(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 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. § 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 *893distinction between a “claim of right” and “rights” in general. To negate the criminal intent required by Minn.Stat. § 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 § 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 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.
Id. (emphasis added).
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.
Id. The phrase “bona fide claims” obviously refers to situations in which the defendant’s “offense was the product of inadvertence or unwariness.” State v. Quinnell, 277 Minn. 63, 70, 151 N.W.2d 598, 604 (1967). As in Quinnell, there was no mistake or inadvertence in regard to the defendant’s conduct. She received a letter of exclusion, intentionally entered the premises, and refused to depart when requested to do so by the Minneapolis Police. Therefore, our decision in Quinnell mandates an affirmance of the lower court’s decision.
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 Rehabilitation Center.
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, 66 S.Ct. 276, 90 L.Ed. 265 (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 U.S. 507, 520, 96 S.Ct. 1029, 1036, 47 L.Ed.2d 196 (1976) (large self-contained shopping center held not to be the functional equivalent of a municipality); Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972) (same). Because St. Mary’s Skilled Nursing Home clearly lacks sufficient indicia of a municipality, the Marsh doctrine has no application. Since Marsh is inapplicable, appellant has no constitutional right to be on the premises. As no constitutional impediments mandate a contrary result, I would affirm the lower court’s decision that appellant violated the trespass statute.