State v. Wicklund

• Decision Date: 11 March 1999
• Docket Number: No. C7-97-1381,C7-97-1381
• Citation: 589 N.W.2d 793
• Parties: STATE of Minnesota, Respondent, v. Freeman Algot WICKLUND, et al., petitioners, Appellants.
• Court: Minnesota Supreme Court

Page 793

589 N.W.2d 793

STATE of Minnesota, Respondent, v. Freeman Algot WICKLUND, et al., petitioners, Appellants.

No. C7-97-1381.

Supreme Court of Minnesota.

March 11, 1999.

Syllabus by the Court

1. Appellant's protest was not constitutionally protected free speech under the First Amendment of the United States Constitution.

2. Differences in terminology between the federal constitutional free speech protection under the First Amendment and the free speech protection under Article I, Section 3 of the Minnesota Constitution do not support a conclusion that the state constitutional protection should be more broadly applied than the federal.

3. Under the circumstances here, there is no compelling reason to apply the state constitutional free speech protection found in Article I, Section 3 more broadly than the protection afforded by its federal counterpart.

4. Neither the invitation to the public to shop and be entertained at the Mall of America nor the public financing used to develop the property are state action for purposes of free speech under Minnesota Constitution Article I, Section 3.

5. In the absence of state action, the free speech protections of the Minnesota Constitution in Article I, Section 3 are not implicated.

Larry B. Leventhal, Larry Leventhal & Associates, Minneapolis, for appellants.

Sandra Henkels Johnson, Assoc. Bloomington City Attorney, Bloomington, Mike Hatch, Attorney General State of Minnesota, St. Paul, for respondent.

Randall D.B. Tigue, John M. Sheran, Leonard, Street & Deinard, P.A., amicus curiae, Minneapolis.

Heard, considered, and decided by the court en banc.

OPINION

STRINGER, Justice.

We granted review to consider whether an anti-fur protest staged in the common area adjacent to Macy's Department Store inside the Mall of America (MOA) is constitutionally protected speech. We agree with the court of appeals that it is not, and therefore affirm.

The essential facts are not in dispute. Just before noon on Sunday, May 19, 1996, appellants Freeman Algot Wicklund, Althea Ruth Schaffer, Peter Benson Eckholdt, and Allissa Ifetayo Eggert and approximately six others distributed leaflets and carried placards illustrating cruel treatment of animals by the fur trade and urging a boycott of Macy's--a retailer of fur products. The protesters stood inside the MOA in the second-floor courtyard area in front of Macy's as they attempted to engage passers-by in conversation about the ethics of producing and selling fur products. The protest was at all times peaceful and nonconfrontational. The protesters were each warned several times by MOA security guards that they were on private property and that if they continued their activities they would be arrested. Several of the protesters chose to put away their placards and leave, but the four appellants refused to leave and were peacefully arrested by Bloomington police officers and charged with misdemeanor trespass in violation of Minn.Stat. § 609.605, sub. 1(b)(3) (1998).

Appellants moved to dismiss the charges against them claiming they have a "claim of right" which precluded the state from proving the trespass charges. See State v. Brechon, 352 N.W.2d 745, 750 (Minn.1984) (state's burden to prove beyond reasonable doubt that defendants had no claim of right). Although appellants initially based their claim of right on the free speech provisions of the First Amendment of the Federal Constitution, at the suggestion of the trial court their primary argument is now that their conduct is protected by Article I, Section 3 of the Minnesota Constitution, which provides that "all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right."

Substantial evidence about the MOA was presented at a pretrial evidentiary hearing, including that the MOA is the largest shopping mall in the United States encompassing 4.2 million square feet of space and attracting 37.5 million visitors annually. Its tenants include four anchor stores, including Macy's, in addition to some 400 other retail establishments, movie theatres and entertainment venues, the nation's largest indoor amusement park, a wedding chapel, a post office, a police substation, and an alternative school. It is promoted as an exciting vacation destination and sponsors promotional events aimed at attracting specific groups of consumers such as senior citizens and families.

Extensive evidence was also presented as to how the MOA was developed. The Bloomington Port Authority (BPA), an economic development agency for the City of Bloomington (City), purchased the site of the old Metropolitan Stadium and solicited proposals for development. The BPA issued approximately $105 million in tax increment financing (TIF) bonds pursuant to Minn.Stat. § 469.178 (1987)--a popular form of financing local developments utilizing increased tax dollars generated by a project to repay the bonds. See Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 Minn. L.Rev. 503, 512 (1997) (outlining development of tax increment financing). The bonds financed the site preparation including utilities, parking ramps, access roads between the MOA and the ramps, and pedestrian bridges linking the ramps to the mall itself. The BPA's current involvement in the MOA is limited to monitoring the bond indebtedness. Its bonds will be repaid by the year 2015 or sooner by "capturing" property taxes paid by the MOA and by a liquor and hotel/motel tax imposed by the City. Construction of the balance of the project was financed by the Mall of America Company, a subsidiary of two privately-owned shopping center development corporations, at a cost of approximately $700 million.

In addition to the BPA TIF financing, the Minnesota legislature enacted legislation giving the City of Bloomington permission to issue $80 million ¹ in bond financing to cover the cost of highway reconstruction surrounding the MOA in time for its opening. Roads surrounding the site were already on the state's list of highway improvements but were not scheduled for construction for another eight years. The evidence adduced at the hearing indicated that public financing contributed $186 million of the total development cost of $886 million, or approximately 21% of the total cost of the MOA's development, and will decrease to zero as the bonds are repaid.

The trial court also heard testimony about the MOA's management. The MOA employs 150 full-time security guards to patrol its common areas and assist in individual stores as requested. Their duties include enforcing the MOA's code of conduct for patrons which prohibits, among other things, unauthorized petitioning, handbilling and picketing. ² If a patron violates the code, the patron is informed by a MOA security guard of the violation and given the choice of conforming to the code or leaving the premises, and is told that if the patron does neither, arrest will follow. It is only then that the Bloomington police are summoned and a citizen's arrest is made by the MOA guard.

The police substation at the MOA consists of a room available for police use in the sub-basement but no staff is assigned to this location. The MOA also hires off-duty police officers to provide contractual police services, including traffic control and heightened security when needed--a service available to any private entity in the City. The off-duty police officers are at all times supervised by the Bloomington Police Department, which in turn is reimbursed for its services by the MOA. Macy's received notice in the form of a national press release that protestors would be targeting its stores on May 19, 1996. Macy's requested contractual police services and six Bloomington police officers were assigned to the location.

Following the evidentiary hearing, the trial court issued a 62-page order in which it accompanied its findings of fact with 57 "General Principles of State Constitutional Construction." The trial court, applying sua sponte Minnesota's free speech constitutional protection, concluded that the MOA was public property because the public was generally invited onto the property and public financing was involved in the MOA's development. The court characterized the interior of the MOA "as public as any city thoroughfare, as any government grounds" because it "was born of a union with government." Consequently, appellants' speech would be constitutionally protected, so the trial court concluded, but appellants' failure to "test the Mall's willingness to honor the Constitution" was fatal to their motion to dismiss.

The court of appeals reversed declining to extend state constitutional protection to appellants' speech based on the patent lack of support for the trial court's conclusion that the framers of the Minnesota Constitution intended the state's free speech provision to provide more protection than its federal counterpart, and additionally, on this court's historical reluctance to interpret Article I, Section 3 more expansively than the First Amendment of the Federal Constitution. State v. Wicklund, 576 N.W.2d 753, 756-57 (Minn.App.1998). Appellants' contention that the use of public funds constituted the state action requisite to triggering protection under Article I, Section 3 of the Minnesota Constitution was likewise rejected:

If the "state action" requirement is discarded, it is difficult to formulate a principled line between those privately-owned locations in which constitutional free speech guarantees should apply and those where they should not. * * * Moreover, a discarding of the "state action" requirement in this area has broad implications for other constitutional provisions to which the "state action" requirement has traditionally been applied.

Id. at 758 (citation and footnote omitted). The court of appeals concluded that the free speech protection of Article I, Section 3, of the Minnesota Constitution did not...