*1 disparate it to no rational basis for this treat fairness that when forced some occurred lines, I property pay owners to for the new ment because none exists. believe changed “policy” property treatment of own but then later its this dissimilar street, project. ers on the same as well as the other middle of city, by dubious distinctions made es suggests give peti- majority that to and, therefore, tablishes the un process in Would tioners due this situation city’s constitutional nature of the actions government’s ability to “interfere with the beyond a reasonable doubt. efficiently provide utility services.” It is reasons, I important put perspective. this claim in For all of the above believe city- petitioners deprived talking What we are about here is a that the were of a le- project gitimate property they that con- interest such that public improvement wide particular petition- process just no on the are entitled to due com- ferred benefit addition, requires pensation. process ers. All that due is some I believe that the public hearing petitioners equal protection at which were sort of notice and denied preliminary plans Accordingly, be revealed under the law. I would re- would questions appeals public’s and the of who would verse the court of and reinstate the pay and how much would be answered. decision of the trial court.
Granted, procedure could slow down but, least, process project; POPOVICH, would Justice Chief open Efficiency every- and fair. is not (dissenting). case, thing. present majority’s In the join I the dissent of Justice decision, coming expense it at the does YETKA. fairness, over-emphasizes of fundamental WAHL, (dissenting). Justice efficiency. value of constitutional join I the dissent of YETKA. Justice (3) Equal Analysis Protection The fourteenth amendment to the United that, requires pur
States Constitution
poses regulation, governments of economic similarly persons
must treat situated alike
unless a rational basis exists for distin guishing them. See Little Earth Unit Tribes, County Hennepin, Inc. v. ed (Minn. 1986). Minnesota, Plaintiff, For rea STATE of by Judge forth sons set Schumacher his appeals, I dissent at the court of believe MERRILL, Sean Patrick Defendant. city that the had no rational basis for re some, all, quiring property but not owners No. C7-89-766. gaslines pressure to install their own Supreme Court of Minnesota. regulators. City See Smith v. Owaton na, (Minn.App.1989) 439 N.W.2d 43-44 Jan.
(Schumacher J., dissenting). I also believe projects
that this case does not involve six appeals,
as outlined court of id. at
41-42, city-wide project. but one More
over, trial, testified at Mr. Martin without pressure sys
explanation, that the old low replaced pressure
tem was with a new low
system along a section of Main Street petitioner
about two blocks from Smith’s eliminating
property, thus the additional regulator
expense pressure of a for those point
property majority owners. The can
guish between fetuses and viable embryos, nonviable fetuses and treating embryos fetuses *3 persons? vague-
2. Are void for [said statutes] ness? 13, 1988,
On
Gail
November
Anderson
gunshot
allegedly
died from
wounds
inflict-
by
autopsy
ed
the defendant. An
revealed
pregnant
Ms.
was
with
Anderson
a 27- or
28-day-old embryo.
coroner’s
office
concluded
there
no abnormality
was
which would have
a miscarriage,
caused
and that death of the embryo resulted from
the death of Ms.
At
stage
Anderson.
this
of development, 28-day-old embryo
is 4-
long and,
to 5-millimeters
through the um-
Lund, Patterson, Restovich,
Kevin A.
cord, completely dependent
bilical
on its
Ltd.,
Offices,
Lund Law
Asst. Olmsted
embryo
mother. The Anderson
was not
Defender, Rochester,
County Public
for de-
Up
eighth
viable.
to the
of develop-
week
fendant.
ment,
appears
it
that an “unborn child” is
III,
Gen.,
Humphrey,
Atty.
Hubert H.
St.
as an embryo;
referred to
thereafter it is
Paul,
Raymond
Schmitz,
and
F.
Olmsted
called a fetus. The evidence indicates that
Atty.,
County
Rochester,
plaintiff.
for
medical
generally
science
considers a fetus
following
viable at 28
conception
weeks
although
young
some fetuses as
as 20 or
have
weeks
survived. The record is
SIMONETT, Justice.
unclear
in
case
either
whether
Ms.
Anderson or defendant Merrill knew she
Defendant has been indicted for first-
pregnant
was
at the time she was assault-
and
second-degree murder
of Gail
ed.
Anderson and also for first- and second-de-
gree
of
murder
her “unborn child.” The
Defendant was
indicted for
death of
trial court denied defendant’s motion to Anderson’s “unborn child” under two stat-
charges relating
dismiss the
to the unborn
entitled, respectively,
utes
“Murder of an
appellate
child but certified for
review two
Degree”
Unborn
in the
Child
First
questions:
an
“Murder of
Unborn Child
the Second
1. Do
Degree.”2
statutes,
Minn.Stat.
These
by
two
enacted
§§
.2662(1)(1988)
1986,
legislature
unborn child
precisely
follow
[the
homicide
statutes,
violate the
language
four-
of our
except
murder
statutes]
teenth
amendment
the United that “unborn child” is substituted for “hu-
States
interpreted
Constitution as
being”
“person.”
man
See footnote
Supreme
the United States
Court in
term
“unborn child” is defined
infra.
as “the unborn
Wade,
by failing
Roe
offspring
distin-
a human being
(1988), provides
1.
part:
(1988), provides
§
Minn.Stat.
609.2661
part:
§
Minn.Stat.
609.2662
any
following
Whoever does
guilty
following
Whoever does either
of murder of an
guilty
unborn child in murder of
first
an unborn child in the
degree
imprison-
degree
and must be
sentenced to
second
sentenced
to im-
ment
life:
prisonment
years:
for not more than 40
(1)
(1)
causes the
death of
unborn child
causes the death
an unborn
child
premeditation
with
and with intent to effect
with
to effect
intent
the death of that unborn
another;
another,
premeditation;
death
unborn child or of
child or
but without
conceived,
I.
yet born.” Minn.Stat.
but not
609.266(a) (1988).
§
Defendant first contends that the unborn
Equal
violate the
child homicide statutes
legislative approach to a fetal homi-
This
premises
Protection Clause. Defendant
his
most unusual and raises
cide statute is
Wade,
argument
on Roe v.
U.S.
questions certified to us. Of
constitutional
(1973),which,
fully the constitutional
of a
correctly,
If we understand defendant
he
very heavy
challenger bears the
burden
the
classification, by
claiming
statutory
the
is
beyond
demonstrating
a reasonable
distinguishing
not
between viable
non-
is unconstitutional.
doubt that the statute
fetuses, exposes him to conviction as
viable
Lexington, 309
E.g., Wegan Village
v.
during
of an unborn child
the
a murderer
273,
(Minn.1981);
v.
N.W.2d
279
Contos
pregnancy, while others
first trimester of
732,
(Minn.1979),
Herbst,
N.W.2d
736
278
fe-
intentionally destroy a nonviable
who
nom.,
v.
appeal dismissed sub
Prest
tus,
legal
who obtains a
such as a woman
24,
Herbst,
804,
444
100
62
U.S.
S.Ct.
it,
performs
the doctor who
abortion and
Second,
17
there are no
L.Ed.2d
words, defen-
murderers.
In other
are not
in this state. Minneso
common-lawcrimes
stat-
the unborn child homicide
dant claims
state,” i.e.,
legislature
the
has
ta is a “code
penal conse-
expose him to serious
utes
by
province to define
statute
exclusive
intentionally ter-
quences, while others who
a crime.
what acts constitute
embryo are not
fetus or
minate a nonviable
Soto,
625,
(Minn.1985).
627
378 N.W.2d
short,
criminal sanctions.
de-
subject to
And, third,
judiciary
limit
the role of the
similarly
persons
claims
situated
fendant
deciding
is constitu
ed to
whether
statute
dissimilarly.
are treated
tional,
prudent
it is wise or
not whether
6, 14, 65,
disagree. The situations are
We
legislation. AFSCME Councils
assaults a
defendant who
Sundquist,
338 not similar. The
96 AFL-CIO v.
the
(Minn.1983).
causing the death of
pregnant
not
woman
We do
vote,
destroys the fetus
carrying
legislators with a veto
but as
fetus she is
sit as
This is
the woman.
legislation, without the consent of
judges deciding whether the
constitutional,
who elects to
the same as the woman
is so.
not
presumably
judge
court,
punishment.
trial
did
also raised issues
and unusual
In the trial
defendant
certify
process
to us.
relating
cruel
not
those issues
to substantive due
pregnancy
protecting
have her
one le-
The state’s
terminated
interest
gally
perform
to
act. In
authorized
“potentiality
pro
of human life” includes
abortion,
case of
choice and
child,
woman’s
tection of the unborn
whether an
actions are
the wom-
doctor’s
based on
fetus,
or a
embryo
nonviable or viable
right
constitutionally protected
pri-
án’s
too,
protects,
it
the woman’s interest in her
vacy.
right encompasses
This
the woman’s
right
child and her
unborn
decide wheth
decision whether to terminate or continue
er it shall be carried in
interest
útero. /"The
pregnancy
without interference from
in terminating
of a
assailant
state,
least until
at
such time
pregnancy
outweigh
woman’s
does
important
protecting
state’s
interest in
right
pregnancy.
woman’s
to continue the
potentiality of human
predominates
context,
viability
In this
of the fetus is
privacy,
usually
over
right
which
equal protection
“simply immaterial” to an
Wade,
viability.
Roe v.
U.S. at
challenge to the feticide statute. Smith v.
protects
S.Ct. at 731. Roe v.
Wade
Newsome,
(11th
815 F.2d
Cir.
choice;
right
pro-
woman’s
it does
1987).
tect,
assailant,
less
much
confer on an
We conclude that sections
*5
destroy
third-party
right
unilateral
to
the
and
do
violate
not
the Four-
fetus.
failing
distinguish
teenth Amendment
to
out,
points
the
As defendant
United
a
between
viable and a nonviable fetus.
Supreme
States
Court
that
has said
an
“personhood”
unborn child lacks
and is not
II.
person
a
purposes
for
of the Fourteenth
issue,
Wade,
more
Amendment. Roe v.
410 U.S. at
A
difficult
the trial court
158,
noted,
93
at 729. The
S.Ct.
focus
that
is whether the
child
unborn
criminal
case, however,
protecting
was on
the wom
vague
statutes are so
as to violate the Due
an
governmental
from
interference or com
Clause of
Process
the Fourteenth Amend-
pulsion
she
deciding
when
was
whether to ment. Defendant
the
claims
statutes are
pregnancy.
terminate or continue her
unconstitutionally vague
they
because
fail
right Roe
be
v. Wade can
under
give
warning
prohibited
“[T]he
to
fair
of the
con-
only by considering
stood
the wom
both
encourage
they
duct and because
an’s
and
the
interest
the nature of
State’s
discriminatory
and
enforcement.
Roe,
with it.”
interference
Maher v.
432
A state
statute
criminal
is void
473,
464,
2382,
2376,
U.S.
97 S.Ct.
53
vagueness if
it fails to define the crimi
(1977). Significantly,
L.Ed.2d 484
the Roe
nal
“with
offense
sufficient definiteness
v. Wade court also
the
noted that
state
ordinary people
can understand what
important
legitimate
“has still another
prohibited
in a
conduct
manner that
protecting
interest
potentiality
the
encourage arbitrary
does
discrimi
Wade,
162,
human life.” Roe v.
410
atU.S.
natory enforcement.” Kolender v. Law
93
(emphasis
original).
S.Ct. at 731
352,
son,
357,
1855, 1858,
U.S.
461
103 S.Ct.
Even
directly impact
laws which
on abor
(1983).
imposing
A. because harm to mother and the harm to the fetus are not the same. We stat- Defendant first contends think, however, substantially .the harm is warning potential fair to a give utes fail to The possibility similar. that a female homi- argues it is violator. Defendant unfair age may childbearing cide victim of impose on the murderer of woman pregnant is possibility that an assaulter un- penalty additional for murder her conclude, safely exclude. We when neither the assailant nor born child therefore, provide req- that the statutes pregnant may have been aware woman warning. uisite fair pregnancy. rule warning The fair has never liability understood to excuse criminal
been
B.
simply
victim
because
defendant’s
next
Defendant
contends that the
proves not to be
victim
defendant
fatally
child
are
unborn
criminal statutes
generally
had mind. Homicide statutes
vague
they
because
do not define the
provide
person
guilty
that a
first- or phrase
“causes
death of an unborn
upon proof
murder
that the
second-degree
result,
argues,
child.” As
defendant
person
of a
with
offender caused
death
permit arbitrary
statutes invite or
and dis
person
of that
intent to cause
death
criminatory
See, e.g.,
enforcement.
See,
Sutherlin, 396
e.g.,
another.
State v.
499, 501-02,
Peterfeso,
Minn.
(Minn.1986).
N.W.2d
Because the
particular
offender
not intend to kill
did
argues
Defendant
statute
leaves
victim, indeed, may not even have been
*6
or,
occurs,
for
uncertain when “death”
that
presence,
aware of that victim’s
does not
matter,
begins. People
when “life”
will
not
mean that the offender did
have fair
begins
conception
on
differ whether
warning
criminally
that he would be held
People may
viability.
or at
differ on
the same as if the victim had
accountable
is the
whether death
cessation
brain
the
intended. W. LaFave & A.
been
victim
(an
present in
activity
activity not
an em-
Scott,
on
Handbook
Criminal Law
bryo)
functioning
or the
cessation
cir-
culatory system.
problem, says
defen-
case,
In this
the indictments
dant,
criteria,
statutory
is that absent
charge
for
de
defendant
first
second
juries
provide
judges and
will
their own
an
child
gree murder of
unborn
under sec
differ, leaving
definitions which will
609.2662(1)
tion
and section
to
statutes vulnerable
dis-
causing
death of an unborn child with
argument,
criminatory
This
enforcement.
“intent to effect
death
the unborn
think,
prove
attempts to
too much.
we
another,
Stephanie
child
to-wit: Gail
put
Anderson,
Ordinarily,
necessary
to
background
an adult female.”4
Some
In
applies
proper perspective.
in its
the doctrine of transferred intent
issue
court,
being
Soto,
in
when the intent
transferred is for the
Apparently response Soto, in legis- lature has enacted criminal statutes to cov- argue Defendant wishes to causing er doing, feticide. In very so it has enacted living the death of a embryo or nonviable unusual go beyond statutes which tradi- fetus the mother’s womb should not be feticide, tional in expanding both the defini- made a argument, crime. This is an how- tion of a severity fetus and in the ever, that must be legisla- addressed to the penalty imposed. question The statutes in ture. judicial Our role branch is impose penalty the criminal for murder on solely limited legislature to whether the whoever causes the death of “the unborn has defined a crime within constitutional offspring being conceived, of a human but Indeed, parameters. case, in this our role yet born.” is further answering limited to only the specific questions two certified to us for a might
Whatever one think of the wisdom ruling. questions We answer legislation, of this both no. notwithstanding the involved, difficulty proof we do not think questions Certified answered. it can be said the offense vaguely de- fined. An embryo or nonviable when fetus KELLEY, J., part, concurs in it is within the mother’s womb is “the part. dissents in offspring unborn of a human being.” De- KEITH, JJ., WAHL and dissent. however, argues, fendant that to cause the KELLEY, (concurring part, Justice embryo, death of an embryo must first dissenting part): living; if life, death is the termination of something which is not alive experi- cannot *7 I concur in majority opinion the that short, ence death. In argues defendant Minn.Stat. (1988) and .2662 §§ causing that the death 27-day-old of a do not Equal violate the Protection Clause embryo perplexing raises the question of of the United States Constitution. Like- when begins, “life” question as well as the wise, I concur in the conclusion that the of when “death” occurs. two statutes on their face are not void as violative of the Due Process Clause. difficulty The argument, with this Therefore, join I Part I and Part II A of the however, is that the statutes do not raise opinion. However, Court’s I because con- the issue of when life as a person human clude that the unborn child criminal stat- begins or ends. The state prove only must fatally utes are vague invite, so as to or implanted embryo the or the fetus in permit, arbitrary discriminatory en- the living, mother’s womb was that it had forcement, I they would hold unconstitu- life, and that it has life longer. no To have tionally infringe upon the Due Process life, as that term commonly understood, is Clause, and, accordingly, would reverse. means to property have the living of all Pennsylvania, See Giaccio v. 382 U.S. things grow, to to become. It is not neces 402-03, 518, 520-21, 86 S.Ct. 15 L.Ed.2d sary prove, to nor require, does the statute (1966); v. Peterfeso, 283 Minn. living organism that the in the womb in its 499, 501, 169 embryonic or fetal state be considered a person or being. a human People are free Each of the statutes under attack to differ profound or abstain on philo appeal employs phrase “causes the sophical questions and moral of whether an death of an appellant unborn child.” As embryo being, out, is a human or on whether or points neither statute defines the stage embryo what or phrase, fetus is en- particular- nor does either set out passionate convictions of guidance to a evoke the as to afford ized standards many of our citizens as does the issue of construing jury or for use a court begins. in a In view when “life” fetus of short, leave when both statutes phrase. debate,. stridency appears of it matter, occurs, or, when for that “death” conceivable, predictable, perhaps even Absent such “life” commences undefined. juries having two the same evidence could phrase definition, to me the it seems conclusions, factual arrive at same but child” an unborn is “causes the death of divergent strongly due to held beliefs which, by very its ambiguity burdened with legal By result. arrived at dissimilar nature, discriminatory invites us, way example, in the case one before it, result, I is that enforcement. see sharing a jury viewpoint common when necessity trial are left to wrestle courts life commences could find the defendant legal con- metaphysical, medical and with murder, fetal guilty of whereas another cepts to the commencement relative members share the view that life whose apply life to these cessation of in order 28-day-old to was nonexistent in a 26 em- prosecution. in a criminal statutes bryo, appellant. could exonerate ambiguous phraseology al- The statutes’ discriminatory enforce- likelihood of inevitably point at some dur- requires most ment further enhanced when the discre- involving ing proceeding tionary charging possessed by a function judge, in charge feticide that the trial grand jury is The decision to considered. them, to administer determine when order charge by only must be concurred in begins in rule on or to order to motions panel. majority of Minn.R.Crim.P. 18.- jury Without ade- structure instructions. Thus, charge or decision guidance, quate definitional standards for may pivot personal philo- on the well probable, in only possible, my it is not but majority sophical and moral tenets of a judges might opinion, that different resolve potential panel majority whose be- —a representative differently. A but the issue panel vary grand jury liefs from types listing nonexclusive of issues like- panel. grand jury prose- in the of a feticide ly to arise course count, By states which my include: Should death be defined as cution variously im- statutes have have feticide activity? Is there life cessation of brain causing liability posed criminal be de- activity? Should death before brain unborn fetus on whether death of an based fined as a cessation of function “quick.” Such the fetus “viable” so, circulatory system? If is there life likely pass are constitu- statutes more activity though even brain has before that they provide ob- tional muster because not com- been commenced? Does life point during the jectively ascertainable only when viability mence until and death *8 trigger will of the fetus which maturation thereafter? Does destroyed the fetus is appellant sug- has culpability. Counsel for conception life commence at the moment of upholding in gested that the interest embryo is there- and death occur when the we constitutionality statutes “read of the any The fact that after exterminated? requirement, viability into” them fetus and, perhaps, questions similar these other effect, pros- limit which, generally in would in the logically answered affirma- viability, fetal “death” after ecution for that, tive, think, I to illustrate ab- serves and, in this case would result specifically, criteria, present statutory statute sent II and IV the in the of Counts dismissal rulings permits judges freedom make opinion did not majority The indictment. according charge juries to their own and contention, and, I think directly discuss this predilections; juries and are free decide Generally, determination of properly so. prohibited is in each case— what conduct responsi- predicate for factual are, be, both results that could legisla- bility province of the is within the See, discriminatory. Peterfeso, e.g., ture, and in a strained not the courts and Minn, at 169 N.W.2d at judicial “construction.” Olson, topics 435 N.W.2d gainsaid Recently, few in It cannot be 1989), (Minn. to construe declined public debate and 530 we today compel as fierce “death,” appears word as it in the majority opinion, in answering this statute, “general” death, question, homicide solely as brain has focused on defendant’s equal protection development but instead left claim and finds no viola- appropriate tion of the legislature. definition to the Fourteenth Amendment on that “ * * * ground. doing, Assuming analysis In so the court’s we noted that where has properly equal addressed profound pro- the issue raised is of defendant’s human inter concerns, est, dictates, question tection prudence think, as certified we question to us also raises a legislature substantive given oppor should first be an process. due require- constitutional tunity legal to consider the implications of ment of process only due concerns mat- Id. brain death.” 535. For reasons procedure, ters of criminal but also limits similar expressed, to those therein I think “the manner and extent to which conduct proper defining forum for life’s onset may be defined as criminal in the substan- and its cessation in these feticide statutes tive Scott, criminal law.” W. LaFave & A. legislature. Criminal Law 20 at 136 (1972). By fail- § conclusion, In I would answer the second ing distinguish between viable fetuses question certified in the affirmative. and nonviable embryos, fetuses and sec- 609.2661(1) 609.2662(1) tions have run WAHL, (dissenting). Justice afoul of right the defendant’s to substan- court, The trial in the certifying order process. tive due the two issues appellate before us for re- charged Defendant with murder of an view, noted that “the Minnesota crimes unborn in degree child the first carrying a against unborn children represent statutes imprisonment, sentence of life Minn.Stat. sweeping legislative most attempt 609.2661(1), and murder of an § unborn country to criminalize actions of third child in the degree, carrying second a sen parties which harm embryos.” fetuses and imprisonment tence of for not more than 40 We are asked to determine whether two of years, 609.2662(1).1 Minn.Stat. These § those pass statutes constitutional muster. track, statutes respectively, language not, Because I conclude they do I and sentences of murder the first de respectfully dissent. I concur with the dis- gree, 609.185(1) (1988), Minn.Stat. § senting opinion of Kelley Justice in its con- murder degree, the second Minn.Stat. 209.2661(1)(Mur- clusion that Minn.Stat. §§ 609.19(1) (1988), exception. with one § der of Degree) Unborn Child in First 609.2661(1) both 609.2662(1), sections 209.2662(1) (1988) (Murder of Unborn Child actor, guilty to be of murder and to be drafted, Degree), Second violate the murder, sentenced for must cause the Due Process Clause of the Fourteenth death, being, not of a human but of an Amendment to the United States Constitu- unborn child. An unborn child is the un tion under the “void vagueness” doc- offspring conceived, born of a human being trine. I would also answer the first certi- yet but 609.266(a) born. Minn.Stat. § question fied in the affirmative. (1988). Thus an unborn child can be a question The first egg, certified asks: embryo, fertilized a nonviable fetus or a viable fetus. Do Minn.Stat. and 609.- §§ *9 2662(1) (1988) violate the fourteenth The regard law with to murder is clear. amendment of the United States Consti- killing Murder is the “unlawful of a human * * tution, n .” Black’s Law interpreted as by the United being by another Wade, Supreme States Roe v. Court in Dictionary (5th 1979). 918 ed. The term failing distinguish between fe- viable homicide, implies murder a felonious Pilch tuses and nonviable fetuses and embr- State, er v. 237, 238, Ala.App. 16 75, 77 So. yos, by treating and fetuses embryos (1917), and 76 wrongful which is the killing of a persons? Blackstone, being. human 4 W. Comment 609.2661(1) 609.2662(1) Scott, 1. Sections 2.2(d) are crim- 1 Substantive Criminal Law at § strictly inal statutes. Criminal statutes (1986). must be 108 construed in favor of the defendant. LaFave &
327
*
life,
depriving “any person
liberty,
fetus is not a
A nonviable
188-89.
aries
property,
process
due
of law.”
embryo a human
without
is an
being, nor
human
Life,
property
liberty and
are fundamental
a human be
being,
egg
nor
fertilized
is a
rights.
right
a
is in-
capability of
“When
fundamental
ing. None has attained
volved,
Smith,
jus-
process requires
due
a state to
People
life.
v.
independent human
756,
498,
tify any
affecting
right by
that
751,
Cal.Rptr.
action
dem-
Cal.App.3d
129
59
onstrating
compelling
a
state interest.”
(1976).
potentiality
has
Each
502
Memphis
Dept.,
F.2d
human life
v.
Police
710
potential
life.
In this
Garner
human
240,
Cir.1983),
(6th
legitimate
247
other
important and
on
has an
the state
affd
Garner,
nom. Tennessee v.
grounds
which becomes com
sub
interest —an interest
Wade,
1694,
1,
410
471
105 S.Ct.
teenth Amendment