Gryczan v. State
| Decision Date | 11 April 1997 |
| Docket Number | No. 96-202,96-202 |
| Citation | 54 St.Rep. 699,283 Mont. 433,942 P.2d 112 |
| Parties | Linda M. GRYCZAN, Anne K. Gehr, Stacey Haugland, Donald Howard, Doyle F. Forister, and William C. Summers, Plaintiffs and Respondents, v. STATE of Montana, Defendant and Appellant. . Heard |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Attorney General, Clay R. Smith, Solicitor, Helena, for Defendant and Appellant.
Holly J. Franz, Gough, Shanahan, Johnson & Waterman, Helena; Rosemary Daszkiewicz, Cairncross & Hempelmann, Seattle, Washington (Women's Law Center), for Plaintiffs and Respondents.
Prof. Larry Elison, Prof. Thomas Huff, Deirdre Runnette, University of Montana, School of Law, Missoula (Women's Law Caucus); Joan Jonkel, Missoula (Montana Public Health Association); J. Stuart Bradshaw, Stevensville (Montana Citizens for Decency Through Law); Mark S. Connell, Connell & Beers, Missoula; Suzanne B. Goldberg, Ruth E. Harlow, New York City (Lambda Legal Defense and Education Fund, et al.); Matthew Coles, New York City (American Civil Liberties Union), for Amici Curiae.
The State of Montana appeals a Judgment of the District Court for the First Judicial District, Lewis and Clark County, declaring § 45-5-505, MCA, unconstitutional as a violation of the privacy provision of the Montana Constitution when applied to consensual, private, same-gender sexual conduct between adults. We affirm.
The State raises the following issues:
1. Whether Respondents have standing to maintain an as-applied challenge to the constitutionality of § 45-5-505, MCA.
2. Whether § 45-5-505, MCA, infringes on Respondents' right to privacy under Article II, Section 10 of the Montana Constitution to the extent it prohibits consensual, private, same-gender sexual conduct between adults.
3. Whether § 45-5-505, MCA, violates Article II, Section 4 of the Montana Constitution by infringing on Respondents' dignity as human beings, discriminating against them on the basis of sex, or denying them equal protection of the laws to the extent it prohibits consensual, private, same-gender sexual conduct between adults.
Having affirmed the trial court as to issues 1 and 2, we decline to address issue 3.
On December 6, 1993, Respondents filed a declaratory judgment action, pursuant to Title 27, chapter 8 of the Montana Code, challenging the constitutionality of that portion of Montana's deviate-sexual-conduct statute, § 45-5-505, MCA, that criminalizes consensual sex between adults of the same gender. Respondents contend that § 45-5-505, MCA, is unconstitutional under Article II, Sections 4 and 10 of the Montana Constitution and that it violates the due process clause of the Fourteenth Amendment to the United States Constitution.
Respondents are three men and three women residing in Montana who are homosexuals. They assert that they have in the past and intend in the future to engage in conduct that violates § 45-5-505, MCA. This statute provides:
Deviate Sexual Conduct. (1) A person who knowingly engages in deviate sexual relations or who causes another to engage in deviate sexual relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.
(3) The fact that a person seeks testing or receives treatment for the HIV-related virus or another sexually transmitted disease may not be used as a basis for a prosecution under this section and is not admissible in evidence in a prosecution under this section.
The phrase "deviate sexual relations" is defined at § 45-2-101(20), MCA, as "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal." "Sexual contact" and "sexual intercourse" are defined as:
"Sexual contact" means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.
Section 45-2-101(65), MCA.
"Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient.
Section 45-2-101(66), MCA.
Section 45-5-505, MCA, was enacted in 1973 as part of the criminal law revision. Prior to 1973, Montana law had prohibited "crimes against nature" with persons or animals. Section 45-5-505, MCA, was amended in 1981 to add a maximum fine of $50,000 as part of the penalty provision. In 1991, a subsection providing a greater penalty when the conduct was nonconsensual was deleted and a subsection prohibiting the use of information regarding the testing of or the treatment for the HIV-related virus as evidence in a prosecution was added. Efforts to repeal the statute were rejected in 1991, 1993, and 1995.
On January 18, 1994, the State moved to dismiss the declaratory judgment action contending that Respondents lacked standing to challenge the statute, and that there is no justiciable controversy. The District Court denied the State's motion on June 28, 1994. The parties filed cross-motions for summary judgment in September 1995. The District Court subsequently granted Respondents' motion concluding that a justiciable controversy existed and that Respondents had standing to challenge the statute because they feared prosecution and were harmed by the very existence of the statute. The court also concluded that § 45-5-505, MCA, infringed on Respondents' right to privacy under Article II, Section 10 of Montana's Constitution and that the State failed to demonstrate a compelling interest justifying the infringement of that right. The State appeals.
Our standard of review in appeals from summary judgment rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
Whether Respondents have standing to maintain an as-applied challenge to the constitutionality of § 45-5-505, MCA.
The State maintains that without a concrete factual context, Respondents' challenge presents a political dispute properly decided in a legislative and not in a judicial forum. The State contends that to establish a justiciable controversy under Article VII, Section 4(1) of the Montana Constitution, Respondents are required to show an "injury in fact" and that no such injury exists here because there is no evidence of a credible threat of prosecution under the statute since no one has been prosecuted for engaging in consensual, adult, private, same-gender sexual conduct since the statute was enacted. The State also contends that Respondents do not have standing to challenge the constitutionality of § 45-5-505, MCA, because they have never been arrested or prosecuted for violating the statute. The State maintains that the mere apprehension of prosecution or the fact that a person may feel denigrated by the law is not sufficient for standing purposes and where an as-applied challenge is at stake, as in this case, resolution of the constitutional issue should await an actual instance of the statute being applied.
Respondents brought this action under the Uniform Declaratory Judgments Act (the Act) found at Title 27, Chapter 8, of the Montana Code. Respondents argue that this Court has held that a party raising a "bona fide constitutional issue" can seek relief from the courts through a declaratory judgment action. Stuart v. Dept. of Social & Rehab. Serv. (1991), 247 Mont. 433, 438-39, 807 P.2d 710, 713 (quoting Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748). Furthermore,Respondents point out, the Act itself provides that it is remedial and that it is to be liberally construed and administered to permit courts "to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations...." Section 27-8-102, MCA.
Respondents argue that, although they have never been arrested or prosecuted under the statute, they have been injured and continue to be injured by the mere existence of the statute. They contend that the damage to their self-esteem and dignity and the fear that they will be prosecuted or will lose their livelihood or custody of their children create an emotional injury that gives them standing to challenge the statute. For example, two Respondents are employed or are seeking employment in positions requiring state licenses. Because they engage in conduct classified as a felony, they fear they could lose their professional licenses. One Respondent is the mother of a five-year old boy. She fears that the statute could be used to limit her relationship with her son.
To address this issue we look first to whether the case presents a...
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