(The author was the long-time FEN general counsel, who now continues to represent FEN in litigation and oversee legal aspects of FEN’s Supplementary Advance Directive for Dementia Care [SADD] program. – Jay Niver, editor)
Final Exit Network and Exit Guides Edmund (“Ted”) Ballou and Kevin T. Bradley filed a 41-page legal brief on August 23 urging a federal judge to prohibit Minnesota from violating the First Amendment free-speech rights of the organization’s front-line volunteers.
Exit Guides visit with clients who want to know about self-deliverance because they suffer from an intractable, unbearable medical condition. The Exit Guides solely provide information, education, and emotional support. The Anoka County sheriff and prosecutor think FEN and its Exit Guides – and maybe even volunteer first responders and case coordinators – should be convicted of a crime for what they do.
This view is not applied anyplace else in the country. In most states, “assisting in a suicide” is illegal, but only if the perpetrator commits physical assistance in the “suicide,” which Exit Guides do not do. FEN is fighting ferociously in Minnesota because its one-of-a-kind state law strikes at the core of the mission of the Exit Guide program.
FEN is determined not to let the Minnesota courts’ version of justice metastasize to other jurisdictions. In a prior case, starting in 2012, FEN fought against the Minnesota law for almost seven years.
FEN and the Exit Guides Ballou and Bradley filed their lawsuit against the Anoka County sheriff, James Stuart, and the prosecutor (the “county attorney”), Tony Palumbo, on May 17 and amended their lawsuit on June 21. In July, the sheriff and county attorney filed a motion asking U.S. District Judge Nancy E. Brasel to toss out the lawsuit.
In plain terms, the state’s motion to dismiss the lawsuit says: The court should pre-empt this lawsuit in its earliest stages because FEN and its Exit Guides are wrong – there is no First Amendment-protected right to give people information about how to accomplish a peaceful, dignified deliverance from suffering. The state calls this “suicide,” no matter what the circumstances or reasons.
The 41-page legal brief FEN and the Exit Guides filed on August 23 implores the judge to rule that their speech is indeed First Amendment-protected. If FEN and the Exit Guides lose on the motion, they lose the whole case; if they win on the motion, they win only the right to proceed through discovery – and a trial to determine whether they ultimately win on the merits.
The state is authorized to file a “reply brief” by Monday, September 6, in support of its motion to dismiss the complaint. Judge Brasel is scheduled to hear in-person arguments at a hearing on November 17 in her courtroom in St. Paul. The hearing is open to the public, and FEN supporters are welcome to attend. After the hearing, Judge Brasel will take months to rule.
Interestingly, Judge Brasel presided over a federal lawsuit in the prior FEN litigation in Minnesota. In early 2019, she granted the state’s motion to dismiss the prior case. In dismissing the case, she ruled that the lawsuit was prohibited by two technical rules of federal jurisdiction, neither of which applies this time.
FEN’s attorneys do not believe her handling of the prior lawsuit gives any reason to be pessimistic about how she will rule in the Anoka County case. From what they have seen, they say she is very smart and open-minded, and works overtime to make correct decisions on the law without improper influences.
The current case originated on May 4, when Ballou and Bradley paid a visit to a prospective Exit Guide client in Columbia Heights, just north of Minneapolis. Ballou and Bradley had only made small talk for a few minutes when several Anoka County squad cars pulled up and deputies entered the home.
They announced that they had received a tipoff that an “assisted suicide” was about to take place. The fact is, Exit Guides visit clients all the time without any exit taking place, and the deputies did not know (and could not have known) what was about to happen. Nonetheless, the deputies seized Ballou’s backpack and Bradley’s travel bag before ordering them to leave.
Since then, the sheriff’s office has refused to return the bags and their contents, contending that they are evidence of a crime, though they don’t know or won’t say what the crime might be. There certainly was no “assistance” in a “suicide,” as the court brief says, “since there can be no assistance in a suicide without a suicide.”
If no one dies of suicide, no one can be charged with assisting in something that did not happen.
The Exit Guides seek an order from the court that Anoka County return the bags to Ballou and Bradley because they were seized illegally, without “probable cause” to believe they contained evidence of a crime. FEN and the Exit Guides also seek a definitive ruling (a “declaratory judgment”) that the Minnesota statute is applied illegally when it is applied to Exit Guides because the law is contrary to the First Amendment, and because it is “void for vagueness.”
Finally, FEN and the Exit Guides seek an injunction to prohibit Anoka County from charging FEN or the Exit Guides for anything that happened in the May 4 incident.
The Anoka County defendants’ Motion to Dismiss the FEN lawsuit basically says the Supreme Court of Minnesota’s decisions upholding the Minnesota law must be honored. FEN’s brief in opposition to the motion asserts, instead, that the federal district court is not bound by a ruling of the Minnesota Supreme Court interpreting the U.S. Constitution. FEN cites many federal court decisions as precedent in support of its position.
This is absolutely insane! I am a member of FEN and support what they and the Exit Guides do 100%. The word “suicide” shouldn’t even be used in these cases because what their clients seek is information on ending an intolerable life of suffering, pain and life altering circumstances due to a disease that will never be cured. Poor quality of life with no chance of ever regaining dignity, or be the person they once were. It’s not about someone being depressed or “down in the dumps”. That is suicide. I certainly hope these ridiculous charges are dropped.
As the American Association of Suicidology has recognized, “Suicide in the conventional sense often involves physical self-violence . . . that may cause painful death.” In contrast, the information, education, and emotional support offered by FEN provides a relatively simple, non-violent, peaceful, and painless form of death that a person with no hope of continuing to lead a meaningful, satisfactory, or pain-free life could face.
FEN makes it possible for individuals to die while still retaining a sense of self and personal dignity, before sedation for pain or the disease itself takes away the possibility of meaningful interaction with those loved ones around the individual, who either accept or agree with the individual’s decision. This is almost never the case with suicide.
Robert Rivas, thank you for your courageous and sometimes seemingly thankless work without proper recognition for its importance. Without your support over the years, I’m not sure where we’d be.
Thank you all for your hard work on these important freedoms. My late spouse was a client. Because of the litigation in MN, we traveled to another state for the important conversations about choice in dying. Although she died of natural causes related to her dementia, her journey was exceptionally easier because you shared an option and the knowledge necessary for that path. I am forever grateful.