AG Appeals Decision To Remove Man From Sex Offender Registry For Consensual Gay Sex

Case 9:20-cv-00178-DLC-KLD Document 1 Filed 12/09/20 Page 1 of 13
Elizabeth K. Ehret
Attorney at Law
3800 O’Leary St., #104
Missoula, MT 59808
T: (732) 312-7400
[email protected]
Matthew Strugar
(pro hac vice application forthcoming)
Law Office of Matthew Strugar
3435 Wilshire Blvd., Suite 2910
Los Angeles, CA 90010
T: (323) 696-2299
[email protected]
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
RANDALL MENGES,
Plaintiff,
Case No.
v.
TIM FOX, Attorney General of the State COMPLAINT FOR

of Montana; GARY SEDER, Bureau Chief DECLARATORY AND
of the Montana Crime Information INJUNCTIVE RELIEF
Bureau; and SARA MALIKIE, Head of the
Sexual and Violent Offenders Program
for the Missoula County Sheriff’s Office,
each in their official capacities,
Defendants.
Nature of Action
1. This case involves the lingering effects of centuries of homophobic “sodomy”
prohibitions.
2. Such laws, which prohibit nonprocreative sex acts traditionally associated with
homosexuality (i.e., oral and anal sex), were universal among the states and territories from the
founding of the Republic through to the 1960s. In the late twentieth century, a few states began
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Complaint for Declaratory and Injunctive Relief
repealing their sodomy laws and some state courts began to invalidate them. Then, in 2003, the
Supreme Court held that laws that criminalize oral or anal sex (with no other elements) violate
substantive due process and are invalid under the Fourteenth Amendment. See generally
Lawrence v. Texas, 539 U.S. 558 (2003).
3. But some disabilities created by these unconstitutional laws remain. Here, through
operation of a number of intertwined state laws, Montana forces Plaintiff Randall Menges to
register as a sex offender for a 1994 conviction for consensual sodomy. Just as such convictions
are unconstitutional post-Lawrence, Montana’s requirement that people with pre-Lawrence
sodomy convictions register as sex offenders is also unconstitutional.
4. Menges brings this action to prevent state and county officials from continuing to
require him to register as a sex offender and compelling Defendants to remove Menges from the
Sexual or Violent Offender Registry, expunge all records signaling his past inclusion on the
registry, and/or enjoining Defendants from administering and enforcing the registry law as to
pre-Lawrence sodomy convictions from other states.
Parties
Plaintiff
5. Randall Menges is a resident of Idaho.
Defendants
6. Tim Fox is the Attorney General of Montana. As Attorney General, Fox oversees
the enforcement of Montana’s criminal statutes. He is sued in his official capacity and, on
information and belief, resides in Montana.
7. Gary Seder is the Bureau Chief of the Montana Crime Information Bureau. The
Crime Information Bureau is responsible for administering and maintaining Montana’s Sexual or
Violent Offender Registry (SVOR). In addition to maintaining the online registry, the Crime
Information Bureau is also the state agency that disperses information about the registry to the
public. Seder is sued in his official capacity and, on information and belief, resides in Montana.
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8. Sara Malikie runs the Sexual and Violent Offenders Program for the Missoula
County Sheriff’s Office. On information and belief, she is responsible for maintaining Mr.
Menges on the Sexual or Violent Offender Registry.
9. Each of the Defendants is a person under 42 U.S.C. § 1983 and acted and
continues to act under color of state law as to the allegations in this complaint.
Jurisdiction and Venue
10. Plaintiff’s claims are brought under 42 U.S.C. § 1983, the Fourteenth Amendment
to the United States Constitution, and Article II, Section 10 of the Montana Constitution.
11. This Court has jurisdiction to hear Plaintiff’s claims pursuant to 28 U.S.C.
§§ 1331, 1343, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. This Court has
supplemental jurisdiction over Plaintiff’s state law claim under 28 U.S.C. § 1367, as it arises
from the same case or controversy as Plaintiff’s federal claims.

12. Venue is proper in the United States Court for the District of Montana under 28
U.S.C. § 1391(b)(2) because a substantial part of the acts that gave rise to this lawsuit occurred
principally in this judicial district. This District is also an appropriate venue under 28 U.S.C.
§ 1391(b)(1) because Defendants reside in this judicial district.
Statement of Facts
Legislative and Judicial History of Sodomy Prohibitions
13. Like most states, Montana once criminalized same-sex sexual activity. Section
45-5-505 of the Montana Code prohibited “deviate sexual relations,” which section 42-2-101
defined as “sexual contact or sexual intercourse between two persons of the same sex.”
14. Montana also once mandated sex offender registration for people who were
convicted of having “deviate sexual relations” under Montana’s statute. But in 1995, the state
legislature repealed that requirement. See 1995 Amendments to § 46-23-502, MCA (removing
registration requirement for deviate sexual intercourse between human beings but keeping it for
bestiality convictions).
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15. In 1997, the Montana Supreme Court found that section 45-5-505 was
unconstitutional under the Montana Constitution “as applied to . . . consenting adults engaging in
private, same-gender, non-commercial, sexual conduct.” Gryczan v. State, 283 Mont. 433, 456,
942 P.2d 112, 126 (1997).
16. In 2003, the United States Supreme Court facially invalidated a Texas statute that
criminalized sexual activity between people of the same sex. In Lawrence, the Supreme Court
explicitly overruled its prior precedent, Bowers v. Hardwick, 478 U.S. 186 (1986), that had held
that such sexual conduct received no constitutional protection. Lawrence, 539 U.S. at 578. In the
words of the Court, Bowers—a facial challenge to Georgia’s sodomy prohibition—“was not
correct when it was decided, and it is not correct today. It ought not to remain binding precedent.
Bowers v. Hardwick should be and now is overruled.” Id. In so doing, the United States Supreme
Court facially invalidated all still-then-existing sodomy statutes.

17. Ten years later, Montana formally revised its law to remove the prohibition on
same-sex sexual activity by amending the definition of “deviate sexual intercourse” to apply only
to acts of bestiality. See 2013 amendment to § 45-2-101, MCA (deleting “sexual contact or
sexual intercourse between two persons of the same sex or” from definition of “deviate sexual
relations”).
18. In summary, 1) the Montana legislature repealed the sex offender registration
requirements for people convicted of having same-sex sexual activity; 2) the Montana Supreme
Court declared Montana’s prohibition on same-sex sexual activity unconstitutional under the
Montana Constitution; 3) the United States Supreme Court declared all such laws
unconstitutional under the United States Constitution; and 4) the Montana legislature formally
repealed the state’s prohibition on same-sex sexual activity.
19. Yet, through a combination of other states’ obstinance and how Montana treats
out-of-state convictions for the purposes of registration, some people with pre-Lawrence
convictions for same-sex sexual activity, like Menges, are still forced to register as sex offenders
in Montana.
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Operation of the SVOR

20. The Montana Sexual or Violent Offender Registration Act, § 46-23-501, et seq.,
MCA, specifically identifies all violations of Montana law that subject the convicted to
registration. § 46-23-502(9)(a), MCA.
21. But in addition to designated violations of Montana law that trigger registration
requirements, the SVOR also requires registration for certain out-of-state convictions. § 46-23-
502(9)(a), MCA. Someone with an out-of-state conviction can be forced to register in two ways:
1) if that out-of-state conviction was for a law that is substantially equivalent to a Montana law
for which registration is required; or 2) if the state of conviction requires registration for the
offense. § 46-23-502(9)(b), MCA.
Montana Forces Menges to Register for a Pre-Lawrence Violation of Idaho’s Crime

Against Nature Law
22. Menges was convicted in 1994 under Idaho’s Crime Against Nature statute, I.C.
§ 18-6605, for having consensual sex with two other males.
23. Idaho’s Crime Against Nature statute, I.C. § 18-6605, states, in full, “[e]very
person who is guilty of the infamous crime against nature, committed with mankind or with any
animal, is punishable by imprisonment in the state prison not less than five years.” The same
version of this law was in operation in 1994. In fact, the same prohibition has existed for over a
century, save for updating “Territorial” to “state” prison to reflect Idaho’s admission to the
union.
24. Idaho courts have interpreted the Crime Against Nature statute to bar oral (“per
os”) or anal (“per anum”) sex. See, e.g., State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916).
25. Idaho mandates sex offender registration for people convicted under its Crime
Against Nature statute. I.C. § 18-8303(1)(a).
26. Because Montana’s SVOR requires registration for any out-of-state conviction for
which the originating state requires registration, § 46-23-502(9)(b), MCA, Montana requires
Menges to register for his 1994 Crime Against Nature conviction—even though the Montana
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Supreme Court declared Montana’s equivalent statute unconstitutional under the Montana
Constitution, Montana affirmatively removed the registration requirement for Montana’s
equivalent statute, the U.S. Supreme Court declared such laws unconstitutional under the U.S.
Constitution, and Montana repealed its equivalent statute.
Registration Burdens
27. Registration requires a registrant to give significant personal information to those
who maintain the SVOR. A registrant must provide all names and aliases, their social security
number, all addresses where the registrant regularly residents (regardless of the number of nights
spent at that location), name and address of any school where the registrant is a student, driver’s
license information, description and license plate number of any vehicle owned or operated by
the registrant, email addresses, and social media screen names; a photograph; fingerprints; and a
DNA sample. § 46-23-504(3)(a–h), MCA.

28. Registrants must notify the SVOR within three business days of any changes in
residence, employment, or student status. § 46-23-505(1), MCA.
29. Registrants must notify the SVOR if they leave the county of their registration for
more than 10 days. § 46-23-505(4), MCA.
30. Anyone subject to registration must register within three business days of entering
a Montana county if the registrant intends to be present for longer than 10 consecutive days or
for longer than an aggregate of 30 days in a calendar year. § 46-23-504(1)(c), MCA.

31. Registrants must pay the costs associated with registration. § 46-23-504(8), MCA.
32. Registration is for life. § 46-23-506(1), MCA.
33. Failing to register or to keep the registration current is a felony punishable by up
to 5 years and $10,000. § 46-23-507, MCA.
Facts Specific to Menges
34. Plaintiff Randell Menges has exactly one registerable criminal conviction—a
1994 conviction for Idaho’s Crime Against Nature, I.C. § 18-6605. His conviction predated the
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United States Supreme Court decision in Lawrence striking down statutes criminalizing oral and
anal sex by nine years.
35. Menges turned 18 in October of 1993. He lived at Pratt Ranch in Gem County,
Idaho, which was a 12-bed youth foster program and working ranch for troubled young men.
When Menges turned 18, he remained at Pratt Ranch to continue performing ranch work.
36. In December of 1993, the Gem County Sheriff’s Department investigated a report
that three males at Pratt Ranch had engaged in sexual activity with each other. The other two
males were 16 years old.
37. The Gem County police reports reflect that the sex was consensual and that the
other two males were sexually active with each other before getting Menges involved.
38. Gem County charged Menges with one count of Crime Against Nature. He
reached a plea agreement with the prosecution that, in exchange for a guilty plea, the prosecutor
would suggest Menges be placed on a term of probation.
39. The Court sentenced Menges to a five-year determinate and ten-year
indeterminate sentence.
40. After being released from imprisonment, Menges relocated to Montana.
41. As a result of his 1994 conviction for a consensual Crime Against Nature in
Idaho, Montana mandated that he register on the Montana SVOR.
42. There was no crime other than Crime Against Nature that Menges could have
been charged with or convicted of for this sexual activity that would have required registration.
While Idaho law today requires at least a three-year age gap between an adult and minor to
constitute statutory rape, I.C. § 18-6101(1) & (2), in 1993 any oral, anal, or vaginal sex between
an adult and a minor constituted statutory rape, I.C. § 18-6101(1) (1993). But statutory rape for
an 18-year-old offender is not and has never been a registerable offense in Idaho. I.C. § 18-
8304(1)(a) (making registration convictions for “18-6101 (rape, but excluding 18-6101(1)
[statutory rape] where the defendant is eighteen years of age)”). And an 18-year-old and a 16-
year-old having consensual sex would not be an equivalent to a registerable offense under the
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Montana SVOR because 16 is and has been the age of consent in Montana. § 45-5-501(1)(b)(iv),
MCA.
43. In late March of 2020, Menges left Montana for Washington state, in part because
Washington does not require registration for Menges’s 1994 conviction for consensual Crime
Against Nature. He informed the Missoula County Sheriff’s Department by phone that he was
leaving the state.
44. Earlier this month, Menges returned to Idaho.
45. Nevertheless, Menges currently remains on the SVOR in Montana.
46. In an attempt to have Menges removed from the registry, Menges’s counsel made
repeated calls to Defendant Malikie at the Missoula County Sheriff’s Department’s Sexual and
Violent Offender Unit in November 2020 seeking to have him removed from the registry on
account of him not residing in the state for many months. Despite leaving numerous messages,
47. neither Defendant Malikie nor anyone else from the Unit returned counsel’s calls.
48. In the time between counsel’s calls to Defendant Malikie and December 4, 2020,
Menges was marked noncompliant with the Montana SVOR. On information and belief,
Defendant Malikie marked Menges noncompliant.
49. In December of 2020, Menges was kicked out of a homeless shelter in Boise on
account of being marked noncompliant with the Montana SVOR. It was 28 degrees that night.
50. Menges has the present desire to relocate to Montana or at least return to Montana
to seek employment, specifically ranch or rodeo work.
51. The registration requirement presents a significant impediment to Menges
returning to Montana. Because registration burdens his everyday life and presents a significant
barrier to obtaining employment, housing, or even maintaining social relationships, Menges has
not returned to Montana.
52. Even if Menges were only to come to Montana in search of employment
opportunities, the registration statute mandates registration for anyone who enters the state for
longer than 10 days. § 46-23-504(1)(c), MCA.
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53. Menges’s inclusion on the Montana SVOR presents ongoing harm. In November
2020, Menges applied to deliver food through the Postmates platform, but Postmates rejected
him on account of his inclusion on the Montana SVOR.
54. Menges suffers continuing harm as a result of Montana mandating registration on
the SVOR for his 1994 conviction for consensual same-sex sexual activity criminalized by the
Idaho Crime Against Nature statute.
First Cause of Action

Fourteenth Amendment: Due Process
42 U.S.C. § 1983
55. Menges incorporates by reference each and every allegation contained in the
preceding paragraphs as if set forth fully herein.
56. Menges brings this claim against all Defendants in their official capacities.
57. Defendants’ maintenance, administration, and enforcement of the SVOR with
respect to Menges violates Menges’s rights to due process under the Fourteenth Amendment of
the United States Constitution and the clear mandate of Lawrence v. Texas.
58. All Defendants’ actions are under color of law and enabled by their authority as
state officers.
59. Menges has no adequate remedy at law or other effective means of enforcing his
Fourteenth Amendment right to due process other than by seeking declaratory and injunctive
relief from the Court.

60. Menges is entitled to declaratory relief in the form of this Court ruling that the
Montana Sexual or Violent Offender Registration Act’s requirement that an individual register as
a sex offender for an out-of-state conviction for which that state requires registration, § 46-23-
502(9)(b), MCA, is unconstitutional as-applied to Menges and anyone with a pre-Lawrence
conviction for any statute in which engaging in oral or anal sex was the sole element.
61. Menges is entitled to injunctive relief in the form of this Court enjoining
Defendants from enforcing Idaho’s Crime Against Nature statute, I.C. § 18-6605, through the
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Montana SVOR, against Menges for his 1994 conviction under Idaho’s Crime Against Nature
law.
Defendants from enforcing Idaho Code § 18-6605 as applied to Menges’s Crime Against Nature
conviction.
63. As a result of Defendants’ unlawful conduct, Menges is suffering harm, including
embarrassment, humiliation, shame, fear, loss of opportunity (including, but not limited to,
career, professional, economic, housing, educational, and social opportunities), and stigma.
Second Cause of Action

Fourteenth Amendment: Equal Protection
42 U.S.C. § 1983
respect to Menges violates Menges’s rights to equal protection under the Fourteenth Amendment
of the United States Constitution because it has no rational relationship to a legitimate

governmental interest, but rather is a result of animus toward non-procreative sex acts
traditionally associated with homosexuality.
state officers.
Fourteenth Amendment right to equal protection other than by seeking declaratory and injunctive
relief from the Court.
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law.
Third Cause of Action

Montana Constitution, Article II, Section 10
Right of Privacy
respect to Menges violates Menges’s rights to privacy under Article II, Section 10 of the
Montana Constitution.
state officers.
Article II, Section 10 right to privacy other than by seeking declaratory and injunctive relief from
the Court.
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law.
Defendants from enforcing Idaho Code § 18-6605 as applied to Menges’s Crime Against Nature
conviction.
Request for Relief
Plaintiff respectfully requests an order and judgment:
1. Declaring that his inclusion on the Montana SVOR for a 1994 conviction of Idaho
Code § 18-6605 is unconstitutional;
2. Declaring that the Montana Sexual or Violent Offender Registration Act’s
requirement that an individual register as a sex offender for an out-of-state conviction
for which that state requires registration, § 46-23-502(9)(b), MCA, is unconstitutional

as-applied to Menges and anyone with a pre-Lawrence conviction for any statute in
which engaging in oral or anal sex was the sole element;
3. Declaring that Defendants’ actions violate Plaintiff’s rights under the Fourteenth
Amendment to the United States Constitution;
4. Declaring that Defendants’ actions violate Plaintiff’s rights under Article II, Section
10 of the Montana Constitution;
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5. Preliminarily and permanently enjoining Defendants from requiring Menges to

register as a sex offender for his prior conviction under Idaho’s Crime Against Nature
statute, I.C. § 18-6605;
6. Ordering Defendants to permanently remove Plaintiff from the Montana SVOR;
7. Ordering Defendants to expunge all state records indicating that Plaintiff was ever
subject to registration on the Montana SVOR;
8. Ordering Defendants to alert all agencies who were provided information about
Plaintiff’s registration (including courts, police departments, sheriff’s departments,
and the Federal Bureau of Investigation) that this information is no longer valid;
9. Waiving the requirement for the posting of a bond as security for entry of temporary
or preliminary injunctive relief;
10. Awarding Plaintiffs his costs, expenses, and reasonable attorneys’ fees pursuant to 42
U.S.C. § 1988 and other applicable laws; and
11. Ordering such other relief as this Court deems just and proper.
Date: December 9, 2020 Respectfully submitted,
/s/ Elizabeth K. Ehret__________________

Elizabeth K. Ehret
Attorney at Law
3800 O’Leary St., #104
Missoula, MT 59808
T: (732) 312-7400
[email protected]
Matthew Strugar
(pro hac vice application forthcoming)
Law Office of Matthew Strugar
3435 Wilshire Blvd., Suite 2910
Los Angeles, CA 90010
T: (323) 696-2299
[email protected]
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Case 9:20-cv-00178-DLC Document 35 Filed 05/11/21 Page 1 of 72
IN THE UNITED STATES DISTRICT COURT

MISSOULA DIVISION
RANDALL MENGES, CV 20–178–M–DLC
Plaintiff,
vs. ORDER
AUSTIN KNUDSEN, Attorney General

of the State of Montana; GARY
SEDER, Bureau Chief of the Montana
Crime Information Bureau; and SARA
MALIKIE, Head of the Sexual and
Violent Offenders Program for the
Missoula County Sheriff’s Office, each
in their official capacities,
Defendants.
The central question in this case is whether Montana may, in conformance
with the United States and Montana Constitutions, force Plaintiff Randall Menges
(“Menges”) to register as a sexual offender for engaging in consensual oral or anal
sex with another male in 1993. For the reasons stated herein, the Court concludes
it cannot. Accordingly, the Court will afford Menges the relief he requests and
enter judgment in his favor.
BACKGROUND
I. Factual Background.
In 1993, Menges, then 18 years old, engaged in sexual activity with two 16-
year-old males while employed at a youth foster program and working ranch in
1
Gem County, Idaho. (Doc. 33 at 3.) In response, Idaho charged him with three
counts of “Crimes Against Nature,” in violation of Idaho Code 18-6605. (Id. at 3;
Docs. 9-2 at 2; 9-5 at 1.)1 In 1994, Menges pled guilty to the first count (Doc. 9-2
at 3) and was sentenced to a total of 15 years imprisonment, 5 of which was
determinate and 10 years of which was indeterminate. (Id. at 2; 9-5 at 1.)2
Menges was ultimately incarcerated for approximately 7 years, before
serving the remainder of his sentence on probation. Upon release from
imprisonment, Menges was required under Idaho law (and still would be required)
to register as a sexual offender. See Idaho Code § 18-8303(1)(a) (1993); Idaho
Code § 18-8304(1)(a) (2020). At some point, Menges re-located to Montana. But
he could not escape the registration requirement, because under Montana’s Sexual
or Violent Offender Registration Act, Menges must register as a sexual offender in
Montana. (Doc. 33 at 1, 4.)
This is because, under Montana’s Sexual or Violent Offender Registration
Act, sexual offenders must, among other things, register “with the appropriate
registration agency.” Mont. Code Ann. § 46-23-504(1), (2). A “sexual offender”
1
This statute proscribes all “unnatural carnal copulations . . . committed per os or per
anum.” Idaho v. Gomez-Alas, 477 P.3d 911, 916–17 (Idaho 2020) (meaning any sexual
penetration by way of mouth or anus).
2
Idaho’s sentencing scheme permits judges to establish a minimum period of
confinement during which a defendant is ineligible for parole (the determinate term) and a
remaining period of confinement in which the defendant is eligible for parole (the indeterminate
term). Idaho v. Anderson¸ 266 P.3d 496, 498 (Idaho 2011) (citing Idaho Code § 19-2513).
2
is anyone who has been convicted of a “sexual offense.” Id. § 46-23-502(10).
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.” Id. § 46-23-502(9)(b). Due to Menges’ 1994
conviction under Idaho’s Crimes Against Nature statute, which is codified at Idaho
Code § 18-6605, he must register as a sexual offender in Idaho. Idaho Code § 18-
8303(1)(a) (1993); Idaho Code § 18-8304(1)(a) (2020). Accordingly, pursuant to
the provisions of Montana Code Annotated §§ 502(9)(b), (10), and 504(1), (2),
Menges must register as a sexual offender under Montana law.3
Menges officially registered in Montana on December 12, 2018. (Doc. 33 at
4.) When registering, Menges was fingerprinted, photographed, and swabbed for
DNA. (Doc. 33 at 4; Mont Code Ann. § 46-23-504(3).) He also had to disclose
various private information, including all “email addresses and screen names,” a
description of any vehicles owned, his residential address, and his driver’s license
number. (Id.) Menges must notify the State within 3 days of any change in his
residence, employment, or academic enrollment status. (Doc. 33 at 5; Mont. Code
Ann. § 46-23-505(1).)
Menges must also provide notice if he wants to leave the county in which he
3
Throughout this Order, the Court refers to the foregoing requirements collectively as
“Montana’s registration requirement.”
3
is registered for longer than 10 days. (Doc. 33 at 6; Mont. Code Ann. § 46-23-
505(4).) He must complete and submit an updated registration form annually.
(Doc. 33 at 6; Mont. Code Ann. § 46-23-504(6)(a)(iii).) Any registration related
costs are his financial burden to bear. (Doc. 33 at 6; Mont. Code Ann. § 46-23-
504(8).) Failure to abide by any registration requirement is a felony. (Doc. 33 at
6; Mont. Code Ann. § 46-23-507.) These requirements are generally imposed for
life. Mont. Code Ann. § 46-23-506(1).
Montana’s registration requirement has unsurprisingly had a negative impact
on Menges’ life. He moved from Washington to Montana in March of 2020. (Id.
at 5.) A few months later he was marked noncompliant in Montana’s registration
database and was consequently kicked out of two different homeless shelters.
(Doc. 9-2 at 3.) Having nowhere else to go, Menges was forced to sleep on the
street. Menges inclusion on the registry has also cost him two different
employment opportunities.4 (Doc. 9-2 at 3–4.) In March 2021, Menges returned
to Montana and established a residence in Butte. (Doc. 33 at 5.)
4
At the consolidated trial on the merits, Montana objected to Menges’ testimony
regarding the loss of one specific job opportunity on the grounds that they had not been afforded
the chance to take his deposition and had not previously been made aware of this occurrence.
The Court overruled the objection. The testimony was relevant, and Montana leveled no
objection to the consolidated trial on the merits. Nonetheless, it is worth mentioning that while
this fact is relevant, it is ultimately far from determinative with respect to the conclusions
reached below.
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II. Procedural Background.
Menges filed suit on December 9, 2020. (See generally Doc. 1.) He
complains 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. (Id. at 9–12.) Menges has also moved for a
preliminary injunction, requesting that this Court enjoin the Defendants, “their
officers, agents, employees, attorneys, and any person who in active concert or
participation with them from requiring him to register as a sex offender with the
Montana Sexual or Violent Offender Registry.” (Doc. 9.)
In response, Defendants moved to stay this matter in light of Menges’
parallel Idaho federal court suit challenging, among other things, the Idaho statute
that requires him to register on the basis of his 1994 conviction. (Doc. 15.)
Defendants have also moved to dismiss Menges’ complaint for failure to state a
claim. (Doc. 24.) This motion contends that Menges lacks standing and his claims
are Heck barred. (Doc. 25.) The Court set a hearing on these three motions (Doc.
26) and provided advance notice of its intent to consolidate the hearing with a trial
on the merits (Doc. 32.) Neither party objected to the consolidation and the
hearing commenced on March 30, 2021 during which Menges testified and the
Court heard argument from counsel on the legal issues presented. (Doc. 34.)
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ANALYSIS
At this juncture, the case presents several distinct legal questions, which are
addressed in the following order. First, the Court will address the parties’
arguments regarding standing and application of the Heck doctrine, both of which
implicate subject matter jurisdiction to resolve the remaining issues. After finding
the Court has jurisdiction, the analysis proceeds, sua sponte, to the Eleventh
Amendment issues posed by Menges’ claims. Finding no Eleventh Amendment
barrier the Court next examines whether the matter should nonetheless be stayed.
Concluding it should not, Menges’ claim for permanent injunctive relief is
analyzed. Ultimately, the Court finds that Menges’ claims enjoy actual success on
the merits and will accordingly grant him the remaining relief he requests and enter
judgment in his favor.
I. Subject Matter Jurisdiction.
“It is a fundamental precept that federal courts are courts of limited
jurisdiction.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
This notion is derived from the United States Constitution itself, which limits the
Court’s subject matter jurisdiction to justiciable “cases” or “controversies.” U.S.
Const., Art. III, § 2. The federal courts’ limited jurisdiction “is founded in concern
about the proper—and properly limited—role of the courts in a democratic
society.” Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009) (internal
6
citations omitted).
As such, it is incumbent upon this Court to ascertain whether subject matter
jurisdiction exists before analyzing the merits of a litigant’s claims. Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006). Indeed, this Court is to presume it is
without jurisdiction to hear a case until a contrary showing is made. Stock West,
Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th
Cir. 1989). In essence, subject matter jurisdiction is “the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998). This includes underlying concepts such as standing,
In re Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011), and common
law limitations such as the Heck doctrine, Lockett v. Ericson, 656 F.3d 892, 895–
96 (9th Cir. 2011). Each is discussed in turn below.
But first, the Court must address its ability to look outside the pleadings in
resolving the questions of whether Menges has standing or his claims are Heck
barred. Because, as noted above, both of these issues implicate this Court’s subject
matter jurisdiction, they are properly advanced through a Rule 12(b)(1) motion.5
See Id. (Heck); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (standing). “A
Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone
5
Notably, Defendants couch their Heck argument under Rule 12(b)(6), but due to its
subject matter jurisdiction implications, the Court addresses it under Rule 12(b)(1).
7
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack argues there is want
of jurisdiction based on the allegations in the complaint alone. Id. A factual
attack, however, relies “on extrinsic evidence and [does] not assert lack of subject
matter jurisdiction solely on the basis of the pleadings.” Id. (internal citations and
quotation marks omitted).
This distinction is critical, because Rule 12(b)(1) factual attacks, as opposed
to Rule 12(b)(1) facial attacks, permit the Court to “look beyond the complaint . . .
without having to convert the motion into one for summary judgment.” Id.; see
also White, 227 F.3d at 1242. In their motion to dismiss, the Defendants do not
urge this Court to confine itself it to the allegations in Menges’ complaint. (Doc.
25 at 6.) Indeed, the crux of the Defendants’ argument is that Menges’ claims
cannot be redressed by a favorable decision and that if he were to prevail, such
success “would necessarily imply the invalidity of his conviction” in violation of
Heck. (Doc. 25 at 5–9.) Accordingly, the Court will construe Defendants’ subject
matter jurisdiction challenge as factual and look beyond the pleadings in
addressing the standing and Heck issues presented by this case.6
6
To the extent Defendants bring a direct 12(b)(6) challenge, which only becomes clear in
their reply brief (Doc. 30 at 7–12), the Court finds separate analysis unnecessary because, as
discussed at length below, Menges not only states a claim, he enjoys actual success on the
merits.
8
A. Standing.
“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. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021).
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.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).
Critically, the threshold question of whether Menges’ has standing
“precedes, and does not require, analysis of the merits.” Maya v. Centex Corp.,
658 F.3d 1060, 1068 (9th Cir. 2011). Moreover, the “standing analysis which
prevents a claim from being adjudicated for lack of jurisdiction, [cannot] be used
to disguise merits analysis, which determines whether a claim is one for which
relief can be granted if factually true.” Catholic League for Religious and Civil
Rights v. City and Cty. of S.F., 624 F.3d 1043, 1049 (9th Cir. 2010) (en banc).
Applying these principles, the Court finds Defendants’ standing argument is
without merit.
Defendants’ standing argument focuses on the third element—
9
redressability—but the Court finds it prudent to address all three elements
regardless. (Doc. 25 at 5–9.) In doing so, this Court pays particular attention to
Doe v. Jindal, 851 F.Supp.2d 995, 1003–04 (D. La. 2012), where a plaintiff
advancing a nearly identical challenge to that brought here was found to have
standing.
Beginning with the first element—infliction of an injury in fact—Menges
must establish that he has “suffered ‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (emphasis
added). An injury is “concrete” when it “actually exist[s],” or stated differently, is
“real, and not abstract.” Id. at 1549 (internal quotation marks omitted). An injury
is “particularized” when it “affect[s] the plaintiff in a personal and individual
way.” Id. at 1548.
The injuries of which Menges complains are both concrete (real) and
particularized (personal). Specifically, the parties agree that by operation of
Montana law, the State forces Menges to register as a sexual offender. As noted
above, Montana imposes significant burdens on registrants, including annual
registration fees, restraints on movement, notification obligations, and the specter
of criminal process. Jindal, 851 F. Supp. 2d. at 1003. And those are just the
injuries directly inflicted. Montana’s registration requirement has also cost
10
Menges housing and jobs. Not to mention the dissemination of personal
information and the public designation that he is a sexual offender. The foregoing
is more than sufficient to constitute the sort of concrete and particularized injury
required to satisfy the first element in the standing analysis.
As to element two—traceability—Menges must establish that there is a
causal chain between the challenged conduct and the injury complained of.
Juliana v. United States, 947 F.3d 1159, 1169 (9th Cir. 2020). He has clearly done
so. There is agreement that the Defendants all have a role in the administration
and enforcement of Montana’s registration requirement. (Doc. 33 at 7.) As in
Jindal, this “places the defendants among those who contribute to [Menges’]
harm.” 851 F. Supp. 2d at 1004. In short, element two is satisfied because there is
traceability between the conduct complained of and the Defendants’ actions.
To satisfy the third element—redressability—Menges must establish that the
relief he requests is “both (1) substantially likely to redress [his] injuries; and (2)
within the district court’s power to award.” Juliana, 947 F.3d at 1170 (citing M.S.
v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018)). This burden is “relatively
modest,” M.S., 902 F.3d at 1083, and in the context of constitutional challenges,
the Court assumes the underlying claim has merit. Bonnichsen v. United States,
367 F.3d 864, 873 (9th Cir. 2004).
As enumerated in his complaint, Menges’ seeks various forms of relief,
11
including:
i. Declaring that his inclusion in Montana’s Sexual or Violent

Offender Registry for a 1994 conviction under Idaho Code §
18-6605 is unconstitutional;
ii. Declaring that Montana’s registration requirement is

unconstitutional as-applied to himself and anyone with a pre-
Lawrence conviction for any statute in which engaging in oral
or anal sex was the sole element;
iii. Declaring that Defendants’ actions violate his rights under the
Fourteenth Amendment to the United States Constitution;
iv. Declaring that Defendants’ actions violate his rights under

Article II, Section10 of the Montana Constitution;
v. Permanently enjoining Defendants from requiring him to

register as a sexual offender for his prior conviction under
Idaho’s Crime Against Nature statute, Idaho Code § 18-6605;
vi. Ordering Defendants to permanently remove Plaintiff from

Montana’s Sexual or Violent Offender Registry;
vii. Ordering Defendants to expunge all state records indicating that

Plaintiff was ever subject to registration on Montana’s Sexual
or Violent Offender Registry; and
viii. Ordering Defendants to alert all agencies who were provided

information about his registration (including courts, police
departments, sheriff’s departments, and the Federal Bureau of
Investigation) that this information is no longer valid.
(Doc. 1 at 12–13.) Defendants argue Menges’ claims are non-redressable, because
a favorable decision would not “cure the injury of which [Menges] complains.”
(Doc. 25 at 7–8.) The Court disagrees.
To the extent Defendants’ redressability argument rests on the fact that

12
Menges left Montana, any force it carried evaporated with his return. (Doc. 33 at
5.) Defendants’ only remaining argument appears to be centered around the
conclusory proposition that only a favorable ruling from an Idaho federal court
would redress his injury. The Court disagrees. In this action, Menges complains
that his constitutional rights are violated through the sexual offender registration
requirement imposed by Montana law. If successful, enjoining enforcement of
Montana’s registration requirement will absolve Menges of his obligation to
register as a sexual offender under Montana law.
Such relief would specifically redress the injuries of which he complains.
And those injuries stem directly from Montana’s registration requirement. In other
words, the redressability element is satisfied because “if the Court were to rule in
[Menges’] favor” he “would no longer be burdened with complying with the sex
offender registration requirements.” Jindal, 851 F. Supp. 2d at 1004. And the
Court finds it can properly afford Menges such redress, as declaring a law
unconstitutional and enjoining its enforcement is a core and well-established
judicial function. See Lawrence v. Texas, 539 U.S. 558 (2003); Ex Parte Young,
209 U.S. 123 (1908). In short, Menges has standing. The Court next addresses
whether his claims are nonetheless barred by Heck.
13
B. The Heck Doctrine.
Defendants maintain Menges’ claims7 are barred by the rule established in
Heck v. Humphrey, 512 U.S. 477 (1994). While prior precedent lacks a clear
answer, see Doe v. Hood, 345 F. Supp. 3d 749, 754–56 (S.D. Miss. 2018), the
Court ultimately concludes that success for Menges in this action would not
necessarily invalidate his underlying Idaho conviction. Accordingly, the Heck bar
is inapplicable and Menges’ claims may proceed.
Any thorough discussion of Heck must begin not with Heck, but with its
predecessor case, Preiser v. Rodriguez, 411 U.S. 475 (1973). In Presier, several
state prisoners filed suit under § 1983 alleging that prison officials had
unconstitutionally deprived them of good-time credits. 411 U.S. at 477. The
prisoners sought an injunction restoring the good-time credits, which would have
resulted “in their immediate release from confinement in prison.” Id.
The Supreme Court held that the prisoners’ § 1983 actions were barred,
because their claims “fell squarely within this traditional scope of habeas corpus”
by attacking the duration or fact of their confinement. Id. at 487–88. It went on to
explain its holding as follows, “when a state prisoner is challenging the very fact or
7
Although Heck and most subsequent cases have involved § 1983 claims, the principles
derived from those cases have been applied to other causes of action advanced outside the habeas
process. See, e.g., Erlin v. United States, 364 F.3d 1127, 1131 (9th Cir. 2004) (Federal Tort
Claims Act). Because the Court concludes that Heck does not apply in this case, it need not
examine whether the rule from Heck operates to bar Menges’ third claim, a standalone claim
under the Montana Constitution.
14
duration of his physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500.
The Supreme Court expanded on Preiser just a year later in Wolff v.
McDonnell, 418 U.S. 539 (1974). In Wolff, a class of state prisoners sued prison
officials under § 1983 complaining about the allegedly unconstitutional procedures
by which good-time credits were calculated. Id. at 543. As relief, the prisoners
sought: (1) the sort of retrospective injunctive relief foreclosed by Preiser; (2)
prospective injunctive relief aimed at preventing future unconstitutional
deprivation of good-time credits; and (3) “damages for the deprivation of civil
rights resulting from the use of the allegedly unconstitutional procedures.” Id. at
553.
Discarding the first form of relief as explicitly barred in Preiser, the
Supreme Court held that the prisoners’ second and third forms of relief remained
cognizable through § 1983. Id. at 554–55. The Court explained that Preiser only
barred “an injunction restoring good time improperly taken,” not a prisoner’s
damages claim regarding the procedures employed in calculating good-time credits
or “ancillary relief” in the form of “an otherwise proper injunction enjoining the
prospective enforcement of invalid prison regulations.” Id. The critical fact being
that even if a court afforded a prisoner such relief, it would not “call into question
15
the lawfulness of the plaintiff’s continuing confinement” because relief stemming
from the use of “wrong procedures” would not “vitiate[] the denial of good-time
credits.” Heck, 512 U.S. at 482–83 (clarifying the precise holding in Wolff).
The Supreme Court next substantially expanded on its rule from Preiser in
Heck. There, a state prisoner filed suit under § 1983 against state officials seeking
monetary damages for their allegedly unconstitutional actions in obtaining his
conviction. Id. at 478–79. Because the damages sought would necessarily “call
into question the lawfulness of conviction or confinement,” the case presented the
same issue as “Preiser: whether the claim is cognizable under § 1983 at all.” Id. at
483. In resolving this question, the Supreme Court imposed a so-called favorable
termination requirement, stating:
We hold that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused
by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of
a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.
Id. at 486–87 (emphasis original).

16
In so holding, however, the Supreme Court was clear that “if the district
court determines that the plaintiff’s action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.” Id. at
487 (emphasis original). Accordingly, Heck instructs this Court to scrutinize
whether success would actually invalidate an underlying conviction, including
application of other doctrines such as independent source, inevitable discovery,
and “especially harmless error,” which may ultimately preclude invalidation, even
in the face of a blatant constitutional violation. Id. at 487, n.7.
The Supreme Court applied Heck three years later in Edwards v. Balisok,
520 U.S. 641 (1997). In Balisok, a state prisoner sued under § 1983 seeking
damages and declaratory relief for the use of allegedly unconstitutional procedures
“to deprive him of good-time credits.” Id. at 643. Because his claims for
retrospective declaratory relief and damages were “based on allegations of deceit
and bias on the part of the decisionmaker,” the Supreme Court concluded that the
issuance of such relief would “necessarily imply the invalidity of the punishment
imposed” and was therefore not cognizable under § 1983. Id. at 648. The
Supreme Court did speculate that a claim for prospective relief would be
cognizable, because it would “not necessarily imply the invalidity of a previous
loss of good-time credits,” but left this issue for the lower courts to sort out on
17
remand. Id.
Nearly a decade later, the Supreme Court summarized the foregoing
holdings in Wilkinson v. Dotson, 544 U.S. 74 (2005). The Court explained that
“[t]hroughout the legal journey from Preiser to Balisok, the Court has focused on
the need to ensure that state prisoners use only habeas corpus (or similar state)
remedies when they seek to invalidate the duration of their confinement—either
directly through an injunction compelling speedier release or indirectly through a
judicial determination that necessarily implies the unlawfulness of the State’s
custody.” Id. at 81–82. Consequently, the Court held that “[t]hese cases, taken
together, indicate that a state prisoner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or equitable relief), no matter
the target of the prisoner’s suit (state conduct leading to conviction or internal
prison proceedings)—if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.” Id.
The Court begins its analysis by pointing out that all of the critical Supreme
Court precedent on the application of Heck, from Preiser to Balisok occurred in a
context where a currently in-custody prisoner initiates suit under § 1983. Nobody
disputes Menges has fully discharged the lengthy sentence imposed by Idaho for
his 1994 conviction. He is no longer “in-custody,” and, consequently, cannot avail
himself to the habeas process as the Heck line of cases demands. Williamson v.
18
Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). Accordingly, it is tempting to
reject application of Heck’s bar to Menges’ suit on this basis alone.
Indeed, in Dotson, the Supreme Court was abundantly clear that Heck exists
to prevent currently “in-custody” individuals from circumventing the habeas
process by way of § 1983. Id. at 81–84 (repeatedly emphasizing Heck’s
application to § 1983 actions brought by prisoners, not persons no longer in
custody). The inapplicability of Heck to Menges’ situation is further supported by
the fact that in Spencer v. Kemna, 523 U.S. 1 (1998), five justices embraced, albeit
indirectly, the proposition that when a prisoner is released from custody, habeas is
no longer pursuable, and, accordingly, Heck is of no value and other civil causes of
action such as § 1983 must be available. Ramirez v. Galaza, 334 F.3d 850, 859 n.7
(9th Cir. 2003); see also Nonnette v. Small, 316 F.3d 872, 875–78 (9th Cir. 2002).
But because the Supreme Court has never formally adopted this position in a
majority opinion, Muhammad v. Close, 540 U.S. 749, 752, n.2 (2004), the Ninth
Circuit, as with many other circuits, has forged its own path. The result is a fact-
intensive line of cases in which the Ninth Circuit has construed (or not construed)
Heck to bar civil causes of action by individuals even when they are indisputably
no longer “in-custody” for habeas purposes or are otherwise unable to avail
themselves to the habeas process. Compare Nonnette v. Small, 316 F.3d 872, 875–
78 (9th Cir. 2002) to Cunningham v. Gates, 312 F.3d 1148, 1153 n. 3 (9th Cir.
19
2002), Guerrero v. Gates, 442 F.3d 697, 703–05 (9th Cir. 2006) and Lyall v. City
of L.A., 807 F.3d 1178, 1190–92 (9th Cir. 2015). In the Court’s view, application
of Heck to such situations, which effectively box such litigants’ claims out of the
civil arena altogether, is a far cry from the Supreme Court’s original concerns over
currently incarcerated prisoners circumventing habeas by way of § 1983.
Despite this Court’s serious threshold concerns about Heck’s application to
the circumstances present in this case, where Menges is no longer in custody and
cannot possibly avail himself to the habeas process, it has no choice but to “salute
smartly and follow precedent” established up above. Byrd v. Lamb, 990 F.3d 879
(5th Cir. 2021) (J., Willett, concurring). Ultimately, the Court need not wrestle
with this authority today, because it finds that the decisive Heck trigger—that
success in Menges’ § 1983 suit will necessarily invalidate his Idaho conviction—is
not present in this case. As such, Heck is inapplicable.
In this case, a finding that Montana’s registration requirement is
unconstitutional as applied to Menges, would have no effect (necessarily or
otherwise) on his underlying Idaho conviction. Indeed, as Menges himself points
out, Idaho’s prosecution of him for engaging in homosexual activity was
indisputably lawful at the time it occurred. The Supreme Court’s ruling in Bowers
v. Hardwick, 478 U.S. 186 (1986), upholding the constitutionality of statutes such
as the one used to prosecute Menges, was in full force and effect at the time he was
20
convicted in 1994.
Menges does not raise a direct attack on his underlying conviction. On the
contrary, the crux of his claims are that it is unconstitutional for Montana to force
him to register as a sexual offender today for engaging in constitutionally protected
conduct. The validity of his underlying conviction in light of subsequent judicial
rulings such as Lawrence, presents distinct legal issues, such as retroactivity, not
present in this case nor necessarily resolved in Menges’ favor by virtue of a victory
in this lawsuit. The foregoing pulls this lawsuit far from the “core of habeas
corpus” of which the Heck line of cases is ultimately concerned. Wilkinson, 544
U.S. at 82; see also Skinner v. Switzer, 562 U.S. 521, 534 (2011) (noting Heck has
never operated to bar a plaintiff’s claim when “the relief sought would neither
terminate custody, accelerate the future date of release from custody, nor reduce
the level of custody”); Cunningham, 312 F.3d at 1153–54 (describing Heck’s
critical inquiry as “whether a § 1983 plaintiff could prevail only by negating ‘an
element of the offense of which he has been convicted’”).
Additionally, even assuming success in this lawsuit did cast a shadow of
doubt on Menges’ underlying conviction, Heck would not apply because “a
separate action—alleging a separate constitutional violation altogether—would be
required to overturn his conviction.” Osborne v. District Attorney’s Office for
Third Judicial District, 423 F.3d 1050, 1054–55 (9th Cir. 2005). Moreover, the
21
fact that a favorable ruling in this case may very well set the stage for a collateral
attack on Menges’ Idaho conviction is of no consequence, because Heck does not
reach so far. Switzer, 562 U.S. at 534 (concluding a claim is not Heck barred
simply because its “ultimate aim” may be to serve as a springboard “for attacking
[the plaintiff’s underlying] conviction”).
In sum, Heck is inapplicable because success for Menges in this action will
not necessarily invalidate his underlying conviction. Accordingly, the Court need
not resolve issues raised by the parties regarding application of Heck to Menges
when he is no longer in custody and the distinction between Heck’s application to
prospective as opposed to retrospective relief. Having resolved the Heck issue, the
Court turns its attention to whether Menges’ claims are barred by the Eleventh
Amendment.
II. The Eleventh Amendment.
Even when not explicitly raised by the parties, this Court has an independent
obligation to “examine each claim in a case to see if the court’s jurisdiction over
that claim is barred by the Eleventh Amendment.” Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 121 (1984). The jurisdictional description is a
bit of a misnomer, however, and the Eleventh Amendment is generally understood
today to operate as an affirmative defense rather than an outright jurisdictional bar.
Tritchler v. County of Lake, 358 F.3d 1150, 1153–54 (9th Cir. 2004); see also
22
Wagnon v. Rocklin Unified Sch. Dist., 2021 WL 1214571, *2 (E.D. Cal. 2021);
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (noting that
jurisdiction “is a word of many, too many, meanings”). Accordingly, the Court
addresses the Eleventh Amendment issues separately from the subject matter
jurisdiction issues described above.8
While there are certainly Eleventh Amendment issues raised by Menges
complaint, the Court ultimately concludes this defense poses no barrier to the
adjudication of this action. One who examines the text of the Eleventh
Amendment for meaning will be sorely disappointed. Indeed, as this Court
recently observed, the Eleventh Amendment stands “not so much for what it says,
but for the presupposition it confirms, namely, that a state is not amenable to the
suit of an individual without its consent.” Donald J. Trump for President, Inc. v.
Bullock, 491 F. Supp. 3d 814, 825 (D. Mont. 2020) (citing Seminole Tribe of Fla.
v. Florida, 517 U.S. 44, 54 (1996)). Suits against a state, generally include suits,
such as the one brought here, against state officials in their official capacities.
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997).
Menges has sued various Montana officials in their official capacities,
8
It is additionally appropriate to address Eleventh Amendment issues at this juncture,
because, like the subject matter jurisdiction issues addressed above, such an inquiry precedes
rather than “include[s] an analysis of the merits” of a litigant’s claims. Verizon Md., Inc. v.
Public Serv. Comm’n of Md., 535 U.S. 635, 646 (2002).
23
complaining that their enforcement of Montana’s registration requirement violates
his rights under the United States and Montana Constitutions. (See generally Doc.
1). Accordingly, there are several possible Eleventh Amendment issues in play,
depending on the nature of each claim and the relief Menges seeks if successful.
Recall, as to his three claims Menges seeks the following forms of relief:
i. Declaring that his inclusion in Montana’s Sexual or Violent

Offender Registry for a 1994 conviction under Idaho Code §
18-6605 is unconstitutional;
ii. Declaring that Montana’s registration requirement is

unconstitutional as-applied to himself and anyone with a pre-
Lawrence conviction for any statute in which engaging in oral
or anal sex was the sole element;
iii. Declaring that Defendants’ actions violate his rights under the
Fourteenth Amendment to the United States Constitution;
iv. Declaring that Defendants’ actions violate his rights under

Article II, Section10 of the Montana Constitution;
v. Permanently enjoining Defendants from requiring him to

register as a sexual offender for his prior conviction under
Idaho’s Crime Against Nature statute, Idaho Code § 18-6605;
vi. Ordering Defendants to permanently remove Plaintiff from

Montana’s Sexual or Violent Offender Registry;
vii. Ordering Defendants to expunge all state records indicating that

Plaintiff was ever subject to registration on Montana’s Sexual
or Violent Offender Registry; and
viii. Ordering Defendants to alert all agencies who were provided

information about his registration (including courts, police
departments, sheriff’s departments, and the Federal Bureau of
Investigation) that this information is no longer valid.
24
(Doc. 1 at 12–13.) For purposes of Eleventh Amendment analysis, the Court can
split these requests for relief into three categories: (1) permanent injunctive relief
(v); (2) declaratory relief (i–iv); and (3) ancillary relief (vi–viii).
To the extent Menges seeks prospective permanent injunctive and
declaratory relief in response to federal constitutional violations, such claims fall
within a well-established exception to the Eleventh Amendment’s protections.
Long ago, the Supreme Court held that the Eleventh Amendment does not bar suits
against state officials, seeking prospective enjoinment of their ongoing violation of
federal law. Ex parte Young, 209 U.S. 123, 159–60 (1908); Pennhurst, 465 U.S. at
102. The Young exception also encompasses claims for prospective declaratory
relief. L.A. Cty Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992); Krainski v.
Nevada ex rel. Bd. of Regents, 616 F.3d 963, 967–68 (9th Cir. 2010) (concluding
that “Eleventh Amendment immunity” does not extend to suits against state
officials “where the relief sought is prospective in nature and is based on an
ongoing violation of the plaintiff’s federal constitutional or statutory rights”)
(emphasis original).
Menges’ federal constitutional claims and his corresponding claim for
prospective injunctive and declaratory relief, falls squarely within the Young
exception. These claims complain of violations of the Fourteenth Amendment and
seek as relief a prospective injunction barring its future enforcement and

25
prospective declaratory relief that any future enforcement would be
unconstitutional. Under Young, the Eleventh Amendment does not prohibit
adjudication of these claims.
With respect to Menges’ claim under the Montana Constitution, the Eleventh
Amendment creates more significant problems. This is because the Eleventh
Amendment bars claims where a plaintiff seeks prospective injunctive relief
enjoining a state official’s violation of state law. Pennhurst, 465 U.S. at 105–06,
121. In other words, under Pennhurst, claims requesting that a federal court enjoin
a state official’s actions on the basis of a Montana Constitutional violation, are
barred by the Eleventh Amendment absent a waiver of sovereign immunity. Rios-
Diaz v. Butler, 2014 WL 12591682, *3–4 (D. Mont. 2014). Critically, however,
the Court finds that such a waiver has occurred here.
While a wavier must be “unequivocally expressed,” Pennhurst, 465 U.S. at
99, it can be accomplished by a State’s active litigation of a case on the merits
without ever asserting the defense.” Hill v. Blind Indus. & Servs. of Md., 179 F.3d
754, 763 (9th Cir. 1999) (finding wavier where a State agency “unequivocally
consented to the jurisdiction of the federal court by its conduct in appearing and
actively litigating this case on the merits, while waiting until the opening day of
trial to first assert immunity under the Eleventh Amendment”); but see Doe v.
Regents of the Univ. of Calif., 891 F.3d 1147, 1152–53 (9th Cir. 2018) (concluding
26
that a State’s omission of the defense in its first motion to dismiss was insufficient
to constitute a waiver when included in subsequent motion to dismiss). This is
precisely the case here.
Defendants have submitted a significant number of filings over the life of
this case, without a single mention of the Eleventh Amendment, let alone
affirmatively invoking it as a defense. (Docs. 10–12; 15–18; 21; 24–25; 28; 30.)
These filings include expansive argument on the propriety of Menges’ claims.
(Docs. 16; 17; 25; 28; 30.) In other words, Defendants did not raise an Eleventh
Amendment defense before, during, or after the consolidated trial on the merits.
Under these circumstances, the Court concludes that Montana has waived any
Eleventh Amendment sovereign immunity defense it might have had to Menges’
Montana constitutional claim.9
III. Entry of A Stay.
Defendants urge this Court to stay the matter in light of the parallel litigation
filed by Menges in the United States District Court for the District of Idaho
9
This holding also applies to any equitable relief sought by Menges that is properly
characterized as retrospective rather than prospective, although the Court does not mean to say
he seeks such relief here. As noted above, the line between proper and improper Young relief
depends on whether the relief is “properly characterized as prospective.” Verizon Md., Inc. v.
Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). But the “difference between retroactive
and prospective relief will not in many instances be that between day and night.” Hutto v.
Finney, 437 U.S. 678, 690 (1978). Because this issue is rendered immaterial by virtue of the
State’s wavier, the Court declines to wade into that muddled territory and is instead able to issue
prospective and retrospective relief premised under either the United States or Montana
Constitution.
27
challenging an Idaho statute that similarly requires him to register. (Doc. 16 at 5–
8.) Under their theory, a ruling in that case as to the validity of Idaho’s registration
requirement has the potential to impact this lawsuit. (Id.) Menges predictably
disagrees. (Doc. 22.) Ultimately, the Court finds a stay of this matter improper.
This Court enjoys broad discretion in determining whether the circumstances
of a particular case justifies a stay. Clinton v. Jones, 520 U.S. 681, 706–07 (1997).
In exercising such discretion, however, this Court must weigh “the competing
interests which will be affected by the granting or refusal to grant a stay.” Lockyer
v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). These interests include: (1)
the possible damage which may result from the granting of a stay; (2) the hardship
or inequity which a party may suffer in being required to go forward; and (3) the
orderly course of justice measured in terms of the simplifying or complicating of
issues, proof, and questions of law which could be expected to result from a stay.
Id.
Prior cases establish that when “there is even a fair possibility” that a stay
will inflict harm on someone else, as is the case for Menges here, the party
requesting a stay “must make out a clear case of hardship or inequity.” Id. at 1112.
This includes cases where a stay would delay the issuance of injunctive relief
aimed at enjoining unlawful conduct. Id. Importantly, it is beyond doubt that
“being required to defend a suit, without more, does not constitute a ‘clear case of
28
hardship or inequity.’” Id. In this case, the Defendants have not come close to
meeting their burden.
Before addressing the interests at stake in this case, an examination of the
parallel Idaho litigation is in order. Undoubtedly, the Idaho lawsuit bears a striking
resemblance to this lawsuit. There, Menges challenges the constitutionality of the
Idaho statute obligating him to register as a sexual offender because of his 1994
conviction on due process and equal protection grounds. (Doc. 16-1 at 20–28.)
But there are also significant differences between Menges’ Idaho case and this one.
For one, in the Idaho case Menges brings a direct challenge to the
constitutionality of the Crimes Against Nature statute, Idaho Code § 18-6605,
under which he was convicted in 1994. (Id. at 22–26.) Such a challenge is not
present in this case and rests on Fourteenth Amendment vagueness grounds not
raised here. Additionally, as relief, Menges seeks to enjoin enforcement of Idaho’s
Crimes Against Nature statute altogether, requesting that the Court “enjoin[]
Defendants from enforcing Idaho Code § 18-6605 in any situation involving
activity between human beings.” (Id. at 29.) Menges does not seek any
comparable relief in this case.
There are also significant procedural differences between this case and the
one currently pending in Idaho. This Court has already held a trial on the merits
and the parties await a final judgment. (Doc. 34.) While the District of Idaho is
29
certainly diligently adjudicating Menges’ case, at this juncture the case has not
moved beyond adjudication of pre-trial motions. Additionally, the parties have
raised mootness issues in that case not present in this litigation. The foregoing
differences weigh significantly in favor of letting this matter proceed.
The Court also notes that the focal point of Defendants’ argument in favor of
a stay—that resolution of the Idaho litigation will have an impact on this suit—is
far from certain. Any ruling from the court presiding over the Idaho litigation
would have little more than persuasive effect. If the court concludes that the Idaho
statute obligating Menges to register as a sexual offender is constitutional, this
Court is not precluded from reaching an opposite conclusion on Montana’s
registration requirement, and the Defendants need not alter their enforcement of
Montana law in response. This alone undermines the practical effect of imposing a
stay.
The foregoing conclusion is compounded by the fact that imposing a stay in
this matter would occasion significant hardship on Menges. As has been stated at
length throughout, this lawsuit is aimed at enjoining the enforcement of an
allegedly unconstitutional law. If Menges is correct, then delaying the issuance of
an injunction until a ruling in the Idaho lawsuit would inflict the sort of
unnecessary injury that concerned the Ninth Circuit in Lockyer. Id. at 1112.
Moreover, given the different procedural postures of the two lawsuits, there is
30
nothing in the record indicating “the [Idaho] proceedings will be concluded within
a reasonable time in relation to the urgency of the claims presented to the court.”
Id. at 1111. In other words, this factor weighs strongly in favor of declining to
enter a stay.
In sharp contrast to the hardship imposed on Menges by the issuance of a
stay, the Court is unpersuaded any comparable level of harm would be occasioned
on Defendants should they be forced to proceed with this lawsuit. Indeed,
Defendants do not contend that any kind of harm would befall them without a stay,
except perhaps an unnecessary expenditure of scarce judicial resources. But this is
precisely the sort of “being required to defend a suit” argument explicitly rejected
by the Ninth Circuit as a sufficient reason to enter a stay. Id. at 1112. This factor
adds little, if any, support for issuance of a stay in this case.
The final factor—the orderly course of justice—also weighs against the
entry of a stay in this matter. As noted above, a ruling in the Idaho litigation will
have no conclusive effect on the outcome of this dispute and the two cases share
significant differences. As such, the orderly course of justice demands that this
matter proceed.
After examining the circumstances of this case, the Court finds a stay of this
matter pending a ruling from the District of Idaho inappropriate. Such a stay
would possibly occasion serious injury on Menges while proceeding would not
31
impact Defendants in any meaningful way. Additionally, the orderly course of
justice mandates moving forward, not standing by. Having resolved all
preliminary issues, the Court turns its attention to the merits.
IV. Injunctive Relief.
Although Menges seeks various forms of relief, his request for permanent
injunctive relief is the natural starting point because it depends on his actual
success on the merits. Accordingly, the propriety of the other forms of relief
Menges seeks, such as declaratory or other ancillary relief, rises and falls with his
request for permanent injunctive relief.
An injunction “is an extraordinary remedy never awarded as of right.”
Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). In adjudicating
requests for injunctive relief, this Court must “balance the competing claims of
injury and must consider the effect on each party of the granting or withholding of
the requested relief.” Id. In doing so, it is imperative that this Court “pay
particular regard for the public consequences in employing the extraordinary
remedy of injunction.” Id. This is especially true when injunctive relief is sought
against governmental actors because “federal courts must be constantly mindful of
the ‘special delicacy of the adjustment to be preserved between federal equitable
power and State administration of its own law.’” Rizzo v. Goode, 423 U.S. 362,
378 (1976).
32
To obtain the injunctive relief he seeks, Menges must demonstrate: (1)
actual success on the merits; (2) that he has suffered an irreparable injury; (3) there
exists no adequate remedy at law; (4) the balance of the hardships justifies a
remedy in equity; and (5) that the public interest would not be disserved by a
permanent injunction. Independent Training & Apprenticeship Program v.
California Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (citing
eBay Inc. v. MerchExch., LLC, 547 U.S. 388, 391 (2006). When the government is
a party, the final two factors merge into one. Drakes Bay Oyster Co. v. Jewell, 747
F.3d 1073, 1092 (9th Cir. 2014).
In applying these elements, the Court is mindful that “[t]he standard for a
preliminary injunction is essentially the same as for a permanent injunction” and
that cases interpreting the preliminary injunction standard apply “with equal force
to . . . permanent injunction cases.” Flexible Lifeline Sys., Inc. v. Precision Lift,
Inc., 654 F.3d 989, 996 (9th Cir. 2011) (internal citations omitted). Upon
considering the foregoing, the Court finds that Menges has carried his burden and
will afford him the permanent injunctive relief he seeks.
A. Actual Success on the Merits.
As noted above, Menges advances three claims, alleging that Montana’s
registration requirement violates: (1) the Due Process Clause of the Fourteenth
Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and
33
(3) Article II, § 10 of the Montana Constitution. (Doc. 1 at 9–12.) Each claim is
discussed in turn.
i. Due Process Claim.
Menges argues that Montana’s registration requirement infringes on his
constitutional right to substantive due process. The Fourteenth Amendment
forbids Montana from depriving “any person of life, liberty, or property, without
due process of law.” U.S. Const. amend XIV, § 1. It is undisputed this clause has
both a procedural and substantive component. County of Sacramento v. Lewis, 523
U.S. 833, 845–46 (1998). Only the latter is at issue in this case. (Doc. 31.)
The Due Process Clause’s substantive component “provides heightened
protection against government interference with certain fundamental rights and
liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
Obviously, the “most familiar of the substantive liberties protected by the
Fourteenth Amendment are those recognized by the Bill of Rights,” but the
Supreme Court has “never accepted [the] view” that the Due Process Clause’s
substantive reach ends there. Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 846–47 (1992).
Instead, over time, the Supreme Court has held that the substantive
component of the Due Process Clause protects, among other things, the
unenumerated right to marry a person of a different race or of the same-sex, to
34
have children, to direct the education and upbringing of one’s children, to marital
privacy, to use contraception, to bodily integrity, and to abortion. Glucksberg, 521
U.S. at 720; Obergefell v. Hodges, 576 U.S. 644, 680–81 (2015). Relevant to this
case, such protected liberties often encompass “certain personal choices central to
individual dignity and autonomy, including intimate choices that define personal
identity and beliefs.” Obergefell, 576 U.S. at 663.
Although not always explicitly delineated, the proper resolution of a
substantive Due Process Clause claim requires the undertaking of two separate
inquiries. The first inquiry asks whether the State is depriving the complaining
individual of a “liberty interest” protected by the substantive component of the Due
Process Clause. Glucksberg, 521 U.S. at 720–728 (ascertaining whether the “right
to die” is a protected liberty interest under the Fourteenth Amendment). If not, the
inquiry ends. See Nunez v. City of L.A., 147 F.3d 867, 873–74 (9th Cir. 1998)
(ending a substantive due process inquiry upon concluding that no deprivation of a
cognizable liberty interest had occurred). If so, the Court moves to the second
inquiry. Glucksberg, 521 U.S. at 728.
The second inquiry requires this Court to apply the appropriate level of
scrutiny to ascertain whether the state action amounts to a substantive due process
violation. Id. at 728 (concluding that while the right to die is not a fundamental
right, it is a protected liberty interest for which the State’s interference must
35
survive rational basis review”); see also Witt v. Department of Air Force, 527 F.3d
806, 816–18 (9th Cir. 2008). The Court will undertake each inquiry in turn and
notes at the outset that while the Due Process Clause and the rights of gay
individuals share a tortured past, the arc of the jurisprudence in this area bends in
Menges’ favor.
1. Deprivation of Protected Liberty Interest.
Turning to the first inquiry—the deprivation of liberty interest protected by
the Due Process Clause—the Court begins with Bowers. In Bowers, the Supreme
Court addressed the constitutionally of a Georgia statute which proscribed “any
sexual act involving the sex organs of one person and the mouth or anus of
another.” 478 U.S. at 188 n.1. The Supreme Court framed the issue as “whether
the Federal Constitution confers a fundamental right upon homosexuals to engage
in sodomy” before concluding it did not. Id. at 190. In reaching its conclusion, the
Supreme Court concluded that such a right would be neither “implicit in the
concept of ordered liberty” or “deeply rooted in this Nation’s history and
tradition.” Id. at 191–92. Accordingly, it rejected Hardwick’s substantive due
process challenge and upheld the constitutionality of Georgia’s anti-sodomy
statute. Id. at 196.
The Supreme Court completely reversed course in 2003 when it decided
Lawrence. There, the Supreme Court addressed “the validity of a Texas statute
36
making it a crime for two persons of the same sex to engage in certain intimate
sexual conduct.” Lawrence, 539 U.S. at 562. The Supreme Court rested its
decision on substantive due process grounds, concluding that the statute at issue
“seek[s] to control a personal relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of persons to choose without being
punished as criminals.” Id. at 567.
Revisiting Bowers, the Supreme Court made clear the case “was not correct
when it was decided, and it is not correct today” before formerly overruling it. Id.
at 578. Justice Kennedy writing for the majority, stated “When sexuality finds
overt expression in intimate conduct with another person, the conduct can be but
one element in a personal bond that is more enduring. The liberty protected by the
Constitution allows homosexual persons the right to make that choice.” Id. at 567.
Recognizing that, of course, “for centuries there have been powerful voices to
condemn homosexual conduct as immoral,” the Supreme Court was clear that as a
matter of substantive due process, the true question is whether such voices “may
use the power of the State to enforce these views on the whole of society through
the operation of criminal law.” Id. at 571. Under Lawrence, they cannot.
Noting that the case involves “two adults who, with full and mutual consent
from each other, engaged in sexual practices common to a homosexual lifestyle,”
the Supreme Court explained that substantive due process forbids the State from
37
“demean[ing] their existence or control[ling] their destiny by making their private
sexual conduct a crime.” Id. at 578. Put another way, as the Supreme Court
explained, the “right to liberty under the Due Process Clause” provides gay
individuals with the right to engage in intimate sexual contact “without
intervention of the government.” Id. Because the Texas statute at issue implicated
the exercise of this liberty interest and “further[ed] no legitimate state interest,” it
ran afoul of the Fourteenth Amendment’s substantive due process component. Id.
The question becomes whether the right identified in Lawrence is implicated
by Montana’s registration requirement in this case. Id. at 819. To be sure, the
Supreme Court in Lawrence was less then precise in delineating exactly what
liberty interests were at issue. Taken at face value, Lawrence can be read for the
principle that the Fourteenth Amendment protects an individual’s right to engage
in consensual intimate sexual contact with a person of the same sex. 539 U.S. at
578. Indeed, less than a year after Lawrence was decided, the Ninth Circuit read
that opinion to hold “that the Due Process Clause of the Fourteenth Amendment
protects the right of two individuals to engage in fully and mutually consensual
private sexual conduct.” Anderson v. Morrow, 371 F.3d 1027, 1032–33 (9th Cir.
2004).
Both the Ninth Circuit and the Supreme Court have never construed the right
at issue in Lawrence in a narrower fashion. On the contrary, in 2005, the Ninth
38
Circuit read Lawrence broadly for the proposition that the Fourteenth Amendment
“encompasses a right of sexual intimacy.” Fields v. Palmdale School Dist., 427
F.3d 1197, 1208 (9th Cir. 2005). Any doubt about the scope of the right identified
in Lawrence was clarified in Obergefell, where the Supreme Court explained that
Lawrence established “same-sex couples have the same right as opposite-sex
couples to enjoy intimate association.” 576 U.S. at 667. With this in mind, the
Court turns to the question of whether Montana’s registration requirement
implicates the right identified in Lawrence, when applied to Menges in this case.
Menges argues that Montana’s registration requirement forces him to
register as a sexual offender for engaging in the very sort of conduct found to be
constitutionally protected in Lawrence (i.e. having consensual anal or oral sex with
another male). (Doc. 9-1 at 19.) In this way, he argues he is being deprived of a
liberty interest in violation of the substantive due process clause of the Fourteenth
Amendment. (Id.) Montana’s only contrary argument appears to be that Montana
does not require Menges to register as a sexual offender because of the underlying
conduct forming the basis of his 1994 conviction, but rather because of the
underlying conviction itself. (Doc. 25 at 11.) The Court is unpersuaded by this
contention.
To be sure, the most direct answer to the question of why Menges must
register as a sexual offender under Montana law, is because he was convicted of a
39
crime in Idaho that requires him to register in that state. But constitutional
violations require this Court to dig deeper. Upon doing so, it becomes clear that
Montana requires Menges to register as a sexual offender because in 1993 he was
convicted of a crime under Idaho’s Crimes Against Nature statute. Going one step
further, it is apparent that Montana requires Menges to register as a sexual offender
because he had intimate sexual contact with a person of the same sex. This is
where the deprivation of a liberty interest arises, because this is precisely the sort
of conduct found to be constitutionally protected in Lawrence.
Under Montana’s view, the State would be free to impose adverse legal
consequences on Menges for engaging in constitutionally protected conduct (i.e.
without implicating any protected liberty interest) so long as it does so indirectly
by operation of a carefully drafted multi-layered statute. This would be an odd
constitutional principle. The Court is unconvinced that Montana’s registration
requirement does not implicate the sort of liberty interest identified in Lawrence,
simply because it operates in conjunction with, or through incorporation of,
another state’s statute.
The Court recognizes that in Lawrence, the Supreme Court was primarily
concerned with deprivations of the right at issue by operation of criminal law.
Lawrence, 539 U.S. at 571. But in Obergefell, the Court was clear the liberty
interest at issue in Lawrence must be insulated from deprivation by other, more
40
indirect or ancillary forms of state action. 576 U.S. at 667 (holding “while
Lawrence confirmed a dimension of freedom that allows individuals to engage in
intimate association without criminal liability, it does not follow that freedom stops
there. Outlaw to outcast may be a step forward, but it does not achieve the full
promise of liberty”). Accordingly, Montana’s imposition of a sexual offender
registration requirement on Menges, and all that comes with it, by virtue of his
engagement in intimate sexual contact with a person of the same sex is sufficient to
implicate the guarantee of substantive due process as defined in Lawrence.
As a final matter, the Court also finds it prudent to recognize that this case
involves minors, something notably absent in Lawrence.10 Without a doubt, in
Lawrence, the Supreme Court emphasized that “[t]he present case does not involve
minors.” 539 U.S. at 578. But the underlying Idaho statute, which forms the basis
of his conviction, does not concern itself with the age of any sexual partners.
Idaho Code §§ 18-6605–6606. Instead, the focal point of the statute is whether the
defendant engaged in oral or anal sex. Id.
Because the underlying criminal statute which obligates Menges to register
in Idaho, and, accordingly in Montana, does not concern itself with the age of
10
The Court notes that Menges was 18 years old when he engaged in intimate sexual
contact with two 16-year-old males. The record reveals the sexual contact, by all accounts, was
consensual (Doc. 9-6 at 2, 7–8.) Moreover, neither Montana nor Idaho considers such conduct to
constitute statutory rape. Idaho Code § 18-6101(1)–(2); Mont. Code Ann. § 45-5-501(1)(b)(iv).
41
Menges’ sexual partner, the Court need concern itself with that issue here. See
MacDonald v. Moose, 710 F,3d 154, 164–66 (4th Cir. 2013). Put another way,
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. In this way, the right at issue in
Lawrence applies with equal force, without regard to the presence of minors.
Having concluded that Montana’s registration requirement intrudes upon the
liberty interest discussed in Lawrence, the Court next addresses whether the
governmental action can survive the applicable level of scrutiny.
2. Applying the Applicable of Standard of Review.
As other federal courts have recognized, the standard of review applied by the
Supreme Court in Lawrence is unclear. Witt, 527 F.3d at 814; see also Lofton v.
Secretary of Dept. of Children and Family Servs., 358 F.3d 804, 817 (10th Cir.
2004). The Court need not opine on the issue in this case because in the Ninth Circuit
the question is well settled. In Witt, the Ninth Circuit concluded that “Lawrence
applied something more than traditional rational basis review,” but something less
than strict scrutiny under which “[f]ew laws survive.” Id. at 817. Instead, Witt
instructs this Court to apply a sort of “heightened scrutiny,” by which the Court
addresses three factors. Id. at 818–19 (citing Sell v. United States, 539 U.S. 166,180–
42
81 (2003)).
These include: (1) whether an important government interest is at stake; (2)
whether the government’s intrusion into the lives of gay individuals significantly
furthers that interest; and (3) whether the intrusion is necessary to further that
interest. Witt v. U.S. Dept. of Air Force, 739 F. Supp. 2d 1308, 1313 (W.D. Wash.
2010) (interpreting the Ninth Circuit’s direction in Witt upon remand). Put another
way, “when the government attempts to intrude upon the personal and private lives
of homosexuals, in a manner that implicates the rights identified in Lawrence, the
government must advance an important governmental interest, the intrusion must
significantly further that interest, and the intrusion must be necessary to further that
interest.” Witt, 527 F.3d at 819. If it does not, then the action is violative of
substantive due process.
As to the first factor, the Court agrees with Montana that its registration
requirement, in general, serves several important governmental interests. (Doc. 17
at 8.) Defendants maintain such interests include reducing recidivism among sexual
offenders, providing law enforcement officers with updated information,
“prevention of victimization and prompt resolution of sexual or violent offenses,”
and the protection of vulnerable groups and the public in general. (Id. at 8–9; see
also Montana v. Hamilton, 164 P.3d 884, 887 (Mont. 2007)). Without a doubt,
“[s]ex offenders are a serious threat in this Nation,” who prey on vulnerable
43
populations and “are much more likely than any other type of offender to be re-
arrested for a new rape or sexual assault,” upon re-entry into the community.
Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 4 (2003). Accordingly, the
Court has no trouble concluding that Montana’s registration requirement serves the
important governmental interests of protecting the community from sexual offenders
and helping to apprehend repeat offenders.
Defendants also assert an interest in administrative convenience, arguing that
“efficient administration and public safety would be hindered” if they had to
“individually assess” a person’s underlying conviction rather than simply relying on
the fact that the person was convicted of a crime in another jurisdiction for which
they must register. (Doc. 17 at 9.) But this alone cannot constitute an “important”
governmental interest justifying the infringement of a substantive due process
protection. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (noting that
“although efficacious administration of governmental programs is not without some
importance, the Constitution recognizes higher values than speed and efficiency”).
In other words, the Court is not prepared to hold that administrative convenience,
standing alone, constitutes an important enough governmental interest to justify the
infringement of Menges’ substantive due process rights.
As to the second factor, the Court finds that none of the important
governmental interests at stake in this matter are significantly furthered by forcing
44
Menges to register as a sexual offender. As discussed at length above, the conduct
forming the basis of Menges’ registration requirement is constitutionally protected
by the substantive component of the Due Process Clause. The Court rejects any
notion that engaging in consensual intimate sexual activity with a person of the same
sex renders an individual a threat to the public or more likely to commit a sex crime.
That is, Montana’s important governmental interest in keeping track of sexual
offenders is not substantially furthered by including Menges on that list. This factor
weighs overwhelmingly in his favor.
As to the final factor, the Court focuses on whether there are less intrusive
means that could similarly accomplish the important governmental interest at stake.
Witt, 527 F.3d at 819. “In other words, for the third factor, a less intrusive means
must be unlikely to achieve substantially the government’s interest.” Id. In this
case, Montana could advance its interests in protecting the public from sexual
offenders without intruding on Menges’ rights—simply and specifically, by not
requiring him to register. As noted above, because Menges cannot fairly be
characterized as the sort of “sexual offender” Montana’s registry is concerned with,
the important governmental interests advanced by Montana remain furthered even if
he is omitted altogether. Accordingly, this factor weighs strongly in Menges’ favor.
When Montana imposes adverse legal consequences on individuals by virtue
of their engagement in intimate sexual contact with a person of the same sex, it
45
invites others “to subject homosexual persons to discrimination both in the public
and in the private spheres.” Lawrence, 539 U.S. at 575. This sort of state action
was condemned by Lawrence and runs afoul of the Constitution when
accomplished through a sexual offender registration statutory scheme as done by
Montana here. In sum, Menges enjoys actual success on the merits with respect to
his substantive due process claim.
ii. Equal Protection Claim.
Menges equal protection claim challenges the constitutionality of Montana’s
registration requirement, as applied to him. As discussed at length throughout,
under this statutory scheme, Menges must register because he was convicted of a
crime in Idaho for which he must register in that State. Mont. Code Ann. § 46-23-
502(9)(b). That crime, of course, was for doing nothing more than having oral or
anal sex with another male. Idaho Code § 18-6605.
The Fourteenth Amendment forbids Montana from denying “any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §
1. This promise, however, “must coexist with the practical necessity that most
legislation classifies for one purpose or another, with resulting disadvantage to
various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996); see also
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (noting that most laws will
“differentiate in some fashion between classes of persons” without offense to the
46
guarantee of equal protection). Accordingly, the Equal Protection Clause “is
essentially a direction that all persons similarly situated should be treated alike,”
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985)
(emphasis added).
Unless a suspect classification is at issue or a fundamental right implicated,
“legislation is presumed to be valid” and prior cases instruct that in the realm of
“social or economic legislation,” the mandate of equal protection affords “the
States wide latitude.” Id. at 440. (noting that “the Constitution presumes that even
improvident decisions will eventually be rectified by the democratic processes”).
When presented with an equal protection challenge, the Court proceeds by: (1)
identifying the classifications drawn by the challenged statute and determining
whether they are similarly situated; (2) selecting the appropriate level of scrutiny;
and (3) applying the appropriate level of scrutiny. Gallinger v. Becerra, 898 F.3d
1012, 1016 (9th Cir. 2018). Accordingly, the Court turns first to the question of
classifications.
1. Classification.
As noted above, any equal protection analysis must begin with the
identification of “the state’s classification of groups.” Gallinger v. Becerra, 898
F.3d 1012, 1016 (9th Cir. 2018). To accomplish this, the Court must first identify
“a classified group” before looking “for a control group . . . composed of
47
individuals who are similarly situated to those in the classified group in respects
that are relevant to the state’s challenged policy.” Id.
The Ninth Circuit’s discussion in Harrison v. Kernan, 971 F.3d 1069 (9th
Cir. 2020) is illustrative of this process. In Harrison, a male inmate within the
California prison system raised an equal protection challenge to the States’
disparate allocation of allowable property among prison populations. Id. at 1071–
72. Specifically, under the regulations at issue “female inmates of the highest
security classification housed in general population [had] access to more personal
property than male inmates in the lowest security classification housed in general
population.” Id. at 1072 (emphasis original).
In applying the classification formula, the Court first designated Harrison
and men sharing his security classification as the classification group. Id. at 1075–
76. The Court then concluded that because prison officials use “an identical
methodology to determine security classifications of male and female inmates,”
those “female inmates of Harrison’s security classification are an appropriate
control group.” Id. Summarizing, the Ninth Circuit explained that “the only
relevant difference between Harrison and an imprisoned woman of the same
security level and privilege group, when it comes to allowable property under the
Department-wide regulation, is gender.” Id. at 1076 (noting that “gender is the
critical independent variable here”). With Harrison in mind, the Court endeavors
48
to identify the appropriate classification and control groups in this case.
Menges frames the classifications drawn by Montana’s registration
requirement, as applied to him, as 18 year old males who were convicted in 1994
under Idaho’s Crimes Against Nature statute for engaging in consensual oral or
anal sex with a 16 year old male and 18 year old males who were convicted in
1994 under Idaho’s statutory rape provision for engaging in consensual vaginal
intercourse with a 16 year old female. (Doc. 29 at 30; see also Doc. 9-1 at 25.)
Defendants do not mount any attack on these proposed classifications, instead
asserting that Montana’s registration requirement is facially neutral and draws no
classifications at all.
The Court begins by reiterating the multi-layered statutory framework
governing the registration of sexual offenders in Montana. Under Montana law,
persons must register as sexual offenders if they were convicted of a “violation of a
law of another state . . . for which the offender was required to register as a sexual
offender after an adjudication or conviction.” Mont. Code Ann. § 46-23-502(9)(b).
While apparently facially neutral, this statutory provision cannot be read in
isolation, and, indeed, necessarily contemplates an inquiry into the registration
requirements of other states. For this equal protection challenge, this Court must
examine Idaho law.
Under Idaho law, 18-year old males convicted under Idaho’s Crimes Against
49
Nature statute in 1994 for engaging in oral or anal sex with a 16-year-old male,
must register as a sexual offender within that State. Idaho Code § 18-8304(1)(a).
On the other hand, an 18-year old male convicted under Idaho’s statutory rape
provision in 1994 for engaging in vaginal sex with a 16-year-old female, is not
required to register under Idaho law. Id. (specifically excluding those convicted
under the statutory rape law “where the defendant is eighteen years of age”); see
also Idaho Code § 18-6101(1) (1994) (proscribing sexual intercourse with any
female under the age of 18). Accordingly, although Defendants argue that
Montana’s registration requirement is facially neutral, the foregoing makes clear
that its adoption of Idaho’s sexual offender registration requirements renders it
facially discriminatory.11
The Court finds that Menges has properly identified the classification and
control groups that should govern his equal protection claim. The classification
group is properly composed of males, such as Menges, who were convicted under
Idaho Code § 18-6605 in 1994 for engaging in consensual oral or anal sex as an
11
Defendants argue that for Menges to prevail on his equal protection claim, he must
demonstrate that they have acted “with an intent or purpose to discriminate against” him “based
upon membership in a protected class.” (Doc. 30 at 10.) While this is undoubtedly true in
certain equal protection cases, Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.
2005), it remains controlling Supreme Court precedent that a “showing of discriminatory intent
is not necessary when the equal protection claim is based on an overtly discriminatory
classification,” Wayte v. United States, 470 U.S. 598, 608 n.10 (1985). That latter situation is
present here because, as explained above, Montana’s registration requirement draws overtly
discriminatory lines through its incorporation of Idaho law.
50
18-year old with a 16-year old male. The control group is properly composed of
males who were convicted under Idaho Code § 18-6101 in 1994 for engaging in
vaginal sex as an 18-year old with a 16-year old female. These two groups are
similarly situated in all relevant respects. Both are comprised of males who
engaged in proscribed sexual activity with 16-year olds in 1994 when they were
18. The only measurable difference is that the classification group engaged in oral
or anal sex with a male and the control group engaged in vaginal sex with a female.
The Court now turns its attention to the proper level of scrutiny this statutory
disparity must undergo.
2. Appropriate Level of Scrutiny.
Even though there is only one Equal Protection Clause, courts deploy
differing standards of review depending on the situation. See Cleburne, 473 U.S.
at 440–441. In other words, the Supreme Court’s jurisprudence on the issue of
equal protection has evolved to the point where a State needs a stronger (or
weaker) justification for its disparate treatment of similarly situated groups, in
various circumstances. Id. Under this framework, unless the statute at issue
implicates the exercise of a fundamental right (i.e. the right to marry a person of
the same sex) or proceeds along suspect lines (i.e. race, alienage, or national
origin), it need only survive rational basis review. Heller v. Doe by Doe, 509 U.S.
312, 319 (1993).
51
The parties agree that rational basis review should govern Menges’ equal
protection claim. (Docs. 29 at 31.) The Court has concerns about this approach.
As discussed at length above, the Ninth Circuit has been clear that when Lawrence
is implicated, rational basis review is inappropriate. Witt, 527 F.3d at 817–19.
Although the Ninth Circuit was proceeding under the substantive due process
context in Witt, the Supreme Court has been clear that the Due Process Clause and
Equal Protection Clause share a “synergy” by which analysis under one informs
analysis under the other. Obergefell, 576 U.S. at 672–73; see also Lawrence, 539
U.S. at 575 (noting that “[e]quality of treatment and the due process right to
demand respect for conduct protected by the substantive guarantee of liberty are
linked in important respects, and a decision on the latter point advances both
interests”).
Moreover, rational basis review is inappropriate when a statute implicates
gender-based classifications. Cleburne, 473 U.S. at 440–41 (noting that
“[l]egislative classifications based on gender . . . call for a heightened standard of
review”). As the Supreme Court recently held, discrimination based on sex
encompasses discrimination on the basis of sexual orientation. Bostock v. Clayton
Cty Ga., 140 S. Ct. 1731, 1754 (2020). It logically follows then, if gender-based
classifications need survive more than rational basis scrutiny than sexual
orientation-based classifications would have to as well, because Bostock teaches
52
such forms of discrimination are essentially one and the same. Ultimately, the
Court need not resolve this issue, because, as described below, it finds that the
classifications drawn by operation of Montana law in this case cannot survive even
rational basis review.
3. Applying the Appropriate Level of Scrutiny.
To survive rational basis review, the disparity identified above in Montana’s
sexual offender registration requirements must be “rationally related to a legitimate
government interest.” United States v. Navarro, 800 F.3d 1104, 1113 (9th Cir.
2015). This standard is exceedingly deferential, and the burden is on Menges to
negate “every conceivable basis” that may justify the statute’s classifications.
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313–15 (1993) (describing it as “a
paradigm of judicial restraint”). This Court is not a “superlegislature” that can
“judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe,
509 U.S. 312, 319 (1993).
When searching for a rational justification for the classifications drawn by
Montana’s sexual offender registration statutes, however, this Court is free to
speculate as to why the Montana Legislature did what it did. F.C.C., 508 U.S. at
315 (holding that “we never require a legislature to articulate its reasons for
enacting a statute, it is entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually motivated the
53
legislature”). Indeed, an “absence of ‘legislative facts’ explaining” the purpose of
the classifications “has no significance in rational-basis” review. Id. Accordingly,
the Court endeavors to address the governmental objectives that might arguably be
served by Montana’s registration requirements, as applied to Menges.
The Court begins with the objectives put forward by Defendants.
Defendants attribute the disparate treatment of the control and classification groups
to “public health, safety, and welfare concerns” and to “further the State’s interest
in administrative convenience.” (Docs. 17 at 8–9; 25 at 12–13.) Neither is
rationally related to a legitimate state interest. As previously discussed at length
in the context of Menges’ due process claim, while protecting the public is surely a
legitimate state interest, it is irrational for Montana to accomplish this by requiring
Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for
engaging in oral or anal sex with another man. To put it simply, Menges’ 1994
Idaho conviction for engaging in anal or oral sex with another man in no way
indicates he poses a threat to the public health, safety, or welfare.
To the extent Montana argues that the presence of a 16-year old makes the
difference, this argument is completely undermined by the fact that Montana does
not require those convicted in 1994 under Idaho’s statutory rape statute for
engaging in sexual contact with a 16-year old female to register as a sexual
offender. In other words, if Montana’s registration statutes, as applied to Menges,
54
were actually worried about protecting minors, they would not let persons in the
control group be free from the registration requirement.
Montana’s asserted interest in administrative convenience, is a similarly
irrational justification for the statutory disparities between the control and
classification groups identified above. Defendants do not explain how the State’s
interest in administrative convenience would be hindered, should the proper
agency be required to ascertain whether a person is being obligated to register as a
sexual offender for a conviction under a statute called into question by Lawrence.
And the Court agrees with Menges that given the uniqueness of his situation any
additional administrative burden would be slight and avoiding it is insufficient to
justify the statutory disparities occasioned on him by Montana’s sexual offender
registration statutes.
Additionally, Montana’s claim of administrative convenience is further
undermined by the fact that the State’s registration statutes contemplate that an
inquiry into Menges’ offense conduct, along with other “sexual offenders” moving
to Montana from other states, must be undertaken so that a proper “risk level
designation” can been assigned. Mont. Code Ann. § 46-23-509(6). That is, when
a person moves to Montana and must register as sexual offender pursuant to
Montana Code Annotated § 46-23-502(9)(b), the proper agency must often
undertake a fact-specific inquiry in order to assign that person a proper risk
55
assessment designation. Accordingly, it is unclear how any administrative
inconvenience would be imposed on the State by requiring it to examine the
underlying offense conduct obligating a person to register in this State under
Montana Code Annotated § 46-23-502(9)(b). This interest is unavailing.
Other than protecting the public and administrative convenience, the Court
cannot think of any governmental objective that would justify the unequal
treatment Montana’s sexual offender registration statutes occasions on Menges.
Perhaps, Defendants could attempt to justify the statutory disparity by arguing it
has a legitimate interest in obligating men who engaged in oral or anal sex with
another man to register as sexual offenders. But it is telling, and encouraging, they
do not advance this argument. Such an interest would clearly be both illegitimate
and unconstitutional. See Romer v. Evans, 517 U.S. 620, 633–36 (1996).
A survey of prior cases further illuminates the equal protection problem in
this case. In 1942, the Supreme Court made clear that it offends the guarantee of
equal protection to impose adverse legal consequences on one group but not
another when the two have committed “intrinsically the same quality of offense.”
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (striking down
an Oklahoma law on equal protection grounds that subjected persons committing
larceny to sterilization while exempting those committing embezzlement). The
Court reinforced this principle 30 years later, when it held that it offends the Equal
56
Protection Clause to forbid unmarried couples from obtaining contraception while
at the same time permitting contraception to be obtained by married couples.
Eisenstadt v. Baird, 408 U.S. 438, 453–55 (1979) (noting that “[i]n each case the
evil, as perceived by the State, would be identical, and the underinclusion would be
invidious”).
Lower courts have adopted these principles to strike down laws that
occasion similar disparate treatment to that at issue here. For example, in Kansas
v. Limon, the Kansas Supreme Court concluded that the State’s decision to punish
more harshly 18 year olds convicted of engaging in sexual contact with a same-sex
minor than 18 year olds convicted of engaging in sexual contact with an opposite-
sex minor, violated the guarantee of equal protection. 122 P.3d 22, 40–41 (Kan.
2005). A preeminent disparity, similar to the situation here, was the requirement
that only the former group was required to register as a sexual offender. Id. at 24.
The Eastern District of Louisiana reached an identical conclusion in Doe v.
Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012). In Jindal, several persons who had
been convicted under Louisiana’s Crime Against Nature by Solicitation statute
(which criminalized the solicitation of oral or anal sex) filed suit complaining that
it was unconstitutional to force them to register as a sexual offender when persons
convicted for identical conduct under Louisiana’s Prostitution statute were not
required to register. 851 F. Supp. 2d at 997–98. The Court relied on Eisenstadt to
57
conclude that the disparate sexual offender registration requirement for identical
conduct violated the Equal Protection Clause because “there is no legitimating
rationale in the record to justify targeting only those convicted of Crimes Against
Nature by Solicitation for mandatory sexual offender registration.” Id. at 1007.
The same conclusion holds true in this case. As discussed at length, under
Montana law a person, such as Menges, must register as a sexual offender for
being convicted under Idaho’s Crimes Against Nature statute in 1994. A person
engaging in precisely the same conduct but charged under Idaho’s statutory rape
statute need not. There is no rational basis for this disparity and “the relationship
between the classification is so shallow as to render the distinction wholly
arbitrary.” Id. at 1009.
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.
iii. Right to Privacy Claim.
Menges’ final claim asserts that Montana’s registration requirement violates
58
his right to privacy as secured by the state constitution. He must prove this
violation beyond a reasonable doubt. Malcomson v. Northwest, 339 P.3d 1235,
1238 (Mont. 2014). Interpreting the relevant authority, the Court finds that he has
carried his burden.
The Montana Constitution recognizes that the “right of individual privacy is
essential to the well-being of a free society” and forbids its infringement “without
the showing of a compelling state interest.” Mont. Const., art. II, § 10. It cannot
be disputed that this provision “affords citizens broader protection of their right to
privacy than does the federal constitution,” Gryczan v. Montana, 942 P.2d 112,
121 (Mont. 1997), and constitutes “one of the most stringent protections of [the]
right to privacy in the United States,” Armstrong v. Montana, 989 P.2d 364, 373
(Mont. 1999).
Under the Montana Constitution, the right to privacy inquiry is two-fold,
asking first whether the conduct at issue “is protected by Montana’s constitutional
right of privacy and then, if it is protected, whether the State has demonstrated a
compelling interest for infringing that right.” Id. at 447. As to the first inquiry—
whether the conduct at issue is protected by Montana’s constitutional right of
privacy—prior cases instruct this Court to deploy the two-pronged test outlined by
the Supreme Court in Katz v. United States, 389 U.S. 347 (1967). See Malcomson,
339 P.3d at 1240; see also Gryczan, 942 P.2d at 120–23 (applying both the Katz
59
test and another possible test before concluding that “regardless of the sort of test
used” the conduct at issue was protected by Montana’s right of privacy). This
approach “requires a determination of whether the person claiming the right of
privacy has (1) a subjective or actual expectation of privacy (2) that society is
willing to recognize as reasonable.” Malcomson, 339 P.3d at 1240.
Menges’ claim under the Montana Constitution is nearly identical to that
advanced under the Due Process Clause of the United States Constitution. Menges
argues that by forcing him to register as sexual offender for engaging in conduct
that is protected by Montana’s right of privacy, that right has been infringed. (Doc.
9-1 at 32–33.) Defendants do not attack this argument directly, instead arguing, as
they have for all of his claims, that interests of public safety and administrative
convenience justify any intrusion on this right. (Docs. 17 at 8–9; 25 at 12–13.)
In determining whether Menges’ conduct is protected by the Montana
Constitution, the Montana Supreme Court’s holding in Gryczan is the guiding
light. There, it was held that Montana’s right of privacy encompasses the right of
individuals to engage in intimate sexual contact with a person of the same-sex.
Gryczan, 942 P.2d at 121–24. That is, persons enjoy an actual expectation of
privacy in their engagement in consensual sexual activity among persons of the
same sex and society recognizes this expectation of privacy to be reasonable. Id.
(noting “it is hard to imagine any activity that adults would consider more
60
fundamental, more private and, thus, more deserving of protection from
governmental interference than non-commercial, consensual adult sexual
activity”).
In a subsequent case, the Montana Supreme Court succinctly described its
holding in Gryczan as recognizing “the personal autonomy component of the right
of individual privacy includes the right of consenting adults to engage in private,
same-gender, non-commercial sexual conduct free from governmental interference,
intrusion and condemnation.” Armstrong, 989 P.2d at 374. As noted above in the
context of Menges’ substantive due process claim, the intrusion and condemnation
here stems from Montana’s requirement that he register as a sexual offender for
engaging in conduct protected by the Montana Constitution. While clearly
instructive, the Court must admit that Gryczan is not a perfect fit in all respects.
In Gryczan, the Montana Supreme Court was careful to limit its holding to
consensual sexual activity among adults. 942 P.2d at 125 (holding “[t]he right of
consenting adults, regardless of gender, to engage in private, non-commercial
sexual conduct strikes at the very core of Montana’s constitutional right of
individual privacy”) (emphasis added). As discussed previously, the record
establishes that the sexual contact at issue was consensual. (Doc. 9-6 at 2, 7–8.)
Thus, the question becomes whether the presence of a 16-year old in this case pulls
the conduct outside the scope of Gryczan.
61
As Menges points out, Gryczan does not define what it means by
“consenting adults,” and, under Montana law 16-year olds are capable of
consenting to intimate sexual activity. Mont. Code Ann. § 45-5-501(1)(b)(iv).
Additionally, as discussed above, Montana’s registration statutes, as applied to
Menges, do not concern themselves with the age of the sexual partner that led to
his 1994 conviction. Instead, the sole focus in the underlying charging statute,
which has been discussed at length, is with the type of sexual contact engaged in,
not the age or sex of the participating parties.
That is, Menges must register because he was convicted of engaging in oral
or anal sex with a person of the same sex, not because he had oral or anal sex with
a minor or because such contact was nonconsensual. On the contrary, this intimate
sexual contact was by all accounts consensual and did not involve a minor-aged
victim incapable of consenting to such contact as a matter of Montana law.
Accordingly, through its registration statutes, Montana is imposing adverse legal
consequences on Menges for engaging in the sort of conduct constitutionally
protected by Montana’s right of privacy. The question becomes whether
Defendants have a compelling state interest justifying the intrusion.
When undertaking the second right of privacy inquiry, the Court undertakes
a “strict scrutiny analysis” by which the subject statute “must be justified by a
compelling state interest and be narrowly tailored to effectuate that purpose.”
62
Malcomson, 339 P.3d at 1239. This is the “most stringent level of scrutiny” under
which few laws survive. Driscoll v. Stapleton, 473 P.3d 386, 392 (Mont. 2020).
And having already concluded that Montana’s registration statutes, as applied to
Menges, cannot survive heightened (substantive due process claim) or rational
basis (equal protection claim) scrutiny, it has no trouble concluding it fails under
the most exacting scrutiny there is.
In addition to the administrative convenience and public safety
considerations previously rejected in the context of more favorable levels of
scrutiny above, Defendants rely on prior cases from the Montana Supreme Court
for the proposition that Montana’s sexual offender registration statutes are
narrowly tailored to serve compelling state interests. (Doc. 30 at 11.) Two cases
inform this argument but are ultimately distinguishable from the situation at hand.
See Montana v. Mount, 78 P.3d 829 (Mont. 2003); Montana v. Brooks, 289 P.3d
105 (Mont. 2012).
In Mount, an individual convicted of sexual intercourse without consent in
1984, was charged with failing to register a sexual offender in 2000. 78 P.3d at
832–33. He unsuccessfully moved to dismiss the charges on the basis that
Montana’s sexual offender registration statutes, as applied to him, violated the ex
post facto clause of the Montana Constitution. Id. at 833. On appeal, he argued
that to subject him to a sexual offender registration requirement after fully
63
discharging his sentence deprived him of his constitutional right of privacy in
contravention of the restoration of rights provision of the Montana Constitution.
Id. at 841–42.12
In resolving this claim, the Montana Supreme Court noted that “[w]hile
Mount’s right to privacy may be implicated by having to register and disclose his
whereabouts, we conclude that the State had a compelling interest in enacting” its
registration statutes. Id. at 842. These included protecting “the public from the
recidivism of sex offenders,” preventing the “victimization of vulnerable children,”
and “to assist law enforcement in keeping track of the whereabouts of sex
offenders.” Id. And, in the Montana Supreme Court’s view, as applied to Mount,
any “registration and disclosure requirements” were narrowly tailored. Id.
Accordingly, no deprivation of Mount’s right of privacy had occurred. Id.
The Court revisited the question in Brooks. There a recently-convicted
arsonist with a significant criminal history argued that requiring him to “register as
a violent offender” as a condition of his probation violated “his constitutional right
to privacy.” 289 P.3d at 106. Specifically, he maintained that it was
unconstitutional to require him to “register as a violent offender as a result of what
12
This provision states that “[f]ull rights are restored by termination of state supervision
for any offense against the state.” Mont. Const., art. II, § 28. The argument being that to subject
Mount to a sexual offender registration requirement after the discharge of his sentence violated
his right of privacy as secured by the Montana Constitution.
64
he describes as a ‘single . . . isolated and out-of-character incident of arson.” Id.
The Montana Supreme Court disagreed.
In rejecting his claim, the Court noted that because Brooks was “a convicted
felon and violent offender” he enjoyed a diminished expectation of privacy that
justified the State’s intrusion into his life. Id. at 108. Put another way, because of
his “conviction of felony arson, he has a diminished privacy interest in the personal
information required at his registration.” Id. Applying strict scrutiny, the Court
observed that “Brooks has a track record of drinking and making poor decisions,
and associated his alcoholism with his legal problems—which include felony and
misdemeanor convictions.” Id. at 109. Consequently, it concluded that the “State
clearly has a compelling interest in requiring Brooks [to] register to protect the
public from potential future crimes committed by Brooks as well as assist law
enforcement in investigating those crimes. Id.
Neither Mount or Brooks directly controls the outcome in this case. Mount
was a convicted rapist and Brooks was a convicted arsonist. Menges had
consensual sex with another male. Arson and rape are not protected by Montana’s
right of privacy, but consensual intimate same-sex contact surely is. That
distinction is constitutionally significant and renders Mount and Brooks core
holdings inapplicable and undisturbed by a contrary ruling as to Menges.
To put it simply, as applied to Menges, Montana’s registration requirement serves
65
no compelling governmental interest. Any general compelling interests served by
Montana’s registration requirement are not narrowly tailored to the extent they
reach those who have engaged in constitutionally protected conduct.
Under Montana’s constitutional scheme, having consensual intimate sexual
contact with a person of the same-sex does not render someone a public safety
threat to the community. It does not increase the risk that our State’s children or
other vulnerable groups will be victimized, and law enforcement has no valid
interest in keeping track of such persons whereabouts. And, while it can be
undoubtedly said that Montana’s sexual offender registration statutes generally
serve compelling governmental interests, they are not narrowly tailored to serve
those interests to the extent they pull Menges within their grasp. Malcomson, 339
P.3d at 1242 (concluding a Montana workers’ compensation law served
compelling governmental interest, but was not narrowly tailored to the extent it
intruded on a right protected by constitutional right of privacy). Menges enjoys
actual success on the merits of his right of privacy claim. Having examined the
first injunctive factor, the Court turns its attention to the second factor.
B. Irreparable Injury.
It is well established that constitutional violations can constitute an
irreparable injury. Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ.
Equity, 959 F.2d 1401, 1412 (9th Cir. 1991); Goldie’s Bookstore, Inc. v. Superior
66
Court of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (noting that “constitutional
infringement will often alone constitute irreparable harm”). This is especially true
when the constitutional violations complained of are actively ongoing through the
enforcement of an unconstitutional law. See Great N. Res., Inc. v. Coba, 2020 WL
6820793, 2–3 (D. Or. 2020).
As discussed at length above, 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. And these violations are ongoing. Montana law actively
imposes an ongoing registration requirement on Menges that is unlikely to abate in
the future absent judicial action. See Mont. Code Ann. § 46-23-506 (generally
requiring sexual offenders to register for the remainder of their life). Menges
decision to escape the burdens of registration through non-compliance could be
met with felony charges. Mont. Code Ann. § 46-23-507. The foregoing is more
than sufficient to constitute irreparable injury supporting the issuance of a
permanent injunction.
C. Inadequacy of Remedies at Law.
With respect to constitutional violations, it is generally recognized that there
is no adequate remedy at law to rectify any resulting injury. Allee v. Medrano, 416
U.S. 802, 814–15 (1974); Edmo v. Corizon, Inc., 935 F.3d 757, 798 (9th Cir.
67
2019); Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike monetary
injuries, constitutional violations cannot be adequately remedied through damages
and therefore generally constitute irreparable harm”), rev’d and remanded on other
grounds, 562 U.S. 134. (2011); see also Stormans, Inc. v. Selecky, 586 F.3d 1109,
1138 (9th Cir. 2009). As discussed at length, in this case Menges has suffered not
one constitutional violation, but three. And these violations are ongoing. Given
the circumstances, Menges has no adequate remedy at law absent injunctive relief.
D. Balance of the Hardships and Public Interest.
Turning to the final injunctive inquiry, the Court weighs the various
hardships likely occasioned on the respective parties if injunctive relief sought by
Menges were to issue, and whether such injunctive relief would be in the public
interest.13 Without a doubt, constitutional injuries can inflict serious damage and
the public interest is served through the enjoinment of an unconstitutional
application of law. Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817,
838 (9th Cir. 2020) (“When weighing public interests, courts have consistently
recognized the significant public interest in upholding First Amendment
principles”) (internal quotations omitted).
With respect to hardships, the difficulties imposed on him by way of
13
Specifically, Menges requests permanent injunctive relief “enjoining Defendants from
requiring” him “to register as a sex offender for his prior conviction under Idaho’s Crimes
Against Nature statute, I.C. § 18-6605.” (Doc. 1 at 13.)
68
Montana’s registration requirement are significant. The record reveals he has lost
jobs and been denied housing. Additionally, Montana’s registration requirement
obligates Menges to disclose sensitive information and he must live with being
publicly designated a sexual offender, and certain private information is publicly
disseminated. Not to mention the abridgment of his right to substantive due
process, equal protection and privacy.
The hardships occasioned on Defendants if the requested injunction were to
issue are difficult to imagine. Enjoining Defendants from obligating him to
register as a sexual offender will have little effect beyond that immediate context.
As previously noted, Defendants have no valid interest in including Menges on the
sexual offender registry and his omission will not impede any important objective
which the registry ultimately serves. In sum, the balance of hardships weigh
strongly in Menges’ favor.
The public interests at stake similarly weigh in favor of the issuance of the
injunctive relief Menges seeks. The Montana public benefits greatly from
enforcement of their rights to substantive due process, equal protection, and
privacy. This is especially true here, where the specter of sexual offender
registration is attached to the exercise of constitutionally protected conduct—such
as engagement in intimate sexual contact with a person of the same-sex.
Moreover, as already stated multiple times, none of the governmental interests in
69
maintaining a sexual offender registry are served by Menges’ inclusion.
Engagement in intimate sexual contact with a person of the same sex, without
more, cannot be said to render someone a threat to the public safety.
Having weighed the requisite factors and upon finding that Menges enjoys
actual success on the merits, the Court will afford him the injunctive relief he seeks
by enjoining enforcement of Montana’s registration requirement, as applied to him.
The Court will also afford him the various other declaratory and ancillary relief he
seeks and enter judgment in his favor.
ORDER
Accordingly, IT IS ORDERED that judgment shall be entered in Menges’
favor.
IT IS FURTHER ORDERED that Defendants’ are PERMANENTLY
ENJOINED from requiring Menges to register as a sexual offender under Montana
law for his prior conviction under Idaho’s Crimes Against Nature statute, Idaho
Code § 18-6605.
IT IS FURTHER ORDERED that the Court hereby DECLARES that:
1. Menges’ inclusion in Montana’s Sexual or Violent Offender Registry
for his 1994 conviction under Idaho’s Crimes Against Nature statute, Idaho Code §
18-6605, is unconstitutional, as violative of his right to substantive due process
under the Fourteenth Amendment to the United States Constitution, equal
70
protection under the Fourteenth Amendment to the United States Constitution, and
right of privacy under Article II, § 10 of the Montana Constitution;
2. Montana’s Sexual or Violent Offender Registration Act’s requirement
that an individual register as a sexual offender for an out-of-state conviction for
which that state requires registration, as required by Montana Code Annotated §
46-23-502(9)(b), is unconstitutional as applied to Menges.14
IT IS FURTHER ORDERED that Defendants shall:
1. Permanently remove Menges from Montana’s Sexual or Violent
Offender Registry on or before Friday, May 21, 2021;
2. Expunge all state records indicating Menges was ever subject to
registration on Montana’s Sexual or Violent Offender Registry on or before Friday,
May 21, 2021; and
3. Alert all agencies, including, but not limited to, courts, police
departments, sheriff’s departments, and the Federal Bureau of Investigation, who
were provided information about Menges registration that this information is no
longer valid, on or before Friday, May 21, 2021.
The Clerk of Court is directed to enter judgment and close the case file.
14
The Court declines Menges’ request that this relief extend to “anyone with a pre-
Lawrence conviction for any statute in which engaging in oral or anal sex was the sole element.”
(Doc. 1 at 12.) Given the various factual circumstances underlying such a conviction, the Court
will not speculate on the constitutionality of other convictions not before the Court in this case.
71
DATED this 11th day of May, 2021.
72
AUSTIN KNUDSEN
Montana Attorney General
J. STUART SEGREST
Chief, Civil Bureau
HANNAH E. TOKERUD
Assistant Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
Phone: 406-444-2026
Fax: 406-444-3549
[email protected]
[email protected]
COUNSEL FOR DEFENDANTS
UNITED STATES DISTRICT COURT

MISSOULA DIVISION
RANDALL MENGES, CV 20-178-M-DLC
Plaintiff,
NOTICE OF APPEAL
v.
AUSTIN KNUDSEN, Attorney

General of the State of Montana;
GARY SEDER, Bureau Chief of
the Montana Crime Information
Bureau; and SARA MALIKIE,
Head of the Sexual and Violent
Offenders Program for the
Missoula County Sheriff’s Office,
each in their official capacities,
Defendants.
Pursuant to Federal Rules of Appellate Procedure 3 and 4 and
28 U.S.C. § 1291, notice is hereby given that Defendants Austin
Knudsen, Gary Seder, and Sara Malikie appeal the Court’s May 11,
2021 Order (Doc. 35). This appeal is taken to the United States Court of
Appeals for the Ninth Circuit.
Respectfully submitted this 12th day of May, 2021.
AUSTIN KNUDSEN
Montana Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
By: /s/ Hannah E. Tokerud

HANNAH E. TOKERUD
Counsel for Defendants
NOTICE OF APPEAL
PAGE 2
CERTIFICATE OF SERVICE
I hereby certify that on this date I electronically filed the foregoing
document with the clerk of the court for the United States District
Court for the District of Montana, using cm/ecf system.
Participants in the case who are registered cm/ecf users will be
served by the cm/ecf system.
Dated: May 12, 2021 /s/ Hannah E. Tokerud

HANNAH E. TOKERUD
NOTICE OF APPEAL
PAGE 3
Case: 21-35370, 05/12/2021, ID: 12110556, DktEntry: 1-1, Page 1 of 3
Office of the Clerk

United States Court of Appeals for the Ninth Circuit
Post Office Box 193939
San Francisco, California 94119-3939
415-355-8000
Molly C. Dwyer
Clerk of Court May 12, 2021
No.: 21-35370
D.C. No.: 9:20-cv-00178-DLC
Short Title: Randall Menges v. Austin Knudsen, et al
Dear Appellant/Counsel
A copy of your notice of appeal/petition has been received in the Clerk's office of
the United States Court of Appeals for the Ninth Circuit. The U.S. Court of
Appeals docket number shown above has been assigned to this case. You must
indicate this Court of Appeals docket number whenever you communicate with
this court regarding this case.
Motions filed along with the notice of appeal in the district court are not
automatically transferred to this court for filing. Any motions seeking relief from
this court must be separately filed in this court's docket.
Please furnish this docket number immediately to the court reporter if you place an
order, or have placed an order, for portions of the trial transcripts. The court
reporter will need this docket number when communicating with this court.
The due dates for filing the parties' briefs and otherwise perfecting the appeal
have been set by the enclosed "Time Schedule Order," pursuant to applicable
FRAP rules. These dates can be extended only by court order. Failure of the
appellant to comply with the time schedule order will result in automatic
dismissal of the appeal. 9th Cir. R. 42-1.
UNITED STATES COURT OF APPEALS

FILED
FOR THE NINTH CIRCUIT
MAY 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RANDALL MENGES, No. 21-35370
Plaintiff - Appellee,
D.C. No. 9:20-cv-00178-DLC
v. U.S. District Court for Montana,
Missoula
AUSTIN KNUDSEN, Attorney General
for the State of Montana; GARY TIME SCHEDULE ORDER
SEDER, Bureau Chief of the Montana
Crime Information Bureau; SARA
MALIKIE, Head of the Sexual and
Violent Offenders Program for the
Missoula County Sheriff's Office,
Defendants - Appellants.
The parties shall meet the following time schedule.
If there were reported hearings, the parties shall designate and, if necessary, cross-
designate the transcripts pursuant to 9th Cir. R. 10-3.1. If there were no reported
hearings, the transcript deadlines do not apply.
Wed., May 19, 2021 Appellant's Mediation Questionnaire due. If your

registration for Appellate CM/ECF is confirmed after
this date, the Mediation Questionnaire is due within
one day of receiving the email from PACER
confirming your registration.
Fri., June 11, 2021 Transcript shall be ordered.
Mon., July 12, 2021 Transcript shall be filed by court reporter.
Fri., August 20, 2021 Appellant's opening brief and excerpts of record
shall be served and filed pursuant to FRAP 31 and
9th Cir. R. 31-2.1.
Mon., September 20, 2021 Appellee's answering brief and excerpts of record
shall be served and filed pursuant to FRAP 31 and
9th Cir. R. 31-2.1.
The optional appellant's reply brief shall be filed and served within 21 days of
service of the appellee's brief, pursuant to FRAP 31 and 9th Cir. R. 31-2.1.
Failure of the appellant to comply with the Time Schedule Order will result in
automatic dismissal of the appeal. See 9th Cir. R. 42-1.
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: John Brendan Sigel

Deputy Clerk
Ninth Circuit Rule 27-7

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Case 9:20-cv-00178-DLC-KLD Document 1 Filed 12/09/20 Page 1 of 13

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

TIM FOX, Attorney General of the State COMPLAINT FOR

from the same case or controversy as Plaintiff’s federal claims.

Court facially invalidated all still-then-existing sodomy statutes.

Operation of the SVOR

Montana Forces Menges to Register for a Pre-Lawrence Violation of Idaho’s Crime

DNA sample. § 46-23-504(3)(a–h), MCA.

for longer than an aggregate of 30 days in a calendar year. § 46-23-504(1)(c), MCA.

First Cause of Action

relief from the Court.

Second Cause of Action

of the United States Constitution because it has no rational relationship to a legitimate

502(9)(b), MCA, is unconstitutional as-applied to Menges and anyone with a pre-Lawrence

Third Cause of Action

502(9)(b), MCA, is unconstitutional as-applied to Menges and anyone with a pre-Lawrence

for which that state requires registration, § 46-23-502(9)(b), MCA, is unconstitutional

5. Preliminarily and permanently enjoining Defendants from requiring Menges to

Date: December 9, 2020 Respectfully submitted,

/s/ Elizabeth K. Ehret__________________

IN THE UNITED STATES DISTRICT COURT

RANDALL MENGES, CV 20–178–M–DLC

AUSTIN KNUDSEN, Attorney General

The central question in this case is whether Montana may, in conformance

(“Menges”) to register as a sexual offender for engaging in consensual oral or anal

enter judgment in his favor.

counts of “Crimes Against Nature,” in violation of Idaho Code 18-6605. (Id. at 3;

at 3) and was sentenced to a total of 15 years imprisonment, 5 of which was

determinate and 10 years of which was indeterminate. (Id. at 2; 9-5 at 1.)2

Menges was ultimately incarcerated for approximately 7 years, before

serving the remainder of his sentence on probation. Upon release from

to register as a sexual offender. See Idaho Code § 18-8303(1)(a) (1993); Idaho

Code § 18-8304(1)(a) (2020). At some point, Menges re-located to Montana. But

or Violent Offender Registration Act, Menges must register as a sexual offender in

Montana. (Doc. 33 at 1, 4.)

This is because, under Montana’s Sexual or Violent Offender Registration

registration agency.” Mont. Code Ann. § 46-23-504(1), (2). A “sexual offender”

is anyone who has been convicted of a “sexual offense.” Id. § 46-23-502(10).

an adjudication or conviction.” Id. § 46-23-502(9)(b). Due to Menges’ 1994

8303(1)(a) (1993); Idaho Code § 18-8304(1)(a) (2020). Accordingly, pursuant to

Menges must register as a sexual offender under Montana law.3

Menges officially registered in Montana on December 12, 2018. (Doc. 33 at

DNA. (Doc. 33 at 4; Mont Code Ann. § 46-23-504(3).) He also had to disclose

residence, employment, or academic enrollment status. (Doc. 33 at 5; Mont. Code

505(4).) He must complete and submit an updated registration form annually.

(Doc. 33 at 6; Mont. Code Ann. § 46-23-504(6)(a)(iii).) Any registration related

504(8).) Failure to abide by any registration requirement is a felony. (Doc. 33 at

life. Mont. Code Ann. § 46-23-506(1).

Montana’s registration requirement has unsurprisingly had a negative impact

on Menges’ life. He moved from Washington to Montana in March of 2020. (Id.

at 5.) A few months later he was marked noncompliant in Montana’s registration

employment opportunities.4 (Doc. 9-2 at 3–4.) In March 2021, Menges returned

to Montana and established a residence in Butte. (Doc. 33 at 5.)

II. Procedural Background.

Menges filed suit on December 9, 2020. (See generally Doc. 1.) He

complains that Montana’s registration requirement is unconstitutional, as applied

Montana Sexual or Violent Offender Registry.” (Doc. 9.)