# Opposition Brief — White v. Minnesota

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2228%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 819

## Text

" | Supreme Court, WS
FILED

JUL 712 1991

OFFICE OF THE CLERK

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1990

No. 90-1909

EVE WHITE a/k/a EVE CASCIO
Petitioner,
Vv.
STATE OF MINNESOTA,

Respondent.

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

BY: JOHN E. DeSANTO

Assistant St. Louis County Attorney
100 North Fifth Avenue West, No. 501
Duluth, MN 55802-1298

Telephone: 218-726-2323

ATTORNEY FOR RESPONDENT

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1990

No. 90-1909

EVE WHITE a/k/a EVE CASCIO
Petitioner,
Vv.
STATE OF MINNESOTA,

Respondent.

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

—_ ew re ee wee ee ee es eee es as aes a ee es ee

BY: JOHN E. DeSANTO

Assistant St. Louis County Attorney
100 North Fifth Avenue West, No. 501
Duluth, MN 55802-1298

Telephone: 218-726-2323

ATTORNEY FOR RESPONDENT

QUESTIONS PRESENTED

Ri Is Minnesota child pornography

statute, § 617.246 (1989), constitutional
under the First and Fourteenth Amendments
to the United States Constitution,
although this statute imposed criminal
liability upon Petitioner's conduct
without affording Petitioner a defense
based upon mistake of age of the minor
employed by Petitioner to engage in a

sexual performance?

2 Is Minnesota child pornography
statute § 617.246 (1989), constitutional
under the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution, although this’- statute
imposed criminal liability upon Petitioner
for employing a minor to engage in a
sexual performance when the minor used a
false Minnesota identification card,
fraudulently obtained from the State of
Minnesota, to misrepresent her age when

seeking employment from Petitioner?

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TABLE OF CONTENTS

PAGE
Questions Presented ....... i-ii
memes Ge CONnEONGS . . ss os tw ow ow wt SK
Table of Authorities ...... ive-vi
Statement of the Case ....... 1#5

Argument Why the Writ Should Not Issue

I.

II.

The decision of the Minnesota
Supreme Court upholding the
constitutionality of a child
pornography statute imposing crimiral
liability upon Petitioner regardless
of her mistaken knowledge of the age
of the minor employed by her is
absolutely consistent with applicable
decisions of this Court. - 5-11

No due process violation has occurred
in this case aS a result of

_ Petitioner being denied a mistake of

age defense, nor as a result of the
State of Minnesota issue a false
Minnesota identification card to the
minor hired by Petitioner to engage
in a sexual performance. - 11-19

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STATE STATUTES

Minnesota Statutes Section
B7hcO7, GUBG. 3. © «© we eo wo oe B

FEDERAL STATUTES

CASES

Barnes v. Glen Theatre nC.» U.S.
59 LW, 4745 (June 21, 1991)
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Cox v. Louisiana, 379 U.S. 559,
85 $.Ct. 476, 13 L.Ed.2d 487

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New Yo v. Ferber, 458 U.S. 747,
102 S.Ct. 3348, 73 L.Ed.2d 1133

vor. ae
Osborne v. Ohio, U.S. 110

S.Ct. 1691 (1990) = @ Fs S283 28
Raley v. Ohio, 360 U.S. 423,

79 S.Ct. 1257, 3 L.Ed.2d 1344
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clerk, nor anyone else employed by the
State of Minnesota, then instructed R.A.R.
to go use the Minnesota Identification
Card to get employment in the pornography
industry. Neither this clerk, nor anyone
else employed by the State of Minnesota,
contacted Petitioner and told her to hire
R.A.R. to work in the Ferris Alexander
bookstores in Minneapolis, St. Paul, and
Duluth. Plainly and simply, the State of
Minnesota was not "an active and crucial
participant" in R.A.~R.*S8
misrepresentation.

Petitioner's cited authorities of

Raley _v. Ohio, 360 U.S. 423, 79 S.Ct.

1257, 3 L.Ed.2d 1344 (1959), Cox _v.
Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13
L.Ed.2d 487 (1965), U.S. v. Laub, 385 U.S.

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475, 87 S.Ct. 547, 17 L.Ed.2d 520 (1967),
U.S. v. Penn vania Chemical Corp., 411
U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567

(1973), and U.S. v. Brady, 710 F. Supp.

290 (D. Colorado 1989) are easily
distinguishable from the instant case.

Raley, Cox, and Brady, all involved
instances where someone in authority in
government erroneously instructed the
accused about the law. The accused
persons then acted in accordance with the
erroneous instructions only to be
pro. cuted and convicted by the government
for these actions. It is obvious that it
violates due process to convict the
defendants of crimes in these cases.

In Laub, this Court simply affirmed

a dismissal of an indictment charging an

16

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immigration law violation which did not
actually exist in the statute. Finally,
in U.S. v. Pennsylvania Chemical Corp.,
this Court prevented the government from
proceeding with a prosecution under a
statute when the defendant corporation
relied on an administrative interpretation
of the statute published by the U.S. Army
Corp of Engineers permitting performance
of the charged acts.

Plainly and simply, Petitioner did
not employ 17-year-old R.A.R. to engage
in a sexual performance in the instant
case as a result of any instructions from
anyone in authority for the government
only to be prosecuted for doing so.

It is instructive to note that

Petitioner's argument on this issue

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contradicts itself at page 24 of the
petition. Here, even Petitioner concedes
that when the State of Minnesota issued
R.A.R. the false identification card, "it
did so plainly for the purpose of
permitting her to establish her identity

and age for all lawful purposes."

(emphasis supplied) Clearly, when
17-year-old R.A.R. used this false I.D.
card to gain employment from Petitioner
as a nude dancer, R.A.R. was not using
this fraudulently obtained I.D. card for
a lawful purpose. Petitioner could not
lawfully hire performers under 18 years
of age for the sexual performances at her
bookstores.

Unlike the situations in Raley, Cox,
e vani ica , and Brady,

18

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in the instant case, there is absolutely
no fundamental unfairness or injustice in
prosecuting, convicting, and punishing
Petitioner for hiring a minor to engage
in sexual performances for the pornography
industry. Seventeen-year-old R.A.R. could
have gotten her false identification
misrepresenting her age from illegal
sources, as well as the State of
Minnesota. By defrauding the State of
Minnesota and obtaining her _ false
identification from the State, R.A.R. did
not preclude her protection, as a minor,

from the pornography industry under

Minnesota Statutes § 617.246.

ii ic eisiiceistecsve

CONCLUSION

Neither the First nor Fourteenth
Amendments to the United States
Constitution were violated by the
successful prosecution of Petitioner for
violating Minnesota Statutes § 617.246,
which was enacted to combat’ child
pornography.

The decisions of the Minnesota Court
of Appeals and Minnesota Supreme Court to
uphold the constitutionality of Minnesota
Statutes § 617.246 against First Amendment
and Due Process claims are absolutely
consistent with the decisions of this
Court in Ferber, Osborne, and most
recently, in Barnes. In fact, because the
conduct regulated by the Minnesota statute

in question here is not speech, this

20

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statute is arguably not even subject to
First Amendment scrutiny at all. Barnes,
59 LW at 4748-4751 (J. Scalia concurring).
By enacting Minnesota Statute
§ 617.246, the Minnesota legislature
constitutionally exercised the State's
traditional police power to protect the
public health, safety, and morals. This
child pornography statute furthers the
compelling government interest in
protecting the physical and psychological
well-being of the children of this nation.
To accomplish these ends, this statute
properly places a heavy burden on persons,
like Petitioner, who hire individuals to
perform in sexual performances to make
sure they do not hire minor children.
All adult nude dancing is not

suppressed by this statute as Petitioner

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claims. Nude dancing is no longer
constitutionally protected, per se,
anyway.

For all of the foregoing reasons,
Respondent respectfully requests that the
writ of certiorari to review the decisions
of the Minnesota appellate courts not
issue. There is absolutely no special and
important reason why this case should be
reviewed by the United States Supreme
Court.

Dated: July 11, 1991.

Respectfully submitted,

ALAN L. MITCHELL
ST. LOUIS COUNTY ATTORNEY

BY:

AsSistant St. Louis County Attorney
100 North Fifth Avenue West, #501
Duluth, MN 55802-1298

Telephone: 218-726-2323

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2228%3A3. Public record. Not legal advice.