City of Minneapolis v. Buschette

• Decision Date: 23 January 1976
• Docket Number: No. 45040,45040
• Citation: 240 N.W.2d 500,307 Minn. 60
• Parties: CITY OF MINNEAPOLIS, Respondent, v. Debra A. BUSCHETTE, Appellant.
• Court: Minnesota Supreme Court

Page 500

240 N.W.2d 500

307 Minn. 60

CITY OF MINNEAPOLIS, Respondent, v. Debra A. BUSCHETTE, Appellant.

No. 45040.

Supreme Court of Minnesota.

Jan. 23, 1976.

Syllabus by the Court

1. In a prosecution for violation of state criminal laws or municipal penal laws, 'intentional and purposeful' discriminatory enforcement of such laws is a valid defense under the equal protection clauses of the Minnesota and Federal Constitutions.

2. Such a defense should be raised by defendant prior to trial by a notice to the prosecution and the trial court; and if he does not do so, it may be deemed waived.

3. Hereafter, when the defense is raised, it should be heard and determined by the trial court prior to trial in accordance with the Minnesota Rules of Criminal Procedure.

4. When such a defense is raised, defendant carries the burden of establishing 'intentional and purposeful' discrimination by a clear preponderance of the evidence.

5. When such a defense is established, the court should dismiss the charges against defendant.

6. Under the facts in this case, there was no 'intentional and purposeful' discrimination. Conscious selectivity in enforcement of prostitution ordinance having a rational relationship to the valid governmental objective of controlling prostitution is constitutional and does not violate the equal protection clauses of the Minnesota and Federal Constitutions.

C. Paul Jones, Public Defender, William J. Mauzy, Asst. Public Defender, Minneapolis, for appellant.

Walter J. Duffy, Jr., City Atty., J. David Abramson, and John P. Fitzgerald, Jr., Asst. City Attys., Dennis L. Peterson, Student Intern, for respondent.

Olkon & Olkon and Nancy K. Olkon, Minneapolis, amicus curiae, seeking reversal.

Heard before SHERAN, C.J., and OTIS, ROGOSHESKE, PETERSON, KELLY, MacLAUGHLIN, YETKA, SCOTT and CHANAK, JJ., and considered and decided by the court en banc.

KELLY, Justice.

Defendant appeals from her conviction of prostitution in Hennepin County Municipal Court after denial of her motion to dismiss the charge because of alleged discriminatory enforcement of the Minneapolis prostitution ordinance. ¹ We affirm.

Defendant, Debra A. Buschette, was arrested by a Minneapolis plainclothes police officer on September 14, 1973, and charged with violating Minneapolis Code of Ordinances, § 870.110, which provides:

'No person, in any public or private place, shall offer or submit his or her body indiscriminately for sexual intercourse, whether or not for a consideration.'

At trial to the court on October 26, 1973, defendant contended that the Minneapolis morals squad was discriminating against female prostitutes, in violation of the equal protection clause of the State and Federal Constitutions, by not also arresting male customers.

The court heard evidence on the issue, consisting mainly of the stipulated testimony of the then chief of the morals squad given in a previous case and the testimony of another officer on the morals squad. This testimony can be summarized as follows:

A. Minneapolis Code of Ordinances, § 870.110, under which defendant is charged, applies equally to men and to women;

B. All nine permanent members of the Minneapolis morals squad are men;

C. An important function of the morals squad, as articulated by its then chief officer, Sergeant Jon Prentice, is to eliminate or control prostitution on the streets of the city;

D. In the performance of this important duty, the morals squad officer makes himself available for propositions by suspicious women by acting in the role of decoy or, in the argot of the profession as the 'trick';

E. One hundred ninety adults were charged with prostitution between March 31, 1972, and August 28, 1973, of whom 172 were women and 18, men;

F. On only one occasion, in March 1972, a policewoman was used by the morals squad as a decoy, and she effected the arrest of 7 of the above 18 men for the offense of prostitution;

G. Of the remaining 11 men, most, if not all, were female impersonators;

H. Since August 28, 1973, and until October 26, 1973, 29 persons were arrested by the morals squad and charged with prostitution, 17 of them being female and 12 of them being male;

I. Of the 12 males arrested by morals squad officers, none of them was arrested for offering to take money from a female to perform an act of sexual intercourse with her, but all were arrested after they attempted to solicit a female police officer by offering her money to do so with them;

J. Of the 12 males arrested between August 28, 1973, and October 26, 1973, none of them was a female impersonator;

K. Of the 12 males arrested between August 28 and October 26, 1973, most were arrested following defendant's arrest on September 14, 1973;

L. It is the current intention of the morals squad to continue apprehension of males as well as females who are engaged in prostitution.

The one central issue that is dispositive of this appeal is: Was there a discriminatory enforcement of Minneapolis Code of Ordinances, § 870.110, contrary to the equal protection clauses of the State and Federal constitutions?

For the purpose of better focusing on this issue, we point out that the ordinance involved in this case applies to both men and women, and that it is not contended that it is facially unconstitutional under State and Federal equal protection clauses. ²

The thrust of defendant's claim is that, while the ordinance applies to both men and women, this neutral provision is selectively enforced only against women. There can be no doubt that the equal protection clause of the Fourteenth Amendment forbids the discriminatory enforcement of nondiscriminatory laws. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) involved a conviction under a regulatory ordinance that made it a misdemeanor to maintain a laundry without first obtaining the consent of the municipal board of supervisors. In overturning the conviction, the United States Supreme Court did not find the ordinance to be void on its face. However, it found the vice to be the practice of denying permits to persons of Chinese ancestry while granting permits to white persons:

'* * * Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.' 118 U.S. 373, 6 S.Ct. 1073, 30 L.Ed. 227.

In the decades following Yick Wo, the courts seemed to limit the holding to cases involving regulatory ordinances with penal sanctions, such as Sunday closing laws. People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128 (1962); Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 813 (1966). However, in recent years courts have been abandoning the distinction between regulatory and penal laws. The trend is toward a rule allowing the defense of discriminatory enforcement to be raised in a variety of criminal cases. United States v. Steele, 461 F.2d 1148 (9 Cir. 1972); United States v. Swanson, 509 F.2d 1205 (8 Cir. 1975); United States v. Berrios, 501 F.2d 1207 (2 Cir. 1974); United States v. Berrigan, 482 F.2d 171 (3 Cir. 1973); United States v. Falk, 479 F.2d 616 (7 Cir. 1973); United States v. Crowthers, 456 F.2d 1074 (4 Cir. 1972); People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852 (1960). ³

In Minnesota, this court has found occasion to speak to the issue. In State v. Vadnais, 295 Minn. 17, 202 N.W.2d 657 (1972), we found unequal enforcement of a regulatory ordinance dealing with mobile trailer homes. However, the opinion did not limit itself to solely regulatory laws, but suggested the defense would be available to various types of minor offenses:

'* * * However, we are satisfied that in this type of case, which involves what may be legally characterized as a petty offense--one not intrinsically harmful--, a defendant should be permitted to raise the defense at trial and, upon adequate proof of intentional discrimination, be granted the relief of dismissal.' 295 Minn. 21, 202 N.W.2d 660.

This notion that the defense of selective enforcement is not limited to regulatory provisions was further expanded by our decision in State v. Sharich, 297 Minn. 19, 209 N.W.2d 907 (1973). The defendant there, as here, claimed discriminatory enforcement of the prostitution ordinance, but on the basis of race and economic self-interest of selected bar owners. Although the opinion did not decide whether discriminatory enforcement had in fact occurred, no definite distinctions were drawn based upon the nature of the conduct. We remanded the case to--

'* * * permit the defendant to offer evidence to support her claim of discriminatory penal enforcement at the law-enforcement level. The defendant should be permitted to offer such evidence at a pretrial hearing with witnesses subpoenaed, if need be, and without the prior requirement of affidavits from prospective witnesses, who defendant claims are identified with that alleged state discriminatory conduct; cross-examination of hostile witnesses may well be necessary if the trial court so determines.' 297 Minn. 26, 209 N.W.2d 913.

This language setting out a procedure was intended to apply to charges other than common prostitution. We now take Sharich one step further by holding that the defense of discriminatory enforcement by law-enforcement officials on all levels of state criminal laws and municipal penal ordinances may be raised by a defendant. Hereafter, this defense should be raised prior to trial by motion pursuant to the Minnesota Rules of Criminal Procedure, ⁴ or it may be deemed waived. Since the issue of discriminatory enforcement does not go to the guilt or innocence of the particular defendant, the matter should be heard and decided by the court prior to trial,...