STATE OF MINNESOTA
COURT DISTRICT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Civ. No. 01-0004
John Doe, Mark Roe, Kim Nyhus,
Phil Duran, and Jane Doe, for themselves
and all others similarly situated, and the
Minnesota Lavender Bar Association,
on behalf of its members,
Plaintiffs,
v.
DEFENDANT’S MEMORANDUM IN
RESPONSE TO PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT
Jesse Ventura, Governor of the State of
Minnesota, and Mike Hatch, Attorney
General of the State of Minnesota,
Defendants.
INTRODUCTION
Defendants State of Minnesota, Governor Jesse Ventura, and Attorney General
Mike Hatch ("Defendants") respectfully submit this memorandum in
response to Plaintiffs’ Memorandum In Support of Their Motion For Summary
Judgment. At issue is the constitutionality of Minn. Stat. § 609.293 that
prohibits consensual, non-commercial acts of sodomy. People who engage in or
submit to acts of sodomy "may be sentenced to imprisonment of not more
than one year or to payment of a fine of not more than $3,000, or both."
Minn. Stat. § 609.293, subd. 3 (2000). Plaintiffs seek a declaration that
Minn. Stat. § 609.293 unconstitutionally infringes upon their right as
guaranteed by the Minnesota Constitution.1
STATEMENT OF FACTS
Defendants concur with Plaintiffs' statement of facts.
ANALYSIS
A. Standard For Summary Judgment.
Summary judgment is appropriate if "there is no genuine issue as to
any material fact and that either party is entitled to a judgment as a matter
of law." Minn. R. Civ. P. 56.03; DLH v. Russ et. al., 566
N.W.2d 60, 69 (Minn. 1997). There is no genuine dispute as to any material
fact and summary judgment is an appropriate means of disposing of this case.
B. Resolution Of Plaintiffs' Challenge Depends Upon Whether The Minnesota
Constitution Recognizes A Right Of Privacy To Engage In Consensual,
Non-Commercial Sexual Activity.
Plaintiffs argue that Minn. Stat. § 609.293 violates their right of
privacy under the Minnesota Constitution. The dispositive issue in this case
is whether the State constitution right of privacy extends to consensual,
non-commercial sexual activity. See, e.g., Powell v. State 510
S.E.2d 18 (Ga. 1998) (state constitutional right of privacy protects
consensual, non-commercial sexual conduct and therefore, state sodomy statute
unconstitutional); Iowa v. Pilchete 242 N.W.2d 348 (Ia. 1976)
(same); Post v. Oklahoma, 715 P.2d 1105 (Okla.Crim.App. 1986 cerr.
denied, 479 U.S. 890 (1986) (same); Commonwealth v. Wasson, 842
S.W.2d 487 (Ky 1992) (same); Campbell v. Sundquist, 926 S.W.2d
250 (Tenn.Ct.App. 1996), rev. denied (June 10, 1996) (same); Gryczan
v. Montana. 942 P.2d 112 (Mont. 1997) (same); Stare v. Smith, 76
So.2d 501 (La. 2000) (no state constitutional privacy right to engage in
consensual, non-commercial sexual activity and therefore, state sodomy stature
upheld); Lawrence v. Texas, S.W.3d --, 2001 WL 265994 (Tx.Ct.App.
2001)(same).
In 1987, the Minnesota Supreme Court considered whether the; sodomy statute
violates the right of privacy under the Minnesota constitution. State v.
Gray, 413 N.W.2d 107 (Minn. 1987). The challenge to the sodomy stature
arose out of the prosecution of the appellant for commercial acts of sodomy
with a sixteen-year-old boy. Id. at 108. Although the Supreme Court
recognized for the first time that a right of privacy exists under the
Minnesota Constitution, it refused to extend the constitution's privacy
protection to those "who engage in commercial sex." Id. at
113.
In so doing, the Supreme Court acknowledged that consensual, non-commercial
sexual conduct may well be protected by the Minnesota Constitution's right of
privacy. See id. at 113. ("Today's decision is limited to a
holding that any asserted Minnesota constitution privacy right does not
encompass the protection of those who traffic in commercial sexual
conduct.") The Supreme Court has subsequently extended the state
constitutional right of privacy to other contexts, including a mentally-ill
person's ability to refuse neuroleptic medication in non-emergency situations.
Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988); see also
Doe v. Gomez, 542 N.W.2d 17 {Minn.1995).
The Gray decision and its progeny certainly reflect a trend that the
Minnesota Supreme Court is willing to read broadly the right of privacy under
the Minnesota Constitution. However the Minnesota Supreme Court has not yet
had the opportunity to decide squarely the issue of whether the state
constitutional right of privacy extends to consensual, non-commercial sex.
Accordingly, the Court must adjudicate that issue, which is determinative of
whether section 609.293 is valid under the Minnesota Constitution.
Dated: 4/11/01
Respectfully submitted,
MIKE HATCH
Attorney General
State of Minnesota
DAVID M. AAFEDT
Assistant Attorney General
Attorney Reg. No. 27561X
445 Minnesota Street. Suite 1200
St. Paul, MN 55101-2130
(651) 282-5735 (Voice)
(651) 296-1410 (TTY)
ATTORNEYS FOR DEFENDANTS
STATE OF MINNESOTA,
GOVERNOR JESSE VENTURA AND
ATTORNEY GENERAL MIKE HATCH
Footnote
1
Plaintiffs have made it clear that they do not rely on any rights
guaranteed by the United States’ Constitution.
