Baxter v. State

224 P.3d 1211

2009 MT 449

354 Mont. 234

Robert BAXTER, Stephen Speckart, M.D., C. Paul Loehnen, M.D., Lar Autio, M.D., George Risi, Jr., M.D., and Compassion & Choices, Plaintiffs and Appellees, v. STATE of Montana and Steve Bullock, Defendants and Appellants.

No. DA 09-0051.

Supreme Court of Montana.

Argued September 2, 2009.

Submitted September 3, 2009.

Decided December 31, 2009.

Rehearing Denied March 3, 2010.

For Appellants: Hon. Steve Bullock, Montana Attorney General; Anthony Johnstone, Solicitor (argued); Jennifer Anders, Assistant Attorney General; Helena, Montana.

For Appellees: Mark S. Connell (argued); Connell Law Firm; Missoula, Montana, Kathryn L. Tucker; Compassion & Choices; Portland, Oregon.

For Amici Curiae: Lance Lovell; Law Offices of Lance Lovell; Billings, Montana, Paul Benjamin Linton; Special Counsel, Thomas More Society; Northbrook, Illinois, Thomas Brejcha; President & Chief Counsel, Thomas More Society (Physicians for Compassionate Care Education Foundation).

Nickolas C. Murnion; Nickolas C. Murnion Law Firm; Jordan, Montana, Rita L. Marker; Attorney at Law; Steubenville, Ohio (International Task Force on Euthanasia & Assisted Suicide, et al.).

Duane T. Schmidt, Attorney at Law; Alliance Defense Fund; Scottsdale, Arizona, Steven H. Aden, (of Counsel); Matthew S. Bowman (of Counsel); Alliance Defense Fund; Washington, District of Columbia (Family Research Council, et al.).

Patrick Flaherty, Attorney at Law; Great Falls, Montana, Daniel Avila; Attorney at Law; Everett, Massachusetts (Institute for the Study of Disability & Bioethics, et al.).

Jon Metropoulos; Gough, Shanahan, Johnson, & Waterman, PLLP; Helena, Montana, Mailee R. Smith; Attorney at Law; Chicago, Illinois (Coalition of 28 Bipartisan Montana Legislators).

Margaret K. Dore; Law Offices of Margaret K. Dore, PS; Seattle, Washington; (Supporting the Appellants).

Donald Ford Jones; Hohenlole, Jones, PLLP; Helena, Montana, Stephen F. Gold; Attorney at Law; Philadelphia, Pennsylvania (Disability Amici Curiae—Not Dead Yet, ADAPT, Disability Rights Education and Defense Fund, et al.).

William P. Driscoll; Franz & Driscoll, PLLP; Helena, Montana, Maxon R. Davis; Davis Hatley Haffeman & Tighe, P.C.; Great Falls, Montana; (Montana Catholic Conference).

Timothy C. Fox; Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana; Jeffrey J. Davidson; Wilmer, Cutler, Pickering Hale & Dorr LLP; Washington, District of Columbia; (Christian Medical Association).

Thomas A. Dooling, Beth Brenneman; Staff Attorneys, Disability Rights Montana; Helena, Montana, Andrée Larose; Reynolds, Motl and Sherwood, PLLP; Helena, Montana (Disability Rights Montana).

Peter Michael Meloy; Meloy Law Firm; Helena, Montana, Miles J. Zaremski; Zaremski Law Group; Northbrook, Illinois (American College of Legal Medicine in Support of Plaintiffs-Appellees).

Scott A. Fisk; Crowley Fleck PLLP; Helena, Montana, Robert A. Free, Katherine C. Chamberlain; MacDonald Hoague & Bayless; Seattle, Washington (Surviving Family Members in Support of Aid in Dying in Support of Plaintiffs-Appellees).

Elizabeth L. Griffing; ACLU of Montana Foundation; Missoula, Montana (ACLU of Montana as Amicus Curiae in Support of Plaintiffs-Appellees).

Byron W. Boggs; Attorney at Law; Missoula, Montana, David J. Burman, Kanika Chander; Perkins Coie LLP; Seattle, Washington, Jeremy L. Buxbaum; Perkins Coie LLP; Chicago, Illinois (Montana Legislators in Support of Privacy and Dignity in Support of Plaintiffs/Appellees).

James G. Hunt, William E. Hunt, Sr.; Dix, Hunt & McDonald; Helena, Montana (Religious Amici Curiae on Behalf of Baxter).

Scott A. Fisk; Crowley Fleck PLLP; Helena, Montana, Nicholas W. van Aelstyn; Beveridge & Diamond, P.C.; San Francisco, California (Legal Scholars Professors Larry M. Elison, Thomas P. Huff, and Erwin Chemerinsky et al.).

Lee A. Freeman; Jenner & Block LLP; Chicago, Illinois, Michelle A. Groman, Nicholas O. Stephanopoulos; Jenner & Block LLP; Washington, District of Columbia (Montana Bioethicists in Support of Plaintiffs-Appellees).

Michael G. Black; Black Law Office; Missoula, Montana, Norman H. Beamer, Aaron S. Jacobs; East Palo Alto, California (Montana Residents with Disabilities and Autonomy, Inc.).

Karen Boxx, Professor; Seattle, Washington, Vanessa Soriano Power; Stoel Rives LLP; Seattle, Washington (Legal Voice, et al.).

James H. Goetz; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana, Lesli A. Rawles; Covington & Burling LLP, San Diego, California (American Medical Women's Association, et al.).

Paul J. Lawrence; K & L Gates LLP; Seattle, Washington (Montana Human Rights Network, The Billings Association of Humanists, et al.).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The State of Montana appeals from the Order of the First Judicial District Court granting summary judgment in favor of Robert Baxter, Stephen Speckart, M.D., C. Paul Loehnen, M.D., Lar Autio, M.D., George Risi, Jr., M.D., and Compassion & Choices; and from the District Court's decision that a competent, terminally ill patient has a right to die with dignity under Article II, Sections 4 and 10 of the Montana Constitution, which includes protection of the patient's physician from prosecution under the homicide statutes. We affirm in part and reverse in part.

¶ 2 We rephrase the following issues on appeal:

¶ 3 I. Whether the District Court erred in its decision that competent, terminally ill patients have a constitutional right to die with dignity, which protects physicians who provide aid in dying from prosecution under the homicide statutes.

¶ 4 II. Whether Mr. Baxter is entitled to attorney fees.

BACKGROUND

¶ 5 This appeal originated with Robert Baxter, a retired truck driver from Billings who was terminally ill with lymphocytic leukemia with diffuse lymphadenopathy. At the time of the District Court's decision, Mr. Baxter was being treated with multiple rounds of chemotherapy, which typically become less effective over time. As a result of the disease and treatment, Mr. Baxter suffered from a variety of debilitating symptoms, including infections, chronic fatigue and weakness, anemia, night sweats, nausea, massively swollen glands, significant ongoing digestive problems and generalized pain and discomfort. The symptoms were expected to increase in frequency and intensity as the chemotherapy lost its effectiveness. There was no cure for Mr. Baxter's disease and no prospect of recovery. Mr. Baxter wanted the option of ingesting a lethal dose of medication prescribed by his physician and self-administered at the time of Mr. Baxter's own choosing.

¶ 6 Mr. Baxter, four physicians, and Compassion & Choices, brought an action in District Court challenging the constitutionality of the application of Montana homicide statutes to physicians who provide aid in dying to mentally competent, terminally ill patients. The complaint alleged that patients have a right to die with dignity under the Montana Constitution Article II, Sections 4 and 10, which address individual dignity and privacy.

¶ 7 In December 2008, the District Court issued its Order and Decision, holding that the Montana constitutional rights of individual privacy and human dignity, together, encompass the right of a competent, terminally ill patient to die with dignity. The District Court held that a patient may use the assistance of his physician to obtain a prescription for a lethal dose of medication. The patient would then decide whether to self-administer the dose and cause his own death. The District Court further held that the patient's right to die with dignity includes protection of the patient's physician from prosecution under the State's homicide statutes. Lastly, the District Court awarded Mr. Baxter attorney fees. The State appeals.

STANDARDS OF REVIEW

¶ 8 We review an order granting summary judgment de novo using the same standards applied by the District Court under M.R. Civ. P. 56. Bud-Kal v. City of Kalispell, 2009 MT 93, ¶ 15, 350 Mont. 25, 30, 204 P.3d 738, 743. Where there is a cross-motion for summary judgment, we review a district court's decision to determine whether its conclusions were correct. Bud-Kal, ¶ 15. We review an award of attorney fees for abuse of discretion. Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, ¶ 15, 315 Mont. 210, 216, 69 P.3d 663, 667.

DISCUSSION

¶ 9 The parties in this appeal focus their arguments on the question of whether a right to die with dignity—including physician aid in dying—exists under the privacy and dignity provisions of the Montana Constitution. The District Court held that a competent, terminally ill patient has a right to die with dignity under Article II, Sections 4 and 10 of the Montana Constitution. Sections 4 and 10 address individual dignity and the right to privacy, respectively. The District Court further held that the right to die with dignity includes protecting the patient's physician from prosecution under Montana homicide statutes. The District Court concluded that Montana homicide laws are unconstitutional as applied to a physician who aids a competent, terminally ill patient in dying.

¶ 10 While we recognize the extensive briefing by the parties and amici on the constitutional issues, this Court is guided by the judicial principle that we should decline to rule on the constitutionality of a legislative act if we are able to decide the case without reaching constitutional questions. State v. Adkins, 2009 MT 71, ¶ 12, 349 Mont. 444, 447, 204 P.3d 1, 5; Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 62, 338 Mont. 259, 279, 165 P.3d 1079, 1093. Since both parties have recognized the possibility of a consent defense to a homicide charge under § 45-2-211(1), MCA, we focus our analysis on whether the issues presented can be resolved at the statutory, rather than the constitutional, level.

¶ 11 We start with the proposition that suicide is not a crime under Montana law. In the aid in dying...