Petition for Writ of Certiorari — Minnesota v. McKown

o "yILED '™

@le Se 2 FILED

NOV 21 1991

IN THE

Supreme Court of the Gnited States

October Term, 1991

STATE OF MINNESOTA,

Petitioner,

vs.

KATHLEEN RITA MCKOWN,

and WILLIAM LISLE MCKOWN,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

HUBERT H. HUMPHREY III

Minnesota Attorney General

102 State Capitol

St. Paul, MN 55155

MICHAEL O. FREEMAN

Hennepin County Attorney

J. MICHAEL RICHARDSON

Assistant Hennepin County

Attorney

Attorney of Record

Hennepin County Attorney’s

Office

A-2000 Government Center

Minneapolis, MN 55487

Phone: (612) 348-5988

Attorneys for Petitioner

—S

724-7651 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 —

224-7631

QUESTIONS PRESENTED

1. An eleven-year-old child’s Christian Science parents

(mother and step-father) treat the child, who develops dia-

betes, with prayer rather than conventional medical care, and

the child dies. Atter being indicted for Manslaughter, the

Hennepin County District Court dismisses the indictments

based upon the prayer exemption in the child neglect statute’s

applying to the manslaughter statute. The Minnesota Court

of Appeals affirms the dismissal holding that, although the

statutes are not in pari materia, due process is violated by

their “interplay.” The Minnesota Supreme Court affirms on

September 20, 1991, holding that the statutes are not in pari

materia but, based upon federal standards, due process (fair

notice) rights of the parents would be violated by prosecut-

ing them for manslaughter. Did the Minnesota Supreme Court

misinterpret federal standards of due process in so holding?

2. Did the Minnesota Supreme Court’s affirmance of the

dismissal of the indictments have the practical effect of allow-

ing the parents’ practice of religion to supersede the child’s

right to life?

TABLE OF CONTENTS

Page

Questions Presented ...__.—s—i............ 7 i

Table of Authorities... ........ partes hoe case iv

PS iane esd / Sen cia: itn, aes peed ort 1

ND oa vg vGia vida eke ped. vo eae 1

Statement of Jurisdictional Grounds 2

Constitutional Provisions 2

Statutory Provisions ig etd tone 3

Statement of the Case 4

Reasons for Granting the Writ 7

I. The Minnesota Supreme Court has misinterpreted

Federal standards of due process so as to prevent

prosecution of parents for the death of their child

where the parents utilized prayer rather than con-

ventional medical care to treat the child’s diabetes . 7

A. Tie decision in McKown has misinterpreted

federal standards of due process __. 7

B. The decision of the Minnesota Supreme Court

is contra to that of every other state appellate

court which has considered this issue _ . 11

II. The Minnesota Supreme Court’s decision, which

upheld the dismissal of manslaughter indictments,

has the practical effect of allowing parents’ prac-

tice of religion to supersede a child’s right to life . 13

Conclusion ef fee:

il

APPENDIX INDEX

Appendix A. Opinion and Judgment of the

Minnesota Supreme Court

Appendix B: Opinion of the

Minnesota Court of Appeals

Appendix C: Order and Memorandum of the

Hennepin County District Court

iii

Page

TABLE OF AUTHORITIES

Cases:

Cox v. Louisiana,

379 U.S. 559 (1965) ._..

Craig v. State,

144 A.2d 684, 690 (Md. Ct. App. 1959)

Haley v. Ohio,

332 U.S. 596 (1948)

Hall v. State,

493 N.E.2d 433 (Ind. 1986)

Hermanson v. State, 570 So. 2d 322

(Fla. Dist. Ct. App. 1990)

In Re Gault,

387 U.S. 1 (1967) |

In Re Winship,

379 U.S. 358 (1970)

Prince v. Massachusetts,

321 U.S. 158 (1944)

Raley v. Ohio,

360 U.S. 423 (1959)

United States v. Colon-Ortiz,

866 F.2d 6 (1st Cir. 1989) ,

Walker v. Superior Court, 253 Cal. Rptr. 1,

Page

7,9

15

14

13, 15

11, 12, 15

14

763 P.2d 852 (Cal. 1988), reh’g denied, (Cal. 1989),

cert. denied, 109 S.Ct. 3186 (1989)

Wisconsin v. Yoder,

406 U.S. 205 (1972)

Commonwealth v. Barnhart,

497 A.2d 616 (Pa. Super. 1985)

Constitutional Provisions:

U.S. Const. amend. XIV

9,10, 11, 12, 15

14

15

Stautory Provisions:

28 U.S.C. §1257(a) (1989)

Minn. Stat. §609.205 (1988)

Minn. Stat. §609.378 (1988)

IN THE

Supreme Court of the Cuited States

October Term, 1991

No. 91-

STATE OF MINNESOTA,

Petitioner,

vs.

KATHLEEN RITA MCKOWN,

and WILLIAM LISLE MCKOWN,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPKEME COURT

The Hennepin County Attorney, on behalf of the State of

Minnesota, respectfully petitions for a writ of certiorari to

review the judgment of the Minnesota Supreme Court entered

in this proceeding on September 20, 1991.

OPINIONS BELOW

The slip opinion of the Minnesota Supreme Court is repro-

duced and attached to this Petition as Appendix A. The slip

opinion of the Minnesota Court of Appeals is reproduced as

Appendix B. The opinion of the Hennepi~ County District

Court, reproduced and attached to this Petition as Appendix

C, is unreported.

2

STATEMENT OF

JURISDICTIONAL GROUNDS

The judgment of the Minnesota Supreme Court was entered

on September 20, 1991. This petition for a writ of certiorari

was filed within ninety days of the Minnesota Supreme Court’s

decision.

The j:risdiction of this Court is invoked under 28 U.S.C.

§1257(a) (1989).

CONSTITUTIONAL PROVISIONS

The Due Process Clause of the Fourteenth Amendment to

the United States Constitution:

“TN]or shall any State deprive any person of life, liberty,

or property, without due process of law...”

3

STATUTORY PROVISIONS

Minnesota Statute §609.378 (1988) :

(a) A parent, legal guardian, or caretaker who willfully

deprives a child of necessary food, clothing, shelter, health

care, or supervision appropriate to the child’s age, when the

parent, guardian, or caretaker is reasonably able to make the

necessary provisions and which deprivation substantially

harms the child’s physical or emotional health, * * * is guilty

of neglect of a child and may be sentenced to imprisonment

for not more than one year or to payment of a fine of not

more than $3,000, or both.

* a *

If a parent, guardian, or caretaker responsible for the

child’s care in good faith selects and depends upon spiritual

means or prayer for treatment or care of disease or re-

medial care of the child, this treatment shall constitute “health

care” as used in clause (a).

Minnesota Statute §609.205 (1988) :

[A] person who causes the death of another by any of the

following means is guilty of manslaughter in the second de-

gree and may be sentenced to imprisonment for not more than

seven years or to payment of a fine of not more than $14,000,

or both:

(1) by the person’s culpable negligence whereby the

person creates an unreasonable risk, and consciously takes

chances of causing death or great bodily harm to another

* * *

4

STATEMENT OF THE CASE

On May 9, 1989, 11-year-old Ian Lundman died at his

home in Independence, Minnesota. Ian’s death was ap-

parently caused by diabetic ketoacidosis, a complication

of diabetes mellitus. Ian was occasionally ill in the weeks

preceding his death and became seriously ill two or three

days before he died.

Kathleen McKown, Ian’s mother, and William McKown,

Ian’s step-father, are Christian Scientists. In accord with

their religious beliefs, Ian was treated with Christian

Science spiritual healing methods throughout his final

illness. He did not receive conventional medical care at

any time during that illness.

In late September and early October, 1989, the Henne-

pin County Attorney presented evidence related to Ian

Lundman’s illness and death to the Hennepin County

Grand Jury. The grand jurors heard testimony from

medical doctors indicating that Ian’s diabetes was ap-

parently treatable through conventional medicine and

that his condition probably could have been stabilized

as late as two hours before he died. The jurors also

heard testimony regarding the nature and practice of

Christian Science healing, and regarding the specific

healing methods used in treating lan Lundman.

a ” a”

The McKowns moved the District Court for the Fourth

Judicial District, the Honorable Eugene J. Farrell pre-

siding, to dismiss the indictments against them for lack

of probable cause, because the indictments violated due

process of law and their rights to freely exercise their

religious beliefs, and because the grand jury was improp-

erly instructed with respect to the McKown’s duty. of

5

care. The district court dismissed the indictments. 't

concluded that the child neglect statute and the second

degree manslaughter statute were in pari materia, such

that the spiritual treatment and prayer exception to the

child neglect statute also operated as a defense to the

charge of second degree manslaughter. The court de-

termined that the McKown’s rights had been prejudiced

because the grand jury was not instructed as to the

effect of the spiritual healing and prayer exception. It

also concluded that the indictments violated due process

of law in that the child neglect statute informed in-

dividuals that they might rely on spiritual healing and

prayer without violating that statute, but did not state

that doing so might expose them to other criminal

charges if the treatment failed.

On appeal by the state, the court of appeals concluded

that while the child neglect and second degree man-

slaughter statutes were not in pari materia, the trial

court was correct to dismiss the indictments as viola-

tions of due process. The court reasoned that the child

neglect statute did not provide fair notice of potential

liability under other criminal statutes, that it permitted

arbitrary enforcement, that the McKowns may well have

relied on the spiritual treatment and prayer exception to

the child neglect statute in determining the course of

their son’s treatment, and that the state had not clearly

enough defined when reliance on spiritual healing be-

came criminal conduct.

The state appealed to this court for reinstatement of

the indictments charging respondents with second degree

manslaughter. It contends that the court of appeals was

correct in concluding that the spiritual healing and prayer

6

exception to the child neglect statute does not apply to

the second degree manslaughter statute because the two

provisions are not in pari materia. It argues that both

the trial court and the court of appeals were incorrect,

however, in concluding that the indictments violate due

process of law.

State v. McKown, —— N.W.2d —— (Minn. filed September

20, 1991), slip op. at 2-4.

The Minnesota Supreme Court, on September 20, 1991, af-

firmed, holding that the statutes are not in pari materia but,

in applying federal standards, due process (fair notice)

rights of the parents were violated by the manslaughter indict-

ments. The State has filed its Petition for Certiorari.

7

REASONS FOR GRANTING THE WRIT

I. THE MINNESOTA SUPREME COURT HAS MISINTER-

PRETED FEDERAL STANDARDS OF DUE PROCESS

SO AS TO PREVENT PROSECUTION OF PARENTS FOR

THE DEATH OF THEIR CHILD WHERE THE PARENTS

UTILIZED PRAYER RATHER THAN CONVENTIONAL

MEDICAL CARE TO TREAT THE CHILD’S DIABETES.

The Minnesota Supreme Court, in affirming the Court of

Appeals, held that the statutes are not in pari materia,

McKown, slip op. at 5-8, and that “nothing in the language

of either provision suggests they are so closely related as to

require that they be interpreted in light of one another, and

neither contains an explicit mandate to construe them to-

gether.” McKown, slip op. at 6. The supreme court further

held, however, that in interpreting federal standards of due

process, the existence of both statutes results in a due process

(fair notice) violation of Respondent’s rights. This holding a)

results from a serious misinterpretation of federal standards

of due process and b) is contra to that of every other state

appellate court which has considered this issue.

A. The decision in McKown has misinterpreted federal

standards of due process.

In its holding, the Minnesota Supreme Court relied upon two

decisions of this Court, Cox v. Louisiana, 379 U.S. 559 (1965)

and Raley v. Ohio, 360 U.S. 423 (1959) which could not be

more inapposite. In Coz, public officials personally and spe-

cifically gave the defendant permission to demonstrate across

the street from a courthouse and then arrested him for doing

so. Cox, 379 U.S. at 569-71. This Court noted:

8

Thus, the highest police officials of the city, in the

presence of the Sheriff and Mayor, in effect told the

demonstrators that they could meet where they did, 101

feet from the courthouse steps, but could not meet closer

to the courthouse. In effect, appellant was advised that

a demonstration at the place it was held would not be

one “near” the courthgyse within the terms of [violating]

the statute. wa

Id. at 571. Because of this permission, [Defendant] therefore

was still justified in his continued belief that because of the

original official grant of permission he had a right to stay

where he was for the few additional minutes required to con-

clude the meeting.” Jd. at 572.

This Court, citing Raley supra, held that:

[A]fter the public officials acted as they did, to sustain

appellant’s later conviction for demonstrating where they

told him he could ‘would be to sanction an indefensible

sort of entrapment by the State—convicting a citizen for

exercising a privilege which the State had clearly told

him was available to him.’

Id. at 571.

In Raley, defendants were convicted “for refusal to answer

certain questions put to them at sessions of the ‘Un-American

Activities Commission’ of the State of Ohio.” Raley, 360 U.S.

at 424. However, “the defendants were apprised by the com-

mission at the time they were testifying that they had a right

to refuse to answer questions which might incriminate them

...- Id. at 426. Indeed,

the Chairman of the Commission, who clearly appeared

to be the agent of the State in a position to give such

assurances, apprised three of the appellants that the

9

privilege in fact existed, and by his behavior toward the

fourth obviously gave the same impression. Other mem-

bers of the Commission and its counsel made statements

which were totally inconsistent with any belief in the

applicability of the immunity statute, and it is fair to

characterize the whole conduct of the inquiry as to the

four as identical with what it would have been if Ohio

had had no immunity statute at all.

Id. at 437-38. This Court reversed the conviction because “here

there were more than commands simply vague or even con-

tradictory. There was actual misleading.” Jd. at 438.

The case at bar, with its absence of personal advice to Re-

spondents, is neither Cox nor Raley; and it is certainly not

United States v. Colon-Ortiz, 866 F.2d 6 (1st Cir. 1989), the

remaining federal case relied upon by the Minnesota Supreme

Court in McKown. In Colon-Ortiz a sentencing statute (Sec-

tion 841(b)(1)(B)) contained one provision which allowed a

court to consider either prison or a fine, with a sub-paragraph

of the same statute stating that a prison term was mandatory.

The first circuit simply held that “This lack of clarity on

the face of Section 841(b)(1)(B) constitutes a notice defi-

ciency and raises serious due process concerns.” Colon-Ortiz,

866 F.2d at 9 (emphasis added). Here, of course, there are

two distinct statutes which the court in McKown had already

held do not have to be interpreted “in light of each other.”

In contrast to this reliance on inapplicable case law, other

state courts have correctly relied on federal standards of due

process to reject the very reasoning used by the Minnesota

Supreme Court. For example, in Walker v. Superior Court,

253 Cal. Rptr. 1, 763 P.2d 852 (Cal. 1988), reh’g denied, (Cal.

1989), cert. denied, 109 S.Ct. 3186 (1985), the California

10

Supreme Court, after holding that its similar “prayer excep-

tion” did not apply to its manslaughter statute, stated as

follows:

Defendant contends .. . that the statutory scheme vio-

lates her right to fair notice . . .[and] argues in essence

that the statutes issue “inexplicably contradictory com-

mands” (Raley v. Ohio (1959) 360 U.S. 423, 438, 79 S.Ct.

1257, 1266, 3 L.Ed.2d 1344) and thus violate due process

by precluding “an ordinary person [from] intelligently

choos[ing], in advance, what course it is lawful for him

to pursue.” [Connally v. General Construction Co. (1926)

269 U.S. 385, 393, 46 S.Ct. 126, 128, 70 L.Ed. 322).

Walker, 763 P.2d at 872, and that the felony statutes

provide no notice of the point at which lawful prayer

treatment becomes unlawful, thus requiring her “at peril

of life, liberty or property to speculate as to the meaning

of penal statutes.” (Lanzetta v. New Jersey, supra, 306

U.S. at p.453, 59 S.Ct. at p.619). She frames her argu-

ment in the form of a rhetorical question: “Is it lawful

for a parent to rely solely on treatment by spiritual means

through prayer for the care of his/her ill child during

the first few days of sickness but not for the fourth or

fifth day?”

Id. at 871-72. The Walker court rejected this due process and

notice argument holding:

Justice Holmes correctly answers: “[T]he law is full of

instances were a man’s fate depends on his estimating

rightly, that is, as the jury subsequently estimates it,

some matter of degree ... ‘An act causing death may

be murder, manslaughter, or misadventure according to

the degree of danger attending it’ by common experience

11

in the circumstances known to the actor.” (Nash v.

United States (1913) 229 U.S. 373, 377, 33 S.Ct. 780,

781, 57 L.Ed. 1232; see also Coates v. City of Cincinnati

(1971) 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d

214). The “matter of degree” that persons relying on

prayer treatment must estimate rightly is the point at

which their course of conduct becomes criminally negli-

gent. In terms of notice, due process requires no more.

(Burg v. Municipal Court, supra, 35 Cal.3d at p.270, 198

Cal. Rptr. 145, 673 P.2d 732).

Id. at 872 (emphasis added).

Unlike holdings such as that of the California Supreme

Court in Walker, the Minnesota Supreme Court has seriously

misinterpreted federal standards of due process in upholding

the dismissal of the indictments in the instant case.

B. The decision of the Minnesota Supreme Court is contra

to that of every other state appellate court which has

considered this issue.

The decision of the California Supreme Court in Walker,

supra is not the only decision to reject the “due process

rationale” which the court in McKown based its decision upon.

In the recent case of Hermanson v. State, 570 So. 2d 322 (Fla.

Dist. Ct. App. 1990), the facts were similar to those in the

case at bar:

Wiiliam and Christine Hermanson seek reversal of

their convictions for felony child abuse and third degree

murder in the death of their seven-year-old daughter,

Amy. Amy died after a lingering illness of juvenile dia-

betes. During her illness, in lieu of conventional medical

treatment, the Hermansons, who are members of the

12

First Church of Christ, Scientist, in Sarasota, provided

Amy with a course of spiritual treatment with the as-

sistance of two Christian Science practitioners.

Hermanson, 570 So. 2d at 324. After holding that Florida’s

“spiritual treatment proviso” does not create an exemption

from prosecution for “felony child abuse, third degree murder,

or manslaughter” Jd. at 331,' the court addressed defendant’s

contention that:

a parent who relies on spiritual rather than medical

treatment will never know beforehand when the line is

crossed where they should stop relying on spiritual treat-

ment alone and seek medical intervention. This contention

forms the basis of their claim that their due process

rights have been violated because the statutes containing

the term “culpable negligence” do not give them sufficient

notice of what behavior constitutes a criminal act and

when that behavior occurs.

Id. at 332. The court in Hermanson held:

This argument has been satisfactorily answered for us

by a statement by Justice Oliver Wendell Holmes as cited

and amplified in Walker v. Superior Court, the case which

recently construed California statutes similar to our own

[quotation supra from Walker omitted] .... Similar to

the court in Walker, we conclude that sections 827.04 and

782.07 comply with the requirements of due process.

Id. (emphasis added).

10Qn rehearing, the question of whether the spiritual treatment

proviso is a defense to a felony child abuse prosecution was

certified by the Court of Appeals to the Florida Supreme Court.

13

See also Hall v. State, 493 N.E.2d 433 (Ind. 1986) wherein

the Indiana Supreme Court (after holding that “reckless

homicide does not have a statutory defense excusing respon-

sibility for a death,” and “[p]rayer is not permitted as a de-

fense when a caretaker engages in omissive conduct which re-

sults in the child’s death” Id. at 435) failed to discern any due

process issue in the “interplay” between the statutes, and

specifically rejected the defendant’s contention that “their

‘reckless’ conduct was brought within the realm of acceptable

standards of conduct by this exercise of prayer in lieu of

medical care” Id.

The decision in the case at bar thus stands as an anomaly:

a decision which has misinterpreted federal standards of due

process; and which, alone among the courts which have con-

sidered this issue, has ruled in such a way that defendants,

indicted for manslaughter in the death of a child, will never

have to stand trial for a fact finder to determine whether

they are guilty.

Il, THE MINNESOTA SUPREME COURT’S DECISION,

WHICH UPHELD THE DISMISSAL OF MANSLAUG-

TER INDICTMENTS, HAS THE PRACTICAL EFFECT

OF ALLOWING PARENTS’ PRACTICE OF RELIGION

TO SUPERSEDE A CHILD’S RIGHT TO LIFE.

Minn. Stat. §609.205 (1988) reads:

[a] person who causes the death of another by any of

the following means is guilty of manslaughter in the

second degree and may be sentenced to imprisonment for

not more than seven years or to payment of a fine of not

more than $14,000, or both:

(1) by the person’s culpable negligence whereby the

person creates an unreasonable risk, and consciously

14

takes chances of causing death or great bodily harm to

another * * *.

It is undisputed that a child is a person. “[C]hildren are

‘persons’ within the meaning of the Bill of Rights. We have so

held over and over again.” Wisconsin v. Yoder, 406 U.S. 205,

243 (1972) (dissenting opinion by Douglas J.) citing inter

alia Haley v. Ohio, 332 U.S. 596 (1948) ; In Re Gault, 387 U.S.

1 (1967) ; In Re Winship, 379 U.S. 358 (1970).

It has also been undisputed (until the instant case), that

parents’ religious beliefs must give way when serious harm

to a child would result from their exercise. This Court stated

in Prince v. Massachusetts, 321 U.S. 158 (1944):

The parent’s conflict with the state over control of the

child and his training is serious enough when only secular

matters are concerned. It becomes the more so when an

element of religious conviction enters. Against these

sacred private interests, basic in a democracy, stand the

interests of society to protect the welfare of children,

and the state’s assertion of authority to that end, made

here in a manner conceded valid if only secular things

were involved. The last is no mere corporate concern of

official authority. It is the interest of youth itself, and

of the whole community, that children be both safe-

guarded from abuses and given opportunities for growth

into free and independent well-developed men and

citizens.

Id. at 165 and concluded: ‘‘The right to practice religion freely

does not include liberty to expose the community or the child

..- to ill health or death.” Jd. at 166-67.

In Wisconsin v. Yoder, 406 U.S. 205 (1972) where Amish

parents’ religious beliefs dictated that their children not be

15

educated formally beyond the eighth grade, it was precisely

because of the lack of harm to the Amish children that this

Court allowed the parental religious beliefs to contravene the

State’s compulsory school attendance law of age 16. As this

Court stated:

This case, of course, is not one in which any harm to

the physical or mental health of the child or to the public

safety, peace, order, or welfare has been demonstrated

or may be properly inferred.

Id. at 230 (emphasis added).

State appellate courts are in accord. In addition to Walker,

Hermanson, and Hall, supra, see e.g., Craig v. State, 144 A.2d

684, 690 (Md. Ct. App. 1959) :

In prosecutions for the breach of a duty imposed by

statute to furnish necessary medical aid to a minor child,

the particular religious belief of the person charged with

the offense constitutes no defense. He cannot, under the

guise of religions conviction, disobey the laws of the land

made for the protection of the health and safety of

society. It has been said that statutes such as we just

mentioned make it the duty of those charged with the

care of a child to furnish medical aid to the child, regard-

less of their religious belief, as such statutes are directed

at the acts and not the beliefs of individuals.

See also Commonwealth v. Barnhart, 497 A.2d 616, 624

(Pa. Super. 1985):

Although his life hung in the balance, Justin Barnhart

here had no voice in his parents’ decision to rely on

religious rather than medical help. Precisely because a

child of two years and seven months cannot speak on his

own behalf, the State has charged the parents with the

16

affirmative duty of providing medical care to protect

that child’s life. Faced with a condition which threatened

their child’s life, the parents had no choice but to seek

medical help.

However, the decision in the case at bar (which essentially

states that the child neglect statute and manslaughter statutes

are not to be interpreted together, but maybe the McKowns

interpreted them that way)? has the practical effect of elevat-

ing the religious beliefs of parents over a child’s right to life.

It has this effect, contrary to case law from this Court which

specifically holds that a child’s right to life and freedom from

harm must outweigh the parents’ religious beliefs if they

conflict.

In affirming the dismissal of the indictments, the Minne-

sota Supreme Court has effectively undercut the power of the

State to attempt to bring to trial those who may have breached

their duty “‘to not expose a child to ill health or death.” Prince,

supra.

Petitioner requests that this Court grant the Petition for

Certiorari and reverse the decision of the Minnesota Supreme

Court.

2A holding which the dissent correctiy described as “[t]his novel

proposition, that conduct which complies with the requirements

of one statute complies with all other statutes absent notification

to the contrary, is in my opinion nothing more than the rejected

in pari materia argument garbed in the cioak of due process.”

McKown, slip op. at D-1 (dissenting opinion by Coyne, J.).

17

CONCLUSION

For the reasons discussed above, the State of Minnesota

respectfully requests that the petition for a writ of certiorari

to review the judgment of the Minnesota Supreme Court be

granted.

Respectfully submitted,

HUBERT H. HUMPHREY, III

Minnesota Attorney General

102 State Capitol

St. Paul, MN 55155

MICHAEL O. FREEMAN

Hennepin County Attorney

J. MICHAEL RICHARDSON

Assistant Hennepin County

Attorney

Attorney of Record

Hennepin County Attorney’s

Office

A-2000 Government Center

Minneapolis, MN 55487

Phone: (612) 348-5988

Attorneys for Petitioner

November 18, 1991

G

A-l

APPENDIX

APPENDIX A

STATE OF MINNESOTA

SUPREME COURT

CX-90-766

C1-90-767

Court of Appeals

Tomljanovich, J.

Dissenting, Coyne & Simonett, JJ.

Took No Part, Gardebring, J.

State of Minnesota, petitioner,

Appellant,

vs.

Kathleen Rita McKown, (CX-90-766)

Respondent,

William Lisle McKown, (C1-90-767)

Respondent,

Mario Victor Tosto,

Defendant.

Filed: September 20, 1991

Office of Appellate Courts

SYLLABUS

Indictment charging respondents with second degree man-

slaughter must be dismissed because the state officially ad-

vised respondents they would be permitted to rely on spiritual

A-2

treatment and prayer in the care of their child without suffi-

cient notice that should those methods fail, they might face

criminal charges.

Court of appeals affirmed and indictments dismissed.

Heard, considered, and decided by the court enbanc.

OPINION

TOMLJANOVICH, Justice.

On May 9, 1989, 11-year-old lan Lundman died at his home

in Independence, Minnesota.' lan’s death was apparently

caused by diabetic ketoacidosis, a complication of diabetes

mellitus. lan was occasionally ill in the weeks preceding his

death and became seriously ill two or three days before he

died.

Kathleen McKown, Ian’s mother, and William McKown,

Ian’s step-father, are Christian Scientists. In accord with

their religious beliefs, lan was treated with Christian Science

spiritual healing methods throughout his final illness. He did

not receive conventional medical care at any time during that

illness.

In late September and early October, 1989, the Hennepin

County Attorney presented evidence related to lan Lundman’s

illness and death to the Hennepin County Grand Jury. The

grand jurors heard testimony from medical doctors indicating

that Ian’s diabetes was apparently treatable through conven-

tional medicine and that »is condition probably could have

been stabilized as late as two hours before he died. The jurors

also heard testimony regarding the nature and practice of

1The facts upon which the appealed indictments are based and

upon which the district court dismissed those indictments are

drawn from testimony delivered before a Hennepin County Grand

Jury.

A-3

Christian Science healing, and regarding the specific healing

methods used in treating Ian Lundman.

Following this testimony, the county attorney instructed

the grand jury as to the definition of second degree man-

slaughter.* Having heard this instruction, two of the jurors

asked, “Can you explain child neglect at all. Is there any sort

of * * * statute that would apply?” The county attorney replied,

“Well, I can read you the statute. There’s a criminal, it’s Min-

nesota Statute 609.378 * * *.” He then read the entire child

neglect statute aloud to the jurors, and asked, “Did that

answer your question, ma’am?” The juror who posed the

question responded, “Mm-hmm.”* After deliberating, the

* The county attorney relied primarily on the established jury in-

struction for second degree manslaughter, sce 10 Minn. Dist.

Judges Ass'n, Minnesota Practice, CRIMJIG 11.24 (3d ed. 1990), in-

cluding the instructions defining “cuipable negligence,” and “reck-

lessness.”

%The child neglect provision read to the jurors is found at Minn.

Stat. § 609.378 (1988):

(a) A parent, legal guardian, or caretaker who wilfully de-

prives a child of necessary food, clothing, shelter, health care,

or supervision appropriate to the child’s age, when the parent,

guardian, or caretaker is reasonably able to make the necessary

provisions and which deprivation substantially harms the child’s

physical or emotional heaith, * * * is guilty of neglect of a child

and may be sentenced to imprisonment for not more than one

year or to payment of a fine of not more than $3,000, or both.

” ” a

if a parent, guardian, or caretaker responsible for the child's

care in good faith selects and depends upon spiritual means or

prayer for treatment or care of disease or remedial care of the

child, this treatment shal! constitute “health care’ as used in

clause (a).

Id.

A-4

grand jury returned indictments charging both Kathleen and

William McKown with second degree manslaughter. *

The McKowns moved the District Court for the Fourth

Judicial District, the Honorable Eugene J. Farrell presiding,

to dismiss the indictments against them for lack of probable

cause, because the indictments violated due process of law

and their rights to freely exercise their religious beliefs, and

because the grand jury was improperly instructed with respect

to the McKowns’ duty of care. The district court dismissed

the indictments. It concluded that the child neglect statute and

the second degree manslaughter statute were in pari materia,

such that the spiritual treatment and prayer exception to the

child neglect statute also operated as a defense to the charge

of second degree manslaughter. The court determined that the

McKown’s rights had been prejudiced because the grand jury

was not instructed as to the effect of the spiritual healing and

prayer exception. It also concluded that the indictments vio-

lated due process of law in that the child neglect statute in-

formed individuals that they might rely on spiritual healing

and prayer without violating that statute, but did not state

that doing so might expose them to other criminal charges if

the treatment failed.

On appeal by the state, the court of appeals concluded that

while the child neglect and second degree mansiaughter stat-

4 Minn. Stat. § 609.205 (1988) reads:

[a] person who causes the death of another by any of the

following means is guilty of manslaughter in the second degree

and may be sentenced to imprisonment for not more than seven

years or to payment of a fine of not more than $14,000, or both:

(1) by the person’s culpable negligence whereby the person

creates an unreasonable risk, and consciously takes chances of

causing death or great bodily harm to another * * *.

Id.

A-5

utes were not in pari materia, the trial court was correct to

dismiss the indictments as violations of due process. The

court reasoned that the child neglect statute did not provide

fair notice of potential liability under other criminal statutes,

that it permitted arbitrary enforcement, that the McKowns

may well have relied on the spiritual treatment and prayer

exception to the child neglect statute in determining the course

of their son’s treatment, and that the state had not clearly

enough defined when reliance on spiritual healing became

criminal conduct.

The state appealed to this court for reinstatement of the

indictments charging respondents with second degree man-

slaughter. It contends that the court of appeals was correct

in concluding that the spiritual healing and prayer exception

to the child neglcct statute does not apply to the second degree

manslaughter statute because the two provisions are not in

pari materia. It argues that both the trial court and the court

of appeals were incorrect, however, in concluding that the

indictments violate due process of law.

The trial court concluded that the child neglect statute and

the second degree manslaughter statute are in pari materia,

requiring that they be interpreted in light of one another.

We disagree.

“Statutes ‘in pari materia’ are those relating to the same

person or thing or having a common purpose.” Apple Valley

Red-E-Miz, Inc. v. State, 352 N.W.2d 402, 404 (Minn. 1984).

Such statutes should be construed in light of one another. See

id.; Doe v. State Bd. of Medical Examiners, 435 N.W.2d 45, 49

(Minn. 1989). In Doe, this court held that Minn. Stat. § 13.41,

Subd. 4 (1986), governing all state licensing agencies, and

Minn. Stat. § 147.01, Subd. 4 (1986), which applied specifi-

cally to the State Board of Medical Examiners, were indeed in

A-6

part materia. The court therefore concluded that a general

phrase in section 147.01 could be read to incorporate a similar,

but more specific phrase in section 13.41. See id.®

Unlike the statutes at issue in Doe, the child neglect and

second degree manslaughter statutes are not in pari materia

and thus, the spiritual treatment and prayer exception to the

former cannot be imported into the latter. The child neglect

provision applies specifically to individuals with legal respon-

sibility for a child who willfully neglect that responsibility and

thereby cause the child substantial physical or emotional harm.

The statute defining second degree manslaughter, however,

permits the state to prosecute anyone who causes the death

of another by exposing that person to an unreasonable risk

of death or great bodily injury. The two statutes are therefore

clearly based on separate and distinct purposes. Further, noth-

ing in the language of either provision suggests they are so

closely related as to require they be interpreted in light of one

another, and neither contains an explicit mandate to construe

them together. See Apple Valley Red-E-Mix, 352 N.W.2d at

406 (that two statutes have different purposes and that

neither mentions the other is evidence that the two are not

in pari materia).

In State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946),

the appellant contended that a statute allowing the prosecu-

tion of an individual who took the life of another by operating

5 At issue in Doe was whether “final decision of the Board” as

used in section 147.01 should be read in concert with “fird ngs of

fact, conclusions of law and specification of the final disciplinary

action contained in the record of [a licens:ng agency disc'plinary

action]” as used in section 13.41. This court concluded that be-

cause the two provisions were founded on the same purpose—

regulation of licensing agency procedure—“final decision” in-

cluded find:ngs, conclusions and final d-sposition. See Doe, 435

N.W.2d at 49.

A-7

a vehicle in a “reckless or grossly negligent manner,” Minn.

Stat. § 169.11 (1941), was unconsiitutionally vague. This

court disagreed, relying in part on the definitions assigned to

“reckless” and “grossly negligent” in other contemporary

homicide statutes. See Bolsinger, 221 Minn. at 156, 21 N.W.2d

at 486. The court explained that this was appropriate because

[t]he statute in question and those relating to homicide

in force at the time of its enactment relate to one common

subject matter, that of homicide. As such, they should be

construed as constituting one systematic body [of] law.

Each statute should be construed in the light of, with

reference to, and in connection with the others. So con-

strued, the statute in question should be fitted to the

statutes in force at the time of its enactment and carried

into effect conformably to them.

Id. at 162, 21 N.W.2d at 486. Thus, the words “reckless” and

“grossly negligent” as used ir. section 169.11 carried the same

meaning as they did in other, then-existing homicide statutes.

Respondents here suggest a significantly different applica-

tion of the doctrine of in pari materia. First, they contend that

“culpable negligence” as used in the second degree manslaugh-

ter statute, adopted in 1963, should be defined in light of

“neglect of a child” as used in section 609.378, enacted by the

legislature in 1983. The statutory language at issue in Bol-

singer, however, was construed in light of identical language

in existing homicide provisions—the question was whether

“reckless” and “grossly negligent” meant the same thing in

the one statute as in the others. Second, respondents argue for

interpreting the earlier of two statutes in light of the later,

while in Bolsinger the court adopted precisely the opposite

approach, Finally, the court in Bolsinger noted several times

that the statute at issue and those considered in par materia

A-8

with it were all homicide statutes, “relate[d] to one common

subject matter * * *.” Id. Here the statutes do not appear to

bear the same sort of common purpose. Therefore, application

of the doctrine of in pari materia in this case is neither neces-

sary nor appropriate.

Respondent also contends that the legislative history under-

lying the spiritual treatment and prayer exception establishes

that it was intended to exempt those who rely on such treat-

ment methods from all criminal prosecution related to their

reliance on spiritual treatment and prayer in caring for their

children. Although legislative history may be useful in inter-

preting an ambiguous statute, this court generally does not

consider it when faced with a clearly worded provision. See

Handle With Care, Inc. ¥) Dept. of Human Services, 406

N.W.2d 518, 522 (Minn. 1987); Moleburg v. Marsden, 294

Minn. 493, 494, 200 N.W.2d 298, 299 (1972) (where language

of statute is clear, it defines legislative intent leaving no

room for further judicial interpretation). The language of

the exception is not ambiguous; it expressly states that relying

on spiritual treatment and prayer does not in itself constitute

child neglect. See Minn. Stat. § 609.378 (a) (1988). Thus, we

need not consult the exception’s legislative history in our

interpretation of it.®

6 Respondent correctly indicates that the legislative history under-

lying the spiritual treatment and prayer exception contains at

least one statement suggesting one representative’s intention to

protect those who rely on such treatment methods from ail

prosecution. However, this court has noted that the leg’slative

intent underlying a particular statute is not necessarily re-

flected in the recorded statements of a particular member and

that such statements must “be treated with caution.” Handle

With Care, 406 N.W.2d at 522, 522 n. 8.

A-9

We therefore conclude that the child neglect statute and the

second degree manslaughter statute are not in pari materia.

The doctrine of in pari materia is simply an interpretive tool

this court relies on in certain instances to determine the

meaning of ambiguous statutory language. Because neither

statute is ambiguously worded, we have no need of the doc-

trine in this instance. Further, because the statutes at issue

are not so closely related in either language or purpose as to

suggest that they ought be interpreted together, application

of the doctrine here would be inappropriate.

II

Both the trial court and the court of appeals concluded the

indictments issued against respondents violate the constitu-

tional guarantee of due process of law. We agree.

The essence of respondents’ argument is not that either the

manslaughter statute or the child neglect statute is so vaguely

worded as to make it unreasonably difficult to discern what

conduct each prohibits. See Kolender v. Luwson, 461 U.S. 352,

357 (1983) (due process requires criminal statutes to define

offenses clearly enough that ordinary people can determine

what they prohibit). Rather, respondents contend the child

neglect statute misled them in that it unequivocally stated they

could, in good faith, select and depend upon spiritual means

or prayer without further advising them that, should their

chosen treatment method fail, they might face criminal

charges beyond those provided in the child neglect statute

itself. In short, respondents argue that the child neglect stat-

ute does not go far enough to provide reasonable notice of the

potentially serious consequences of actually relying on the

alternative treatment methods the statute itself clearly per-

mits. Neither the United States Supreme Court nor this court

A-10

has directly addressed a similar due process claim.? In United

States v. Colon-Ortiz, 866 F.2d 6 (1st Cir. 1989), cert. denied,

490 U.S. 1051 (1989), however, the United States Court of

Appeals for the First Circuit relied on a due process rationale

much like that suggested here by respondents.

In Colon-Ortiz, the appellant challenged a federal statute

prohibiting the distribution of cocaine. That statute, 21 U.S.C.

§ 841(b)(1)(B), provides that a person convicted of violating

it “shall be sentenced to a term of imprisonment * * *, a fine

* * * or both.” It goes on to state that “the court shall not

place on probation or suspend the sentence of any person

sentenced under this [provision]. No person sentenced under

this [provision] shall be eligible for parole during the term

of imprisonment imposed * * * .” 21 U.S.C. § 841(b) (1) (B).

Relying on this latter statement and on several remarks in

the underlying legislative history clearly indicating the in-

tention to impose mandatory prison sentences, the trial court

concluded it was required to sentence the appellant to prison,

despite the language in section 841 indicating that a court

could choose to impose only a fine. Colon-Ortiz, 866 F.2d at

9-10.

7 Decisions addressing the issue of “fair notice” in the context of

a due process challenge typically involve consideration of whether

the language of a particular statute was sufficient to provide an

individual charged with violating that statute fair notice of the

potential criminality of her or his conduct. See, e.g., State v. New-

strom, 371 N.W.2d 525, 528 (Minn. 1985) (concluding that statute

requiring non-public school teachers hold qualifications “essen-

tially equivalent’ to those of public schoo] teachers was uncon-

stitutionally vague). Appellant contends Walker v. Superior Court,

763 P.2d 852 (Cal. 1988), Hermanson v. Florida, 570 So.2d 322 (Fla.

Dist. Ct. App. 1990), and Hall v. State, 493 N.E.2d 433 (Ind. 1986),

support its position that the indictments do not violate due

process. None of these decisions, however, substantively address

the issue of fair notice as raised by respondents.

A-11

The First Circuit agreed with the appellant’s contention

that the statute did not provide fair notice conviction would

necessarily result in the imposition of a prison sentence. It

reasoned that

[t]he person of ordinary intelligence * * * should not

have to guess at the meaning of penalty provisions, or

else those provisions are not sufficiently clear to satisfy

due process concerns. It is not enough for the congres-

sional intent to be apparent elsewhere if it is not apparent

by examining the language of the statute. No amount of

explicit reference in the legislative history of the statute

can cure this deficiency.

Id. at 9. This concern that individuals be given unambiguous

notice of the boundaries within which they must operate di-

rectly contravenes the state’s contention that nothing in the

spiritual treatment and prayer exception to the child neglect

provision reasonably suggests immunity from all prosecution.

The exception is broadly worded, stating that a parent may in

good faith “select and depend upon” spiritual treatment and

prayer, without indicating a point at which doing so will ex-

pose the parent to criminal] liability. The language of the

% As the court of appea's indicated, at least one other state has

attempted to avoid the prob'em presented in this case by statu-

torily establishing a point beyond which parents may not rely

solely on spiritual means of treatment. Okla. Stat. Tit. 21, § 852

(1988), provides:

Nothing in this section shall be construed to mean a child is en-

dangered for the sole reason the parent or guardian, in good

faith, selects and depends upon sp.ritual means alone through

prayer, in accordance with the tenets and practice of a recog-

nized church or religious denomination, for the treatment or

cure of disease or remedia! care of such child; provided, that

medical care shall be ;rovided where permanent physica! dam-

age could result to such child * * *,

A-12

exception therefore does not satisfy the fair notice require-

ment inherent to the concept of due process.

Further, the indictments issued against respondents violate

the long-established rule that a government may not officially

inform an individual that certain conduct is permitted and

then prosecute the individual for engaging in that same con-

duct. See Cox v. Louisiana, 379 U.S. 559 (1965) (where police

official informed protesters they could picket across the street

from courthouse, state could not prosecute those protestors for

violating a statute prohibiting demonstrations near court-

house); Raley v. Ohio, 360 U.S. 423 (1959) (state could not

prosecute individuals for refusing to testify before legislative

committee when committee members informed those individ-

uals they could invoke state privilege against self-incrimina-

tion).

The spiritual treatment and prayer exception to the child

neglect statute expressly provided respondents the right to

“depend upon” Christian Science healing methods so long as

they did so in good faith. Therefore the state may not now

attempt to prosecute them for exercising that right. By virtue

of this conclusion, we do not introduce the proposition that

conduct complying with one statute necessarily complies with

all other statutes absent explicit notice to the contrary. Fur-

ther, we do not here conclude that the state could never pros-

ecute an individual whose good faith reliance on spiritual

methods of treatment results in the death of a child. Rather,

we hold that in this particular instance, where the state has

clearly expressed its intention to permit good faith reliance

on spiritual treatment and prayer as an alternative to conven-

A-13

tional medical treatment, it cannot prosecute respondents for

doing so without violating their rights to due process. °®

We therefore conclude that the indictments issued against

respondents, charging them with second degree manslaughter

in the death of Ian Lundman, violate the constitutional guar-

antee of due process of law and must be dismissed.

Court of appeals affirmed and indictments dismissed.

GARDEBRING, J., took no part in the consideration or

decision of this case.

COYNE, Justice (dissenting).

I respectfully dissent. I fully concur in the majority’s deter-

mination that nothing in the language of either Minn. Stat.

§ 609.378 (1988), the child neglect statute, or Minn. Stat. §

609.205 (1988), setting out the crime of second degree man-

slaughter, suggests they are so closely related as to require them

to be interpreted in the light of each other. Having determined

that the two statutes, which have quite different purposes,

should not be construed together, the majority goes on to hold

that the indictments issued here failed to meet constitutional

requirements of due process of law because the child neglect

statute did not notify them that although depending on “spir-

itual means or prayer for treatment or care of disease or

®The Church of Christ, Scientist, as amicus curiae, argues that

prosecuting respondents for relying on Christian Science healing

methods in the treatment of their son constitutes a violation of

the right to freely exercise religious beliefs guaranteed by both

the federal and state constitutions. Because of our disposition of

this appeal, however, we need not address this issue.

Also participating as amicus curiae, the Minnesota Civil Lib-

erties Union contends that the spiritual treatment and prayer

exception violates the first amendment’s prohibition against

state-established religion. Although we find the MCLU’s argu-

ments persuasive, our disposition based on due process grounds

makes it unnecessary for us to consider the establishment clause

issue at this time.

A-14

remedial care of the child’”’ constituted “health care” for pur-

poses ef the child neglect statute, that conduct might, under

some circumstances, constitute unlawful conduct pursuant to

some other statute. This novel proposition, that conduct which

complies with the requirements of one statute complies with

all other statutes absent notification to the contrary, is in my

opinion nothing more than the rejected in pari materia argu-

ment garbed in the cloak of due process. Inasmuch as defen-

dents do not complain that either the child neglect statute or

the manslaughter statute is so vaguely worded that one can-

not reasonably discern what conduct each prohibits, the due

process argument necessarily depends on construing the two

statutes together.

Moreover, the due process argument is defective not only

because it depends on construing the two statutes together but

also because it depends on misconstruction of a statute and

because it rests on an unavailable defense to the charge of

manslaughter.

As set forth in Minn. Stat. § 609.205(1) (1988), the offense

of second degree culpably negligent manslaughter is “an of-

fense that involves both the objective element of negligence

and the subjective element of recklessness, * * * * ” State v.

Grover, 4837 N.W.2d 60, 63 (Minn. 1989). In order to establish

the objective element of negligence the state must prove “a

gross deviation from the standard of care that a reasonable

person would observe in the actor’s situation.” State v. Zupetz,

322 N.W.2d 730, 733 (Minn. 1982) [quoting 2 C. Torcia,

Wharton’s Criminal Law § 168 at 272 (14 ed. 1979]). In order

to establish the subjective element of recklessness the state

must establish “an actual conscious disregard of the risk

created by the conduct.” State v. Frost, 342 N.W.2d 317, 320

(Minn. 1983).

ne

a

A-15

Statutes of this type have regularly and uniformly with-

stood due process challenges. Indeed, in State v. Grover, 437

N.W.2d at 63-64, we upheld against a due process challenge a

criminal statute containing only an objective element of neg-

ligence.' In doing this, we quoted Justice Oliver Wendell

Holmes, Jr.’s response to a due process challenge to a criminal

statute containing a negligence element: “[T]he law is full of

instances where a man’s fate depends on his estimating right-

ly, that is, as the jury subsequently estimates it, some matter

of degree.” Id. at 64 [quoting Nash v. United States, 229 U.S.

373, 377 (1913)]. ‘

One cannot be convicted of culpably negligent manslaughter

simply because one has not “estimated rightly.” It is not

enough that one has estimated wrongly, even in a grossly

deviant sense. The state must also establish that the defen-

dant was aware of the risk created by his or her conduct and

consciously disregarded that risk.

The statute on which defendants rely in support of their

argument that their prosecution for culpably negligent man-

slaughter is barred is not the statute dealing with culpably

negligent manslaughter, nor is it one of the statutes setting

forth the defenses recognized by the legislature as being gen-

erally applicable in criminal prosecutions [See, e.g., Minn.

Stat. § 609.08 (1988) (duress)]. Rather, defendants rely on

what they characterize as an exception to the statute which

makes it a gross misdemeanor to willfully deprive a child

of various enumerated necessities, including “health care,” if

the deprivation “substantially harms the child’s physical or

1 Specifically, we upheld the child abuse reporting statute, Minn.

Stat. § 626.556, subd. 6 (1986), subjecting certain professionals to

misdemeanor liability if they know or have reason to believe a

child is being abused and yet fail to report the suspected abuse.

A-16

emotional health.” Minn. Stat. § 609.378 (1988). The relevant

statutory language is this definition:

If a parent, guardian or caretaker responsible for the

child’s care in good faith selects and depends upon spiri-

tual means or prayer for treatment or care of disease

or remedial care of the child, this treatment shall con-

stitute “health care” as used in clause (a).

There is no reason to believe that the legislature intended

this provision of the child neglect statute to have any effect

on a parent’s criminal liability for culpably negligent man-

slaughter. This definitional language does not “except” spir-

itual means and prayer from operation of the child neglect

statute; it simply provides that a parent who “in good faith”

selects and depends on spiritual means or prayer for treat-

ment of his or her child is no more—nor less—subject to

prosecution for gross misdemeanor child neglect than a parent

who furnishes more conventional health care. Whatever kind

of health care is selected, one who violates Minn. Stat. § 609.-

205(1) (1988) has by definition not acted “in good faith” but

has both (a) grossly deviated from the standard of care that

a reasonable person would observe in the actor’s situation and

(b) although aware of the risk created by that deviation,

callously or consciously disregarded the risk. Whatever kind

of health care is selected, due process does not require notifica-

tion that selection of and reliance on ¢ course of conduct which

appears to comply with the requirements of one statute may

not meet the requirements of another.

If, for example, a parent selects conventional health care

and engages a physician to treat a child, there is no basis for

a prosecution for child neglect because the parent has provided

necessary health care. If however, the parent who selects con-

ventional health care knowingly engages a physician whose

license has been suspended or revoked because of habitual

A-17

neglect of patients caused by drug addiction and if the child

should die because of the physician’s neglect, I think it highly

unlikely that anyone would contend that the absence of a

warning in the child neglect statute insulated the parent

from a charge of manslaughter. Due process does not require

notification that selection of a form of treatment acceptable

under the child neglect statute does not eliminate all possible

criminal responsibility.

Similarly, a parent who provides clothing of a child has

not violated the child neglect statute because the parent has

not willfully deprived his or her child of necessary clothing.

If, however, the parent knowingly clothes the child in pajamas

of flammable material with full knowledge that the child’s

siblings frequently cause fires by playing with matches, and

the pajama-clad child is subsequently burned to death in a

fire started by the child’s brother, the absence of a warning

in the child neglect statute could hardly be said to protect the

parent from a charge of manslaughter.

I believe that an individual “should be able reasonably to

rely upon a statute or other enactment under which his con-

duct would not be criminal.” 1 W. LaFave & A. Scott, Sub-

stantive Criminal Law § 5.1(2) at 591 (1986). However, I

reject the argument that that concept has any application

here. In enacting Minn. Stat. § 609.378 (1988), the legislature

did not in any way shield parents from prosecution for culp-

ably negligent manslaughter under Minn. Stat. § 609.205(1)

(1988). Any mistake by defendants based on the child neglect

statute is a mistake of law, which is not recognized as a de-

fense. 1 W. LaFave & A. Scott § 5.1(d).

This is not to say, however, that defendants’ belief that

prayer is a better cure than medicine is without reievance in

a prosecution under Minn. Stat. § 609.205(1) (1988). As

stated in 2 W. LaFave & A. Scott § 7.12(a) at 281-82 n.28:

A-18

[I]t is no interference with one’s freedom of religion to

convict of manslaughter one who, for religious reasons,

fails to call a doctor when to fail to do so constitutes

criminal negligence. Yet an honest religious belief that

prayer is a better cure than medicine, that Providence

can heal better than doctors, might serve to negative the

awareness of risk which is required for manslaughter in

those states which use a subjective test of criminal neg-

ligence.

As I stated earlier, there is both an objective element and

a subjective element to the offense of second degree culpably

negligent manslaughter. Here a grand jury returned an in-

dictment charging the defendants with second degree man-

slaughter, that is, the grand jury found probable cause to

believe that the defendants’ conduct met both the objective

element (unreasonable risk) and subjective element (con-

sciously disregarded a known risk) of the crime of second

degree manslaughter. Nevertheless, the majority simply as-

sumes the defendants acted in good faith. Without intending

to address the wisdom of prosecuting these parents or to

speak specifically to the various evidentiary issues that might

arise at a trial of defendants, I assume as a general matter

that a trial court would liberally admit evidence supporting

defendants’ claim that they acted in good faith in relying on

prayer and spiritual means rather than seeking medical care.

But in light of the action of the grand jury, whether or not

the defendants were culpably negligent—that is, whether they

created an unreasonable risk and if so, whether they lacked

good faith and consciously disregarded a known risk—is in my

opinion a jury question, not a question appropriately decided

by this court at the pretrial stage on the basis of a mistaken

interpretation of a statute.

SIMONETT, Justice (dissenting).

I join Justice Coyne’s dissent.

Te i eee

A-19

APPENDIX B

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-90-766

C1-90-767

Hennepin County Gardebring, Judge

Filed: October 16, 1990

Office of Appellate Courts

STATE OF MINNESOTA,

Appellant,

vs.

KATHLEEN RIGA McKOWN,

Respondent (CX-90-766),

WILLIAM LISLE McKOWN,

Respondent (C1-90-767),

MARIO VICTOR TOSTO,

Defendant.

Hubert H. Humphrey, III

Attorney General

200 Ford Building

117 University Avenue

St. Paul, MN 55155

Thomas Johnson

Hennepin County Attorney

J. Michael Richardson

Asst. Hennepin County

Attorney

A-20

C-2000 Government Center

Minneapolis, MN 55487

Peter J. Thompson

Thompson & Lundquist

2520 Park Avenue South

Minneapolis, MN 55404

and

Ronald J. Riach

Peterson, Franke & Riach

200 Rosedale Towers

1700 W. Highway 36

Roseville, MN 55113

John Stuart

State Public Defender

95 Law Center

University of Minnesota

Minneapolis, MN 55455

(Observer)

Terrence J. Fleming

Lindquist & Vennum

4200 IDS Center

Minneapolis, MN 55402

(For Amicus Church of

Christ, Scientist)

Peter M. Lancaster

Dorsey & Whitney

2200 First Bank Place East

Minneapolis, MN 55402

(For Amicus Minnesota

Civil Liberties Union)

dort

A-21

SYLLABUS

The due process fair notice requirements of the fourteenth

amendment of the United States Constitution and the seventh

amendment of the Minnesota Constitution are violated by

the application of the second-degree manslaughter statute to

the diabetes-related death of a child whose parents relied upon

the “spiritual means or prayer” exemption in the child neglect

statute.

Affirmed.

Considered and decided by Gardebring, Presiding Judge,

Huspeni, Judge, and Davies, Judge.

OPINION

GARDEBRING, Judge

This is an appeal by the state from an order dismissing

second-degree manslaughter indictments against respondents.

We affirm.

FACTS

Ian Lundman, the 11-year-old son of respondent Kathleen

McKown and the stepson of respondent William McKown, died

at his home on May 9, 1989, of ketoacidosis diabetes. The

McKowns are practicing Christian Scientists. Prior to his

death, Ian was ill intermittent y for several weeks, and became

progressively worse the last three or four days prior to his

death. Throughout his illness, the McKowns called upon the

assistance of a Christian Science practitioner and a Christian

Science nurse to care for him. No medical treatment was

sought.

The McKowns were indicted for second-degree manslaugh-

ter. A motion to dismiss the indictment was filed asserting

lack of probable cause, violation of due process, infringement

A-22

of first amendment rights, and misinstruction of the grand

jury.!

The McKowns argued that the “spiritual means or prayer”

exemption in the child neglect statute authorized their be-

havior and precluded the manslaughter charges against them,

that no probable cause existed for the indictment, and that the

application of the second-degree manslaughter statute to con-

duct specifically authorized by the state violated due process

requirements of fair notice. The trial court agreed and issued

an order dismissing the indictments.

The trial court found the child neglect statute and the man-

slaughter statute were in pari materia, that the legislative

history of the “spiritual means or prayer” exemption indicated

an intent to exempt from sanction parents who in good faith

rely upon spiritual means or prayer, and that the grand jury

was not properly instructed that the exemption established

the applicable standard of care. Finally, the trial court found

that the state’s failure to provide notice of potentially crim-

inal conduct violated federal and state due process standards

of definiteness.

The state appealed from the order. We affirm based on the

due process argument and decline to reach other constitutional

issues.

1Two amici curiae, the Minnesota Civil Liberties Union and the

Church of Christ, Scientist, were granted permission to partici-

pate, and filed written memoranda on free exercise and establish-

ment clause issues. The amici were granted leave to participate in

this appeal, as well, and each raised substantially the same issue

raised at the trial court level. Neither issue is before this court,

since the trial court did not reach either the free exercise or

establishment clause issues.

iat

ee eet eS Ste rel eee wey

in aaa sao ane

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ISSUE

Do the statutory provisions of Minn. Stat. §§ 609.378 and

609.205(1) (1988) provide “inexplicably contradictory” defi-

nitions of prohibited behavior so as to violate due process

requirements?

ANALYSIS

We note initially that the circumstances surrounding the

tragic death of Ian Lundman are not likely to arise again. The

Minnesota legislature has acted to greatly reduce the likeli-

hood that 4 case such as Ian’s would remain undetected in the

future. Effective June 1, 1989, the legislature amended the

maltreatment of minors reporting statute. Minn. Stat. § 626.-

556 (Supp. 1989). According to the amended statute, a prac-

titioner of healing arts, like a Christian Science practitioner,

must report to the proper authorities if lack of medical care

may cause imminent and serious danger to the child’s health.

Id.

Once reported to child welfare authorities, an illness like

Ian’s could support a petition to the district court seeking an

order for provision of orthodox medical treatment. Minn. Stat.

§ 626.556, subd. 10e(c) (Supp. 1989), and generally Minn.

Stat. ch. 260 (1988).

We believe the new reporting requirement will help prevent

future tragedies because it is the practice of good faith ad-

herents to Christian Science to enlist the support of Christian

Science nurses and practitioners in dealing with serious illness,

and to cooperate fully with public health authorities. At the

time of Ian’s death, no such reporting requirement existed,

and there was, therefore, no opportunity for child welfare

authorities to intervene.

The circumstances surrounding Ian’s death raise issues con-

cerning the relationship between two provisions of the Minne-

sota criminal code.

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The manslaughter statute, under which the McKowns were

charged, provides:

A person who causes the death of another by any of the

following means is guilty of manslaughter in the second

degree * * *:

(1) by the person’s culpable negligence whereby the

person creates an unreasonable risk and consciously takes

chances of causing death or great bodily harm to another

* * *

Minn. Stat. §609.205(1) (1988).

The child neglect statute provides:

(a) <A parent, legal guardian, or caretaker who willfully

deprives a child of necessary food, clothing, shelter, health

care, or supervision appropriate to the child’s age * * *

and which deprivation substantialiy harms the child’s

physical or emotional health, * * * is guilty of neglect of

a chil * © *,

If a parent, guardian or caretaker responsible for the

child’s care in good faith selects and depends upon spiri-

tual means or prayer for treatment or care of disease or

remedial care of the child, this treatment shall constitute

“health care” as used in clause (a).

Minn. Stat. § 609.378 (1988).

I. Statutory Construction

The trial court concluded that the two statutes are in pari

materia, and construed them together in finding that “spirit-

ual means or prayer’ fully stated the applicable standard of

care under the manslaughter statute. In addition, the trial

court concluded the “spiritual means or prayer’ exemption

applies to the manslaughter statute and is an absolute defense

to criminal liability.

Ce aA mati BER OMI 4

encase Bans ela ia Ae te

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We are unwilling to interpret the two statutes as did the

trial court, either to establish a new standard of care for

manslaughter or to construe the “spiritual treatment or

prayer” as providing a complete defense. The child neglect

statute does not specifically refer to the manslaughter statute,

and the “spiritual means or prayer” exemption within it re-

fers to the definition of child neglect.

Although the scope of the manslaughter statute is far be-

yond that of the child neglect statute, its purpose is similar—

to punish the gross negligence of a person who has a duty of

care towards another. Herbes v. Village of Holdingford, 267

Minn. 75, 125 N.W.2d 426, 431 (1963). Statutes in pari

materia are those relating to the same person or thing or

having a common purpose. Apple Valley Red-E-Mizx, Inc. v.

State, Dept. of Pub. Safety, 352 N.W.2d 402, 404 (Minn.

1984). Nevertheless, acts of general negligence are not so

plainly similar to acts of child neglect that the conclusion of

in pari materia necessarily follows.

Case law is not definitive as to how to determine whether

statutes are in pari materia, and the leading authority notes:

The guiding principle, however, is that if it is natural

and reasonable to think that the understanding of mem-

bers of the legislature or persons to be affected by a

statute, be influenced by another statute, then a court

called upon to construe the act in question should also

allow its understanding to be similarly influenced.

2A Sands, Sutherland Statutory Construction, § 51.03 at 468

(emphasis added). We conclude, particularly in light of am-

biguous legislative history, that it is not “natural and -eason-

able” to presume the legislature believed the manslaughter

statute would be influenced by enactment of the child neglect

statute. We therefore do not find the two statutes to be in

pari materia. Nonetheless, it is precisely the lack of clarity

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in the relationship between the two statutes that leads to

our conclusion that the McKowns’ due process rights were

violated.

II. Due Process

The doctrine that the state must clearly define that be-

havior for which it proposes to exact a penalty is well-

recognized, and can be said, at this point, to be incontrovert-

ible.2 This “fair notice” requirement, expressed, means that

a statute which either forbids or requires the doing of

an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to

its application violates the first essential of due process

of law.

Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126,

127 (1926). Further, where a statute imposes criminal pen-

alties, a higher standard of certainty of meaning is required.

State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985).

The requirement of clear definition is directed both to

actual notice to ordinary people of what conduct is prohibited

and to the elimination of arbitrary and discriminatory en-

forcement. Kolende7 v. Lawson, 461 U.S. 352, 357, 103 S.Ct.

1855, 1858 (1983). It is also sometimes expressed as a kind

of reliance argument, prohibiting

the most indefensible sort of entrapment by the State—

convicting a citizen for exercising a privilege which the

State clearly had told him was available to him.

2 While modern case law on this issue is grounded almost exclu-

sively on the fourteenth amendment of the United States Con-

stitution and parallel amendments in state constitutions, e.g.,

Minn. Const. art. Il, § 7, other bases cleariy exist. In some in-

stances, the Supreme Court has relied upon the sixth amend-

ment’s requirement that the accused be informed of the nature

and cause of the accusation. See, e.g., United States v. L. Cohen

Grocery Co., 255 U.S. 81, 41 S.Ct. 298 (1921).

A-27

Raley v. Ohio, 360 U.S. 423, 438, 79 S.Ct. 1257, 1266 (1959).

In another similar case, United States v. Cardiff, 344 U.S.

174. 73 S.Ct. 189 (1952), the Supreme Court struck down a

badly drafted statute which contained mutually contradictory

directives.

A. Fair Notice

In this instance, there can be little question that the due

process fair notice requirement has been violated. The crim-

inal child neglect statute authorizes parents to choose “spirit-

ual means or prayer” in response to illness without respect

to the medical condition of the child. The manslaughter stat-

ute gives no notice of when its broad proscription might over-

ride the seemingly contradictory permission given by the

child neglect statute to treat the child by such spiritual means.

Further, the child neglect statute is expressed in powerful

terms, allowing the parents not only to “select” but also to

“depend upon” spiritual means or prayer, with no warning or

caveat that such dependence may be deemed criminal solely

due to the outcome of the treatment. The legislature could, of

course, have built into the statute such a limitation, as has the

legislature of Oklahoma. That body, in its child neglect statute,

has authorized parents to treat illness with spiritual means or

prayer, except in those instances in which “permanent physi-

cal damage” could result to the child.

% The statute reads in pertinent part:

Nothing in this section shall be construed to mean a child is

endangered for the sole reason the parent or guardian, in good

faith, selects and depends upon spiritual means alone through

prayer, in accordance with the tenets and practice of a recoy-

nized church or religious denomination, for the treatment or

cure of disease or remedial care of such child; provided, that

medical care shall be provided where permanent physical dam-

age could result to such child * * *

Okla. Stat. Tit. 21, § 852 (1988) ( emphasis added).

A-28

But the Minnesota legislature did not include such a limita-

tion. Rather, by enacting “inexplicably contradictory com-

mands,” the legislature failed to give adequate notice to

Christian Scientists as to its expectations with regard to

treatment of their children. See Raley, 360 U.S. at 438, 79

S.Ct. at 1266. The interaction of the two statutes is such that

no amount of care gives safety, and the parents are left to

“divine prophetically” the outcome of their actions, a “gift

that mankind does not possess,” according to Justice Holmes

in an early application of the void-for-vagueness doctrine.

International Harvester Co. v. Kentucky, 234 U.S. 216, 223-24,

34 S.Ct. 853, 856 (1914).

Evidence of the difficulty facing the parents in understand-

ing the meaning of these two statutes taken together can be

seen in the inability of the prosecutor, noted by the trial

court in its memorandum, to articulate for the grand jury

their relationship, when specifically asked to do so. The Su-

preme Court, in another early case in this area, identified the

confusion in the lower courts as evidence of the fatal vague-

ness in the statute in question. United States v. L. Cohen

Grocery Co., 255 U.S. 81, 89-90, 41 S.Ct. 298, 300 (1921). The

confusion of the prosecutor seems to us a similar indication of.

the flaws in this statutory scheme.

B. Arbitrary Enforcement

Further, the statutory scheme creates the opportunity for

the kind of arbitrary and discriminatory enforcement also

prohibited by due process. Papachristou v. City of Jackeon-

ville, 405 U.S. 156, 162, 92 S.Ct. 839, 843 (1972). It is in-

credible to suggest that parents would be prosecuted under

the manslaughter statute where the death of a child occurred

in spite of the application of more orthodox medical treatment.

Query : Would a parent be indicted where chemotherapy failed

ey ee oe x

A-29

to thwart childhood leukemia? Nevertheless, the state would

have us conclude that the choice of spiritual treatment, which

has been put on legal footing equal to that of orthodox medical

care by the child neglect statute, can result in a manslaughter

indictment, simply because of its outcome. That is unaccept-

ably arbitrary, and a violation of due process.

C. Reliance

Our conclusion is further supported by the “reliance” cases

in this area.

Ordinarily, citizens may not be punished for actions un-

dertaken in good faith reliance upon authoritative assur-

ance that punishment will not attach. As this Court said

in Raley [360 U.S. at 438, 79 S.Ct. at 1266], we may not

convict “a citizen for exercising a privilege which the

State clearly had told him was available to him.”

United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581

(1967). It is not likely that a criminal will carefully consider

the text of the law before he engages in criminal activity.

McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341

(1931). The Supreme Court has said

[w]e recognize that in a noncommercial context behavior

as a general rule is not mapped out in advance on the

basis of statutory language.

Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248

(1974) (footnote omitted).

This is not the case. Evidence before the trial court suggests

that, due to the sensitive nature of this issue, many Christian

Scientists, including the McKowns, were specifically aware of

the statutory provisions relating to use of spiritual means and

prayer. They may have indeed “mapped out” their behavior

based upon the statute. While the cases in this area are more

likely to involve reliance by the defendant on administrative

A-30

pronouncements, there is nothing inherent in the concept

which would make it inapplicable to an argument of reliance

on a specific statutory enactment. The state in this instance

has attempted to take away with the one hand—by way of

criminal prosecution—that which it apparently granted with

the other hand, and upon which defendants relied. This it

cannot do, and meet constitutional requirements.

We also note that a statute which impinges on constitu-

tionally-protected rights is subjected to stricter scrutiny as

to the adequacy of the notice it provides. Smith, 415 U.S. at

573, 94 S.Ct. at 1247. One commentator has called this “the

creation of an insulating buffer zone of added protection at

the peripheries of several of the Bill of Rights freedoms.”

Note, The Void-for-Vagueness Doctrine in the Supreme Court,

109 U.Pa. L. Rev. 67, 75 (1960).

D. Lenity

We turn next to a related doctrine of criminal law, one not

specifically grounded in the fourteenth amendment, but one

which we believe buttresses and supports the due process argu-

ment. The Supreme Court has frequently concluded that “am-

biguity concerning the ambit of criminal] statutes should be

resolved in favor of lenity.” United States v. Bass, 404 U.S.

336, 347, 92 S.Ct. 515, 522 (1971).

Application of the rule of lenity ensures that criminal

statutes will provide fair warning concerning conduct

considered illegal and strikes the appropriate balance

between the legislature, the prosecutor, and the court

in defining criminal liability.

Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084,

2089 (1985). Lenity is particularly appropriate where, as

here, the legislative history of a statute or, as in this case,

the relationship between two statutory provisions is not

ll te ee et tT le

A-31

clear. While both appellants and respondents cite to particular

portions of recorded legislative history as support for their

respective arguments, the legislative history, taken as a whole

is at best, ambiguous, and at worst, utterly contradictory.

{[W]hen choice has to be made between two readings of

what conduct [the legislature] has made a crime, it is

appropriate, before we choose the harsher alternative, to

require that [the levislature] should have spoken in lan-

guage that is clear and definite. We should not derive

criminal outlawry from some ambiguous implication.

United States v. Universal C.L.T. Credit Corp., 344 U.S. 218,

221-22, 73 S.Ct. 227, 229 (1952). We do not believe the levis-

lature has spoken sufficiently clearly on this subject to uphold

this indictment.

Finally, we note that this is not one of those cases identified

by Justice Holmes when he said,

[t]he law is full of instances where a man’s fate depends

on his estimating rightly, this is, as the jury subsequently

estimates it, some matter of devree. If his judgment is

wrong, not only may he incur a fine or short imprison-

ment, * * * he may incur the penalty of death.

Nash v. United States, 229 U.S. 273, 377, 23 S.Ct. 780, 781

(1913).

In this instance, lan Lundman’s parents had no reason to

believe that they must engage in the kind of “estimating”

Holmes describes. They had not been unequivocably put on

notice that their conduct put them at risk, and indeed, may

have specifically relied upon official pronouncements of the

state that their treatment of Ian was legally authorized.

A-32

DECISION

The death of Ian Lundman was a tragedy, and we acknowl-

edge the important state interest in the protection and nur-

turance of children. We find, however, that the manslaughter

statute, as applied to these defendants, is unconstitutionally

vague in light of the “spiritual means or prayer” exemption

in the child neglect statute. Therefore, we affirm the trial

court in dismissing the indictments.

Affirmed.

SANDRA GARDEBRING

9 October 1990

CSOD OI COR ess ss

A-53

APPENDIX C

State of Minnesota District Court

County of Hennepin Fourth Judicial District

File Nos. 89052954 and 89058941

STATE OF MINNESOTA,

Plaintiff,

vs.

KATHLEEN RITA McKOWN, WILLIAM LISLE McKOWN,

MARIO VICTOR TOSTO,

Defendants.

ORDER AND MEMORANDUM

The above-entitled matter came on for hearing on March

26-27, 1990 before the undersigned Judge of District Court

pursuant to Defendants’ motion to dismiss the indictments.

Robert J. Streitz, Assistant Hennepin County Attorney, ap-

peared on behalf of the State; Peter Thompson, Esq., appeared

on behalf of defendaxn* Kathleen Rita McKown; Ronald J.

Raich, Esq., appeared on behalf of defendant William Lisle

McKown; Larry B. Leventhal, Esq., appeared on behalf of

defendant Mario Victor Tosto; Terrence J. Fleming, Esq.,

appeared as amicus curiae of the Church of Christ, Scientist;

and Peter M. Lancaster, Esq., appeared as amicus curiae on

behalf of the Minnesota Civil Liberties Union.

On March 27, 1990, the State declared that it would not

object to defendant Tosto’s motion to dismiss. Accordingly,

this Court granted defendant Tosto’s motion to dismiss the

indictment at that time.

A-34

Based upon the files, records and proceedings held herein,

the Court makes the following:

ORDER

1) That the motions of defendants Kathleen McKown and

William to dismiss the indictment are GRANTED.

2) That the attached memorandum be hereby incorporated

herein by reference.

BY THE COURT:

EUGENE J. FARRELL

Judge of District Court

Dated: This 2nd day of April, 1990.

MEMORANDUM

The material facts in this matter are not in dispute. Ian

Lundman, age 11, died in his home due to a complication of

diabetes mellitus. Although there is some question about when

the symptoms of lIan’s illness first began to manifest them-

selves, it is clear that by Friday, May 5, 1989, Ian was ill and

exhibiting symptoms consistent with diabetes. It is equally

clear that those symptoms persisted and intensified until the

time of lan’s death in the early morning hours of Tuesday,

May 9, 1989.

Throughout the course of Ian’s illness, he received no medi-

cal attention. lan’s mother, defendant Kathleen McKown, is a

life-long Christian Scientist and she relied on spiritual rather

than medical treatment to minister to Ian. There can be no

question that she firmly adheres to the principles of the

Christian Science religion and was in good faith practicing

spiritual healing. Defendant William McKown, her husband

and lIan’s step-father, is also a Christian Scientist and was

present throughout the course of Ian’s illness, although he

was sleeping in another room at the time of lan’s death.

oh tte ak Nes

A-35

On October 10, 1989, Mrs. McKown, her husband, William

McKowpn, and Christian Science Practitioner Mario Tosto were

charged with manslaughter in the second degree under Minn.

Stat. Sec. 609.205(1) in an indictment returned by a Hennepin

County Grand Jury. All defendants moved to dismiss the in-

dictments and the indictment against Mario Tosto has since

been dismissed with no objection from the State.

The remaining defendants argue that the indictment must

be dismissed against them for several reasons. Defendants

believe that Minn. Stat. Sec. 609.378, the child neglect statute,

provides them with an absolute defense as a matter of law.

They further contend that given the parameters of the child

neglect statute, that to construe the manslaughter statute to

allow criminal prosecution in this matter would violate their

due process rights. Defendants also argue that there was no

probable cause to support the indictment and in addition, de-

fendant William McKown asserts that as a step-parent he had

no legal duty to provide medical care to a step-child.

Minnesota Statute Section 609.205(1) provides in pertinent

part:

A person who causes the death of another by any of the

following means is guilty of manslaughter in the second

degree...

(1) by the person’s culpable negligence whereby the per-

son creates an unreasonable risk, and consciously

takes chances of causing death or great bodily harm

to another.

“Culpable negligence” requires a showing of gross negligence

plus recklessness in the form of an actual conscious disregard

of the risk created by the grossly negligent conduct. State v.

Frost, 342 N.W.2d 317, 320 (Minn. 1983) ; State v. Zupetz, 322

A-36

N.W.2d 730 (Minn. 1982); and State v. Beilke, 127 N.W.2d

516, 521 (Minn. 1964). Therefore, the indictment may stand

only if it properly charges, and there is probable cause to

believe, that defendants consciously created an unreasonable

risk of harm by grossly negligent conduct. This court does not

find there is probable cause to believe there was grossly neg-

ligent conduct in this case.

Minnesota Statute Section 609.378, which defines child ne-

glect in the criminal code, specifically provides:

If a parent, guardian, or caretaker responsible for the

child’s care in good faith selects and depends upon spir-

itual means or prayer for treatment or care of disease or

remedial care of the child, this treatment or care is

“health care” as used in clause (a).

This statute clearly sets forth the applicable standard of care

to be used in this case. The State argues that the defendants

are under a duty to provide medical treatment in life-threat-

ening situations notwithstanding this statute. This court can-

not agree. The manslaughter statute must be read in con-

junction with the child neglect statute.

The State argues that the words “this treatment shall con-

stitute ‘health care’ as used in clause (a)” is a proviso which

explicitly limits the scope of the prayer exemption to the child

neglect statute. The State relies on Dahlberg v. Young, 231

Minn. 60, 42 N.W.2d 570 (Minn. 1950), which dealt with a

statute that contained a clause which read “for purposes of

this chapter’. The language in Dahlberg was clearly meant to

limit application to that chapter. No such definitive language

appears in the instant case.

To resolve whether two statutes should be read together, the

court must determine if they are “in pari materia.” Statutes

AEWA kT RE

bi tM aedtod

A-37

are said to be “in pari materia” when they relate to the same

matter or subject even though one is specific and one general

and even though they have not been enacted simultaneously

and do not refer to each other expressly. Carlton v. Weed, 208

Minn. 342, 294 N.W. 370 (1940). Minn. Stat. Sec. 645.26.

Minnesota Statutes Sections 609.375 and 609.205(1) must be

considered to be ‘in pari materia’’.

Both the child neglect statute and the involuntary man-

slaughter statute deal with criminal liability as a result of

negligent behavior. The child neglect statute specifically ad-

dresses the subject of negligent behavior affecting children,

while the involuntary manslaughter statute generally ad-

dresses the subject of negligent behavior as it affects children

and adults. By the plain language of the two statutes it ap-

pears that they are “in pari materia”.

However, the guiding principal for a court in determining

whether the exception of one statute is applicable to another

is the natural and reasonable understanding of members of

the legislature or persons to be affected by the statute. 2A

Sutherland, Statutory Construction 468 (Ath ed. 1984). In

determining the understanding of members of the legislature,

this court has the ability to review the levislative history of

the statutes to determine their effect. Handle With Care v.

Dept. of Human Services, 406 N.W.2d 518 (Minn. 1987). The

spiritual means exemption was presented to the House Judi-

ciary Committee in the first part of 1983. The intention of the

legislature is best stated by Representative Bishop who spoke

in favor of the amendment on behalf of the House Judiciary

Committee.

I want to point out to the Committee that what we are

really dealing with here now is whether or not to make

a criminal statute, not whether or not to prohibit or to

A-38

force medica! care over the wishes of a parent. It seems

to me that a parent who in good faith selects a spiritual

means shouldn’t be exposed to criminal treatment. It [the

exemption] will not preclude in case of an emergency,

the Court stepping in and ordering medical care over the

objection of the parent. It will just prohibit that parent

from being exposed to any criminal sanction.

Transcript of Legislative Hearing; House Judiciary Commit-

tee March 21, 1985.

The overall legislative scheme was designed to have the

state intervene in the case of an emergency rather than punish

the parents either with child neglect or “any criminal sanc-

tion”. This intention was reconfirmed by an amendment to

the child neglect statute, which took effect after the death of

Ian McKown, to require reporting to the state when a life-

threatening situation developed. The following exchange took

place between members of the Senate Judiciary Committee

after it was mentioned that a diabetic child died in Florida

after medical treatment was denied:

Senator Spear: I don’t think we want to make a parent

who belongs to a religious group and in good faith selects

a spiritual means of treatment or care, I don’t think we

want to make that parent subject to criminal proceedings.

Senator Peterson: Even though it means the death of

their child?

Senator Spear: Well, we have other provisions in this

bill which make it clear that a child who is denied this

kind of medical care, [sic] there can be a court order

to remove this child from the care of the parent. But

again exempting that parent from criminal proceedings.

I think criminal proceedings for someone’s religious be-

liefs, for sincerely held religious beliefs, run into some

A-39

rather strong constitutional problems in our society,

Senator Peterson. :

Transcript of Senate Judiciary Hearing, April 24, 1989.

That State argues that the spiritual means exemption has

no application when the child’s injuries extend beyond sub-

stantial physical harm and result in death. This court can

find no basis in the statute or the legislative record for such

an interpretation. The statements in the House and the Senate

prohibiting the parent from “any criminal sanction”, and

“exempting that parent from criminal proceedings”, are both

absolute.

The spiritual means exemption was proposed by the Chris-

tian Science Church. Their understanding was that they would

be allowed to rely on spiritual means for health care without

the threat of criminal reprisal once the exemption was passed.

The natural and reasonable understanding of members of the

legislature and persons to be affected by the spiritual means

exemption was that no criminal proceedings would be brought

regardless of result as long as they practiced their religion

in good faith. Therefore, the State was in error in informing

the Grand Jury that the standard of care was that of a

“reasonably prudent man”.

However, erroneous instructions given a Grand Jury...

will not invalidate an indictment absent a showing of preju-

dice. State v. Inthavong, 402 N.W.2d 794 (Minn. 1987). The

indictment is defective if it ‘does not substantially comply

with the requirements prescribed by law to the prejudice of

the substantial rights of the defendant. Minn.R.Crim.P. 17.06

subd. 2(2)(a). Prejudice will ordinarily be found only on

those rare occasions where the Grand Jury instructions are

so egregiously misleading or deficient that the fundamental

integrity of the indictment process itself is compromised.

Inthavong at 802.

A-40

This court finds that the failure to properly instruct the

Grand Jury as to the proper standard of care substantially

prejudiced the rights of the defendants by impinging on the

independence and integrity of the Grand Jury system. The

failure to properly instruct the Grand Jury as to the applicable

standard of care requires this court to dismiss the indict-

ments.

Additionally, this court believes that construing Minn. Stat.

Sec. 609.205 to allow criminai prosecution of the defendants

would violate their due process rights. Due process includes

fair notice by the state to its citizens of potentially criminal

conduct. Kolender v. Lawson, 461 U.S. 352, 367-8 (1983). A

statute, in order to meet federal and state due process standards

of definiteness must be such as not to leave “persons of com-

mon intelligence ... to guess at the meaning of a statute nor

differ as to its application.” State v. Newstrom, 371 N.W.2d

525, 528 (Minn. 1985), quoting from Connaly v. General Con-

struction Co., 269 U.S. 385, 391 (1925).

A review of the transcript of the proceedings before the

Grand Jury reveals that the Hennepin County Attorney’s

Office was unsure as to the application of the child neglect

statute. Upon direct question by two separate jurors as to

the applicability of the child neglect statute, the county attor-

ney simply responded that it existed. The State must provide

the Grand Jury with proper legal advice. State v. Grose, 387

N.W.2d 182 (Minn.App. 1986). The State’s inability to clarify

the application of the child neglect statute demonstrates even

the State’s uncertainty as to its coverage. Due process would

at least require notice of the meaning of the applicable law

on the day of indictment. The violation of defendants’ due

process rights requires this court to dismiss the indictments.

E.J.F.