224 P.3d 1211 (Mont. 2009)
Robert Baxter, a retired truck driver from Billings who was terminally ill with lymphocytic leukemia with diffuse lymphadenopathy, joined four physicians and Compassion & Choices in bringing 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.1 At the time of the District Court’s decision, Baxter was being treated with multiple rounds of chemotherapy, which typically become less effective over time, and as a result of the disease and treatment he 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, with no cure for his disease and no prospect of recovery.2 Baxter wanted the option of ingesting a lethal dose of medication prescribed by his physician and self-administered at the time of his own choosing.3
The complaint alleged that patients have a right to die with dignity under Article II, Sections 4 and 10 of the Montana Constitution, which address individual dignity and privacy.4 In December 2008, the District Court issued its Order and Decision holding that the Montana constitutional rights of individual privacy and human dignity encompass the right of a competent, terminally ill patient to die with dignity by obtaining a prescription for a lethal dose of medication from his physician, and the court awarded attorney fees to Baxter.5
The State appealed from the District Court’s order granting summary judgment and from the decision that a competent, terminally ill patient has a right to die with dignity under the Montana Constitution.6
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?7
A court should decline to rule on the constitutionality of a legislative act if the case can be decided without reaching constitutional questions, as established in State v. Adkins and Sunburst School District No. 2 v. Texaco, Inc.8
Yes. The Montana Supreme Court resolved the question of physician liability for aid in dying by examining the consent defense under § 45-2-211(1), MCA.9 Robert Baxter's complaint challenged the application of homicide statutes to physicians providing aid in dying.10 The court focused on the statutory consent provision after noting both parties recognized the possibility of a consent defense.
The first three exceptions to consent under § 45-2-211(2), MCA, require case-by-case factual determinations.11 The court left only the public policy exception under subsection (2)(d) for analysis.12 The court surveyed precedent such as State v. Mackrill and found no indication in Montana statutes, including the Rights of the Terminally Ill Act, that physician aid in dying is against public policy.13 Because the statutory analysis fully disposed of the homicide prosecution concern for physicians assisting patients like Baxter, the constitutional holding was unnecessary.
The District Court erred by reaching and deciding the constitutional question when a statutory resolution was available.14
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Justice Warner concurred in the result.15 He emphasized that the court correctly avoided the constitutional issue.16 No question brought before this Court is of greater delicacy than one that involves the power of the legislature to act.17
Warner joined the opinion because the legislature had not plainly stated that assisting a suicide is against public policy.18 The court must not add such a provision by judicial fiat under § 1-2-101, MCA.19 He observed that the logic of the opinion is not necessarily limited to physicians.20
Warner urged the legislature to squarely face the policy question.21
Justice Nelson specially concurred in the statutory analysis but would have affirmed the District Court's constitutional ruling as well.22 He agreed that the consent statute provides a defense and that there is no indication physician aid in dying is against public policy.23 Nelson separately concluded that the practice is protected by the Montana Constitution as a matter of privacy under Article II, Section 10, and individual dignity under Article II, Section 4.24
He explained that the Dignity Clause is a stand-alone fundamental right that broadly prohibits government acts infringing the intrinsic worth of persons.25 Nelson argued that forcing a mentally competent, incurably ill person to endure prolonged suffering against his will violates the inviolable right of dignity.26
Whether consent to physician aid in dying is against public policy under § 45-2-211(2)(d), MCA, so that a terminally ill patient's consent does not constitute a defense to homicide charges against the aiding physician?27
Consent is ineffective as a defense to homicide if it is against public policy to permit the conduct or resulting harm, even though consented to, but Montana law contains no indication that physician aid in dying for mentally competent, terminally ill adult patients violates public policy.28
No. The consent statute shields physicians from homicide liability when they provide aid in dying to terminally ill, mentally competent adult patients who consent.29 The court examined State v. Mackrill and analogous cases from other jurisdictions and determined that the public policy exception applies to violent, public altercations that breach the peace and endanger others.30 The homicide statute applies only to causing the death of another, and suicide itself is not criminalized in Montana.31 The Rights of the Terminally Ill Act, §§ 50-9-101 to -206, MCA, expressly immunizes physicians for following patient directions to withhold or withdraw life-sustaining treatment.32
Nothing in the Act suggests that lesser physician involvement, consisting of making medication available for the patient's self-administration, is against public policy.33 Therefore, under the facts of Robert Baxter's case, where he sought a prescription for self-administration at a time of his choosing, consent constitutes a valid defense.34
Consent to physician aid in dying is not against public policy, and the District Court's grant of summary judgment is affirmed on these statutory grounds.35
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Joined by Hon. Joe L. Hegel
Justice Rice dissented, arguing that the court badly misinterpreted Montana's public policy.36 He maintained that assisting suicide has been explicitly prohibited for 114 years.37 The 1973 Criminal Law Commission Comments to § 45-5-105, MCA, establish that when the patient dies the act is prosecuted as homicide.38
Consent or solicitations of the victim provide no defense.39 Rice contended that the Rights of the Terminally Ill Act permits only withholding or withdrawing life-prolonging treatment.40 The constitutional convention rejected proposals to include a right to die.41
He concluded that the court's distinction between the patient surviving or dying creates an untenable result.42
Whether Mr. Baxter is entitled to attorney fees?43
Attorney fees may be awarded under the private attorney general doctrine only when constitutional interests are vindicated, and fees as further relief under § 27-8-313, MCA, are appropriate only if equitable considerations support the award.44
No. The District Court erred in awarding attorney fees to Robert Baxter.45 The private attorney general doctrine requires vindication of constitutional interests, but the Montana Supreme Court's holding rested solely on statutory grounds under the consent defense. Without constitutional vindication, fees under that doctrine are unwarranted. Equitable considerations under § 27-8-313, MCA, also do not support an award because Baxter was joined by other plaintiffs, including four physicians and Compassion & Choices.46
The relief granted is not incomplete or inequitable without requiring Montana taxpayers to pay the fees, as held in United National Insurance Co. v. St. Paul Fire & Marine Insurance Co.47
Mr. Baxter is not entitled to attorney fees, and the District Court's award is reversed.48