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State v. Final Exit Network, Inc.

Court of Appeals of Minnesota

September 30, 2013

State of Minnesota, Appellant,
v.
Final Exit Network, Inc., Respondent (A13-0565), Lawrence Deems Egbert, Respondent (A13-0564), Roberta L. Massey, Respondent (A13-0563).

UNPUBLISHED OPINION

Dakota County District Court File Nos. 19HA-CR-12-1721, 19HA-CR-12-1719, 19HA-CR-12-1718.

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 appellant)

Robert Rivas (pro hac vice), General Counsel, Final Exit Network, Inc., Tallahassee, Florida; and Mark D. Nyvold, Fridley, Minnesota (for respondents)

Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Bjorkman, Judge.

BJORKMAN, Judge

These consolidated pretrial appeals concern the constitutionality of Minn. Stat. § 609.215, subd. 1 (2006), which criminalizes speech that "advises" and "encourages" another in taking the other's life. Appellant State of Minnesota argues that the district court erred by determining that criminalizing speech that "advises" suicide violates the First Amendment to the United States Constitution. By notices of related appeals, respondents argue that the district court erred by determining that the statute's provision relating to speech that "encourages" can be narrowly construed to be constitutional. Respondents also argue that the district court erred by concluding that probable cause supports the indictment charging them with violating Minn. Stat. § 609.215 (2006). We affirm in part, reverse in part, and remand.

FACTS

Respondent Final Exit Network, Inc. (FEN) is a Georgia non-profit corporation that provides its members end-of-life counseling and exit-guide services, which include information and support for members seeking to hasten their deaths. If a member is interested in exit-guide services, a first responder interviews the member by phone to gather information about the member's medical condition, family history, reasons for wishing to hasten death, and desired timing of death. The first responder also asks the member to submit a personal letter relating these facts, along with documentation of the member's medical condition, and instructs the member to read the book Final Exit by Derek Humphry or watch the video Final Exit.

FEN's medical director, respondent Lawrence Egbert, reviews the first responder's interview notes and the member's medical documentation and personal letter and either approves or rejects the member's request for exit-guide services. If Egbert approves the request, FEN's case coordinator, respondent Roberta Massey, assigns exit guides according to the member's location. Both Egbert and Massey also serve as exit guides. The assigned exit guides contact the member, develop a relationship with him or her, and provide information about helium asphyxiation, FEN's recommended method of hastening death. The exit guides instruct the member to purchase two specific types of helium tanks from a party store, a plastic "hood, " and plastic tubing with joints that allow the lines from each tank to connect to a single tube running into the hood. FEN requires that members have the physical ability to perform those tasks themselves and tells exit guides never to purchase or set up the materials for a member. Two exit guides are present for the death and may hold the member's hands, not only for support and comfort, but also to prevent involuntary jerking that could result in tearing the plastic hood. The exit guides remain with the member until they are certain that the member is dead. They then remove from the residence and discard the helium tanks, the tubing, the hood, and any materials related to FEN.

The charges at issue here stem from the alleged involvement of FEN, Egbert, and Massey in the death of 57-year-old Doreen Dunn. At the time of Dunn's death in May 2007, she had been living with chronic pain for more than a decade, as a result of various medical conditions, and had discussed suicide with her husband, who opposed it. But there was no sign of suicide in Dunn's home, and her autopsy listed her cause of death as atherosclerotic coronary artery disease. Law enforcement subsequently received information linking FEN to Dunn's death. Internal FEN records indicate that Dunn became a FEN member in early 2007. Telephone and fax records reveal Dunn had regular contact with various FEN representatives throughout early 2007, including faxing a personal letter and medical documentation to Massey. Flight records and internal FEN records show that Egbert and exit guide Jerry Dincin made single-day roundtrip flights from their home states of Maryland and Illinois, respectively, to Minnesota on the day of Dunn's death. And FEN records note when Dunn died.

In May 2012, a grand jury returned a 17-count indictment charging Egbert and FEN with (1) advising, encouraging, or assisting another in committing suicide; (2) aiding and abetting the offense of advising, encouraging, or assisting another in committing suicide; (3) interfering with a body or death scene; and (4) aiding and abetting the offense of interfering with a body or death scene; and charging Massey with (1) advising, encouraging, or assisting another in committing suicide; (2) aiding and abetting the offense of advising, encouraging, or assisting another in committing suicide; and (3) aiding and abetting the offense of interfering with a body or death scene.[1]

Massey, Egbert, and FEN moved to dismiss the charges of advising, encouraging, or assisting another in committing suicide, arguing that the parts of the statute that criminalize advising and encouraging are facially overbroad in violation of the First Amendment, and that the evidence presented to the grand jury did not establish probable cause to support the charges. The district court granted the motions in part, holding that the prohibition on advising is unconstitutionally overbroad but that the prohibition on encouraging is not because it can be narrowly construed to impose a necessary restriction only on speech meant to induce another to commit suicide. The district court further concluded that the evidence presented to the grand jury established a reasonable probability that Egbert's conduct fell within the constitutional parameters of Minn. Stat. § 609.215 and denied Egbert's and FEN's motions to dismiss for lack of probable cause. The district court also held the evidence established a reasonable probability that Massey aided and abetted Egbert (and Dincin) in that conduct, and denied her motion to dismiss as to the aiding-and-abetting charge but dismissed the charge of advising, encouraging, or assisting another in committing suicide.

The state filed these pretrial appeals challenging the district court's ruling on the "advises" part of the statute. We consolidated the three appeals. Egbert, Massey, and FEN (collectively, respondents) filed a notice of related appeal challenging the district court's ruling with respect to the "encourages" part of the statute and the district court's ...


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