unless medically contraindicated and documented by
the resident's physician in the medical record. There is no evidence here that
the visitation by defendant was medically contraindicated [**12] in
Ms. Siebert's medical record or that if such were the case, that defendant was
ever informed of the fact.
(3) The Bona Fide Claim of Right
The state cites Carpenter v. Coles, 75
"claim of right," "claim of title," and "claim of ownership" * * * mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others * * * [and that] the presence or absence of good faith of the [adverse] possessor, or whether the possession originated in a naked trespass, or was taken under color or claim of [**13] title, is wholly immaterial.
75
A claim of right under section 609.605(5) is not limited to a claim of title or
ownership. Express or implied consent--a license--to a person from one who has
the authority to give such consent is a defense to a charge of criminal
trespass. In Commonwealth v. Richardson, 313
In the instant case the defendants were lawfully in the vestibule, [**14] where the means for communicating with the respective tenants had been installed that the tenants might at will release to lock and give access to those seeking to see them. Of course, they could decline to do so if they saw fit. The releasing of the lock, we think, must be held to have at least conferred upon the defendants a license or permission to enter the inner halls, to approach the apartments in question, and, if permitted by the tenant, to state the object of their call. This was a license for the tenants to grant or withhold, one embraced within the easement conferred upon them by the letting, one which subsisted until revoked by the tenants, and one which the tenants could exercise notwithstanding objections of the landlord, who could not revoke the license any more than he could an invitation extended by the tenant to one calling upon any legitimate business.
This court considered the defense of license to be upon premises and the
principle of
Defendant seems also to argue that, because a large part of the stockyards were
leased to independent commission firms, the demonstrators were implied
licensees of those commission firms, and Stockyards was therefore without
power to revoke the license, citing Commonwealth v. Richardson, 313
Mass. 632, 48 N.E.(2d) 678, 146 A.L.R. 648, in support of [*890]
their (sic) contention. To state the facts, however, is to distinguish the
cases at once. The
277
One in possession of premises by permission of a tenant who is entitled to
possession is not a trespasser but a licensee. Keithley v. Hettinger,
133
A license is a mere power, authority, or personal privilege. It does not create
an estate or interest in land, and it may be created by parol. A licensee is
one who has mere permission to use land, dominion over it remaining in the
owner, and no interest in or exclusive possession of it is given to the
occupant.
11A M. Dunnell, Dunnell Minnesota Digest 2d Licenses in Real Property ß
1.00 (3d ed. 1978) (footnotes omitted).
In Chicago and North Western Transportation Co. v. City of Winthrop, 257
N.W.2d 302, 304 (
Because a license is generally revocable, it is not an encumbrance upon land.
It is actually a justification for acts done under the license, a sort of
immunity from trespass.
(Emphasis added).
A person visiting a nursing home resident [**17] with express or
implied consent of the resident or of the guardian of the resident is no less a
licensee entitled to use the means of ingress and egress to make such
visitation possible than is a person visiting an apartment building tenant.
If the guardians had never given express consent or had withdrawn express
consent, or if they had acted in such manner as to give rise to implied consent
which had been withdrawn, defendant would have no license to enter St. Mary's
to visit Ms. Siebert and would have no claim of right defense. If express or
implied consent of the guardians existed on the date of the alleged trespass,
or if defendant had not been informed of the withdrawal of previously existing
express or implied consent, she had a claim of right defense to the trespass
charge.
Quinnell referred to a claim of right in this manner:
The Advisory Committee Comment on the new Criminal Code, 40 M.S.A. p. 570, commenting on the statutory reference to trespass "without claim of right," observes that those words simply cover bona fide claims of right and that "[a] false claim would not be a claim at all," language obviously relating to protection of an innocent trespasser [**18] from criminal prosecution.
277
The claim of right is a defense only if it is bona fide. The reason for
allowing a defendant in a criminal trespass case the defense of a bona fide
belief of claim of right is that the law generally does not punish persons who
commit an offense without criminal intent. A bona fide belief, i.e., a good
faith claim of right, negatives the criminal intent required by Minn. Stat. ß
609.605(5) (1980). 75 Am. Jur. 2d Trespass ß 87 (1974) states the point
this way:
Criminal intent is an essential element of the statutory offense of trespass, even though the statute is silent as to intent, and if the act prohibited is committed in good faith under claim of right or color of title, although the accused is mistaken as to his right, unless it is committed with [*891] force or violence of a breach of the peace, no conviction will lie, since it will not be presumed that the legislature intended to punish criminal acts committed in ignorance, by accident or under claim of right, and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other [**19] construction.
In Hayes v. State, 13 Ga.App. 647, 79 S.E. 761 (1913) cited, and quoted
from, by the state, a criminal trespass action for title to property was in
dispute. The court discussed the trespass statute and quoted from a prior case
which held that criminal trespass "was not designed to try disputed land
titles, but to punish those who wilfully, and without claim of right, commit
acts of trespass on the lands of others." 13 Ga.App. at 649, 79 S.E. at
762. The court then continued to discuss trespass and the defense of good faith
in this language:
An act which, as related to the true owner of land, might appear to be trespass
is not in fact a trespass, if the act is committed in good faith by one who
actually and sincerely believes that he is authorized (either because
authorized by the true owner, or because he believes himself to be the true
owner) to do the act in question. In fact the burden rests upon the state of
proving the absence of good faith on the part of one accused of trespass,
because the act must generally be shown to be willfully done, and, under the
particular paragraph upon which the charge against the
defendant [**20] in the present case was based, it was essential for
the state to show that the presence of the accused upon the premises in
question was "with no bona fide claim or color of title, and without the
consent of the owner." If, therefore, the defendant had any evidence which
tended to show that he did have a bona fide claim dependent upon the consent of
one who bona fide claimed to be the owner, it would be error to withhold such
evidence from the jury, and thus deprive them of giving to the claim of the
defendant equal consideration with that accorded to the claim of the
prosecutor. In trespass it is altogether a question of bona fides, and not a
question of real title.
The issue before the court is whether defendant, in her offer of proof,
presented a sufficient prima facie case of claim of right to create a fact
issue; that is, she believed she had a license to enter St. Mary's and there
were reasonable grounds for her belief.[5] [**21]
Defendant testified at the hearing that: she had visited Sharon Siebert almost
daily for some 22 months; the guardians were aware of her visits and her
actions with Ms. Siebert; the guardians had never told her not to visit; and
the guardians and their minister encouraged defendant's involvement and
advocacy on behalf of Ms. Siebert.
Moreover, there was no showing that defendant was at any time informed, until
subsequent to her arrest, that the guardians had consented to, or acquiesced
in, the decision of Mr. Brenny to bar her from the facility.
Excerpts of the testimony by guardian Earl Bigalke offered as a part of the
defendant's offer of proof are material here: [*892]
Q But it was his idea that she be barred, was it not?
A I don't know.
Q Was it your idea, sir?
A No.
Q I am sorry, I didn't hear you.
A No, no sir.
At a later portion of the record:
Q And again just so the record is clear, it was not your
idea to bar Jane from the facility, was it?
A No, sir.
The questions continued and the transcript reveals the further exchange:
Q Mr. Bigalke, you knew that Jane was working with
A Yes, sir.
Q You know, for example, in the guardianship trial that she was attempting to
teach her to speak and open her mouth and do other things of that sort, didn't
you?
A I don't know at that particular time, but she worked with her, I realize
that.
Q During the process of the guardianship matter you indicated to your attorney
that you didn't object to her continuing that, didn't you?
A I don't recall.
Q That's possible, though, isn't it, sir?
A Probably.
Q You probably said that?
A Probably.
Q And you have never specifically told Miss Hoyt not to continue working with
A I don't believe so.
Q You certainly never told Miss Hoyt not to visit
A I don't believe so.
The foregoing testimony is reinforced by testimony of defendant in answer to a
question by her counsel:
Q Have either Mr. or Mrs. Bigalke ever advised you to stop
your activities or not see
A Never.
We hold that the defendant through her offer of proof made out a sufficient
prima facie defense of bona fide claim of right to require the case to be
submitted to a finder of fact [**23] where the burden is on the
state to establish the contrary beyond a reasonable doubt.
Contrary to the view expressed by the dissent, the nursing home is not without
power to exclude disruptive persons from its premises. If a visitor on the
nursing home premises is engaged in disruptive conduct, the nursing home has at
the very least the right to seek a complaint for disorderly conduct pursuant to
Minn. Stat. 609.72 (1980). See also footnote 4.
The order of the district court appellate panel affirming the judgment of
conviction in the Hennepin County Municipal Court is reversed.
DISSENTBY: SCOTT
DISSENT: SCOTT, Justice (dissenting).
I must respectfully dissent. The majority opinion, when carried to its logical
conclusion, conflicts with sound public policy. Although it is understandable
that certain sympathies are generated by the defendant's well-intended actions,
these particular facts should not be applied to reduce the historical
application of the trespass statute to a state of uselessness.
Under the majority opinion, only the guardian has authority to prevent
disruptive individuals from visiting nursing home patients. The nursing home
has no similar authority. Thus, once a guardian [**24] grants an
individual permission to visit a patient, the nursing home may not request that
individual to leave the premises. The operators of nursing homes and similar
institutions will be powerless to use the trespass statute regardless of an
individual's actions.
It is difficult to understand the basis for the majority's decision that the
phrase "claim of right" in Minn. Stat. ß 609.605(5) (1980) does not
mean a claim of title or legal ownership. The majority's determination that the
defendant had a "license" to be on the property ignores the historical
[*893] distinction between a "claim of right" and
"rights" in general. To negate the criminal intent required by Minn.
Stat. ß 609.605(5) (1980) a defendant must have a good faith belief that he has
a right to be on the premises and exercise a bona fide claim of
ownership or title. These essential elements are discussed in 75 Am Jur. 2d Trespass
ß 87 (1974), as follows:
Criminal intent is an essential element of the statutory offense of trespass, even though the statute is silent as to intent, and if the act prohibited is committed in good faith under claim of right or color of title, although the accused [**25] is mistaken as to his right, unless it is committed with force or violence of a breach of the peace, no conviction will lie, since it will not be presumed that the legislature intended to punish criminal acts committed in ignorance, by accident or under claim of right, and in the bona fide belief that land is the property of the trespasser, unless the terms of the statute forbid any other construction.
The advisory committee comments to the 1963 Criminal Code also are instructive.
That committee indicated:
The phrase "without claim of right" in the recommended clause is intended only to covered [sic] bona fide claims of right. A false claim would not be a claim at all.
Because I believe that the trespass statute has been violated, it is necessary
to examine appellant's claim that she has a constitutional right to enter St.
Mary's
Appellant contends that her first amendment rights of speech and association
have been abridged because St. Mary's Rehabilitation Center falls within the
company town doctrine of Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265,
66 S. Ct. 276 (1946). Under Marsh, a private entity that has all the
attributes of an ordinary municipality will be treated as a governmental
entity, thereby satisfying the state action requirement.
I do not believe that St. Mary's Skilled Nursing Home is the functional
equivalent of an ordinary municipality for first amendment purposes. Recent
decisions from the United States Supreme Court indicate that Marsh is
inapplicable unless the private property owner exercises all of the traditional
functions of a municipality. See Hudgens v. NLRB, 424
[1] St.
Mary's
[2] At the trial and district court appeal levels, the defendant maintained that the phrase "without claim of right" in the trespass statute was an element of the crime rather than an exception to the statute. The trial court, citing Williams v. United States, 78 U.S. App. D.C. 147, 138 F.2d 81 (D.C. Cir. 1943) and State v. Paige, 256 N.W.2d 298 (Minn. 1977), disagreed, holding that the phrase created an exception and imposed upon the defendant the burden of presenting a prima facie case that she came within the exception before the state would be required to prove the contrary beyond a reasonable doubt. It was for that reason that defendant made the offer of proof in the county court. The trial court determined that defendant had failed to make a prima facie showing that a claim of right existed and informed counsel that the jury would be instructed to that effect. The defendant then waived a jury trial. The district court appellate panel concurred in the trial court's ruling, placing the burden of presenting a prima facie case on defendant. In argument on appeal to this court, counsel for the defendant stated that he believed the trial court and appellate panel were correct in their analysis of the law in such respect and withdrew that issue from the instant appeal. Thus, this court need not consider the issue for purposes of this case.
[3] Mr. Brenny further testified: "The entire organization, the administration, board of directors, department heads, director of nursing, charge nursing, all people involved, the physicians, medical directors, all supported the action to be taken."
[4] The
parties here do not, and indeed cannot, question the right of St. Mary's
[5] The district court appellate panel agreed that the
criteria stated in State v. Baker, 231 N.C. 136, 56 S.E.2d 424 (1949)
were proper for a determination of claim of right. The court there, in a
criminal trespass action, declared:
Although
the State may prove beyond a reasonable doubt in a prosecution under this
statute that the accused intentionally entered upon land in the actual or
constructive possession of the prosecutor [owner] after being forbidden to do
so by the prosecutor and thus establish as an ultimate fact that the accused
entered the locus in quo without legal right, the accused may still escape
conviction by showing as an affirmative defense that he entered under a bona
fide claim of right. * * * When an accused seeks to excuse an entry without
legal right as one taking place under a bona fide claim of right, he must prove
two things: (1) That he believed he had a right to enter; and (2) that he had
reasonable grounds for such belief.