Minnesota DWI Law is Unconstitutional

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MAJOR MINNESOTA DWI NEWS In separate opinions released today, the Minnesota Supreme Court has said that portions of the Minnesota DWI law is unconstitutional. Specifically, these cases addressed the issue of whether a driver can be charged with a DWI in Minnesota for refusing to provide a blood or urine sample when the arresting officer does not have a search warrant. RECENT LEGAL CHALLENGES Several challenges to Minnesota’s DWI laws have been raised in recent years, primarily arguing that the Minnesota DWI law is unconstitutional.  Drivers arrested on suspicion of DWI in Minnesota have argued that police officers conduct a search for evidence by collecting a blood, breath, or urine sample.  The blood, breath, or urine sample is obviously obtained from the person of the arrested driver, which in turn is tested for evidence that is then used against that person.  Because law enforcement is conducting a search for evidence, arrested drivers argued that police have to comply with the requirements of the 4th Amendment and get a search warrant prior to collecting the blood, breath, or urine sample.  It appears that we now have answers, finally. CURRENT STATUS OF MINNESOTA DWI LAWS Here’s where we appear to be:  police officers do not have to get a search warrant prior to requiring an individual arrested on suspicion of DWI to provide a breath sample as evidence of intoxication.  However, police officers must get a search warrant before they can lawfully request or collect a blood or urine sample from an individual arrested on suspicion of DWI. Courts have differentiated the individual privacy intrusion involved in the collection of a breath sample versus a blood or urine sample.  Breath samples, courts have said, involve only a minimal invasion of privacy.  The police do not have to stick a needle into you or collect a physical piece of evidence from you when they take a breath sample.  Blood, on the other hand, involves a physical intrusion – often painful – into the body.  Urine also involves a greater privacy invasion.  An officer must personally observe the collection of the urine sample.  And an individual is providing a physical piece of evidence from within their body.  Because blood and urine invoke greater privacy invasions, courts have declared that police must get a search warrant signed by a judge before obtaining the sample from an individual arrested on suspicion of DWI in Minnesota. You cannot be prosecuted for refusing to provide a blood or urine sample if the police do not have a search warrant. FREE CONSULTATIONS We offer free consultations on all our cases, including Minnesota DWIs.  Contact us today if you’d like to schedule a consultation with our Minnesota DWI lawyer.

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Minnesota Criminal Defamation Appeal

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UPDATE CRIMINAL DEFAMATION As previously discussed, we have been fighting the constitutionality of the Minnesota Criminal Defamation statute for sometime.  After we successfully obtained a full dismissal of all charges for a client in Blue Earth County, we picked up another Criminal Defamation case out of Isanti County.  The prosecutors held firm in that case and refused to dismiss the charges.  The district court judge also denied our motions to have the charges dismissed.  We have since filed an appeal with the Minnesota Court of Appeals seeking a review of the district court judge’s decision.  Professor Eugene Volokh of the UCLA School of Law has joined the appeal as an amicus curiae, which essentially means he’s taken a position supporting our argument that the Minnesota Criminal Defamation statute is unconstitutional.  The Court of Appeals has not scheduled oral argument, yet.  For those interested, a link to our appellate brief and Professor Volokh’s supporting brief is below.  We’ll be sure to provide an update when the appeal is scheduled for argument. Update: The state has filed its responsive brief.  The state argues that the Criminal Defamation statute does not unnecessarily criminalize protected speech and, therefore, the statute is not overbroad. The state also argues that the facts in this appeal deal with private speech between private individuals and, therefore, the speech has less constitutional protection which the state can rightfully punish.  Finally, the state argues that if the Court of Appeals were to find the statute impermissibly limits the defense of truth, that the Court can simply delete the impermissible language from the statute and, therefore, the statute would then be constitutional. The state completely misses the boat. While it is true that speech on matters of purely private concern between private individuals has less constitutional protection than speech on matters of public concern, it is still absolutely protected if true.  That is the major shortcoming of the Minnesota Criminal Defamation statute. SPEECH, REGARDLESS OF THE TYPE, ENJOYS ABSOLUTE CONSTITUTIONAL PROTECTION IF TRUE.  IN ORDER TO CONSTITUTIONALLY PUNISH SPEECH, A STATE STATUTE MUST PROVIDE FOR THE ABSOLUTE DEFENSE OF TRUTH. Minnesota’s Criminal Defamation statute limits the availability of truth as an absolute defense of truth by placing a burden on the speaker to show the statement was made for good motives and justifiable ends.  This is an impermissible constitutional limitation on the absolute defense of truth.  Moreover, although the facts of this case may deal with private speech between private individuals, the appeal focuses on what’s called the “face of the statute.”  Our argument is the statute unconstitutionally punishes all types of speech so the statute itself is facially invalid.  The state completely fails to address this argument. IN ORDER TO SURVIVE OUR FACIAL ATTACK, THE STATE ARGUES THE COURT OF APPEALS COULD SIMPLY DELETE THE THE “GOOD MOTIVES AND JUSTIFIABLE” ENDS LANGUAGE FROM THE STATUTE AND, THEREFORE, THE STATUTE WOULD THEN PROVIDE FOR AN ABSOLUTE DEFENSE OF TRUTH. This argument asks the Court to re-write a statute, which is not a function of our courts.  It is well settled law that courts should not engage in re-writing state statutes.  Courts interpret statutes; they do not write them.  If the state wants the statute amended, it needs to take that issue up with the Minnesota legislature. A link to the state’s full brief is below. Amicus-BriefStates-BriefTurner-Appellate-Brief

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Is Chiropractic Care Paid For If I am Injured At Work In Minnesota?

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CHIROPRACTIC CARE PAYMENT Sometimes when a worker is injured in Minnesota, he or she would prefer to go to a chiropractor to treat their injuries.  Minnesota workers’ compensation, however, limits the amount of chiropractic care that insurance companies are required to pay for. These “limitations” are called the treatment parameters.  The treatment parameters apply to all dates of injury and health care providers.  They only apply however to treatment that was provided after January 4, 1995. The treatment parameters only apply to treatment initiated after liability has been established.  If the insurer has denied liability, the treatment parameters are not applied to the treatment for that injury. AS A GENERAL PARAMETER, ANY TREATMENT MUST BE MEDICALLY NECESSARY. Regarding chiropractic care, the courts have held that chiropractic treatment that provided relief of symptoms was not in and of itself sufficient to support a determination that the treatment was reasonable and necessary.  There are several factors that the compensation judges look at to determine whether the chiropractic care is reasonable and necessary to cure and relieve the effects of the injury.  These factors include: The employee’s opinion as to the relief obtained in terms of the extent, frequency, and duration of treatment. The possibility of other conditions not discovered by the chiropractor causing the employee’s problem. The setting up of a weekly schedule with no reduction to an “as needed” status. The period of relief from pain, in particular whether persistent pain returns. The use of alternative medical providers in the event of the employee’s ability to continue to work. The recommendation of long-term chiropractic care into the future which results in a maintenance rather than injury treatment. The possibility of psychological dependency of the employee on chiropractic care. THE DURATION OF TIME THAT AN INJURED EMPLOYEE IS ALLOWED TO OBTAIN CHIROPRACTIC TREATMENT IS ALSO LIMITED UNDER MINNESOTA WORKERS’ COMPENSATION LAW. Under the treatment parameters, an injured employee is allowed up to 12 weeks of treatment, including adjustments and adjunctive therapies.  There is a maximum treatment frequency of five times a week for the first one to two weeks and then decreasing frequency thereafter.  After the initial 12 weeks of treatment, an additional 12 visits over the next 12 months are allowable if all of the following requirements are met: The treatment must progressively improve or at least maintain the functional status gained during the initial 12 weeks of treatment. The treatment is not regularly scheduled. The chiropractor’s records include a documented plan to “encourage the employee’s independence and decreased reliance on health care providers”; and The chiropractor uses active modalities (i.e., education, posture and work method training, worksite analysis, modification, and exercise). If you are an injured worker and would like to seek the help of a chiropractor it is important to seek the advice of a work comp attorney.  We can help find a chiropractor that is familiar with Minnesota workers’ compensation laws to ensure that the treatment is covered, and/or advise the employee’s chiropractor regarding those laws.  If you have been injured at work and would like to treat with a chiropractor, contact our Minneapolis/St. Paul workers’ compensation attorneys today for a free consultation.

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How to Start a Minnesota Work Comp Case

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STARTING A WORKERS COMP CASE The method to start a Minnesota work comp case depends on the benefit being claimed and whether the employer has accepted primary liability.  If the employer has denied primary liability for the injury, then a Claim Petition must be filed to start a Minnesota work comp case.  If the employer has accepted primary liability for the work injury and you believe you are entitled to Minnesota work comp benefits such as wage loss or a medical benefit, you can also file a Claim Petition.  If the employer has accepted liability and you are only claiming a medical benefit, a Medical Request document must be filed to start a Minnesota work comp case.  If the employer has denied liability for the injury, a Medical Request cannot be filed because primary liability has not been established.  The benefit to filing a Medical Request rather than a Claim Petition is the matter will be set on the court’s calendar sooner than it would if a Claim Petition was filed. A CLAIM PETITION IS THE MINNESOTA WORK COMP VERSION OF A SUMMONS AND COMPLAINT, WHICH IS HOW A TRADITIONAL LAWSUIT IS STARTED. The petition must state the names and addresses of all parties, the date of injury, the average weekly wage claimed, the nature of the injury, the extent of disability claim, and that notice of the injury was properly provided to all parties.  All witnesses must also be named, the desired location of the hearing, how long of a hearing is anticipated, and any request for a settlement conference or pretrial hearing.  Some evidence indicating the injury was a work injury must also be attached. THE EMPLOYER AND INSURER MUST SERVE AND FILE AN ANSWER TO THE CLAIM PETITION WITHIN 20 DAYS. The answer must include specific responses to the allegations, medical reports on which the answer is based, any affirmative defenses, and information regarding the IME.  If a timely answer is not filed, and an extension is not requested, the matter can be set for an immediate hearing. If you have questions about how to start a Minnesota work comp case, call our Minnesota workers’ compensation lawyers today.  Our Minneapolis/St.Paul work comp attorneys will provide a free consult and answer all of your questions about how to start a work comp case.

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Do I Have to Attend an Independent Medical Examination?

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In most cases, the answer is yes. Under Minnesota workers’ compensation law, the employer/insurer is entitled to an independent medical examination of the employee for any injuries claimed.  Many times this will occur during your case while you are receiving benefits.  In other cases, when your Minnesota work comp claim has been denied from the beginning, it will occur after the filing of a Claim Petition. The filing of the Claim Petition triggers a requirement that the Independent Medical Examination occur within 120 days of the filing. The term “Independent Medical Examination” is a misnomer.  These examinations are anything but independent.  The doctor conducting the examination is paid by the insurance company.  Although many of these doctors are reputable and provide an honest opinion of your medical condition, the insurance company and employer hire these doctors to support their claim that you, the employee, is no longer entitled to benefits.  If a doctor provides an opinion contrary to this narrative too often, that doctor will not be used anymore by the insurer to conduct an independent medical examination. Despite the fact that from the outset you may believe that you should not be required to attend an examination that is more “adverse” than it is “independent” you must remember that  you are required by the rules to attend this independent medical examination.  Failure to attend can result in a denial of your Minnesota work comp benefits. After the independent medical examination, you will receive a report outlining the doctor’s opinions.  Many times this report will be accompanied by a letter from the insurer stating that your Minnesota work comp benefits will be discontinued and you have reached what is called maximum medical improvement. At this point it is important to hire an experienced Minnesota work comp attorney to fight both the adverse examination report and the discontinuation of Minnesota work comp benefits.  There are no attorney fees associated with hiring a Minnesota work comp attorney unless we are successful in obtaining those Minnesota work comp benefits which have been denied, or there is a settlement of your case. Call our Minnesota work comp attorneys today if you have questions about an upcoming independent medical examination or would like to discuss your Minnesota work comp case.

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Determining Minnesota Workers’ Compensation Wage Loss Benefits

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DETERMINING MINNESOTA WORKERS’ COMPENSATION WAGE LOSS BENEFITS CAN BE TRICKY. An injured employee’s wage on the date of injury determines the amount of the employee’s Minnesota workers’ compensation wage loss benefits.  A fair estimation of the injured employee’s future earning power, taking into account a reduced earning capacity because of injury, is the main objective of determining an injured employee’s average weekly wage. THE INJURED EMPLOYEE’S DAILY WAGE MUST FIRST BE DETERMINED IN ORDER TO DETERMINE THE AVERAGE WEEKLY WAGE UNDER MINNESOTA WORKER’S COMPENSATION. Calculation of the daily wage for Minnesota workers’ compensation wage loss benefits becomes more relevant when an injured employee’s earnings are irregular, difficult to determine, or the injured employee was part time.  In those cases of irregular employment, the daily wage is calculated by dividing the total earnings in the preceding 26 weeks by the days in which the injured employee actually performed any of the duties of her employment. Average weekly wage for Minnesota workers’ compensation wage loss benefits, in regular employment situations, is arrived at by multiplying the daily wage by the number of days (and fractional days) normally worked in the business of the employer.  If there is a contract specifying the amount of compensation, his compensation rate will be based on that contract.  For the “regular employment” situations, fluctuations for legal holidays, vacation days, and sick leave are not used to determine the wage based on the formula for “irregular employment”.  Sometimes you can arrive at the injured worker’s average weekly wage simply by adding up the gross amount that has been received weekly by an injured employee and dividing that number by the number of weeks.  Our Minnesota work comp lawyers will use whichever method is necessary to determine the average weekly wage. ONCE THE AVERAGE WEEKLY WAGE IS DETERMINED, IT CAN THEN BE DETERMINED WHAT THE MINNESOTA WORKERS’ COMPENSATION WAGE LOSS BENEFIT COMPENSATION RATE IS. If an injured employee is off work completely due to a work injury, the wage loss benefit compensation rate is determined by taking 2/3 of the average weekly wage.  There is a maximum and a minimum on the amount an injured employee can receive in benefits and that limit is determined by the Minnesota workers’ compensation law in effect on the date of the injury.  This has changed over the years, most recently in October 2013. THE STARTING POINT IN DETERMINING MINNESOTA WORKERS’ COMPENSATION WAGE LOSS BENEFITS IS THE AVERAGE WEEKLY WAGE. Then looking at the law in effect on the date of the injury, it can be determined what the appropriate wage loss benefit amount is.  There are several different types of benefits available. As you can see, determining workers’ compensation wage loss benefits is tricky.  Our experienced Minnesota workers’ compensation lawyerswill make sure the correct amount is determined.  If you have a question about the amount of Minnesota workers’ compensation  wage loss benefits you are currently receiving, or believe you are entitled to benefits you are not receiving, contact our Minneapolis/St. Paul work comp attorneys for a free case review.

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Defamation and Stalking Charges Dismissed

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The Blue Earth County Attorney’s Office recently dismissed charges of Minnesota Criminal Defamation and Stalking against a client.  This case was discussed in an earlier blog post, which you can find here. The charges stemmed from an email sent by the client that commented on an individual’s sexual preferences and activities and also contained a nude photograph of the individual.  While the email probably did not need to be sent, it was still protected speech under the First Amendment.  The Blue Earth County Attorney’s Office had a different interpretation and decided to charge our client with Minnesota Criminal Defamation and Stalking.  Our client maintained his innocence from day one and we proceeded to put together a constitutional challenge to the charges. As mentioned in the earlier post, Judge Johnson denied our motion to dismiss, barely addressing the constitutional shortcomings of the Minnesota criminal defamation statute.  Following the denial of our motion, we proceeded to prepare for trial and to also gather support for an appeal.  As the trial date approached, the State offered what’s known as a Continuance for Dismissal for six months.  Essentially, the charges would have been dismissed if the client remained law abiding for the next six months.  Ordinarily, this would have been a great offer; however, under the facts and circumstances of this case, it was not enough.  Our client rejected the State’s offer and proposed what’s known as a Lothenbach plea, which would have preserved our right to appeal Judge Johnson’s pre-trial ruling.  The client agreed to stipulate to the state’s evidence and ask the judge to review that evidence to determine his guilt or innocence.  Judge Johnson most likely would have convicted our client of the charges, which would have resulted in an appeal to the Court of Appeals.  If the Court of Appeals agreed with our position, the charges then would have been dismissed; if not, the conviction would stand.  Clearly, this procedure is fairly risky for the client but we were confident in our position. The State really does not have much to lose in this situation.  It is essentially getting a conviction, followed by an appeal.  The State would have to defend the appeal and attempt to argue that the Minnesota criminal defamation statute is constitutional.  Rather than standing behind the charges filed and defending the statute on appeal, the State dismissed all charges against our client the day before we were scheduled to return to court. This was a big win for the client.  The catch, however, is that Minnesota’s criminal defamation statute continues to be in force and the State can continue to charge individuals with this crime under an arguably unconstitutional statute.  At least until someone challenges that statute at the Court of Appeals. If you think we can help you or someone you know fight your criminal charges, contact our St. Paul criminal defense attorneys today.

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Another Expungement Granted

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RAMSEY COUNTY EXPUNGEMENT Minnesota criminal defense lawyer John Arechigo recently obtained another expungement for a former client.  The former conviction was only for a misdemeanor theft, so there’s nothing particularly extraordinary about getting a misdemeanor theft expunged.  What was different about this case, however, is that the expungement followed a dismissal after the client successfully completed the Ramsey County diversion program known as Project Remand. DIVERSION PROGRAMS Several Minnesota counties have a diversion program for criminal cases.  A diversion program removes, or diverts, a criminal case from criminal court.  The defendant must complete the conditions of the diversion program and remain law-abiding during the length of the program, usually one year.  The criminal charge is then dismissed upon successful completion of the diversion program.  Diversion programs are a great opportunity for certain first-time offenders to avoid a criminal conviction. The new Minnesota expungement law provides that successful diversion program participants are entitled to have their record expunged.  However, the new expungement law grouped diversion program cases together with individuals who received what’s known as a Stay of Adjudication in their criminal case.  A Stay of Adjudication and a diversion program are sort of the same thing in that they both result in a criminal charge being dismissed after successful completion of certain conditions; however, there is also a significant difference between the two. In a Stay of Adjudication, a criminal defendant stands in front of the judge and admits wrongdoing by pleading guilty to a criminal charge.  The guilty plea is not used against the defendant to convict; instead, the court stays – or suspends – finding the defendant guilty and places the defendant on a period of probation.  The criminal charge is then dismissed upon successful completion of the probationary period.  With a diversion program, the criminal defendant is typically not required to admit any wrongdoing or enter a guilty plea.  The criminal case is simply removed from criminal court without any formal proceedings. EXPUNGEMENTS: STAY OF ADJUDICATION VS. DIVERSION PROGRAM Minnesota’s new expungement law has a specific provision addressing expungement eligibility following a stay of adjudication.  The law requires the individual to wait one additional year after the charge has been dismissed before the case is eligible to be expunged. There’s the one-year probationary period with a stay of adjudication after which the criminal charge is dismissed.  The individual must then wait one more year with no new criminal offenses before their record is eligible to be expunged. The Minnesota expungement law seemingly imposes this same one-year waiting period for diversion program cases.  However, unlike a stay of adjudication, there is no admission of wrongdoing in diversion program cases.  Because there’s no admission, there’s an argument to be made that dismissal following successful completion of a diversion program is essentially the same as an outright dismissal.  Individuals who have had their criminal charge dismissed are immediately eligible for an expungement. This is the argument we made in our recent Ramsey County expungement case.  Most judges have been requiring the additional one-year waiting period following completion of a diversion program before considering a case eligible for expungement.  Minnesota criminal defense and expungement lawyer John Arechigo argued that the court should treat his client’s diversion program dismissal like an outright dismissal and grant the expungement before the one-year waiting period.  The judge agreed and granted the expungement.  John Arechigo was able to obtain the expungement only a couple months after his client’s charge had been dismissed.  The client was extremely happy that the court did not require the one-year waiting period.

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Workers Compensation Notice of Injury

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WORKERS COMP – NOTICE OF INJURY In two of our recent Minnesota workers’ compensation cases, we successfully argued that although no written or verbal workers compensation notice of injury was given to the employer by the injured employee the employer still nonetheless had actual notice of the injury.  An employer has actual notice of an employee’s work injury if a supervisor or managerial employee witnessed the injury, or may otherwise be aware of the injury.  By showing the employer had actual notice of our injured clients’ work injury, we were able to obtain wage loss and medical benefits for our clients as well as significant settlements for each of them. The text of the workers’ compensation notice requirement statute reads: 176.141 NOTICE OF INJURY. Unless the employer has actual knowledge of the occurrence of the injury or unless the injured worker, or a dependent or someone in behalf of either, gives written notice thereof to the employer within 14 days after the occurrence of the injury, then no compensation shall be due until the notice is given or knowledge obtained. If the notice is given or the knowledge obtained within 30 days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation unless the employer shows prejudice by such want, defect, or inaccuracy, and then only to the extent of the prejudice. If the notice is given or the knowledge obtained within 180 days, and if the employee or other beneficiary shows that failure to give prior notice was due to the employee’s or beneficiary’s mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent, then compensation may be allowed, unless the employer shows prejudice by failure to receive the notice, in which case the amount of compensation shall be reduced by a sum which fairly represents the prejudice shown. Unless knowledge is obtained or written notice given within 180 days after the occurrence of the injury no compensation shall be allowed, except that an employee who is unable, because of mental or physical incapacity, to give notice to the employer within 180 days from the injury shall give the prescribed notice within 180 days from the time the incapacity ceases. THE STATUTE CREATES THREE DIFFERENT TIME PERIODS FOR WHEN WORKERS COMPENSATION NOTICE OF INJURY MUST BE GIVEN:  14 DAYS, 30 DAYS, AND 180 DAYS. Under the 14 day workers compensation notice requirement, if the employee delays providing notice for up to 14 days after an injury, the employer has no responsibility to pay compensation until notice is received. If the injured employee waits more than 14 days but provides workers compensation notice of injury within 30 days of the work injury, the late notice may impact the amount of compensation.  The statute does not specify what the penalty could be; it merely says “may affect the amount of compensation.” THERE IS A HARSHER PENALTY IF AN EMPLOYEE FAILS TO PROVIDE PROPER WORKERS COMPENSATION NOTICE WITHIN 180 DAYS. If notice of injury is given after 180 days, no compensation shall be allowed except in those situations where the employee is unable, due to mental or physical incapacity, to give notice, or where the employer has engaged in fraud, misrepresentation or deceit. In our recent cases, the employers argued that the workers compensation notice of injury was not given within the 180 days of the date of the work injury.  After engaging in lengthy discovery and depositions with the clients’ employers, Minnesota work comp attorney Josh Stokka was able to show that our clients’ employers had actual notice of our clients’ work injuries even if no written or verbal workers compensation notice of injury was given by the client. If you have been injured at work, it is important to give formal workers compensation notice of injury right away to avoid some of the above-mentioned penalties. However, sometimes employers will pressure employees into not filing a claim and try to claim they never received workers compensation notice of injury after the notice period runs.  In these types of situations, it is important to obtain evidence to present to a judge. HIRE LAKEVILLE’S BEST WORK COMP LAYWERS Contact our Lakeville work comp attorneys today if you or someone you know has suffered a recent work injury.  Our St. Paul work comp lawyers will review the facts of your case and determine the best course of action.

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Minnesota Criminal Defamation Statute Declared Unconstitutional

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THE MINNESOTA COURT OF APPEALS HAS DECLARED THE MINNESOTA CRIMINAL DEFAMATION STATUTE UNCONSTITUTIONAL The Court released a published opinion today holding the statute unconstitutionally overbroad.  For those familiar with our criminal defamation appeal, it appears as though the fight is over. The Court agreed with our argument in several areas. Our primary argument all along had been that the Minnesota criminal defamation statute punishes true statements. True statements are absolutely protected. This is not up for debate. The Court of Appeals agreed and was clear in its opinion when it stated the statute’s “requirement that the truth be communicated with good motives and justifiable ends violates First Amendment protections,” “because it penalizes protected speech — true statements — in addition to unprotected speech — false statements.” The other major shortcoming of the Minnesota criminal defamation statute was that it punished statements on matters of public concern without requiring a showing that the speaker knew the statement was false.  KNOWLEDGE OF FALSITY (OR RECKLESS DISREGARD OF THE LIKELIHOOD OF FALSITY) IS A REQUIRED ELEMENT OF A CIVIL DEFAMATION CLAIM. A civil plaintiff must make this showing in order to collect punitive damages.  The Minnesota criminal defamation statute failed to contain this required element.  This argument was excellently addressed by Eugene Volokh.  The Court agreed with Volokh’s argument that it is not “permissible to jail people under a lesser showing than that required to collect punitive damages from them.” Our final argument convinced the Court that the statute would have to be re-written in order to be constitutional.  In some very limited circumstances, a court can declare a statute unconstitutional but can save it from ultimately holding the statute unconstitutional by narrowly applying it to reach only a very specific action.  However, if a court would be required to essentially rewrite the statute or strike language from a statute, then the court must declare the statute unconstitutional.  The Court disagreed with the State’s argument that the criminal defamation statute could be narrowly tailored to survive our challenge.  The Court noted doing so “would require a rewrite” of the statute, which is the job of the legislature. THE FACT THAT THE COURT ISSUED A PUBLISHED OPINION IN THIS CASE IS ENCOURAGING. Opinions from the Court of Appeals are either unpublished or published.  The majority of opinions are unpublished.  Unpublished opinions are not binding on the lower courts, meaning district court judges are not bound to follow an unpublished opinion from the Court of Appeals.  Published opinions, however, are binding.  District court judges throughout Minnesota are bound to follow a published opinion from the Court of Appeals.  Our win effectively means that all pending criminal defamation charges in Minnesota must be dismissed. At this point, the Minnesota criminal defamation statute is dead.

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