STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, ) FOR PUBLICATION
OAKLAND COUNTY PROSECUTING ) May 12, 1995
ATTORNEY EX REL, )
Plaintiff-Appellee, ) No. 138155
) LC No. 90-390963-AZ
JACK KEVORKIAN, )
Defendant-Appellant, and )
HEMLOCK OF MICHIGAN, )
Amicus Curiae. )
Before: Murphy, P.J., and Michael J. Kelly and Saad, JJ.
The issue before this Court is whether the trial court erred by permanently
enjoining defendant from using or providing "any of his 'suicide machines',
or other similar devices, contrivances, or other modalities or drugs
(including nonprescription drugs) on, or to, any persons seeking to end a
human life, or conducting any acts to help a patient commit suicide
regardless of the modality employed." We hold that no error occurred and
accordingly affirm the trial court.
On June 4, 1990, defendant helped Janet Adkins commit suicide. On June 6,
1990, plaintiff filed a complaint for injunctive relief and a motion for a
temporary restraining order. The temporary restraining order was not
granted, but the trial court did issue an order to show cause why a
preliminary injunction should not issue. At the conclusion of a hearing on
June 8, 1990, at which defendant testified, the trial court issued a
preliminary injunction temporarily enjoining defendant from using or
providing his suicide machines or other devices or drugs in order to help a
person seeking to end a human life.
Trial was held on plaintiff's request for injunctive relief in January,
1991. Although defendant did not testify at trial, his testimony from the
June 8, 1990, hearing was admitted as an exhibit. In addition, a statement
prepared by defendant was admitted as an exhibit. Numerous other witnesses
Defendant admitted that he helped Ms. Adkins commit suicide by means of his
"suicide machine," which consists of a frame holding three chemical
solutions fed into a common intravenous line controlled by a switch and a
timer. Defendant admitted that he inserted the intravenous line needle into
Ms. Adkins' arm, but testified that Ms. Adkins activated the switch that
turned on the machine and that Ms. Adkins wished to die because she had
Alzheimer's disease and feared for the future. He testified that he
discussed the matter with Ms. Adkins and her husband. However, he also
admitted that he had no clinical training in Alzheimer's disease and was
unaware of the progress of the disease in Ms. Adkins or whether modes of
treatment were available. He testified that he is certified in anatomic and
clinical pathology, that he has been unemployed in medicine since 1982 and
living off savings, in part because his actions and theories have always
been controversial, and that he has no special training in Alzheimer's
disease, geriatric diseases or neurology. He admitted that the use of his
machine is not a medically accepted or recognized procedure. He also stated
that he will use his machine in the future in the absence of an injunction
preventing him from doing so.
On February 5, 1991, the trial court issued an opinion and order permanently
enjoining defendant from using his machine or otherwise assisting in
suicide. The court found as fact that defendant's actions in this case
occurred as part of a physician-patient relationship, and that his actions
must therefore be judged under currently operative standards of medical
practice, and not standards which might ensue in the future. The court found
that defendant is by education and training a retired pathologist without
any experience or any knowledge in the fields of internal medicine,
geriatric medicine, psychiatry, neurology, or other areas which might be
helpful in diagnosing and managing Alzheimer's disease. The court found that
defendant was not professionally qualified to evaluate the physical or
emotional status of Ms. Adkins. Moreover, the court found that defendant
made no attempt to take a comprehensive medical history, conduct a physical
examination, order any tests, assess Ms. Adkins' medical status, or consult
with experts. The court found that Ms. Adkins, who was 54 years old, was
neither imminently terminally ill nor suffering from pain. After reviewing
the videotaped interview conducted by defendant with Ms. Adkins and her
husband, the court found that she was coherent, responsive to verbal
communication, and without any obvious physical or mental impairment. The
court noted reports that she had played tennis within days of her death.
Likewise, the video tape demonstrated that defendant made no real effort to
discover whether Ms. Adkins wished to end her life, relying largely on the
statements of her husband and a few limited responses from Ms. Adkins. The
court found that defendant appeared to be in a hurry during the videotaped
interview. The court found that Alzheimer's disease was not within the
province of defendant's speciality, and that his actions did not conform to
accepted medical standards. In particular, the court noted in its opinion
that defendant had threatened to use his machine again in the future in the
absence of an injunction preventing him from doing so.
On appeal, defendant does not challenge any of the trial court's findings of
fact. Instead, defendant raises two questions of law.
First, defendant claims that the trial court erred in denying its motion for
summary disposition based upon the doctrine of collateral estoppel and res
judicata after a district court judge ruled in a related criminal case that
assisting suicide is not a crime under the laws of the State of Michigan.
In People v Hayden, 205 Mich App 412, 414415; 522 NW2d 336 (1994), this
Court recently reiterated the rule that dismissal of a prosecution at
preliminary examination raises no bar under res judicata or collateral
estoppel to a subsequent prosecution. If so, then we can see no reason why
such a dismissal should collaterally estop a subsequent civil action
involving the same facts. Moreover, it is now clear that the district
court's dismissal of the criminal charge against defendant was erroneous.
People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994), cert den sub nom
Hobbins v Kelley, US (1995). For these reasons, we find no merit to
Defendant also claims that the trial court lacked jurisdiction to enjoin Dr.
Kevorkian from committing a legal act. As indicated above, it is now clear
that Dr. Kevorkian's claimed legal act was in fact illegal. Kevorkian,
supra. Alternatively, defendant argues that even if the actions of defendant
were criminal, injunctive relief should not be available in this case. We
Courts of equity will generally not interfere to prevent the breach of a
penal statute except to prevent the continuance of a nuisance affecting
health, morals, or safety or to protect a public property right or interest.
See Portage Twp v Full Salvation Union, 318 Mich 693, 706; 29 NW2d 297
(1947); Muskegon Bldg & Construction Trades v Muskegon Area Intermediate Sch
Dist, 130 Mich App 420, 429; 343 NW2d 579 (1983). See also 42 Am Jur 2d,
Injunctions, 157, pp 916-918. On the other hand, the mere fact that an act
sought to be enjoined is punishable under the criminal law will not preclude
either the state or an individual from invoking the jurisdiction of equity
whenever other facts afford a basis for the exercise of equitable
jurisdiction. There equity would otherwise have jurisdiction, the fact that
the Legislature has made such conduct a crime does not oust jurisdiction to
enjoin "Criminality neither affords a basis for, nor does it oust the
jurisdiction of, the court to grant an injunction." 42 Am Jur 2d,
Injunctions, 157, p 918. See Garfield Twp v Young, 340 Mich 616; 66 NW2d 85
(1954); Dearborn Nat'l Ins Co v Comm'r of Ins, 329 Mich 107; 44 NW2d 892
(1950); Board of Health of Grand Rapids v Vink, 184 Mich 688; 151 NW 672
(1915); United States v US Klans, Knights of Ku Klux Klan, Inc, 194 F Supp
897 (MD Ala, 1961); State ex rel Turner v United-Buckingham Freight Lines,
Inc, 211 NW2d 288 (Iowa, 1973); Chicago v Larson, 176 NE2d 675 (Ill App,
In Attorney General v Peterson, 381 Mich 445, 465466; 164 NW2d 43 (1969),
the Supreme Court held:
We believe the better rule and the trend of modern authority is that equity
may enjoin the unlicensed practice of a profession.
At common law, acts in violation of law constitute a public nuisance. Harm
to the public is presumed to flow from the violation of a valid statute
enacted to preserve public health, safety and welfare. The attorney general,
acting on behalf of the people, is a proper party to bring an action to
abate a public nuisance or restrain unlawful acts which constitute a public
nuisance. The existence of a criminal or other penalty for the practice of a
profession without a license will not oust equity from jurisdiction.
We hold that the trial court did not err in exercising equity jurisdiction
in this case. Defendant's conduct before injunction entered and his
threatened conduct in the future supports plaintiff's claim that recourse to
the criminal courts alone may not be adequate to restrain unlawful acts or
threats thereof which constitute, at a minimum, a public nuisance which
affects health, morals, or safety. Defendant stated under oath that he would
continue to aid in suicides even if his license was revoked. Defendant's
actions implicate criminal law and his words and actions amount to an
advertisement for criminal and unethical conduct. Defendant has made clear
that he stands ready to assist people in ending their lives. Defendant has
made clear that neither the actions of the Legislature, the executive, nor
the judiciary will sway him from his course. We will see.
/s/ William B. Murphy
/s/ Michael J. Kelly
SAAD, J. (concurring).
I concur in the result of the majority opinion and write separately to
express my view on this important topic.
I Nature of the Case.
We deal here with the important legal question of whether the trial court
should have enjoined Dr. Kevorkian from helping others to kill themselves.
Because respect for life and for the rule of law goes to the heart of our
nation's traditions and the principles we live by, I believe that we must
prohibit any person from placing himself above the law by helping people to
kill themselves. And, although the judiciary will ordinarily refrain from
enjoining criminal misconduct because to do so would appear superfluous,
courts must act when someone threatens to violate the rule of law by helping
others to kill themselves. The courts must and should act to preserve the
sanctity of life and to protect life and preserve the rule of and respect
for the law.
I concur in the majority's recitation of the facts; however, I believe that
the following facts deserve emphasis.
Significantly, in response to the unlawful conduct at issue, the Legislature
passed a bill outlawing assisted suicide, 1993 PA 3, and the Governor signed
the bill into law that same day. MCL 752.1027; MSA 28.547(127). The Michigan
Supreme Court has since both upheld the statute against various
constitutional challenges, and reaffirmed that one who assists another to
take his life violates the criminal laws of this state. People v Kevorkian,
447 Mich 436; 527 NW2d 714 (1994). Most recently, the parties have filed
petitions for certiorari with the United States Supreme Court, which have
been denied, sub nom Hobbins v Kelly, US (1995). It is against this backdrop
of legal developments which reaffirmed the illegality of assisted suicide
that we now affirm the decision of the trial court.
Should a court of general jurisdiction use its extraordinary injunctive
powers to prohibit someone from helping another to kill himself where such
conduct is both threatened and criminal?
Though rare, courts have used injunctions against repeated and threatened
criminal conduct. 42 Am Jur 2d, Injunctions, 157, p 917; State ex rel.
Turner v United-Buckingham Freight Lines, Inc, 211 NW2d 288 (Iowa, 1973);
Chicago v Larson, 31 Ill App 2d 450; 176 NE2d 675 (1961); United States v US
Klans, Knights of Ku Klux Klan, Inc, 194 F Supp 897 (MD Al, 1961); Garfield
Twp v Young, 340 Mich 616; 66 NW2d 85 (1954).
But why do so here? Because the sanctity of life and the rule of law are, at
one and the same time, the most cherished and vulnerable principles of our
society and both are directly challenged and would be undermined by the
threatened conduct if left unchecked.
On the other hand, compassion for those dying painfully and the concept of
individual choice convince some citizens to support euthanasia. Combine
these powerful forces with a climate of situational ethics in a world where
matters of life and death have become more decisional than natural and
euthanasia to some becomes a moral imperative. However, the people of
Michigan, through its Legislature, Governor and Supreme Court, have stated
unambiguously that helping another to kill himself is criminal. Therefore,
the issue raised by threatened violations of our laws against assisted
suicide is: What is the proper response of the courts?
And, it is the answer to this question which mandates that we uphold the
trial court's injunction against Dr. Kevorkian helping others to kill
The judiciary cannot avoid its responsibility to address questions of life
and death. Quill v Koppel, 870 F Supp 78 (SD NY, 1994); Compassion In Dying
v Washington, 49 F3d 586 (CA 9, 1995). Like it or not, these fundamental
issues end up before judges who admittedly are more comfortable with and
able to answer evidentiary rather than mortality issues. Yet, when faced
with threatened violations of life and law, courts cannot remain
adiaphorous, particularly where, as here, defendant's conduct strikes at the
very heart of both. Quill, supra; Compassion In Dying, supra.
Indeed, it is the concomitant centrality and fragility of the principles of
sanctity of life and respect for the law, [FN1] combined with the frequency
and ferocity of attacks on these principles that oblige this Court to place
its equity powers squarely on the side of life and law. And this is
especially true where, as here, both of these cherished traditions are
threatened with one seductively insidious act. So, we affirm the trial
court's order to Dr. Kevorkian to obey the law.
/s/ Henry William Saad
1 Judge Noonan recognized the paramount importance of the principles of the
sanctity of life and respect for the law in Compassion in Dying, supra:
In the two hundred and five years of our existence no constitutional right
to aid in killing oneself has ever been asserted and upheld by a court of
final jurisdiction Unless the federal judiciary is to be a floating
constitutional convention, a federal court should not invent a
constitutional right unknown to the past and antithetical to the defense of
human life that has been a chief responsibility of our constitutional
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