Big Sky Blawg

Summary:
Because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

Discussion:
Baxter, four physicians, and Compassion & Choices brought an action in District Court challenging the constitutionality of the application of the Montana homicide statutes to physicians who provide aid in dying to terminally ill patients. 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. The District Court granted summary judgment in favor of Baxter 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. The State appealed.

The Montana Supreme Court affirmed the grant of summary judgment, but vacated the District Court’s ruling on the constitutional issues – instead finding a statutory basis for the ruling.

Justice Leaphart wrote the opinion for the majority, joined by Justices Cotter, Warner, and Morris. Justice Warner also filed a concurring opinion encouraging the legislature to examine the issue. Justice Nelson wrote a special concurrence in which he joined the majority’s reasoning regarding the statutory basis for the decision, but argued that the Montana constitution also protected physician aid in dying. Justice Rice dissented and was joined by Hon. Joe D. Hegel (the District Court judge sitting for Chief Justice McGrath who had been involved with the case prior to joining the Court).

Despite the District Court’s reliance on the constitution, SCOMONT declined to address the constitutionality of the issue and instead found adequate statutory grounds for its decision.

Because suicide is not a crime under Montana law, the only person who might be prosecuted is the physician who prescribes a lethal dose of medication. MCA § 45-2-211(1) establishes consent as a defense to homicide stating that the “consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” There are 4 statutory exceptions to this defense, codified at MCA § 45-2-211(2). Because the first 3 are fact based, the Court focused on the fourth exception: when the conduct or resulting harm is against public policy.

In State v. Makrill, 2008 MT 297, the only Montana case to address the public policy exception to consent, SCOMONT held that the consent of a victim is not a defense to the charge of aggravated assault. Mackrill, ¶ 33. However, in Baxter the Court clarified that the “against public policy” exception to consent applies to conduct that disrupts public peace and physically endangers others. In this case, the majority believes that “the act of a physician handing medicine to a terminally ill patient, and the patient’s subsequent peaceful and private act of taking the medicine, are not comparable to the violent, peace-breaching conduct that this Court and others have found to violate public policy.” Baxter, ¶ 21.

The Court went on to acknowledge that the “against public policy” exception is not limited to violent breaches of the peace, but held that nothing in Montana case law facts or analysis suggests that a patient’s private interaction with his physician, and subsequent decision regarding whether to take medication provided by a physician, violate public policy.

The majority next examined Montana statutes and review of the Montana Rights of the Terminally Ill Act and the homicide statute lead the Court to conclude that physician aid in dying is not against public policy.

A person commits the offense of deliberate homicide, under MCA § 45-5-102, if the person purposely or knowingly causes the death of another human being. Because the physician is only making the medication available, and not administering it, the statute does not apply and, therefore, does not signify public policy against physician aid in dying.

The Court also thoroughly examined the Montana Rights of the Terminally Ill Act and held that it confers on terminally ill patients a right to have their end of life wishes followed, even if it requires direct participation by a physician through withdrawing or withholding treatment. “Nothing in the statute indicates it is against public policy to honor those same wishes when the patient is conscious and able to vocalize and carry out the decision himself with self-administered medicine and no immediate or direct physician assistance.” Baxter, ¶ 30.

In sum, because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

In a separate issue, SCOMONT also overturned the District Court’s award of attorney’s fees to Baxter because the basis of the decision was no longer constitutional, meaning that the private attorney general doctrine was now inapplicable.

Fact Summary:

T&C  proposed to build six mini-stores each serving a different purpose (a pharmacy, a bakery, etc.) each under 5,000 square feet in size in order to meet the B-1 zoning requirements of the land which limits the size of buildings to 5,000 square feet.  Although the plan complied with the letter of the zoning regulations, and the office of the planning director planned on recommending approval, the city commission voted unanimously to reclaim T&C’s application.  Two months later the city commission voted 4-1 to deny the application, deciding that although each individual unit complied with the building size requirements, the overall aggregate impact of the proposal did not harmonize with the intent of the B-1 zone.

T&C  commenced this action, claiming a violation of its constitutional right to due process and making an equal protection claim.  The District Court granted summary judgement for the City, concluding that because the Zoning Ordinance granted the city commission broad authority and significant discretion in rendering its decision, T&C did not have a protected property interest in having its application granted.  T&C appealed, arguing the District Court relied on disputed facts to determine the Zoning Ordinance granted the city commission broad discretion and that the city commission acted arbitrarily and capriciously in reclaiming and denying its application. 

Issue 1: Did the Bozeman city commission violate T&C’s constitutional rights to substantive due process and equal protection of the law when it denied T&C’s application for approval of a site plan?

1.1 – Substantive Due Process Claim

 “Substantive due process primarily examines underlying substantive rights and remedies to determine whether restrictions are unreasonable or arbitrary when balanced against the purpose of a government body in enacting a statute, ordinance or regulation.” Town & Country, ¶ 17 (citing State v. Webb, 2005 MT 5, ¶ 21; State v. Egdorf, 2003 MT 264, ¶ 19).  “[T]he test of whether the government denied a party constitutional substantive due process concerns an examination of whether the government, by enacting a piece of legislation, acted in an unreasonable, arbitrary, or capricious fashion.” Town & Country, ¶ 17.  ”A constitutional due process analysis is applicable under the facts of this case because T&C does not allege Bozeman’s Zoning Ordinance is unconstitutional.”  Town & Country, ¶ 18.

1.2 – Equal Protection Claim

“To prevail on an equal protection challenge, the injured party must demonstrate that the law at isue discriminates by impermissibly classifying individuals or entities and treating them differently on the basis of that classification.” Town & Country, ¶ 19.  “T&C’s complaint challenges the city commission’s decision, rather than the Zoning Ordinance, and does not present a constitutional denial of equal protection claim.”  Town & Country, ¶ 20.

Issue 2: Was the Bozeman city commission’s decision to deny T&C’s application an abuse of discretion?

“We cannot conclude that the information relied on by the city commission to make its decision lacked foundation or that its decision was unreasonable.  The city commission addressed relevant criteria – vehicle and pedestrian traffic, parking wetlands, setbacks, and conformity with the neighborhood.  The city commission complied with its Zoning ordinance and gave reasons for its denial of T&C’s site plan.  The city commission did not abuse its discretion.”  Town & Country, ¶ 31.

Further, it was not an abuse of discretion for the city commission to reclaim T&C’s application because the Zoning Ordinance provides that it may make the final decision on an application–either on apeal from the planning director or after its own consideration.  Town & Country, ¶ 32.

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