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State v. Jorgenson

Court of Appeals of Minnesota

October 7, 2019

State of Minnesota, Appellant,
v.
John Joseph Jorgenson, Respondent.

          Olmsted County District Court File No. 55-CR-18-4564

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Senior Assistant County Attorney, Rochester, Minnesota (for appellant)

          David L. Liebow, Godwin Dold, Rochester, Minnesota (for respondent)

          Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Bratvold, Judge.

         SYLLABUS

         Minn. Stat. § 609.27, subd. 1(4) (2016), which is part of Minnesota's criminal coercion statute, is facially unconstitutional under the First Amendment because it restricts free speech, is substantially overbroad, and is not reasonably susceptible to a narrowing construction or severance of unconstitutional provisions.

          OPINION

          BRATVOLD, JUDGE

         The state challenges the district court's pretrial dismissal of its complaint against respondent John Joseph Jorgenson. The district court determined that the charging statute, Minn. Stat. § 609.27, subd. 1(4) (2016), is unconstitutional on its face because it prohibits a substantial amount of constitutionally protected speech and cannot be narrowed by judicial construction. We affirm.

         FACTS

         The state's complaint alleged the following facts: Jorgenson and J.C. were in a romantic relationship and lived together on J.C.'s property. J.C. ended the relationship in the fall of 2016 and was "in the process" of evicting Jorgenson at the time Jorgenson made phone calls to J.C.'s father. J.C.'s father contacted law enforcement and complained that Jorgenson called him multiple times, stating that he wanted $25, 000 to not release a video of J.C. "talking about smoking marijuana." Jorgenson allegedly threatened to release the video to the Minnesota Department of Human Services and J.C.'s employer.[1]

         The state charged Jorgenson with one count of attempted coercion under Minn. Stat. § 609.275 (2016), with reference to Minn. Stat. § 609.27, subd. 1(4). Specifically, the complaint alleged that Jorgenson had unlawfully made "a threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule, but failed to cause the intend[ed] act or forbearance."

         Jorgenson moved to dismiss on two grounds: (1) lack of probable cause that he had violated the statute, and (2) Minn. Stat. § 609.27, subd. 1(4), is unconstitutionally overbroad in violation of the First Amendment to the United States Constitution and article I, section 3 of the Minnesota Constitution. The state filed a memorandum in opposition, and initially agreed that the First Amendment is implicated by Jorgenson's facial challenge. But the state also argued that the statute prohibits specific conduct, is not unconstitutionally overbroad, and, alternatively, could be narrowed by construing the statute to proscribe only "unlawful" threats by requiring a "lack of nexus between the underlying claim and the threat."

         In February 2019, the district court issued an order denying Jorgenson's motion to dismiss for lack of probable cause, but granting the motion to dismiss "on the basis that the charging statute is unconstitutionally overbroad and violative of the First Amendment." The district court reasoned that the statutory language is substantially overbroad and "not reasonably susceptible" to a narrowing construction. The state appeals.

         ISSUE

         Is Minnesota Statutes section 609.27, subdivision 1(4), an unconstitutional restriction of free speech under the First Amendment, and if so, is a judicial remedy capable of saving subdivision 1(4)?

         ANALYSIS

         The state may appeal as of right from "any pretrial order, including probable cause dismissal orders based on questions of law." Minn. R. Crim. P. 28.04, subd. 1(1). The state must show that the district court's legal error had "a critical impact on the outcome of the trial." Id., subd. 2. Here, the district court's order is appealable because it dismissed the state's complaint based on a question of law-the constitutionality of the charging statute. See State v. Varnado, 582 N.W.2d 886, 889 n.1 (Minn. 1998) (stating that district court's dismissal of a criminal complaint against defendant satisfies the critical-impact test). We review the constitutionality of a statute de novo. State v. McLaughlin, 725 N.W.2d 703, 712 (Minn. 2007).[2]

         I. Minnesota Statutes section 609.27, subdivision 1(4), is an unconstitutional restriction of free speech under the First Amendment and is not susceptible to a narrowing construction or severance.

         The state argues that the district court erred when it determined that section 609.27, subdivision 1(4), is unconstitutional. The state contends that the statute "regulates unprotected speech [and] is presumed to be constitutional." Jorgenson argues that the statute is unconstitutional because it applies to a "great deal of constitutionally protected speech" and cannot be narrowly construed to survive constitutional scrutiny.

         The Minnesota Supreme Court has recently summarized the four steps of an overbreadth challenge. See In re Welfare of A.J.B., 929 N.W.2d 840, 847-48 (Minn. 2019); see also State v. Hensel, 901 N.W.2d 166, 171-76 (Minn. 2017) (providing the same general framework). The first step is to interpret "the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." A.J.B., 929 N.W.2d at 847.

         The second step is to determine whether the challenged statute restricts protected speech or only unprotected speech or expressive conduct.[3] Id. The general rule is that appellate courts "presume Minnesota statutes are constitutional and will strike down a statute as unconstitutional only if absolutely necessary." State v. Johnson, 813 N.W.2d 1, 4 (Minn. 2012). The party challenging the statute has the burden to show that it restricts protected speech. See id. ("The party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision."); McLaughlin, 725 N.W.2d at 712 ("A party who challenges a statute's constitutionality bears the burden of proving that the statute is unconstitutional beyond a reasonable doubt.").

         If a court determines that the challenged statute restricts protected speech, then it proceeds to the third step, which is "the core overbreadth inquiry: Does the statute prohibit a substantial amount of constitutionally protected speech?" A.J.B., 929 N.W.2d at 847 (quotation omitted). At this stage, appellate courts no longer presume that the statute is constitutional. See State by Humphrey v. Casino Mktg. Grp., Inc., 491 N.W.2d 882, 885 (Minn. 1992); see also State v. Stockwell, 770 N.W.2d 533, 537 (Minn.App. 2009) ("[A] statute which restricts First Amendment rights is not presumed constitutional."). Appellate courts must ask "whether the protected speech and expressive conduct make up a substantial proportion of the behavior the statute prohibits compared with conduct and speech that are unprotected and may be legitimately ...


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