State of Minnesota, Respondent, vs. Elaine Elizabeth Avery, Jennifer Ann Beatty, Anna Constance, Appellants.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA 
 IN COURT OF APPEALS 
C4-00-328

State of Minnesota,
Respondent,

vs.

Elaine Elizabeth Avery, Jennifer Ann
Beatty, Anna Constance,
Appellants.

Filed March 5, 2001 
Reversed
Willis, Judge

Hennepin County District Court
File No. 99123264

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Elaine Elizabeth Avery, 2929 Third Avenue South, Minneapolis, MN 55408 (pro se appellant)

Jennifer Ann Beatty, P.O. Box 7450, Minneapolis, MN 55407 (pro se appellant)

Anna Constance, 1600 Grand Avenue, St. Paul, MN 55105 (pro se appellant)

Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Elaine Elizabeth Avery, Jennifer Ann Beatty, and Anna Constance appeal from their convictions of obstructing a highway, in violation of Minn. Stat. § 160.27, subd. 5(1) (1998), arguing that (1) the district court erred in construing the statute, (2) an 1805 treaty gave them rights to be present at the location of their arrest, (3) the district court demonstrated bias, and (4) there should not have been a joint trial. Because we conclude that the district court erred in construing the statute, we reverse.

FACTS

Appellants Elaine Elizabeth Avery, Jennifer Ann Beatty, and Anna Constance were arrested in December 1999, near the intersection of 54th Street and Highway 55 (also known as Hiawatha Avenue) in south Minneapolis on the future route of Highway 55. Appellants were charged with misdemeanor trespass and petty-misdemeanor obstruction of a highway.

At the close of the state's case-in-chief, appellants moved to dismiss the trespass charges on the ground that the state presented no evidence that appellants had been told to leave the property and not return, as required by Minn. Stat. § 609.605, subd. 1(b)(8) (1998). The district court dismissed the trespass charges on that ground but found all three appellants guilty of obstructing a highway. The court sentenced each appellant either to pay a fine or to spend four days in the Sentence to Serve program. This appeal followed.

The construction of a criminal statute is a question of law, which appellate courts review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996) (citing Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985)). Criminal statutes are strictly construed against the state. State v. Larson Transfer & Storage, Inc., 310 Minn. 295, 304, 246 N.W.2d 176, 182 (1976). "Before a person may be subject to criminal liability it must be reasonably certain that the statute or ordinance renders his conduct a criminal offense." Id. (citation omitted).

The district court found appellants guilty of obstructing a highway, in violation of Minn. Stat. § 160.27, subd. 5(1) (1998), which states:

Except for the actions of the road authorities, their agents, employees, contractors, and utilities in carrying out their duties imposed by law or contract, and except as herein provided, it shall be unlawful to obstruct any highway or deposit snow or ice thereon * * * .

"Highway" is defined to include "trunk highways." Minn. Stat. § 160.02, subd. 7 (defining "road or highway") (1998); id., subd. 2 (defining "trunk highways"). The term "trunk highways" includes "all roads established or to be established under the provisions of article 14, section 2 of the Constitution of the state of Minnesota." Id., subd. 2. Article 14, Section 2, of the Minnesota Constitution provides:

There is hereby created a trunk highway system which shall be constructed, improved and maintained as public highways by the state. The highways shall extend as nearly as possible along the routes number 1 through 70 described in the constitutional amendment adopted November 2, 1920, and the routes described in any act of the legislature which has made or hereafter makes a route a part of the trunk highway system.

It is uncontested that Highway 55 is a trunk highway established under Article 14, Section 2, and is in the process of being rerouted through a portion of south Minneapolis. The district court determined that the future route of Highway 55, where appellants were arrested, was also a highway established under that constitutional provision and thus a highway within the meaning of Minn. Stat. § 160.02, subd. 7.

Appellants argue, with a certain logic, that they did not obstruct a highway because there was no highway where they were arrested. The state contends that once the Commissioner of the Department of Transportation determines a highway's route, that route becomes a highway "to be established under the provisions of Art. XIV, § 2 of the Constitution of the State of Minnesota." The state cites no authority for this proposition, and our review of caselaw reveals none. Our reading of Article 14, Section 2, convinces us that "all roads established or to be established under the provisions of article XIV, section 2 of the Constitution of the state of Minnesota" refers to the 70 trunk highways specifically identified in the section and those later added to the trunk-highway system by the legislature but not the unbuilt, future routes of trunk highways. We conclude that it is not reasonably certain that Minn. Stat. § 160.27, subd. 5(1), renders appellants' conduct a criminal offense, and therefore they are not subject to criminal liability. See Larson Transfer & Storage, Inc., 310 Minn. at 304, 246 N.W.2d at 182.

The state argues that policy considerations weigh in favor of affirming appellants' convictions because

[i]f a highway was not legally recognized until it physically existed, dissenters of all sorts could thwart construction and thereby prevent the public's use of a highway without threat of obstruction citation.

The availability of prosecution for trespass adequately addresses the policy considerations identified by the state.

Because we find that appellants' conduct did not constitute obstruction of a highway within the meaning of the statute under which they were charged, we do not address the other issues appellants raise.

Reversed.

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