Justice pokes MN Supreme Court for ‘Sesame Street’ approach

There’s a good reason why Minnesota lawmakers spend hours during floor debate arguing about the wording of laws they intend to pass. Words matter.

Take the state’s law on first-degree burglary, for example (emphasis mine):

A person is guilty of it if “the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive…”

If a victim isn’t home, can this provision be used to send someone away for 20 years? If you’re not at home to see it, can you believe a BB gun, for example, is a dangerous weapon as the law appears to require?

That question, on which an additional 10 years in prison rests, was decided by a divided Minnesota Supreme Court on Wednesday. No.

In doing so, the court overturned a Minnesota Court of Appeals decision that upheld Deronti Rogers’ conviction for breaking into a St. Cloud home in 2016 (See ruling).

Prosecutors had argued that the law only means to describe what type of weapon must be in a burglar’s possession to be convicted under the law, not what the owner of a home or apartment needs to believe.

“The item must be fashioned to lead the victim to believe that it is a dangerous weapon. In requiring that ‘the victim’ have the reasonable belief, the statute requires that that specific victim be present,” Chief Justice Lorie Gildea wrote on behalf of the majority, contending that it was significant that the Legislature used the victim rather than a victim.

Such is the nature of the finer points of language that legislators use in writing laws.

But prosecutors have their own view of the language, too, in this case, which can make one believe more English teachers should be serving in the Legislature.

Specifically, the State asserts that “to lead” is an infinitive verb and that such verbs represent “intentions, desires, or expectations.”

According to the State, if the Legislature had intended to require the victim to be present and subjectively believe the article is a dangerous weapon, it would have used a progressive verb like “leading” or “causing.”

We are not persuaded because the context of the statute makes clear that the victim must be present.

Even the words “used” or “fashioned” came in for scrutiny by the court.

But, the State argues, requiring the victim’s presence both when the weapon is “used” and when the weapon is “fashioned” renders “fashioned” superfluous. We disagree.

There are certainly circumstances where a weapon could be used against the victim and fashioned at the same time; but there are also circumstances where a weapon could be fashioned in such a way that the victim reasonably believes it is a dangerous weapon, but that weapon is not used on the victim.

In a dissent, Justice Paul Thissen, who once served in the Legislature, said the “majority fails to see the forest of legislative intent for the trees of grammatical conventions in this case.”

And he criticized the dissection of individual words in the law to determine a Legislature’s intent.

“Nothing in the structure of the statute suggests that the Legislature intended the statute to be a Sesame Street game of ‘One of These Things Is Not Like the Others,'” he wrote, adding a footnote with the actual words to the song.

One of these things is not like the others;
one of these things just doesn’t belong.
Can you tell which thing is not like the others
By the time I finish my song?

Thissen, who wasn’t in the Legislature when it revamped the law in 1988, said the Legislature was responding to citizen concerns over the increasing use of toy guns in crimes which escaped a penalty under the first-degree burglary statute at the time.

In so doing, the Legislature used language that was already in the state’s criminal sexual conduct statute.

“Admittedly, the Legislature’s drafting technique of grabbing language from one statute and inserting it with a minor change into a different statute may have been inartful,” Thissen wrote in his dissent, in which he was joined by Justice Anne McKeig.

“But the majority is using the inartful drafting to impose a new element to the crime of first-degree burglary that the Legislature, by any commonsense assessment of the language and history of the statute, never intended,” he said.

But Justice Gildea said the result is the same since in the criminal sexual assault law from which the Legislature cribbed its language, a victim still had to be present.

As a result of the examination of language, Rogers was acquitted of first-degree burglary and will be sentenced on a lesser charge.

The decision also serves as an invitation to the Legislature to clean up the wording of the law.

  • Brian Simon

    I can see both sides. But I think the majority has it correct; it is up to the legislature to clean up the language.

    • I can see Thissen’s point.Take the word “possession” , for example. You could possess something and the victim doesn’t know you have it. But under the letter of the law, it only matters if you possess it. So theoretically, a victim could be present and STILL not have the opportunity — under the method the majority describes — or ability to view it as an actual weapon.

      • BeyondThePail

        Oddly enough about two minutes after reading this post I came across an article in the state bar association magazine interviewing the recently appointed J Thissen. He more or less says this same thing… He must have just written his dissent at the time of the interview.

        While I have some sympathy to the argument, it’s fair to note that more often than not ambiguous language does not really give us a clear statement of “We really do know what they meant.” And that makes it open season for anybody to insert their own opinion into what was meant (which essentially makes the judge the legislature). Maybe sometimes decisions like this one, as bad as they are by themselves (letting this guy partially off the hook), are the accountability tool that could force a legislature to do a better job next time. (OTOH, when has that ever worked…?)

        • The court consistently struggles with determining legislative intent but often limits its effort to examining the meaning of words rather than significant research into records of history. In the absence of that effort, I still think it’s not a bad idea for every Minnesota law enacted by the Legislature to have a statement of intent, particularly when changing an existing law. (Or to have the legislative journals to read more like minutes that describe the floor debate in addition to the vote)

          Of course, so much of MN law is imposed within the omnibus bills that I suppose that, too, would be impossible.

          The net result of this decision, it seems to me, is that if nobody is home, you can’t be charged with first degree burglary.

          When you look at the requirement of “a” in the law …


          you wonder what possible purpose “b” could possibly have if not to define what constitutes a weapon.

          • jon

            Actual possession of a dangerous weapon, or possession of an explosive at any time during the burgling should be enough to get first degree burglary still though.

            But the section “any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon,” of point (b) is clearly impotent given point (a) and this ruling.

            On the plus side it means we don’t need to worry about who “the victim” is…

            I mean if I have a house guest, and some one breaks in while they are home but I am not, and my stuff gets burgled while the burglar has a toy gun, we don’t need to wonder if my house guest (who was there at the time) was “the victim” or just a bystander.

          • The court could revisit its decision that a BB gun is not a firearm, and clarify whether it is dangerous.


          • Barton

            They should probably do that. I seem to recall from a physics class that a BB gun (a pistol in our case) fired at point blank range had enough concussive force to kill an adult male. That sounds fairly dangerous to me.

          • Laurie K.

            When I read the statute in its entirety it seems clear to me that first degree burglary is meant to be a crime that requires a victim to be present. Subd. a.) requires that someone other than an accomplice be present b.) requires there to be a weapon involved which the victim believes to be dangerous weapon and subd. c) is charged when a victim who is at scene is assaulted.

          • jon

            It’s written as A, B, or C.

            That “or” at the end of section B matters.

          • Laurie K.

            Right, that just means that the charged person only has to commit one of those acts not all three. I am saying, that it is clear that 609.582, subd. 1 – no matter which subsection you are charged under, requires that a person be present at the time of the burglary.

          • Right. What I’m saying is subsection (a) suggests to me that subsection (b) is closer to Thissen’s belief of intention. If the court is ruling that a person has to actually be present in the home in order to believe a weapon is fashioned in a dangerous way, that would be covered under (a). Otherwise there’d be no reason to word it the way the legislature worded (b)

            If there’s an “and” there, OK, I could see Gildea’s interpretation, which, now that’s she’s made it, actually seems to eliminate any necessity of “b'”.

          • jon

            (a) requires the victim to be in the building (and the building be a dwelling),
            and (c) allows for the victim to be on the property (of any building),
            but (b) doesn’t specify where the victim needs to be…

            I can’t find a way to read this law that support the courts decision… if the legislature felt that it was important enough to specify locations in (a) and (c) but not (b) seems like they never intended “the victim” to have to be there…

          • Laurie K.

            Which is why I believe the legislatures included the words “the victim” in section b, not a “theoretical victim” or even “in a dwelling which may be assumed to be occupied”. I agree with the majority on this one. I also believe the reason that 609.582, subd. 1 carries a higher penalty is because it is not a “property crime” it’s a crime which involves a victim.

          • jon

            Man I was hoping we’d avoid this question (see below) but here we are…

            Who is “the victim”?

            Is it the person who owns the property which was entered with out consent?
            Is it any person present when the burgling happens?
            is it the person who is the target of the crime (for violent crimes)?
            Or the person whose property was the target of the crime (for property crimes)?

            If I leave a vase at your house, and some one breaks in and steals it, are you the victim, or am I? (because given that it’s “the victim” not “a victim” there can’t be two).

            It’s sloppy language, burglary requires two crimes, and thus potentially two victims, but the legislator put in “the victim”

          • Laurie K.

            In this case, per the statute, the victim is the person there at the time who “reasonably believe(s) it [the item fashioned]to be a dangerous weapon”. Also there is no requirement for “two victims” or even “two crimes” in the first degree burglary statute.

          • jon

            First let me say I’ve missed this, thanks for opening up the comments on this one Bob.

            Secondly, and far more to the point, where does this person need to be present at?

            If i see a burglary happening in my neighbors house from my second floor window, and make out the silhouette of a man with what appears to be a gun (doesn’t have to be one, just used or fashioned…) Am I now “the victim”? Or what if I’m on the side walk in front of their house (on the property)?

            A and C say in the building or on it’s property respectively, B says nothing to that effect, so do I only need to be able to perceive something that might reasonably be believed to be a weapon to be “the victim”? (is allowing perception of a used or fashioned would be weapon a crime?)

            Anyhow if we’ve move to having to perceive something for it to be a crime I think we need to start asking, if a house gets burgled, but no one notices, is it still a crime. (e.g. trees falling in forests wrt sound.)

          • Laurie K.

            Under that theory, section c would also no longer be necessary.

          • jon

            how so?

            you do not need a “Dangerous weapon” or “explosive” or “any article used or fashioned…” to commit assault.

            C expands on A to include all buildings not just dwellings, and the property for said building (dwelling or not).

            while if C is met in a building that is a dwelling A will also have to be met, but C can be met under other conditions that would not be covered in A or B. (i.e. burglar punches some one as they flee the building (but still on the property), or burglar punches some one in a building that is not a dwelling)

          • Laurie K.

            That is true. It does cover the appurtenant property as well as the dwelling.

          • jon

            Sorry misunderstood you there, however…

            Section (b) reads:
            “the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive;”

            Or breaking it down to drop out the “or” in (b) into different sentences:

            “The burglar possesses, when entering or at any time while in the building a dangerous weapon”
            “The burglar possesses, when entering or at any time while in the building an explosive”
            or the contentious,
            “The burglar possesses, when entering or at any time while in the building any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon”

            Throwing the last one out for a moment (because the court did in just that favor of section (a)) some on in possession of a dangerous weapon, or an explosive need not have a victim present at the time of the burgling.

          • BJ

            Justice Thissen would disagree with you.

          • Laurie K.

            The majority would, however, agree with me.

          • Laurie K.

            Statutes are supposed to be written unambiguously so that the general public can understand what they are on notice for with regard to what is considered criminal behavior. The courts look first to see if the statute is ambiguous and if they decide that it is ambiguous, then they can look at legislative intent. In this case neither party argued that the statute was ambiguous.

          • Thissen hate that part of the process, too. He’s going to be fun to have on the court.

          • BeyondThePail

            That’s an important point — In fact, the opinion tells us not only did they not argue it was ambiguous, both parties agreed the statute was UNambiguous. So, in a way, the issues of how to interpret ambiguity are obiter dicta to this chat (as well as in the MN SC opinion). The question of ambiguity wasn’t on the appeal.

      • boB from WA

        I was going to say the same thing but a different way. Never mind. Nothing to see here.

      • Laurie K.

        But there is nothing in any statutes concerning possession that mentions the effect or perception of the victim.

        • I would say the bold words in the post are a reference to how a victim would perceive something, in this case the weapon “fashioned” in a manner that a victim would perceive it as “dangerous”.

          I could see a statute more fitting Thissen’s definition saying “fashioned in a way that would lead a reasonable person to believe it dangerous”, but then we’d have a case examining the definition of “reasonable.”

          Alternately, I would change the language to say “a” victim instead of “the” victim.

          Not that the Legislature will ever revisit this, of course.

          • Laurie K.

            Right, I misunderstood your post, I thought you were talking generally about possession cases. So, I am trying to understand what you are saying. Do you see a problem with not charging a defendant with burglary under Minn. Stat. 609.582, subd. 1(b) if they have a pocket knife on them at the time of the burglary where a victim is present, but they do not use it in any way or brandished it?

          • YOu mean do I have a problem charging him with *first* degree burglary? Under Gildea’s interpretation and under subsection (b), yes. The victim could not believe the knife was dangerous because the knife was never shown or — as I’m presuming your hypothetical — was not told it existed. So he/she had the same frame of reference to this stipulation that he/she would have if he/she weren’t there at all.

  • Guest

    this is the only place I see that CARES about what judges and law are up to. Congrats

  • JamieHX

    It’s nice to hear from Paul Thissen in his new job… “fails to see the forest of legislative intent for the trees of grammatical conventions…” Love that.

    • BJ

      Except it is terrible to try and put intent into judgments. For this alone someone should run him off the supreme court.

      • Huh? The whole point of the court is determining legislative intent.

        • BJ

          I guess I mean try and guess intent. When the words are in the law are mostly clear. Guessing or something about what was intended is not good.

          • The trouble is they’re not entirely clear. That’s why the most important book in court rulings is the dictionary. Thissen’s point is there are words, but there is also context and the law is more than etymology.

            The other thing I wonder is who in the legislative branch, if anyone, keeps track of these decisions in which legislative intent is not clear and needs rewording?

          • Laurie K.

            However, as I stated previously, in this case neither side argued that the statute was ambiguous. The majority reviewed and also decided the statute was unambiguous. You can say they are wrong and that the statute is in your opinion, ambiguous, but you cannot say they were wrong in not looking at legislative intent after they had already decided the statute was unambiguous.

          • Ambiguity and deciphering legislative intent are two different issues. The court, as I’m sure you know, often debates and decides based on legislative intent while finding the law unambiguous.

            The court acknowledges this when declaring that its role is to determine the intention of the Legislature by first determining ambiguity.

            Finding none doesn’t preclude determining meaning, it merely advances the process to determining plain meaning through etymology and evaluating context.

            Both sides in this case acknowledge that the statute is unambiguous, but they differ on its plain meaning.

          • Laurie K.

            If the Legislature’s intent is clear
            from the statute’s plain and unambiguous language, then we interpret the statute
            according to its plain meaning without resorting to the canons of statutory construction. City of Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d 752, 755
            (Minn. 2013) (citing Minn. Stat. § 645.16 (2012)), see also Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 435 (Minn. 2009)
            (distinguishing between “canons of interpretation,” which are used to determine if a
            statute is ambiguous, and “canons of construction”).

          • I’m not sure if there is a debate here since the Court stated pretty clearly its etymological process once it declared the law unambiguous.

          • Laurie K.

            Right, which I am saying is the correct process and you seem to be saying is only part of the process and they should also look at legislative intent. But, I agree, this is an argument that better minds than mine have debated for decades without reaching a consensus, time to give this a rest.

          • Examining legislative intent isn’t a side in this case, nor in almost every other case involved etymology. That’s what the court is doing. Where there might be a difference is the process by which that intent is measured.

  • jon

    looks like they copied and pasted into aggravated robbery too…

  • Christopher

    If this law was last re-written in 1988, then I think it is in need of some re-wording. In ’88, you did not have the sorts of home security systems that might capture video of a burglar possessing a weapon. Many homes now have systems that may allow them to see a burglar with a weapon in real time. So, while they are not on the premises, they may see a weapon (and believe it to be dangerous) as the burglar enters the home. Legislators should probably just add a sentence to indicate that the victim needs to be at the property.

  • ec99

    One more example of the importance of how documents be constructed. I recall the famous contested will case, where the decedent wrote “I leave my estate to my children John, Robert and Mary.” John insisted that the lack of the infamous Oxford comma between Robert and Mary meant he was to get 50% and they split the other 50%. Don’t know what the decision was, or even if it’s apocryphal.