State v. Final Exit Network, Inc.

• Decision Date: 19 December 2016
• Docket Number: A15-1826
• Citation: 889 N.W.2d 296
• Parties: STATE of Minnesota, Respondent, v. FINAL EXIT NETWORK, INC., Appellant.
• Court: Minnesota Court of Appeals

889 N.W.2d 296

STATE of Minnesota, Respondent,

v.FINAL EXIT NETWORK, INC., Appellant.

A15-1826

Court of Appeals of Minnesota.

Filed December 19, 2016

Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy County Attorney, Elizabeth M. Swank, Assistant County Attorney, Hastings, Minnesota (for respondent).

Robert Rivas (pro hac vice), Tallahassee, Florida; and Paul Engh, Minneapolis, Minnesota (for appellant).

Randall D. Tigue, Randall Tigue Law Office, P.A., Golden Valley, Minnesota (for amicus curiae Atheists for Human Rights).

Edward Rudofsky (pro hac vice), Zane and Rudofsky, New York, New York; and Sam Glover, Minneapolis, Minnesota (for amicus curiae First Amendment Lawyers Association).

Patrick C. Elliott, Madison, Wisconsin (for amicus curiae Freedom from Religion Foundation).

Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and Rodenberg, Judge.

OPINION

SMITH, TRACY M., Judge

Appellant Final Exit Network, Inc. (Final Exit) appeals its conviction of assisting in a suicide. Final Exit argues that Minn. Stat. § 609.215, subd. 1 (2014), which makes it a crime for a person to intentionally assist another in taking the other's life, is facially unconstitutional under the First Amendment. Final Exit also asserts an as-applied challenge to the jury instructions and to the application of the statute to the facts of this case. Because we conclude that the Minnesota Supreme Court's decision in Melchert – Dinkel , 844 N.W.2d at 13, bars Final Exit's facial and as-applied challenges, we affirm.

FACTS

Final Exit is a nonprofit company incorporated in the state of Georgia that advocates for the right to die. An individual may become a member of Final Exit by paying an annual fee of $50. Final Exit provides its members experiencing debilitating mental or physical illness with counseling services and information on end-of-life care, including methods to hasten death by suicide.

When a member makes the decision to end his or her life, the member contacts Final Exit requesting "exit services" and provides Final Exit with a personal statement and medical diagnosis.¹ In order to receive exit services, a member must demonstrate that the member has "an incurable condition which causes intolerable suffering" and is mentally competent, physically strong enough to perform the required tasks, and able to procure the necessary equipment.

A Final Exit case coordinator contacts the member seeking exit services and conducts a telephone interview to assess whether the member is mentally sound and an appropriate candidate for exit services. The case coordinator then refers the case to a first responder, who conducts a lengthier interview. The first responder informs the member that the member must read the book Final Exit (3d ed.) with an addendum or watch a video called Final Exit . These materials instruct the member on death by helium asphyxiation

. Once the member has read the book or watched the video, the first responder may provide the member with the names and addresses of manufacturers who sell the hood used to commit suicide by way of helium asphyxiation. The first responder also collects information about the member's living situation and the family's knowledge of the member's plan to commit suicide to assess whether "the applicant's environment is secure enough for [Final Exit] to work in." Final Exit's medical director then reviews the member's information and assesses whether the member has a "horrible disease" and has done everything possible "to make life bearable." The medical director makes the final decision on whether Final Exit will provide a member with exit services.

After a member is approved for exit services, Final Exit assigns an "exit guide" to prepare the member for his or her suicide. At least one month before the suicide, the guide informs the member where to purchase the necessary equipment. The guide does not physically assist the member in acquiring the equipment. The guide visits the member in person and rehearses the procedure with the member before the planned day of the suicide. During the rehearsal, the member assembles the equipment and the guide answers any questions the member may have about whether the hood is properly connected to the tanks. On the day of the suicide, two guides are usually present and discreetly arrive and leave the member's residence to avoid being seen. The guides do not physically assist the member in conducting the procedure. The guides watch the member put on the hood and perform the procedure. After the procedure, a guide checks the member's pulse to determine that the member has died and then disposes of the equipment.

At issue in this case is Final Exit's role in the suicide of D.D. D.D. suffered from chronic pain from 1996 until her death in May 2007. D.D. applied for membership and requested exit services from Final Exit in January 2007. A first responder interviewed D.D. in early February and provided her with information about reading Final Exit and "general information" about Final Exit's "preferred inhalation method." On February 6, Final Exit's medical director approved D.D. for exit services. D.D. did not inform her family of her plans to commit suicide. One week before D.D. committed suicide in May, D.D.'s guide traveled to Minneapolis and drove to D.D.'s home.² On the day of the suicide, Final Exit's medical director and D.D.'s guide flew to Minneapolis-St. Paul Airport and drove to D.D.'s home. The necessary equipment for helium asphyxiation

was in her living room when they arrived. Neither the medical director nor the guide touched the equipment. As testified to by the medical director,³ if D.D. had not connected the helium tanks and hood properly, they would have advised her on how to correct the mistake. When she was ready, D.D. placed the hood on her head and turned the valves to the helium tank. D.D. died at approximately 12:30 p.m. The medical director checked D.D.'s pulse after the procedure to ensure that she had died. The medical director and guide removed the hood from D.D., left D.D.'s home, and disposed of the equipment in a dumpster. D.D. had requested that the exit guides dispose of the equipment to avoid the stigma of suicide.

D.D.'s husband discovered D.D. at approximately 6:30 p.m. that evening and called emergency services. A police officer arrived and observed that D.D. was propped up on the couch, tucked beneath a blanket, and had her hands "crossed and peaceful looking" on her chest. Following an autopsy, the medical examiner concluded that D.D. had died of atherosclerotic-coronary-artery disease, a hardening of the arteries. No criminal investigation of D.D.'s death took place at that time.

As part of an unrelated matter, the Georgia Bureau of Investigations (GBI) conducted an investigation into Final Exit's business activities and seized materials related to D.D.'s death. GBI provided evidence about Final Exit's role in D.D.'s suicide to the Minnesota Bureau of Criminal Apprehension, which opened an investigation in the beginning of 2010. In May 2012, a grand jury indicted Final Exit for "intentionally advis[ing], encourag[ing], or assist [ing] another in taking the other's own life." Minn. Stat. § 609.215, subd. 1.

The district court concluded in a pretrial order that the "advises" prohibition in the statute is unconstitutionally overbroad under the First Amendment, but the "encourages" prohibition survives strict scrutiny. The state filed a pretrial appeal. In an unpublished opinion released in September 2013, this court held that both the "advises" and "encourages" prohibitions are unconstitutional under the First Amendment. State v. Final Exit Network, Inc. , No. A13–0563, 2013 WL 5418170 at *7 (Minn. App. Sept. 30, 2013), stay vacated (Minn. June 17, 2014). The Minnesota Supreme Court granted review of this court's decision but stayed the proceedings pending its decision in Melchert – Dinkel .

In Melchert – Dinkel , the Minnesota Supreme Court addressed the constitutionality of Minn. Stat. § 609.215, subd. 1. In its decision, the court severed the "advises" and "encourages" provisions from the statute. 844 N.W.2d at 23–24. The court concluded that the statute's "advises" and "encourages" prohibitions are facially unconstitutional under the First Amendment because they broadly restrict general discussions about suicide. Id. at 23–24. The court, however, upheld the statute's "assists" prohibition as constitutional. Id. The court interpreted "assists" to "proscribe [ ] speech or conduct that provides another person with what is needed for the person to commit suicide." Id. at 23. It also determined that "assists" is sufficiently narrow because speech or conduct enabling another to commit suicide "must be targeted at a specific individual." Id. The court held that "speech instructing another on suicide methods falls within the ambit of constitutional limitations on speech that assists another in committing suicide." Id. After deciding Melchert – Dinkel , the Minnesota Supreme Court denied further review of State v. Final Exit Network, Inc.

Before trial, both Final Exit and the state submitted proposed jury instructions. Final Exit proposed jury instructions defining "assists" as

to provide tangible physical assistance in the suicide. One does not "assist" in a suicide by merely being present, or by advising on the subject, encouraging the suicide, or providing information or knowledge. One does not "assist" in a suicide by merely instructing another on suicide methods. Similarly, one does not "assist" in a suicide by expressing a viewpoint on whether the suicide is morally justifiable under the circumstances or by providing emotional support to another who is committing suicide. One must affirmatively "assist" in a suicide to be guilty of the crime.

The district court issued an order on jury instructions in February 2015 defining "assists" as...