Final Exit Network, Inc. v. Ellison, Case No. 18-cv-01025 (NEB/ECW)

370 F.Supp.3d 995

FINAL EXIT NETWORK, INC., Fran Schindler, and Janet Grossman, Plaintiffs,

v.Keith ELLISON, in his official capacity as the Attorney General of Minnesota, James C. Backstrom, in his official capacity as the Dakota County Attorney, and John L. Fossum, in his official capacity as the Rice County Attorney, Defendants.

Case No. 18-cv-01025 (NEB/ECW)

United States District Court, D. Minnesota.

Signed February 22, 2019

Paul C. Engh, Paul Engh, Minneapolis, MN, Robert Rivas, Sachs Sax Caplan, P.L., Tallahassee, FL, for Plaintiffs.

Jeffrey A. Timmerman, Dakota County Attorney's Office, Hastings, MN, Terence Swihart, Rice County Attorney's Office, Faribault, MN, Jason Marisam, Minnesota Attorney General's Office, St. Paul, MN, for Defendants.

John L. Fossum, Rice County Attorney, Faribault, MN, pro se.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Nancy E. Brasel, United States District Judge

Plaintiff Final Exit Network, Inc. ("FEN") provides information, education, and emotional support to people who are considering whether to terminate irremediable suffering by ending their lives. [ECF No. 59 ("2d Am. Compl."), at ¶ 10.] The individual plaintiffs Fran Schindler ("Schindler") and Janet Grossman ("Grossman") are volunteer "Exit Guides" for FEN. (Id. , ¶¶ 17–18.) The Plaintiffs seek a declaratory injunction against defendants Keith Ellison in his official capacity as the Minnesota Attorney General¹ ("Attorney General"), James C. Backstrom in his official capacity as the Dakota County Attorney ("Backstrom"), and John L. Fossum in his official capacity as the Rice County Attorney ("Fossum"), that Minnesota Statute § 609.215, subd. 1 is unconstitutional on its face "to the extent it ... makes a crime of First Amendment-protected speech in the absence of any physical assistance." (Id. , ¶ 2.)

This matter is before the Court on the Defendants' motions to dismiss. [ECF Nos. 22, 34, and 42.] Prior to the hearing on these motions, the Plaintiffs informed the Court that the parties agreed to strike portions of the Amended Complaint to correct a misstatement of fact. [ECF No. 56.] At the hearing on November 20, 2018, the parties agreed that the Plaintiffs would file the Second Amended Complaint, and that the arguments presented would apply to the yet-to-be-filed Second Amended Complaint. Thus, per the parties' agreement, this Order applies to the Second Amended Complaint filed on December 4, 2018 [ECF No. 59 (2d Am. Compl.) ]. See Cartier v. Wells Fargo Bank, N.A. , 547 Fed. App'x 800, 803–04 (8th Cir. 2013) (holding that the district court acted within its discretion to treat the motion to dismiss the original complaint as a motion to dismiss a later filed amended complaint where parties did not object). For the reasons that follow, the Defendants' motions to dismiss are granted.

BACKGROUND

Minn. Stat. § 609.215, subd. 1 provides that that "[w]hoever intentionally advises, encourages, or assists another in taking the other's own life" may be sentenced to imprisonment, or to payment of a fine, or both. Minn. Stat. § 609.215, subd. 1.

In the Second Amended Complaint, the Plaintiffs describe the action as a "preenforcement challenge to the facial constitutionality of Minn. Stat. § 609.215, subd. 1... under the First Amendment to the United States Constitution." (2d Am. Compl., ¶ 1.) Though this action is a preenforcement action, two state court criminal cases have arisen from enforcement of the challenged statute, and explanation of those cases is necessary for a full understanding of the arguments made by the parties in this federal case. First is State v. Melchert-Dinkel , 844 N.W.2d 13 (Minn. 2014), in which the Minnesota Supreme Court struck down portions of the statute under the First Amendment, but left portions of it intact. Second is State v. Final Exit Network, Inc. , 889 N.W.2d 296, 302 (Minn. Ct. App. 2016), in which the Minnesota Court of Appeals considered FEN's constitutional challenge to certain remaining portions of the statute and followed the Melchert-Dinkel precedent.

State v. Melchert-Dinkel . In 2011, the Rice County Attorney successfully prosecuted William Melchert-Dinkel for violating the challenged statute. Melchert-Dinkel , 844 N.W.2d at 17–18. Posing as a depressed and suicidal young female nurse, Melchert-Dinkel responded to posts on suicide websites, feigning caring and understanding to win the trust of victims while encouraging them to hang themselves, while also attempting to persuade them to allow him to watch the hangings via webcam. Id. at 16. Melchert-Dinkel was tried in the Rice County District Court and convicted on two counts of aiding suicide under Minn. Stat. § 609.215, subd. 1. Id. at 17. The district court specifically found that Melchert-Dinkel " ‘intentionally advised and encouraged ’ [two victims] to take their own lives, concluding that the speech at issue fell outside the protections of the First Amendment." Id. at 17–18 (emphasis in original). On appeal, Melchert-Dinkel argued that the challenged statute violates the First Amendment on its face, and the Minnesota Court of Appeals held that the statute prohibits speech that is unprotected by the First Amendment. Id. at 18 (citing State v. Melchert-Dinkel , 816 N.W.2d 703, 714 (Minn. Ct. App. 2012) ). The Minnesota Supreme Court upheld the "assists" portion of the statute, even if "assists" consists only of speech. See Id. at 22–23. In upholding the "assists" prohibition as constitutional, the Minnesota Supreme Court interpreted "assists" to include "speech or conduct that provides another person with what is needed for the person to commit suicide." Id. at 23. The Court explained, "[t]his signifies a level of involvement in the suicide beyond merely expressing a moral viewpoint or providing general comfort or support. Rather, ‘assist,’ by its plain meaning, involves enabling the person to commit suicide." Id. "While enablement perhaps most obviously occurs in the context of physical assistance, speech alone may also enable a person to commit suicide. Here, we need only note that speech instructing another on suicide methods falls within the ambit of constitutional limitations on speech that assists another in committing suicide." Id.

Prohibiting only speech that assists suicide, combined with the statutory limitation that such enablement must be targeted at a specific individual, narrows the reach to only the most direct, causal links between speech and the suicide. We thus conclude that the proscription against "assist[ing]" another in taking the other's own life is narrowly drawn to serve the State's compelling interest in preserving human life. We therefore reject Melchert-Dinkel's argument that the statutory prohibition against assisting another in committing suicide facially violates the First Amendment.

Id.

The Minnesota Supreme Court then analyzed the prohibition against "advis[ing]" and "encourag[ing]" another to commit suicide. Id. at 23–24. Concluding that "[u]nlike the definition of ‘assist,’ nothing in the definitions of ‘advise’ or ‘encourage’ requires a direct, causal connection to a suicide," the Court determined that the terms do not survive strict scrutiny. Id. at 23–25. The Court thus severed and excised the portions of Minn. Stat. § 609.215 that pertain to advising or encouraging, but left intact the "assist[ing]" portions of the statute. Id.

State v. Final Exit Network, Inc. In 2015, the Dakota County Attorney successfully prosecuted FEN as an organization for violating the challenged statute ("FEN state action"). 889 N.W.2d at 302. There, a Final Exit "first responder" provided Final Exit members who wished to end their life with instructions on death by helium asphyxiation and the names and addresses of manufacturers who sell the hood used to commit suicide in that manner. Id. at 300. In the FEN state action, D.D., who suffered from chronic pain, applied for membership and requested "exit services" from FEN in January 2007. Id. D.D. was approved for exit services in February 2007, and a few months later, the Final Exit medical director and D.D.'s Exit Guide flew to Minneapolis and drove to D.D.'s home. Id. at 300-01. The necessary equipment for helium asphyxiation was in D.D.'s living room, and neither the medical director nor the guide touched the equipment. When she was ready, D.D. placed the hood on her head and turned the valves to the helium tank. Id. D.D. then died, the medical director checked her pulse to ensure she had died, and the medical director and Exit Guide removed the hood from D.D., left her home, and disposed of the equipment in a dumpster. Id. FEN was convicted of assisting another in taking the other's own life in violation of Minn. Stat. § 609.215, subd. 1. Id. at 302. After conviction, FEN appealed, raising both facial and as-applied First Amendment freedom-of-speech challenges to the statute. Id. The Minnesota Court of Appeals noted that the Minnesota Supreme Court in Melchert-Dinkel "interpreted the term ‘assists’ as ‘proscrib[ing] speech or conduct that provides another person with what is needed for the person to commit suicide’ or ‘enabl[ing] the person to commit suicide.’ " Id. at 302 (quoting Melchert-Dinkel , 844 N.W.2d at 23 ). The Court of Appeals determined that the "assists" provision in the statute is not facially unconstitutional under Melchert-Dinkel .

The Minnesota Supreme Court concluded in Melchert-Dinkel that the statute's "assists" prohibition is a content-based restriction and survives strict scrutiny under the First Amendment. 844 N.W.2d at 21–23. The court concluded that the government has a compelling interest in preserving human life and preventing suicide. Id. at 22 (citing Washington v. Glucksberg , 521 U.S. 702, 728–34 [117 S.Ct. 2258, 138 L.Ed.2d 772] (1997) ). The court further concluded that the statute is narrowly tailed to effectuate this compelling interest. By its reference to assisting "another," the statute only reaches "targeted speech aimed at a

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