Opinion
A23-0269
09-21-2023
State of Minnesota, Respondent, v. Steven Michael Herrick, Appellant.
Dakota County District Court File No. 19AV-VB-22-9842
Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and Hooten, Judge. [*]
ORDER OPINION
Francis J. Connolly, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In September and October 2022, police officers observed appellant Steve Herrick standing on a roadway median and extending his arm into the traffic to collect money from drivers.
2. Appellant was charged with two violations of Minn. Stat. § 169.21, subd. 5 (2022) ("Where sidewalks are provided and are accessible and usable it shall be unlawful for any pedestrian to walk . . . along and upon an adjacent roadway.").
3. At the arraignment on these charges, appellant, who was acting pro se, filed a motion to dismiss the charges based generally on arguments that the median is not part of the roadway and that appellant had a First Amendment right to solicit money while standing on the median.
4. During the December 2022 hearing on his motion to dismiss, appellant stated that he was not challenging the constitutionality of Minn. Stat. § 169.21, subd. 5; that the only issue was whether a median is part of the roadway; and that he would abide by the judge's decision on this point.
5. In January 2023, another judge issued an order denying appellant's motion to dismiss four other cases that also related to appellant's standing on a median to collect money; that judge determined that a median is included within the Minn. Stat. § 169.011, subd. 68 (2022), definition of "roadway" as "that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder."
6. Based on this reasoning, the district court in this matter convicted appellant of having violated Minn. Stat. § 169.21, subd. 5, in September and October, and appellant challenges those convictions, arguing again that the median is not part of the roadway.
Appellant also seems to reiterate in his pro se brief his arguments that Minn. Stat. § 169.21, subd. 5, is unconstitutional and violates his First Amendment rights. Because appellant explicitly did not make these arguments to the district court at the hearing, they are not properly before us on appeal, and we do not address them. See Thiele v. Stich, 482 N.W.2d 580, 582 (Minn. 1988) (holding that this court generally considers only those issues presented to and considered by the district court).
7. We agree with the district court's memorandum stating that a median is designed "to divide the lanes of traffic travelling in opposite directions" and "specifically for the roadway"; medians are "meant to improve the highway where vehicles travel."
8. By expressing "sidewalk" and "shoulder" as two items not part of a roadway as defined in Minn. Stat. § 169.011, subd. 68, the legislature implicitly excluded other items from that list under the doctrine of expressio unius est exclusion alterius, (the expression of one thing is the exclusion of another).
9. We see no basis to overturn appellant's conviction.
IT IS HEREBY ORDERED:
1. The district court's judgment is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.--------- Notes:
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.