Last edited: February 14, 2005


                                                                    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,


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 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


Defendants concur with Plaintiffs' statement of facts.


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


1 Plaintiffs have made it clear that they do not rely on any rights guaranteed by the United States’ Constitution.

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