STATE OF MINNESOTA
COURT DISTRICT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Civ. No. 01-0004
John Doe, Mark Roe, Kim Nyhus,
Phil Duran, Jane Doe, Erin Krebs, and
Jared Frandson, and the Minnesota
Lavender Bar Association, on behalf
of its members,
Plaintiffs,
v.
COMPLAINT
Jesse Ventura, Governor of the
State of Minnesota, Mike Hatch, Attorney
General of the State of Minnesota, and the
State of Minnesota,
Defendants.
For their Complaint against the defendants above-named, plaintiffs state
and allege as follows:
1. This is a declaratory judgment action wherein the plaintiffs seek a
declaration that Minn. Stat. § 609.293, which criminalizes any act of
private, consensual, noncommercial oral sex and other acts of sodomy by
consenting adults, without regard to sexual orientation, including married
couples, is unconstitutional because it violates the right of privacy
guaranteed by the Minnesota Constitution. Plaintiffs do not rely in this suit
on any rights guaranteed by the United States Constitution, and do not
challenge § 609.293, as applied to commercial or public acts of sodomy.
Plaintiffs likewise raise no challenge to other Minnesota statutes
criminalizing forced or non-consensual sexual activity or sexual activity
involving minors, which are separate and distinct from § 609.293.
2. Plaintiff John Doe is a quadriplegic, heterosexual married man who works
in management for a large corporation and lives in Minneapolis. Mr .Doe has
engaged and will continue to engage with his spouse in private, noncommercial,
consensual acts prohibited by § 609.293. Mr. Doe, who brings this action on
behalf of himself and all others similarly situated, fears arrest and
prosecution under § 609.293 and other adverse consequences. His physical
condition precludes him and his wife from engaging together in intimate sexual
acts that are not proscribed by § 609.293.
3. Plaintiff Mark Roe, a heterosexual married man who lives in Minneapolis
and works as a licensed elementary school teacher, has engaged and will
continue to engage with his spouse in private, noncommercial, consensual acts
prohibited by § 609.293. Mr. Roe, who brings this action on behalf of himself
and all others similarly situated, fears arrest and prosecution under §
609.293 and other adverse consequences, including loss of his teaching
license, which carries a requirement of legal conduct, or other discipline.
4. Plaintiff Kim Nyhus, a divorced gay man who has the right of visitation
with his children, is a former Methodist minister who lives in Minneapolis and
is currently working toward ordination by the Episcopal church. He has engaged
and will continue to engage with his life partner in private, noncommercial,
consensual acts prohibited by § 609.293. Mr. Nyhus, who brings this action on
behalf of himself and all others similarly situated, fears arrest and
prosecution under § 609.293 and other adverse consequences, including
interference with visitation.
5. Plaintiff Phil Duran is a gay law school graduate who will sit for the
Minnesota bar exam in the summer of 2000 and resides in an apartment in
Minneapolis pursuant to a lease that prohibits illegal activity. He has
engaged and will continue to engage on his leased premises in private,
noncommercial, consensual acts prohibited by § 609.293. Mr. Duran, who brings
this action on behalf of himself and all others similarly situated, fears
arrest and prosecution under § 609.293 and other adverse consequences,
including the inability to secure his license as an attorney, which requires
lawful conduct, or the subsequent loss thereof, and eviction or nonrenewal of
his lease.
6. Jane Doe, a lesbian lawyer, works in Hennepin County and resides in
Dakota County in a town home pursuant to a lease that requires lawful conduct.
She has engaged and will continue to engage in her town home in private,
noncommercial, consensual acts prohibited by § 609.293. Ms. Doe, who brings
this action on behalf of herself and all others similarly situated, fears
arrest and prosecution under § 609.293 and other adverse consequences,
including the loss of her license as an attorney, which requires lawful
conduct, and eviction or nonrenewal from her town home.
7. Plaintiff Minnesota Lavender Bar Association ("MLBA "), a
Minnesota non-profit corporation, is an association of and for gay, lesbian,
bisexual and transgender ("GLBT") law students who plan to seek
license practice law in Minnesota and lawyers who are currently licensed in
good standing in Minnesota. MLBA brings this action on behalf of its members,
who fear arrest and prosecution under § 609.293 and other adverse
consequences, including the inability to secure or the loss of license to
practice law, which requires legal conduct.
8. Plaintiffs are aware of the recent enforcement of § 609.293. against
consenting adults engaging in private, noncommercial activity. Plaintiffs are
also aware that recent legislative attempts to repeal § 609.293, as applied
to private, noncommercial acts by consenting adults, have been rejected,
thereby leaving § 609.293 on the books for enforcement.
9. Defendant Jesse Ventura is sued in his official capacity as the Governor
of the State of Minnesota who shares responsibility for ensuring that the laws
of Minnesota, including § 609.293, are faithfully executed.
10. Defendant Mike Hatch is sued in his official capacity as the Attorney
General for the State of Minnesota who is charged with enforcing the laws of
the State of Minnesota, including § 609.293.
11. Venue is appropriate in this Court because plaintiffs' rights to
privacy have been violated in Hennepin County.
12. The class, which consists of all adults in Minnesota who have engaged
within the limitations period and continue to engage in private,
noncommercial, consensual acts prohibited by § 609.293, is so numerous that
joinder is impracticable.
13. Plaintiffs' claims are typical and not antagonistic to those sought to
be asserted on behalf of the class. Plaintiffs' claims and the class claims
also present common questions of law or fact, e.g. is § 609.293
constitutional when applied to private, noncommercial, consensual acts of
sodomy.
14. Defendants are responsible for acting on grounds generally applicable
to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole.
Prosecution of separate actions by class members would also create a risk of
inconsistent decisions, thereby creating inconsistent standards for compliance
by defendants, and as a practical matter would be dispositive of the interests
of class members who are not parties.
15. Plaintiffs are adequate class representatives and they have engaged
attorneys with experience in litigating class action lawsuits and lawsuits
involving constitutional rights.
16. Plaintiffs incorporate the allegations in Paragraphs 1-15 above as if
expressly set forth herein.
17. Minn. Stat. § 609.293, as applied to private, consensual,
noncommercial oral sex and other acts of sodomy by consenting adults, without
regard to sexual orientation, including heterosexual married couples, violates
the right of privacy guaranteed by the Minnesota Constitution.
WHEREFORE, plaintiffs respectfully request that judgment be entered as
follows:
1. Declaring that Minn. Stat. § 609.293, as applied to private,
consensual, noncommercial oral sex and other acts of sodomy by consenting
adults violates the right of privacy guaranteed by the Minnesota Constitution,
and is therefore void as unconstitutional;
2. Permanently enjoining defendants and their agents and subordinates,
including county attorneys, from enforcing Minn. Stat. § 609.293 against
consenting adults who engage in private, consensual, noncommercial oral sex
and other acts of sodomy;
3. For plaintiffs' reasonable costs and attorneys' fees herein; and
4. For such other and further relief as the Court deems just and equitable.
Dated: June 22,
2000
Timothy E. Branson (#174713)
Michael R. Drysdale (#257606)
Kevin J. Braley (#290373)
James J. McConnel1 (#269426)
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: 612-340-2600
Teresa Nelson (#269736)
Minnesota Civil Liberties Union
1021 West Broadway
Minneapolis, Minnesota 55411
Telephone: (612) 522-3894
Michael Adams
American Civil Liberties Union
125 Broad Street
New York, New York 10004-2400
