Petition for Writ of Certiorari — White v. Minnesota

SUPREME COURT OF THE U

October Term, 1

No.

Eve White, a/k/a, Eve Cascio,

Petitioner,

VS.

State of Minnesota,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE -

SUPREME COURT OF MINNESOTA

Randall D.B. Tigue

Attorney for Petitioner

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

uestions Presented

iL. May the state, consistently with the First and Fourteenth

Amendments to the United States Constitution, impose absolute criminal

liability upon the producer, director, or publisher of a film, book,

magazine or live stage performance, for violating a child pornography

statute, regardless of Petitioner's knowledge or scienter as to the minority

of the performer involved?

2. May the state, consistent with the Due Process Clause of

the Fourteenth Amendment of the United States Constitution, impose

felony criminal liability for violating a child pornography statute, in the

absence of mens rea?

a. Does the state violate the Due Process Clause of the

Fourteenth Amendment to the United States Constitution when it

imposes criminal liability upon Petitioner for violating a child

pornography statute, in light of undisputed evidence that Petitioner relied

upon the state’s own representations as to the age of the performer

involved?

{4

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions Involved

Statement of the Case

Argument:

I. The decision of the

Minnesota Supreme Court

upholding the constitution-

ality of a child pornography

statute imposing absolute

criminal liability upon a

Defendant regardless of his

knowledge or scienter as to

a minor's age is in direct

conflict with applicable

decisions of this court and

at least one United States

Court of Appeals, requiring

review under Rule 10(b) of

this court

Page

A. The decisions of this

Court compel invalidation,

under the First Amendment,

of a statute which imposes

absolute criminal liability

for chile pornography upon

a Defendant, regardless of

scienter as to the minor’s

age

B. The decision of the

Minnesota Supreme Court in

upholding the validity of

the statute on First

Amendment grounds is also

in direct conflict with

decision of the United

States Court of Appeals

for the Ninth Circuit

II. Apart from First Amendment

considerations, the Minnesota

Supreme Court’s upholding of

the statute in question on due

process grounds conflicts with

both decisions of this court

and Courts of Appeals, within

the meaning of Rule 10(b) of

the rules of this court .

III. Due Process considerations

also compel reversal of the

conviction, given the fact that

the state prosecuted Petitioner

for her reliance on the state’s

own representations as to the

performer’s identity

Conclusion

-ili-

16

23

27

T OF A ORITIES

Constitution

First Amendment to the United States Constitution .

Fourteenth Amendment to the United States

Constitution

State Statutes:

Minnesota Statutes Section 171.07

Minnesota Statutues Section 340A.53

Minnesota Statutes Section 617.246

Federal Statutes:

Title 28 U.S.C. Section 1257(a)

Title 42 U.S.C. Section 408

Title 45 C.F.R. Section 5.67(c)

Cases:

Barnes v. Glen Theater, Inc.

__ U.S.__, Ill S.Ct. 38,112 L.Ed. 2d 15 (1990)

California v. LaRue, 409 U.S. 109

Cox v. Louisiana, 379 U.S. 559 (1965)

Dennis v. United States, 341 U.S. 494, 500 (1951)

-iv-

Page

1289,11,12,

13,14,15,16,

19,29

1,2,7,8

23,29

29

1,2,8,19,27

25,26

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)

Ginsbers v. New York, 390 U:S. 629, 643-44,

(1968) . '

Hamling v. United States, 418 U.S. 87 (1974) .

Koppinger v. City of Paumont , 311 Minn. 186,

(1976) .

Lambert v. California, 355 U.S. 225 (1957)

Liparota v. United States, 471 U.S. 419, (1985)

Miller v. California, 413 U.S. |S (1973)

Miller v. Civil City of Southbend, 904 F. 2d 108

(7th Cir. 1990), cert granted sub nom.

Mishkin v. New York, supra, 86 S.Ct. 958, (1966)

Morissette v. United States, 342 U.S. 246, 251 (1952) .

New York v. Ferber, 458 U.S. 747 (1982)

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) . ;

Osborne v. Ohio, __ U.S. ___, 110 S.Ct.

1691 (1990) ;

Raley v. Ohio, 360 U.S. 423 (1959)

Schad v. Borough of Mt. Pehcaim. 452 US. 61,

(1981) ,

Smith v. California, 361 U.S. 147, (1959)

-V-

28

11,12,15,17

17

28

22

21

14

28

17

19,20,21,

22,28

13,14

10,12

9,12,15,17

Speiser v. Randall, 357 U.S. 513, 526, (1958)

State v. White, 464 N.W. 2d 585 (Minn. App. 1990) .

United States v. Brady, 710 F. Supp. 290

(D. Col. 1989)

United States v. Freed, 401 U.S. 601 (1971)

United States v. Laub, 385 U.S. 475, (1967)

United States v. Launder,743 F. 2d 686

(9th Cir. 1984) ;

United States v. Pennsylvania Chemical Corp.,

411 U.S. 655 (1973)

United States v. United States District Court,

858 F. 2d 534 (9th Cir. 1988) .

United States v. United States Gypsum Co..

438 U.S. 422 (1978)

11

28,29

26

16

21

Opinions Below

Review is sought of the decision of the Minnesota Supreme Court

entered March 15, 1991, denying Petitioner’s Petition for Review. The

decision is unreported and is set forth in the Appendix at A.87. The

Minnesota Supreme Court refused to grant review of the decision of the

Minnesota Court of Appeals in State v. White, 464 N.W. 2d 585 (Minn.

App. 1990).

jurisdiction

Review is sought of the decision of the Minnesota Supreme Court

entered March 15, 1991. Jurisdiction is based upon Title 28 U.S.C.

Section 1257(a).

Constitutional and Statutory

Provisions Involved

This case involves the First and Fourteenth Amendments to the

United States Constitution, and Minnesota Statutes Section 617.246, the

texts of which are set forth in the Appendix at A.88 - A.91.

Statement of the Case

Petitioner in the above-entitled matter was charged by formal

complaint with a single count of using a minor in a sexual performance,

in violation of Minnesota Statutes Section 617.246, Subd. 2, which

provides, in pertinent part, as follows:

"It is unlawful for a person to promote,

employ, use or permit a minor to engage

in or assist others to engage in posing or

modeling alone or with others in any

sexual performance if the person knows

or has reason to know that the conduct

intended is a sexual performance.” !

Subdivision 5 of the same section also provides as follows:

"Neither consent to sexual performance by a minor or the

minor’s parent, guardian, or custodian nor mistake as to

the minor’s age is a defense to a charge of violation of

this section."

On August 3, 1989, Petitioner brought a motion in the District

Court seeking to dismiss the criminal complaint, inter alia, on the ground

that Minnesota Statutes Section 617.246, in particular, Subd. 5,

precluding a defense as to reasonable mistake as to age was

unconstitutional, in that it violated both the First Amendment to the

United States Constitution and the Due Process Clause of the

Fourteenth Amendment of the United States Constitution. A copy of

said Motion to Dismiss is set forth in the Appendix at A.21 - A.24.

On October 10, 1989, the District Court, by the Honorable Jack

Litman, issued an Order and Memorandum denying Petitioner’s motion

in all respects. A copy of said Order and Memorandum is set forth in

the Appendix at A.42 - A.52.

The matter was tried before Judge Litman to a jury, beginning

January 22, 1990.

At trial, Duluth Police Officer John Christianson testified that he

went to the Wabasha Bookstore in Duluth, Minnesota, on May 5, 1989,

in response to information from the Woodland Hills Juvenile Center then

an underage female by the name of Rachelle Reynolds was working at

the Bookstore as a nude dancer (T.36). He testified that he went to the

bookstore knowing Racheile Reynolds’ name and having a photograph

of her (T. 37). He testified that after observing Ms. Reynolds engage

in conduct which included the fondling of her breasts, the exhibition of

her genitals, and the stroking of her pubic area (T. 44), he later

confronted Ms. Reynolds (T. 47 - 48).

He testified that Rachelle Reynolds identified herself to him as

"Sheryl Reynolds" and gave him an official State of Minnesota

identification bearing the name "Sheryl Reynolds" (T. 49). He then

testified that, with the Minnesota identification in his possession, he

inquired of Rachelle Reynolds as to her name, address, and date of birth,

and that Rachelle Reynolds responded with the name, address, and date

of birth contained on the identification card (T. 49, 56-57).

Despite the facially valid identification, Officer Christensen said

to Rachelle Reynolds, "You're not Sheryl, you're Rachelle," which

Rachelle Reynolds admitted (T. 49). She also admitted to beign only 17

years of age as opposed to the 26 years of age indicated on the

identification card. (T. 49). Christensen testified that Rachelle Reynolds

had no other identification and was placed under arrest for

misrepresenting her age to a police officer (T.49).

Rachelle Reynolds testified that her date of birth was April 16,

1972, making her |7 years of age on the date of her arrest on May S,

1989 (T. 67, 71).

She testified that she had sister: Sheryl, 26 years of age, born on

January 26, 1963. Rachelle Reynolds testified that she obtained the

false identification she presented to Officer Christensen by stealing her

sister Sheryl’s birth certificate from her father’s filing cabinet, taking her

sister’s birth certificate to the Hennepin County Library, falsely

representing herself to be Sheryl Reynolds, and receiving an official

Minnesota identification bearing her photograph, but her sister’s name

and date of birth (T. 106). She testified that at no time did any

Hennepin County official ever question whether she was in fact Sheryl

Reynolds, with a date of birth of January 26, 1963 (T. 107).

Rachelle Reynolds testified that her purpose in obtaining the

false identification in the name of her sister Sheryl was to get into bars

to buy liquor, and to get employment as a dancer in a bookstore, since

she knew that she would be unable to do so unless she could prove she

was 18 years of age (T. 109 -110).

Rachelle Reynolds testified that she sought employment as a

dancer at an adult bookstore at Chicago and Lake Street in Minneapolis.

(T. 73-74). She testified that she was interviewed for employment by

Petitioner Eve White (T. 77). She testified that Petitioner, during the

interview, immediately asked her to produce identification showing proof

of age, to which she responded with the official State of Minnesota I.D.

issued in the name of her sister Sheryl (T. 79). She also testified that

Petitioner also requested a second identification to verify the first one,

in particular, a Social Security card (T. 80). | Rachelle Reynolds

responded by representing that her Social Security card was at home, and

stating that she would call back with a Social Security number, which she

did. She testified she called back and gave a false Social Security

number, switching two numbers on her own Social Security number (T.

80). In addition she was told to fill out and sign a W-4 form for tax

purposes (T. 82).

At the conclusion of the state’s case, Petitioner moved to dismiss

the complaint, inter alia on the ground that the evidence plainly

established that Petitioner operated under a reasonable mistake of fact,

to-wit: mistake as to Rachelle Reynold’s identity, as opposed to Rachelle

Reynold’s age, specifically excluded as a defense under the statute. (T.

211).2 The motions were denied (T. 219).

Testifying in her own defense, Petitioner testified that her efforts

at verifying the age of Rachelle Reynolds were the same that she used

with all of her dancers, including demanding a Minnesota Drivers License

or an Official State of Minnesota identification (T. 415). In addition, she

testified that she would customarily take the identification, say that she

did not have her glasses and could not read it, and ask the applicant to

repeat her name, address, and date of birth, so that she could verify the

information given against that in the identification (T.457).° In

addition, applicants were made to complete and sign a W-4 form, and the

signature on the form was then matched against the signature on the

identification card (T. 457 - 458). Obviously this checked out as well,

since the false identification card bearing Rachelle Reynolds’ sister’s

name and date of birth also bore both Rachelle Reynolds’ photograph

4

and signature.

On January 26, 1990, the jury rendered a verdict of guilty on the

offense charged

(T. 575).

On February 5, 1990, Petitioner brought a Motion for Judgment

of Acquittal notwithstanding the verdict, and alternative motion for new

trial, alleging, inter alia, that a defense as to mistake of identity was

constitutionally compelled, in that the Due Process Clause of the

Fourteenth Amendment precluded the state from prosecuting Petitioner

when Petitioner und. putably relied upon the state’s own representations,

through its official identification card, as to the performer’s identity and

age. A copy of said motion is set forth in the Appendix at A.53 - A55.

On February 23, 1990, said motions were denied in their entirety by

Judge Litman. See sentencing transcript at p. 11. The judgment of

conviction was affirmed by the Minnesota Court of Appeals on

December 31, 1990. See State v. White, supra, 464 N.W. 2d 585 (Minn.

App. 1990). On March 15, 1991, the Minnesota Supreme Court denied

Petitioner’s Petition for Review.

Petitioner now seeks a Writ of Certiorari.

Argument

I. The decision of the Minnesota Supreme Court upholding the

constitutionality of a child pornography statute imposing absolute

criminal liability upon a Defendant regardless of his knowledge or

scienter_as to a minors age is in direct conflict with applicable

decisions of this court and at least one United States Court of Appeals,

requiring review under Rule 10(b) of this Court.

A. The decisions of this Court co l invalidation, under the

First Amendment, of a statute which imposes absolute criminal liability

for child pornography upon a Defendant, regardless of scienter as to the

minor’s age.

As already noted, supra, Minnesota Statutes Section 617.246,

Subd. 5 provides that a genuine, good faith mistake as to a minor's age

is not a defense to prosecution under the statute. This means that the

producer of a book, magazine, or motion picture film can take every

reasonable step to assure that a participant in his or her production is

over the age of 18, but that if a minor is used in such production, absolute

criminal liability will be imposed regardless of the Defendant’s good faith,

mistake, or lack of knowledge. The decisions of this Court plainly hold

that such an imposition of absolute criminal liability, regardless of the

scienter of the Defendant, violates the First and Fourteenth Amendments

to the United States Constitution.

Simply stated, as this Court has reiterated in every First

Amendment decision on this point for many decades, strict liability (civil

Or criminal) may not be imposed for expressive conduct. Because of the

inevitable chilling effect strict liability casts over the exercise of free

expression, Smith v. California, 361 U.S. 147, (1959), our Constitution does

not permit a regime under which the speaker or artist must assume the

risk of criminality or civil liability arising from the creative or

communicative conduct. To safeguard the fundamental right of free

expression, a Defendant must, on the contrary, be shown to have known

the facts which left his or her communication unprotected by the First

Amendment.

In Smith v. California, supra, 361 U.S. 147 (1959), this Court

struck down an ordinance construed as imposing strict criminal liability

upon a bookseller for possession of an obscene book. This Court

indicated that on general due process grounds, such an abrogation of the

mens rea requirement was suspect, 361 U.S. at 1509, but held more

particularly that under the First Amendment, the ordinance "has such a

tendency to inhibit constitutionally protected expression that it cannot

stand under the Constitution." Id. at 155.

Although the states may legitimately punish obscenity as

unprotected speech, the Court noted that:

"Roth does not recognize any state power to restrict the

dissemination of books which are not obscene; and we

think this ordinance’s strict liability feature would tend

seriously to have that effect, by penalizing booksellers,

even though they had no notice of the character of the

books they sold." Id. at 152.

Faced with strict criminal liability, a bookseller

"will tend to restrict the books he sells to those he has

inspected; and thus, the State will have imposed a

restriction upon the distribution of constitutionally

protected as well as obscene literature... The bookseller’s

limitation in the amount of reading material with which

he could familiarize himself, and his timidity in the face

of his absolute criminal liability, thus would tend to

restrict the public’s access to forms of the printed word

which the State could not constitutionally suppress

directly. The bookseller’s self-censorship affecting the

whole public, hardly less virulent for being privately

administered." Id. at 153-154.

The rationale of Smith was also adopted and further developed

in the landmark decision of New York Times Co. v. Sullivan, 376 U.S.

254 (1964), in which this Court held a public figure could not recover

damages for a defamatory publication related to official conduct in the

absence of proof that the statement was made with "actual malice” -- i.e.,

knowledge that it was false or with reckless regard as to its truth or

Such a heightened burden of proof is required, the Court

observed, so that "debate on public issues should be uninhibited, robust

and wide open," 376 U.S. at 270, and not subjected to a "pall of fear and

timidity imposed upon those who would give voice to public criticism."

Id. at 278. As this Court had noted in Smith, the paramount concern is

10

that abuses of the rights of free speech in press not be subjected to

sanctions, either civil or criminal, so severe as to chill the legitimate

exercise of those freedoms. The threat of "libel judgments virtually

unlimited in amount...leads to a ...’self-censorship,” comparable to the

imposition of strict criminal liability in Smith, and would make speakers

"tend to make only statements which ’steer far wider of the unlawful

zone.” Id. at 279, quoting Speiser v. Randall, 357 U.S. 513, 526, (1958).

Similarly, Ginsberg v. New York, 390 U.S. 629, 643-44, (1968),

upheld a New York statute under which "knowing" sale of obscene

materials to minors was defined to include:

"reason to know’ or ‘a belief or ground for belief which

warrants inspection or inquiry of both: (i) the character

and content of any materials described which is

reasonably susceptible of examination by the Defendant

and (ii) the age of the minor.”

The statute in Ginsberg thus required the state to prove at least

negligence on the part of the Defendant in failing to ascertain whether

a_customer was of legal age, and furthermore provided a defense of

reasonable mistake as to the minor’s age.

The common theme in all of these decisions that in order to

impose either criminal or civil liability upon a Defendant for expressive

activity which falls outside the protection of the First Amendment,

11

Government is obligated to make some showing that the Defendant

possessed knowledge or scienter of the facts which led the expressive

activity to fall outside First Amendment protection. Thus, in the area of

obscentity, under Smith v. California, supra, 361 U.S. 147 (1959), a

Defendant must be shown to have knowledge of the content and

character of the work, since it is the content and character of the work

which would render it outside the protection of the First Amendment.

Likewise, in New York Times v. Sullivan, supra, 376 U.S. 254 (1964),

knowledge of falsity or reckless disregard for the truth is required, since

it is the falsity of the alleged defamatory statement which brings it outside

the protection of the First Amendment. In the most analagous

situation, Ginsberg v. New York, supra, 390 U.S. 629 (1968), both

knowledge of the content of the material sold to minors, and at least

negligence as to the minority of the customer was required, since both

the content of the material in question and the age of the recipient were

necessary to bring the material outside First Amendment protection.

Although this Court has not directly ruled on the issue, in at least

two decisions relating to the child pornography exception to the First

Amendment, this Court has strongly implied that some measure of

knowledge or scienter as to the age of the performer is constitutionally

12

mandated in order to impose criminal liability for child pornography. In

New_York v. Ferber, 458 U.S. 747 (1982), the decision in which this

Court pronounced, for the first time, a child pornography exception to

the First Amendment, this Court upheld the statute which required, as

an essential element of the offense, that the Defendant knew the

character and content of the performance and materials, and more

importantly, provided an affirmative defense of good faith belief that the

minor was of legal age. In upholding the statute, the United States

Supreme Court stressed that the usual First Amendment limitations apply

to the definition and punishment of child pornography as unprotected

speech, to-wit: the prohibited conduct must be adequately defined and

delimited and, as in the case of obscenity, “criminal responsibility may not

be imposed without some element of scienter on the part of the

Defendant." 458 U.S. at 465.

More recently, in Osborne v. Ohio, __; U.S. ___, 110 S.Ct. 1691

(1990), this Court rejected a challenge to Ohio's child pornography

statute On scienter grounds, not because it held scienter as to a minor's

age not constitutionally required; rather this Court found that the Ohio

Statute could be construed to include an element of scienter, since the

Ohio statute required reckless as the element of mens rea. See Id. at

13

Moreover, this Court explicitly held that due process required

that the jury be instructed on the state’s burden of proving scienter,

rejecting the Defendant’s contention that no such instruction was given,

only because Defendant waived the argument by failing to request such

an instruction. See Id. at 1703.

The reasons advanced by the Minnesota Court of Appeals for

rejecting the clear mandates of this Court are unpersuasive at best.

First of all, the court reasoned that the statute does not eliminate

scienter altogether, because the statute, in Subd. 2, "specifically requires

that a person subject to its enforcement must know or has reason to

know that the conduct intended is a sexual performance.” 464 N.W. 2d

at 588. What this argument ignores is the fact that the scienter required

by Subd. 2, to-wit: the sexual nature of the performance, does not

require that the Defendant have any knowledge of facts which would

bring the performance outside the protection of the First Amendment.

Unless the performance is legally obscene under Miller v. California, 413

U.S. 15 (1973), or involves a minor, under New York v. Ferber, supra, 458

U.S. 747 (1982), nothing about the fact that the performance involved

sexual conduct as defined by statute brings the material outside the

14

purview of First Amendment protection. As already noted, supra,

knowledge of the facts bringing material outside the protection of the

First Amendment has been constitutionally mandated in every First

Amendment case decided by this Court since Smith v. California, supra,

361 U.S. 147 (1959). See, in particular, Ginsberg v. New_York, supra,

390 U.S. 629 (1968), requiring knowledge of both the contents and

character of the material and at least neglience as to the age of the

dis‘ributee, since it was only distribution to minors which rendered the

conduct outside the protection of the First Amendment.

Secondly, the Court of Appeals reasoned, without support in the

record or in logic, that the statute "deters only a limited amount of

conduct.” Id. at 589. ‘In fact, rather than requiring an “exhaustive

investigation" of a minor’s age (Id. at 589), what the statute does is assure

that no investigation, regardless of how thorough, how exhaustive, or

how in good faith, will never constitute a defense, if a minor is accidently

hired. Clearly if this is the law, the only way that one can ever assure

compliance with the law is to hire no one to engage in nude dancing,

clearly suppressive of First Amendment activity.

Finally, the Court of Appeals argued that violation of First

Amendment principles is necessary because of the state’s strong interest

15

SS ee ee ee ae ee ee a a yo se SS oe ee eee, oe ee eee - 8 a ee ee a een ee [nn

in the protection of children. Id. at 589. In fact, the statutory provision

does not protect children in general, but only a limited class of fraudulent

l6- or 17-year olds, who pass themselves off as adults. Because good faith

is no defense, the statutory provision punishes, not the unscrupulous child

pornographer, who could not benefit from a reasonable mistake as to age

defense in any event, but rather only the conscientious promoter of First

Amendment activities who conscientiously attempts to comply with the

law. The state’s interest in "protecting" only the guilty at the expense of

only the innocent was not articulated by either Respondent below or the

Court of Appeals in its opinion. Petitioner asserts that it is either

minimal or non-existent.

B. The decision of the Minnesota Supreme Court in upholding

the validity of the Statute on First Amendment grounds is also in direct

conflict with the decision of the United States Court of Appeals for the

Ninth Circuit.

In addition to being in direct conflict with the applicable decisions

of this Court regarding scienter in First Amendment cases, the Minnesota

Supreme Court’s decision is also in direct conflict with the decision of the

United States Court of Appeals in United States v. United States District

Court, 858 F. 2d 534 (9th Cir. 1988), in which the court authoritatively

construed the Federal Child Pornography Statute to permi a Defendant

16

to produce mistake as to age as an affirmative defense to a child

pornography charge, as a requisite to the constitutional validity of the

statute. The court reasoned that in the absence of a mistake as to age

defense, the Federal Child Pornography Statute would be

unconstitutional. After citing the scienter requirements constitutionally

mandated in Smith v. California, supra, 361 U.S. 47, (1959); Hamling v.

United States, 418 U.S. 87 (1974); Ginsberg v. New York, supra, 390 U.S.

629, (1968); Mishkin v. New York, supra, 86 S.Ct. 958, (1966); and New

York v. Ferber, supra, 458 U.S. 747, the court stated:

"We read these Supreme Court cases as holding that a

speaker may not be put at complete peril in distinguishing

between protected and unprotected speech. Otherwise,

he could only be certain of avoiding liability by holding

his tongue, causing him ‘to make only statements which

"steer far wide [] of the unlawful zone." [Citation

omitted.]’ As the Court noted in this Term, ’a rule that

would impose strict liability on a publisher for

{unprotected speech] would have an undoubted "chilling"

effect on speech... that does have constitutional value’

[citation omitted.]

Section 2251(a) will have precisely this effect, Defendants

tell us, unless they are permitted to present a reasonable

mistake of age defense. They point out that an actor’s

chronological age cannot be precisely ascertained from his

appearance. Some |6- or !7-year-olds may look older and

more sophisticated than their peers; 19-or 20-year-olds

may look youthful and immature. The Court recognized

as much in Ferber when it noted that ’if it were necessary

for literary or artistic value, a person over the statutory

17

age who perhaps looked younger could be utilized.’ 458

U.S. at 763. Age may also be ascertained on the basis of

other evidence: birth certificates, driver’s licenses or

other identification; statements of those acquainted with

the actor; reputation in the community. But Defendants,

argue, none of these sources is infallible: documents can

be, and frequently are, forged; people can be mistaken or

lie; reputations may be based on unfounded rumor rather

than fact." Id. at 529 - 540.

Plainly, the instant case is a perfect example of the "chilling

effect" that the imposition of absolute liability would have upon protected

speech. Despite the fact that both the United States Supreme Court and

Minnesota Supreme Court have held nude dancing to be a form of

constitutionally protected expression,” it is absolutely clear that the only

way that Petitioner could have assured herself of avoiding criminal

liability altogether would have been to hire no one to engage in nude

dancing. As correctly noted by the Ninth Circuit, any and all

‘documentation they could have secured to ascertain a dancer’s age could

have been forged and done so quite convincingly, as was the minor’s

identification in the instant case. Clearly, the net effect of imposing

absolute criminal liability upon anyone who hires a nude dancer, who

turns Out to be a minor, regardless of the efforts taken to ascertain the

minor’s age, must necessarily be to assure that no one is ever hired to

engage in nude dancing, despite the fact that the conduct is

18

constitutionally protected.°

Il. Apart from First ment consideratio ta

Su s uphold of the statu n due

It is an essential concept of our Anglo-American philosophy of

criminal jurisprudence that a serious crime requires both a guilty act

(actus reus) and a guilty mind (mens_ rea). “Crime [is] a compound

concept, generally constituted only from concurrence of an evil-meaning

mind with an evil-doing hand,” as this Court noted in the leading case of

Morissette _v. United States, 342 U.S. 246, 251 (1952). Although a

distinction has arisen in modern times for offenses of a regulatory nature,

which are malum prohibitum rather than malum in se and which entail

neither severe criminal penalties nor grave damage to reputation, this

Court has never upheld the imposition of strict liability for a serious

felony offense like that created by Section 617.246. On the contrary, this

Court and lower courts have indicated on numerous occasions that due

process prohibits elimination of criminal intent as an element for such an

offense.

The Supreme Court recognized in Morissette, supra, that the

absence of a scienter requirement as to any fact necessary to make the

19

conduct subject to the criminal sanction created strict liability. In order

to be convicted under the federal larceny statute at issue in Morissette,

the Defendant had to be shown to have committed "knowing conversion,"

which the Court interpreted as requiring "more than knowledge that

Defendant was taking the property into his possession. He must have

had knowledge of the facts, though not necessarily the law, that made the

taking a conversion." 342 U.S. at 270-271. Thus the Defendant could not

have been convicted in the absence of knowledge that the property of

which he took possession was capable of being converted, and so the

Court implicitly held the Defendant should have been allowed to

introduce evidence he thought the property was abandoned. Otherwise,

the Court indicated, the Defendant could be convicted in the absence of

any guilty knowledge or mens rea, a result incompatible with fundamental

tenets of criminal jurisprudence which have emerged from centuries of

commo.i-law wisdom.

Noting that in the industrial era, a new class of regulatory

offenses had developed for which criminal intent was not always required,

this Court carefully distinguished such malum prohibitum offenses, along

the lines of “health and safety" or “public welfare" regulation, from

serious crimes. These regulatory offenses are distinguished by the facts

20

that "penalties commonly are relatively small, and conviction does not

grave damage to an offender’s reputation,” in contrast to crimes for which

"the penalty is high and...the infamy is that of a felony.” Id. at 256, 260.

This distinction is central to the Morissette analysis of the due

process limitations of strict liability. Because the Court in Morissette was

able to avoid the constitutional question and to hold that "mere

omission...of any mention intent will not be construed as eliminating that

element,” the Court left open the question of "a precise line ot...

comprehensive criteria for distinguishing between crimes that require a

mental element and crimes that do not.” Id. at 263, 260. This Court has

subsequently had occasion to construe silent or ambiguous statutes to

require an element of criminal intent, most recently in Liparota v. United

States, 471 U.S. 419, (1985), but has never squarely faced the question of

a statute creating strict liability for a serious felony. Clearly, however,

congressional power to eliminate mental culpability for serious crimes is

limited by due process, as the Court suggested in Morissette and

reaffirmed in Liparota.

This Court also reiterated that strict liability is generally

inappropriate when the offense is punishable by imprisonment or by

other severe sanctions in United States v. United States Gypsum Co., 438

21

U.S. 422 (1978). "The existence of mens rea is the rule of, rather than

the exception to, the principles of Anglo-American criminal

jurisprudence,” the Court noted, 438 U.S. at 436, quoting Dennis v.

United States, 341 U.S. 494, 500 (1951). Citing Morissette, the Court

construed the criminal antitrust provisions of the Sherman Act to require

an intent element. The imposition of harsh criminal penalties on a strict

liability basis, the Court observed, "would be difficult to square with the

generally-accepted functions of the criminal law." Id., 438 U.S. at 442.

In the recent case of Liparota v. United States, supra, the Court

interpreted ambiguous provisions creating the offense of food stamp

fraud to include an element of mens rea. Again, this Court followed

Morissette to construe the ambiguity in Defendant’s favor under the rule

of lenity, and the case raised no constitutional issue. But the Court

noted that while generally, definition of the elements of an offense is

entrusted to the legislature, "Congress must act within any applicable

constitutional constraints in defining criminal offense.” 105 S. Ct. at 2087,

n. 6. See also Lambert v. California, 355 U.S. 225 (1957) (due process

limits power of states to create strict liability for violation of a felony

registration ordinance of which Defendant would /ikely have no notice).’

In this regard, see also United States v. Launder, 743 F. 2d 686

22

(9th Cir. 1984), and United States v. Wulff, 758 F. 2d 1121 (6th Cir.

1985).

An essential factor in determining whether Petitioner’s conviction

violated the due process clause is the undisputed evidence that Rachelle

Reynolds did not act alone in misrepresenting her age and identity to

Petitioner. The State of Minnesota was an active and crucial participant

in that misrepresentation. In granting employment to Rachelle Reynolds,

plainly relied upon an identification card issued by the State of

Minnesota, plainly for the purpose of establishing an individual’s identity

and date of birth. The issuance of the card is mandated by Minnesota

Statutes Section 171.07, Subd. 3, which provides as follows:

"Upon payment of the required fee the department [of

Public Safety] shall (emphasis supplied) issue to every

applicant therefor a Minnesota Identification Card. The

department may not issue a Minnesota identification card

to a person who has a driver’s license, other than an

instruction permit. The card must bear a distinguishing

number, assigned to the applicant, a colored photograph,

the full name, date of birth, residence address, a

description of the applicant in a manner the commission

deems necessary, and a space upon which the applicant

shall write the usual signature and date of birth of the

applicant with pen and ink.

23

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Each Minnesota Identification Card must be plainly marked

"Minnesota Identification -- not a driver’s license.’ The fee for a

Minnesota Identification Card issued to a person who is mentally

retarded, as defined in Section 252.A.02, Subdivision 2 is 50

cents.”

Plainly, the statute is intended for the purpose of according every

person who is not a licensed driver a state-sanctioned method of

establishing his or her identification and date of birth. In fact other

Minnesota statutes specifically establish the Minnesota Identification

Card as sufficient proof of identification and age to qualify for senior

citizens benefits,® and for the purpose of purchasing liquor.?

Plainly then, when the State of Minnesota issued Rachelle

Reynolds an official identification card, identifying her as Sheryl

Reynolds, age 26, it did so plainly for the purpose of permitting her to

establish her identity and age fcr all lawful purposes, including

employment. Equally clear is the fact that due process of law precludes

the state, as a matter of law, from imposing criminal liability upon

Appellant for her reliance upon the state’s own misrepresentations.

In Raley v. Ohio, 360 U.S. 423 (1959), the United States Supreme

Court reversed contempt convictions for witnesses appearing before the

Ohio Un-American Activities Commission, in a situation in which the

chairman and members of the commission affirmatively represented that

24

the witnesses had a privilege not to answer questions they believed would

incriminate them. Despite exercising the privilege commission members

had indicated was available to them, the Defendants were prosecuted

under the theory that the Ohio Immunity Statute removed the threat of

criminal prosecution, thus making a self-incrimination claim unavailable

to them. This Court held that due process prohibited the State from

criminally punishing conduct the state’s own agents represented was

permissible. This Court stated:

"While there is no suggestion that the commission had

any intent to deceive the appellants, we repeat that to

sustain the judgment of the Ohio Supreme Court on such

a basis after the commission acted as it did would be to

sanction the most indefensible sort of entrapment by the

state --convicting a citizen for exercising a privilege which

the state clearly had told him was available to him." 360

U.S. at 437-438.

Similarly, in Cox v. Louisiana, 379 U.S. 559 (1965), this Court

reversed the conviction of a civil rights leader who was convicted

of violating an East Baton Rouge, Louisiana ordinance prohibiting

picketing "near a courthouse." The facts giving rise . the arrest were

that the leader had conducted a demonstration approximately 101 feet

from the courthouse, across the street, in a location for which permission

to picket had been specifically granted by city officials, including the

iain vi oasee se Rech mtd

police chief. The Court held, relying on Raley v. Ohio, supra, that the

permission granted by the highest police officials to hold the

demonstration where it was held constituted a representation that holding

the demonstration at that location did not constitute demonstrating "near"

a courthouse, within the meaning of the ordinance.

Subsequent decisions of both this Court and various lower federal

courts have repeatedly reinforced the due process mandates of Raley and

Cox. In United States v. Laub, 385 U.S. 475, (1967), this Court stated

the following:

"Ordinarily, citizens may not be punished for actions

taken in good faith reliance upon authoritative assurance

that punishment will not attach.” Id. U.S. at 487.

See also United States v. Pennsylvania Chemical Corp., 411 U.S.

655 (1973), and United States v. Brady, 710 F. Supp. 290 (D. Col. 1989).

The Minnesota Court of Appeals rejected this plainly compelled

result by the one sentence assertion that "the State of Minnesota did not

affirmatively participate in the conduct which lead (sic) to the criminal

violation.” 464 N.W. 2d at 590.

The record in this case plainly does not support the Court of

Appeals’ finding, since the undisputed testimony was that but for the

state’s affirmative act in issuing an identification which, in effect, told

26

Petitioner that it was lawful to hire Rachelle Reynolds, Rachelle

Reynoids never would have been hired. !°

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Conclusion

For all of the foregoing reasons, Petitioner's Petition for Writ of

Certiorari, should be in all respects granted.

(iy weet

Randall D.B. Tigue

Attorney for Petitioner

2620 Nicollet Avenue

Minneapolis, MN 55408

(612) 874-9903

Dated: June 7, 1991.

'As already mentioned, supra, the full text of Minnesota Statutes

Section 617.246 is set forth in the Appendix at A.89.

*See Minnesota Statutes Section 617.246, Subd. 5. Because the issue

of the construction of the statute is a matter purely of state law, the issue

is not presented to this Court for review, except to the extent that it

impacts upon Petitioner’s due process argument, infra.

3It should be noted that this is precisely the same procedure used by

Officer Christensen to attempt to check Ms. Reynolds’ identification at

the time he arrested here. See T. 49, 56-57. In this regard, Officer

Christensen admitted that had he not had the information from

Woodland Hills Detention Center identifying Michelle Reynolds as a

minor, it is possible that he would have been fooled by the identification

as well. See T. 57.

‘In this regard, it should be also noted that Rachelle Reynolds, in her

testimony, verified that Petitioner made her complete and sign a W-4

form (T. 82).

27

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>See California v. LaRue, 409 U.S. 109, Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975); Schad v. Borough of Mt. Ephraim, 452 U.S. 61,

(1981); and Koppinger v. City of Fairmont, 311 Minn. 186, (1976). See also

Miller v. Civil City of Southbend, 904 F. 2d 1081 (7th Cir. 1990), cert

granted sub nom., Barnes v. Glen Theater, Inc.,___ U.S.___, Ill S.Ct. 38,

I'2 L.Ed. 2d 15 (1990).

°Respondent’s argument below that White could have ascertained the

falsity of the identification presented by Sheryl Reynolds by "checking

out" her social security number is transparently without merit. To begin

with, the Social Security Administration specifically prohibits the release

of information concerning individuals’ social security numbers. See Title

45 C.F.R. Section 5.67(c). See also Title 42 U.S.C. Section 408 making

unauthorized disclosure of social security numbers a criminal offense.

At trial, Eve White testified, without contradiction, that her attempts to

verify social security numbers uniformly met with frustration, since the

Social Security Administration would not give out written numbers

without written permission, and even upon receipt of written permission

it would take from six weeks to six months to get the information back,

making it impossible to hire as a practical matter (T. 434-435). More

importantly, however, even if it were possible to "check out" a social

security number, that would, by no means, guarantee freedom from

prosecution. Had Rachelle Reynolds stolen her sister’s social security

card, as well as her birth certificate, "checking out” the social security

would have done nothing more than further verify the false identification.

Petitioner would nonetheless be subject to prosecution under Section

617.246, since no ef! t verification, no matter how extensive, could

ever constitute a defense under the statute.

’The only modern Supreme Court decision to have upheld strict

liability for a felony offense, United States v. Freed, 401 U.S. 601 (1971),

illustrates the inappropriateness of strict liability for the offense at issue

in this case. In Freed, this Court distinguished the crime of possessing

unregistered hand grenades from a serious, malum in se crime of the type

considered in Morissette: "This is a regulatory measure in the interest of

public safety." 401 U.S. at 609. Strict liability as to the hand grenade’s

registration status was appropriate because "one would hardly be

surprised to learn that possession of hand grenades is not an innocent

act. They are highly dangerous offensive weapons.” Id. The Defendant,

having undertaken to possess such a weapon, would have at least

28

constructive knowledge of the legal requirement of registration, and

would be able to ascertain beyond any doubt the weapon’s registration

status.

The statute in Freed did not, however, eliminate the element of

criminal intent entirely, however, and if the Defendant did not know the

hand grenade was a weapon, e.q., believed it to be an artichoke, or did

not knowingly possess it, he could not be convicted. Thus the mistake of

fact defense would still be available to negate the existence of mens rea.

The present case, of course, involves First Amendment activity

which is not properly the subject of strict liability, and a factual element

which the Defendant often is unable to determine with complete

certainty. As in Freed, because reasonable mistake as to that fact would

negate any criminal intent whatsoever, evidence of such mistake must be

admissible by way of defense.

8See Minnesota Statutes Section 171.07, Subd. 3a.

%See Minnesota Statutes Section 340A.53.

101m this regard, it should be noted that in Raley v. Ohio, supra,

United States Supreme Court clearly held that it was irrelevant whether

the representation relied upon by the citizen to his detriment was

deliberately fraudulent or not. See 360 U.S. at 437-438.