*1 People ATTORNEY COUNTY PROSECUTING ex rel OAKLAND PEOPLE KEVORKIAN Lansing. Decided March at 138155. Submitted Docket No. appeal sought. 12, 1995, May 10:30 a.m. Leave to at County Michigan People ex rel the Oakland of the State of brought Prosecuting Attorney in the Circuit an action Oakland Kevorkian, enjoin seeking permanently against Court Jack , using providing any or his suicide machines or him from contrivances, drugs devices, or or other modalities other similar seeking any persons human life or from to end a on or to regardless help patient conducting any suicide a commit acts trial, court, Following employed. L. modality a Alice Gilbert, J., granting relief an order entered appealed. requested. The defendant Appeals held: The Court properly the defendant’s motion trial court denied 1. The summary disposition of collat- that was based on the doctrines judicata. Although the motion was based eral and res ruling related case the defen- in a on a district court’s laws, assisting not a crime under the state’s suicide is dant that preliminary prosecution dismissal examination involving estop subsequent collaterally civil action not does addition, has court’s dismissal In the district the same facts. Kevorkian, 447 Mich erroneous.

been found to be enjoin jurisdiction to the defendant trial court had 2. The exercising equity The fact not err in and did punishable sought under the criminal an act to be invoking jurisdiction preclude where law does not equitable jurisdic- for the exercise of facts afford a basis other may Here, courts alone recourse to criminal the state’s tion. adequate unlawful acts or the defendant’s to restrain not be References 321-324; Judgments 2d, Equity § Law §§ Am Jur Criminal 732, 736. §§ cases. 9 in criminal of doctrine of res Modem status ALR3d constitute, minimum, public threats thereof that at a nui- health, morals, safety. sance that affects or Affirmed. Saad, J., concurring, prop- stated that the trial court acted

erly response to the defendant’s threats to violate the rule of by helping law others to kill themselves. Courts must act to preserve protect preserve of life and to life and respect rule of law and therefor. Estoppel Estoppel — — — 1. Collateral Criminal Law Civil Actions. prosecution preliminary

Dismissal of a criminal at a examination does not raise a bar under res or collateral to subsequent prosecution; a such a dismissal also does not collat- erally estop subsequent involving civil action the same facts. Injunctions — — Equity Jurisdiction. equity generally prevent Courts of will not interfere the breach penal except prevent statute the continuance of a health, affecting morals, safety protect nuisance or or to public property right interest; however, or the fact that an act sought punishable to be is under the criminal law will preclude invoking not either the state or an individual from jurisdiction equity where other facts afford a basis for the equitable jurisdiction; exercise of where would otherwise jurisdiction, Legislature have the fact that the has made such jurisdiction enjoin. conduct a crime does not oust Kelley, Attorney General, Frank J. Thomas L. Casey, Thompson, General, Solicitor Richard Pros- ecuting Attorney, Modelski, and Michael J. Assis- Prosecuting Attorney, people. tant for the Fieger, Fieger (by Geoffrey Schwartz, & P.C. N. Fieger Hamway), and Pamela A. for the defendant. Amicus Curiae: Jr.), (by

Beier Devine, Howlett Daniel C. for Michigan. Hemlock of Kelly Murphy, P.J.,

Before: and Michael JJ. Saad, Kevorkian this Court before P.J. The issue Murphy, permanently en- erred the trial court whether "any providing using joining or defendant devices, machines,’ other similar or 'suicide his (includ- drugs contrivances, or modalities or other persons any drugs) nonprescription to, ing seeking on, or life, or conducting any a human to end regardless help patient suicide commit acts employed.” modality no error We hold accordingly the decision affirm occurred trial court. helped Janet Adkins June On people 6, 1990, filed a a June suicide. On commit complaint a motion for relief and temporary restraining temporary re- order. granted, straining the trial but not order was why a cause to show did issue an order court preliminary At not be issued. should hearing 8, 1990, at on June *3 of a the conclusion testified, court issued the trial which defendant temporarily enjoining preliminary de- using providing ma- his suicide from or fendant help drugs in order to or or other devices chines seeking person life. to end a human request regarding people’s A trial was held Although January in relief testimony testify trial, his did not hearing an 8, 1990, admitted as the June In by prepared de- addition, a statement exhibit. exhibit. Numerous as an was admitted fendant testified. witnesses also other helped Adkins Ms. that he Defendant admitted by machine,” "suicide means of his suicide commit holding chemical three a frame consists of which line con- intravenous into a common fed solutions trolled ted by admit- Defendant and a timer. a switch line needle the intravenous inserted that he that Ms. Adkins arm, testified but Ms. Adkins’ into [May- activated the switch that turned on the machine and that Ms. Adkins wished to die because she had Alzheimer’s and disease feared for the future. He testified that he discussed the matter with Ms. However, Adkins and her husband. he also admit- ted that he had no in training clinical Alzheimer’s disease and was progress unaware in disease Ms. Adkins or whether modes of treat- ment were available. He testified that he is certi- fied in anatomic and clinical pathology, that he has been in unemployed medicine since 1982 and living off savings, part in because his actions and theories always controversial, have been and that he has no special training disease, in Alzheimer’s geriatric diseases, or neurology. He admitted the use of his machine is not a medically accepted or recognized procedure. He also stated that he will use his machine future the absence of an injunction him preventing from doing so. 5, 1991,

On February the trial court an issued opinion and order permanently enjoining defen- dant from using his machine or otherwise assisting in a suicide. The court found as fact that defen- dant’s actions in this case occurred part as physician-patient relationship and that his actions must judged therefore be under currently opera- tive standards practice, medical and not stan- dards that might ensue in the future. The court found that defendant education training a retired pathologist without any experience or any knowledge in the medicine, fields of internal geriatric medicine, psychiatry, neurology, or other areas might be helpful in diagnosing *4 managing Alzheimer’s disease. The court found that defendant was not professionally qualified evaluate the physical or emotional status of Ms. Moreover, Adkins. the court found that defendant made no attempt to take a comprehensive medical any physical history, examination, order conduct a status, tests, Adkins’ or consult assess Ms. medical experts. Adkins, that Ms. The court found with years fifty-four immi- neither old, was who pain. suffering nently terminally reviewing After ill nor videotaped interview conducted the husband, Adkins and her with Ms. defendant responsive coherent, found she was court that any communication, obvious and without verbal physical reports impairment. The court noted or mental days played of tennis within that she had videotape Likewise, the demonstrated her death. no to discover made real effort that defendant relying life, her Ms. Adkins wished to end whether largely of her husband and on the statements responses The court limited from Ms. Adkins. few appeared hurry to be in a that found defendant videotaped during The court found interview. prov- disease was not within that Alzheimer’s speciality that of his actions ince did not conform defendant’s accepted In medical standards. opinion particular, in its the court noted use his machine defendant had threatened again in the in the of an future absence doing preventing him from so. appeal, challenge any not of

On defendant does findings Instead, the trial court’s fact. defendant questions raises two of law.

First, trial court defendant claims that the erred denying summary disposition motion for his upon based the doctrines collateral ruled res after a district court a related assisting criminal case suicide is not crime under the laws the State Michigan. People Hayden, 412, 414-415; In (1994), recently reiter- this Court prosecution at a that dismissal of a ated rule *5 App 606 210 Mich 601 Opinion op the Court preliminary examination raises no bar under res subsequent or collateral to a prosecution. why so, If then we can see no reason collaterally estop such a dismissal should a subse- quent involving civil action the same facts. More- over, it is now clear that the district court’s dis- charge against missal of the criminal defendant People Kevorkian, erroneous. v 447 436; Mich (1994), 527 NW2d 714 cert den sub nom Hobbins v — Kelley, —; 1795; US 115 S Ct 131 L Ed 2d 723 (1995). reasons, For these we find no merit to argument. defendant’s

Defendant also claims that the trial court lacked jurisdiction enjoin committing legal him from act. above, As indicated it is now clear that defen- legal illegal. dant’s claimed act was in fact Kevor- supra. Alternatively, argues kian, even if criminal, his actions were relief disagree. should not be available in this case. We equity generally Courts of will not interfere to prevent penal except the breach of a statute prevent affecting the continuance of a nuisance safety protect health, property right public morals, or or to Portage Twp or interest. See v Full Union, Salvation 693, 706; 29 NW2d 297 (1947); Muskegon Building & Construction Trades Muskegon Area Dist, Intermediate School 130 Mich 429; 343 579 NW2d See also Injunctions, pp 2d, 42 Am Jur § 157, 916-918. On hand, the other to be sought the mere fact that an act punishable under the criminal preclude law will not either the state or an indi- invoking jurisdiction vidual equity whenever other facts afford a basis for the exercise equitable Where would oth- jurisdiction, Legisla- erwise have the fact that the ture has made such conduct a crime does not oust jurisdiction enjoin. "Criminality neither affords 607 jurisdiction of, the for, it oust the nor does a basis grant injunction.” 2d, Jur 42 Am an court Twp p Injunctions, Garfield § See (1954); Young, Dear-born 616; Mich NW2d Ins, Ins Co v Comm’r of t'l Na Rapids (1950); of Grand Bd of Health *6 (1915); Vink, 672 United 688; 151 184 Mich NW v Knights Inc, Elan, Elans, Ku Klux of States US (MD 1961); Supp Ala, ex rel F 897 State 194 United-Buckingham Freight Inc, Lines, Turner v (Iowa, Chicago 1973); Larson, 31 App 450; 176 NE2d 675 Ill 2d Optometry Attorney ex rel Bd In General Peterson, 445, 465-466; 164 Examiners v (1969), Supreme Court held: NW2d and the trend of We the better rule believe enjoin the equity may is that authority modern practice profession. a unlicensed law, in law At acts violation of consti- common public to is public tute a nuisance. Harm a presumed to from the violation of valid flow health, safety preserve public statute enacted acting on attorney general, be- and welfare. The bring proper a an people, party half of the or restrain un- public abate a nuisance action to public constitute nuisance. lawful acts which penalty or other The existence a criminal practice profession without a license will not oust in not err the trial court did We hold exercising equity jurisdiction in this case. Defen- was entered before dant’s conduct supports in the future his threatened conduct people’s the criminal claim that recourse to adequate may not be restrain courts alone constitute, at threats thereof that acts or unlawful public health, minimum, that affects nuisance J. by Saad, safety. morals, or Defendant stated under oath that he would in if continue to aid suicides even impli- his license cate the criminal revoked. Defendant’s actions law and his words and actions amount to an advertisement ethical conduct. Defendant has made clear that he for criminal un- ready people ending stands to assist their lives. Defendant made has clear that neither the actions Legislature, branch, the executive nor the judiciary sway will him from his course. We will see.

Affirmed. Kelly, J.,

Michael concurred. (concurring). Saad, J. I concur the result the majority opinion and write separately ex- press my important topic. view on this

i *7 NATUKE OF THE CASE important legal question We deal with here the whether the trial court should have Dr. helping Kevorkian from to kill others themselves. respect Because for life and for the rule of law goes to the of our heart nation’s traditions the principles by, we live I believe we must prohibit any person placing from himself above by helping people the law Arid, to kill themselves. although judiciary ordinarily the will refrain enjoining criminal misconduct because to do so appear superfluous, would courts must act when someone threatens to violate the rule of law helping others to kill The themselves. courts must preserve and should act to the of life and protect preserve life and the rule of law and respect therefor. People by Saad, J.

II PACTS majority’s facts; I recitation concur the following however, emphasis. facts deserve I believe that response Significantly, con- unlawful passed Legislature issue, outlaw- a bill the Governor duct at ing suicide, 1993 PA and assisted day. signed MCL into law that same the bill 28.547(127). Supreme Michigan 752.1027; MSA upheld the statute has since both Court challenges reaffirmed various constitutional life vio- to take his that one who assists another state. laws of this lates the criminal (1994). 436; Kevorkian, 447 petitions recently, parties filed have Most Supreme Court, with the United States certiorari denied, nom v Kel- been sub Hobbins which have —ley, 2d 723 —; Ct L Ed US 115 S backdrop legal develop- against this It is illegality of assisted reaffirmed the ments that affirm the decision of trial suicide that we now court.

m ISSUE general jurisdiction use its Should a court of powers prohibit extraordinary injunctive some- helping kill himself where another one from and criminal? is both threatened such conduct IV

ANALYSIS *8 injunctions Though rare, used courts have against repeated conduct. threatened criminal and App

610 210 601 by Saad, p Injunctions, 2d, Am § 917; 42 Jur State ex United-Buckingham Freight Lines, rel Turner v (Iowa, 1973); Chicago Inc, 211 Larson, 288 NW2d v (1961); Ill 450; 2d 176 NE2d 675 United Knights Klans, Klan, Inc, States v U S of Ku Klux (MD Supp 1961); Twp Ala, 194 F Garfield Young, why But sodo here? Because life are, time, and the rule law one and the same principles the most cherished and vulnerable society challenged directly our and both are and by would be undermined left unchecked. if threatened conduct compassion dying hand, On the other for those painfully concept and the of individual choice support convince some citizens to euthanasia. Com- powerful bine these tional forces with a climate of situa- ethics world where matters of life and death have become more decisional than natural impera- and some euthanasia becomes moral people Michigan, through However, tive. Legislature, its Supreme Governor, Court, have unambiguously helping stated kill another himself Therefore, is criminal. the issue raised against threatened violations of our laws assisted proper response suicide is: What is the courts? question

And, it answer to this uphold injunc- mandates that we the trial court’s helping tion themselves. Dr. Kevorkian’s others to kill judiciary responsibility cannot avoid its questions Kop- address of life and Quill death. (SD pell, Supp 1994); Compassion NY, F 1995). Washington, (CA Dying v 49 F3d 586 Like up not, it or these fundamental issues end before judges admittedly who are more comfortable with evidentiary able to answer rather mor- than *9 Kevorkian by Saad, tality Yet, when with threatened issues. faced law, remain cannot of life and courts violations adiaphorous, particularly here, where, as defen- very of heart both. the conduct strikes dant’s Quill, supra. supra; Compassion Dying, centrality and Indeed, it is the concomitant sanctity principles fragility of life of the frequency respect the law,1 with combined the principles, ferocity on these of attacks and oblige powers place its this Court squarely is law. And this on the side of life and especially where, here, cher- as of these both true with one traditions are threatened ished tively seduc-. So, affirm trial court’s insidious act. we obey Dr. order to Kevorkian law._ importance princi recognized paramount Judge Noonan respect Compassion in ples law in life and for the supra Dying, at 591: years our no In the two hundred and five existence killing right has to aid oneself ever been

constitutional asserted and federal federal to the has upheld by court of Unless the final convention, floating judiciary to be a constitutional right unknown court should not invent constitutional past defense of human life and antithetical govern- responsibility been a chief of our constitutional ment.