Evavold Reply Brief ~ MN Court of Appeals

Posted on February 27, 2019 by Dede Evavold

Below the background information of this case, are excerpts from the reply brief submitted by my attorney Paul Godfread. This is in response to the 2017 false harassment restraining order/SLAPP suit filed against me by the father of the teens that ran away in 2013. The reply brief is the third brief in the series and addresses issues that were raised in the respondents’ brief to the appellate court.

Background

On July 31st, 2017, I was served with the Temporary Restraining Order indicating that “Respondentt will immediately cease all social media, internet or other mentions of me, my family, children and home.”

TIMELINE OF ACTIONS

Judge Asphaug

07/31/2017 Served with a Temporary Restraining Order (Signed by Judge Asphaug who presided over our criminal trials).
08/18/2017 I filed a motion to vacate the false Temporary Restraining Order

Judge Kanning

09/29/2017 Hearing Motion to Vacate the Temporary Restraining Order (At this hearing, Judge Kanning rescheduled the motion hearing to 12/13.2017 to allow time for opposing counsel to prepare.
12-13-2017 Motion to Vacate Hearing Judge Kanning continued the hearing per Attorney Lisa Elliott’s request to allow more time to complete collection of evidence.

Judge Gearin

03/01/2018 Emergency Motion Hearing to remove blog posts. Unconstitutional purge conditions were met and more posts to remove were added by Attorney Lisa Elliott. Conditions again were met however, Lisa Elliott filed an Affidavit of Noncompliance and Request for Arrest Warrant on 03/09/2018which was signed by retired Judge Kathleen Gearin on 03/14/2018.

I filed an Affidavit of Compliance on 03/17/2018 and was arrested on 03/18/2018. I was brought to Stearns County Jail and transported to Dakota County Jail on 03/19/2018. I was transported to Ramsey County Correctional Facility at 5:00 PM and transported back to Dakota County on 3/20/2018 for a hearing with Judge Christopher Lehmann. He stated that I would have to wait to be heard in front of Judge Gearin on 03/21/2018. I was transported back to Ramsey County after spending the day in a holding cell. On 03/22/2018 hearing took place with Judge Gearin. Judicial order included immediate release from custody, constructive contempt of court sentence stayed until March 26th, at 4:30 p.m. in order to allow continued removal of posts. If items are not removed by 4:30 p.m. on March 26th, I was required to turn myself in to the Dakota County Correctional Facility for women on March 27th, at 9:00 a.m. to serve the remaining 26 days. (Some of the images and articles were hot linked from the Red Herring Alert site to other sites and data remained on the web for a short time before they were purged from the servers. I had no control over the cached data.)

05/16/2018 Motion Hearing to Vacate TRO. (Almost a year after the restraining order was issued.)

The following objections were provided to the District Court: PETITIONERS OFFER NO EVIDENCE OF HARASSMENT – There is no allegation or evidence of direct contact by Respondent. Instead, the focus of this action is a number of blog posts written by Respondent that are either about
Petitioners or at least mention Petitioner in some way.

The blog posts by themselves cannot meet this definition, and to the extent the Court believes this definition can be expanded to included blog posts, then the statute must necessarily run afoul of the First Amendment

THE BLOG POSTS ARE NOT HARASSMENT AS DEFINED UNDER LAW

THE ORDER IS AN UNCONSTITUTIONAL PRIOR RESTRAINT – Because there are no findings of unprotected speech making up the conduct of Respondent and because the Order prohibits a large category of protected speech, the Order is an unconstitutional prior restraint.

THE MINNESOTA HRO STATUTE, IF APPLIED TO SITUATIONS LIKE THIS WOULD VIOLATE THE FIRST AMENDMENT

On July 26th, 2018 Judge Kanning issued a Memorandum and Order stating, “Respondent, through her attorney raises constitutional issues relating to the First Amendment and Prior restraint. The Court has considered these and finds no merit to these. In the 34+ years the undersigned has served as a District or Senior Judge, never have I seen a case that represents harassment most evil.”

Below is the order issued by Judge Kanning ↓

Excerpts from Appellant’s Reply Brief:

The district court’s failure to make findings of fact is an additional legal error that requires its order to be vacated. See Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn.App.1986).

Respondents argue that because the conduct meets the statutory definition of “harassment” it can be prohibited by an HRO. Respondents Brief at 9-11. This is a circular argument and ignores the ruling in Dunham, Dunham v. Roer, 708 N.W.2d 552, 566 (Minn. App. 2006). What Dunham says is that the HRO statute only applies to unprotected speech such as fighting words or true threats. Dunham at 566. It is true that Dunham would seem to leave open the possibility of other categories of unprotected speech could also be prohibited by an HRO, but Respondents give no guidance as to how the speech in question is actually unprotected.

Even if Respondents have managed to find some unprotected speech at issue, and they have not, this Court should nonetheless vacate the order as unconstitutional because it prohibits protected speech.

These blog postings are not harassing because they are not directed to the Respondents, but to the public. Respondents seek to prevent the flow of information to the public through an HRO, which is presumptively unconstitutional. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 420 (1971). Most of the speech prohibited by the order and for which Evavold was jailed, consisted of posts written to the public at large and discussing mainstream media appearances by the family or public court proceedings.

In its March 1, 2018 order, finding Evavold in contempt, and while continuing any hearing on First Amendment objections, the district court lists the titles of many of the blog posts at issue. These include references to Respondents’ appearances on the ABC show “20/20” and court proceedings, including “20/20 Denial of Substantiating Documents in the Grazzini- Case,” “Fallout from 20/20’s Fake Broadcast ‘Footprints in the Snow’,” “Chief Deputy Dakota County Attorney Phillip Procopowicz Gives It Another Go.” (Order date March 1, 2018, p. 5 6). None of these can plausibly be seen as an invasion of privacy, let alone a “substantial” invasion of privacy. This is especially true where Respondents were seeking publicity for their case by appearing on network television shows. Indeed, subsequent to the filing of this appeal, a book was published about the Respondents, co-authored by a paralegal for counsel for Respondents. Whatever privacy rights may be protected by Minn. Stat.§609.748, it cannot be read as allowing prior restraints against blogging especially where Respondents themselves have put themselves in the eye of the media. The law must not be gamed in such a way as to allow reporting of only one side of a controversial case.

CONCLUSION
Respondents fail to show how the district court’s orders were constitutional in light of Dunham and the “heavy presumption” against prior restraints. For any of these reasons, Appellant Deirdre Evavold asks this court to vacate the order entered by the district court.

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Under Minnesota law, the Court of Appeals must issue a decision within 90 days of the case’s scheduled conference date. The original restraining order is only in effect until July 2019, so in essence, the continual delays have shut down my right to free speech without ever addressing the validity of the order. Dakota County’s dirty tricks are endless, but I must admit that they are effective in violating the constitutional rights of citizens.

Dede Evavold shared a post.

Yesterday at 10:29 AM

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http://blogitbabe.blogspot.com

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