Olmsted County District Court File No. 55-CR-18-4564
Ellison, Attorney General, St. Paul, Minnesota; and Mark A.
Ostrem, Olmsted County Attorney, Jennifer D. Plante, Senior
Assistant County Attorney, Rochester, Minnesota (for
L. Liebow, Godwin Dold, Rochester, Minnesota (for respondent)
Considered and decided by Jesson, Presiding Judge; Worke,
Judge; and Bratvold, Judge.
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.
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.
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
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
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."
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.
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
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).
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
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.
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.
second step is to determine whether the challenged statute
restricts protected speech or only unprotected speech or
expressive conduct. 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
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