Petitions for Review Granted December 16, 2010

Once again, there were no criminal opinions the week of December 16th but the court did make some eye-catching grants of discretionary review.

Good Cop, Bad Cop

With its sexy first amendment issue and bluestocking amici, State v. Crawley has destined-for-the-United-States-Supreme-Court written all over it.  Crawley involved a first amendment challenge to Minn. Stat. § 609.505, subd. 2, which makes it a crime to falsely report police misconduct if the reporter knows the information is bogus.  A court of appeals panel divided over Crawley.  The majority, consisting of opinion author Judge Minge and soon-to-be-promoted Judge Johnson, found that the statute violated the First Amendment’s prohibition on viewpoint discrimination.  The problem, said the majority, was that the statute criminalizes the speech of the person who lies and says the police have behaved badly when she knows they’ve behaved well, but it tolerates the speech of the person who lies and says the police have behaved well when she knows they’ve behaved badly.  Dissenting Judge Harten balked at the notion that a “complimentary lie” about police officers is the reciprocal of an uncomplimentary lie.  Frivolous complaints of police misconduct, he argued, trigger mandatory and costly investigations, siphoning law enforcement resources away from crime prevention.  He concluded that there was governmental interest aplenty to justify the regulation.

An issue that is likely to be re-visited:  The government may only regulate certain kinds of speech.  What kind of speech is at issue in Crawley?  The majority held that it is “expressive action” in the form of “the intentional lie.”  Judge Harten worried that this formulation “expands the state’s ability to criminalize speech” (though, ironically, it was Judge Harten who would have upheld the criminalization of speech in § 609.505, while the majority voted to strike it down).  Judge Harten argued that § 609.505’s proscription on speech was more coherently understood as a species of defamation.  Both majority and dissent agreed that SCOTUS’s R.A.V. v. City of St. Paul, the cross-burning case, was the pivotal precedent.

Form Over Substance?
Speaking of sexy, how about a restitution issue?  Later this term, the court will take up the court of appeals’ unpublished decision in State v. Bell.  Convicted of burglary and a felony assault occurring inside the victim’s home, Cory Bell was ordered to pay for the security system that the victim installed following the crime.  Bell’s counsel apparently cried foul at sentencing when the state asked to have the cost of the security system assessed against Bell, but omitted thereafter to file an affidavit per the restitution statute, which prescribes a deadline of 30 days.  The court of appeals declined to entertain Bell’s restitution challenge on appeal, holding that it was procedurally barred.  The issue is whether a defendant should be required to file a restitution affidavit in a case in which he challenges a restitution order on legal rather than factual grounds.  Bell was not quibbling about the price of the security system; his argument (which did not get reached) was that the levy was outside the statutory definition.  Parties submit affidavits in legal proceedings in order to contest facts, not to make legal arguments.  The Supreme Court may also consider the real world conditions in which restitution claims arise:  the restitution statute says a defendant’s affidavit should be served 5 days before sentencing but frequently the defense has not even received notice of the restitution request by then.  Moreover, the vast majority of restitution defenses are handled by public defenders, who carry hundreds of open cases.  In these days of chronic shortage and dangerous overwork, who can possibly comply with a regime of austere deadlines?

Form Over Substance Redux?

State v. Campbell raises the same issue as another case which the court elected to review earlier this year, State v. Kuhlmann.  The oral arguments in Kuhlmann took place on December 7th.  Campbell was convicted of gross misdemeanor violation of a domestic abuse no contact order; Kuhlmann was convicted of felony domestic assault and 2° DWI.  Each was convicted of offenses that were made more serious by the existence of a prior record.  Both Campbell and Kuhlmann stipulated that they possessed the predicate convictions, but neither man was informed of nor waived his right to have a jury determine the aggravated element of his present offense.  In both court of appeals cases, the omissions were deemed to be erroneous but innocuous.  Given that the Supreme Court has now granted review in two such cases, it looks as if the high court may view the failure to obtain an explicit waiver on an element of the offense with greater asperity than did the court of appeals.         

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