County District Court File No. 19HA CR-12-1718
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)
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
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.
district court's jury instructions on assisting another
in taking the other's life were not unconstitutionally
overbroad under the First Amendment because the instructions
followed the language of the Minnesota Supreme Court's
decision in State v. Melchert-Dinkel, 844 N.W.2d 13
TRACY M., Judge
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.
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.
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. 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
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.
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.
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. 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,  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.
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.
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.
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.
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 ...