5/95 Appeals Court Order Affirming Injunction Against Jack Kevorkian


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
v. )
)
JACK KEVORKIAN, )
Defendant-Appellant, and )
HEMLOCK OF MICHIGAN, )
Amicus Curiae. )
__________________________________)

Before: Murphy, P.J., and Michael J. Kelly and Saad, JJ.

MURPHY, P.J.

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 also testified.

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's argument.

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 disagree.

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, 1961).

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.

Affirmed.

/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.

II Facts.

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.

III Issue.

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?

IV Analysis.

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 themselves.

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

END NOTES

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 government.

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