Judge in Menges registry case rules equal protection for consensual gay sex

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By Larry . . . The case of Menges v. Knudsen is a challenge against the attorney general of the state of Montana and various other governmental officials in their official capacities. See Menges v. Knudsen, CV 20–178–M–DLC, United Stated District Court for the District of Montana.  Plaintiff Randall Menges filed suit on December 9, 2020. He asserted that Montana’s registration requirement is unconstitutional as applied to him, in violation of: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) Article II, § 10 of the Montana Constitution. Menges also moved for a preliminary injunction, requesting that the Court enjoin the defendants, their officers, agents, employees, attorneys, and any person who is in active concert or participation with them from requiring him to register as a sex offender with the Montana Sexual or Violent Offender Registry.

The question before the court was whether Montana can force Menges to register as a sexual offender for his Idaho conviction. Menges is required to register in Montana for having consensual sex in Idaho with a 16-year-old when he was 18 years old back in 1993. Normally that would not have triggered a registration obligation in Idaho, but he engaged in homosexual activities, and Idaho convicted him of crimes against nature, which is on their list of registerable offenses.

He was sentenced to 15 years imprisonment. Upon release, Menges was required under Idaho law, and still would be required, to register as a sexual offender in Idaho if he lived there. At some point, Menges re-located to Montana. Unfortunately, he could not escape the registration requirement because he was required to register under Montana’s Sexual or Violent Offender Registration Act as he was covered by the catchall clause many states have in their law. Under Montana law, a sexual offender is anyone who has been convicted of a sexual offense. Critical to this case, a sexual offense includes “. . . any violation of a law of another state . . . for which the offender was required to register as a sexual offender after an adjudication or conviction.” See Idaho Code § 46-23-502(9)(b).

Menges also filed a lawsuit in Idaho challenging the constitutionality of the underlying statute. In response, Montana requested that the court stay the matter in light of the parallel Idaho federal court action along with various other motions. The Court set a hearing on the motions and provided advance notice of its intent to consolidate the hearing with a trial on the merits. Neither party objected to the consolidation, and the hearing commenced on March 30, 2021. Menges testified, and the Court heard argument from counsel on the legal issues presented. The state’s request to stay this proceeding is the inevitable outcome of him having the parallel lawsuit in Idaho. Fortunately for him, the judge denied their request for a stay.

Montana also contested that Menges had standing to bring the challenge. The court had the following to say in response. “At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset of the case. In order to establish standing, Plaintiffs must show (1) [they have] suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” See Opinion at 9.

The Montana attorney general has vowed an appeal and stated this decision will blow a gaping hole in the registry. We don’t think this is the case because the underlying criminal statute which obligates Menges to register in Idaho, and, accordingly in Montana, does not concern itself with the age of Menges’ sexual partner. As the court noted, “…Menges’ underlying criminal conviction is not for having sexual contact with a minor, it is for having sexual contact with another male. And that is why Montana requires him to register—not for having sexual contact with a minor, but for having sexual contact with another male.” See Opinion at 42.

As noted earlier, Menges asserted several constitutional violations. It is our opinion that the Equal Protection Clause was most significant. The court stated, “In sum, Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male when he was 18, but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 at the age of 18 for engaging in vaginal sex with a 16-year-old female. Consequently, that operation of Montana law flouts the guarantee of equal protection and Menges enjoys actual success on the merits of his equal protection claim.” See Opinion at 58.

The Court concluded and NARSOL agrees that “. . . enforcement of Montana’s registration requirement against Menges has inflicted upon him three distinct constitutional violations. This includes his constitutional rights to substantive due process, equal protection, and privacy.” We are gratified with the decision and hope that the United States Court of Appeals for the Ninth Circuit will affirm.

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