State v. Jorgenson

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          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.

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          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.

          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,

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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 ...