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For several years, right-to-die advocate Dr. Jack Kevorkian has battled with Michigan prosecutors over his participation in assisted suicides. In a January 3, 1997 ruling, Dr. Kevorkian failed to persuade a federal judge that assisted suicide is a constitutional right. U.S. District Judge Gerald E. Rosen ruled “that a mentally competent, terminally ill or intractably suffering adult does not have a liberty interest protected by the Fourteenth Amendment's Due Process Clause in assisted suicide.”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK KEVORKIAN
and JANET GOOD,
Plaintiffs,
vs.
RICHARD THOMPSON,
Prosecuting Attorney for the
County of Oakland, Michigan,
Defendant.
No. 96-CV-73777-DT
Hon. Gerald E. Rosen
AMENDED OPINION AND ORDER REGARDING THE PARTIES'
CROSS-MOTIONS FOR SUMMARY JUDGMENT1/
At a session of said Court, held in the
U.S. Courthouse, Detroit, Michigan
on , Jan. 6, 1997
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
In this declaratory judgment/injunctive relief action, Plaintiffs Jack
Kevorkian and Janet Good seek a court order enjoining Defendant
Richard Thompson and his successor in the office of Oakland County
Prosecutor from prosecuting Kevorkian for his assisted suicide
activities. At the heart of both Plaintiffs' Amended Complaint for
Declaratory and Injunctive Relief and their motion for summary
judgment is their contention that the statutes and the common law
under which Kevorkian has been prosecuted in the past are
unconstitutional, and therefore, any future prosecutions of Dr.
Kevorkian will result in the deprivation of their constitutional rights.
Plaintiffs' Amended Complaint contains four counts, all asking the
Court for declaratory and injunctive relief. In Count I, Plaintiffs ask
the Court to find that M.C.L. Sec. 750.505 (the Michigan "common
law savings statute"), and the Michigan Supreme Court's December
13, 1994 ruling that Plaintiff Kevorkian may be prosecuted for
assisting in a suicide under this statute, is unconstitutionally vague,
overbroad, and violates the prohibition against ex post facto laws. In
Count II, Plaintiffs ask the Court to declare that mentally competent
terminally ill or intractably suffering adults have a liberty interest
protected by the Fourteenth Amendment's Due Process Clause to end
their suffering by committing suicide and to seek physician aid in
doing so. In Count III, Plaintiffs seek a declaration that any unwritten
common law which affords patients attached to life support systems
the right to terminate life support but denies a mentally competent,
terminally ill or intractably suffering adult not on life support the right
to commit suicide with the assistance of a physician violates the Equal
Protection Clause of the Fourteenth Amendment. In Count IV,
Plaintiffs allege that should another criminal charge be filed against
Dr. Kevorkian and/or Janet Good under M.C.L. Sec. 750.505, they will
be deprived of their Fifth and Fourteenth Amendment liberty interests,
and the right to be free of unreasonable seizure under the Fourth and
Fourteenth Amendments. Therefore, they ask the Court to enjoin
Richard Thompson from engaging in any action to enforce M.C.L.
Sec. 750.505 as it pertains the Plaintiffs' assistance in any suicide.
II. PROCEDURAL BACKGROUND/STATE COURT DECISIONS
In 1992, the Oakland County Circuit Court (Breck, J.) entered an order
granting Jack Kevorkian's motion to dismiss two counts of open
murder for assisting in the suicides of Marjorie Wantz and Sherry
Miller in October of 1991 on the ground that physician-assisted suicide
is not a crime in Michigan. The Oakland County Prosecutor appealed
that decision to the Michigan Court of Appeals and the appellate court
reversed the circuit court's decision. People v. Kevorkian, 205 Mich.
App. 180, 517 N.W.2d 293 (1994).
While the appeal of the Oakland County Circuit Court's 1992 order
was pending, on December 15, 1992, the Michigan Legislature enacted
a statute, M.C.L. Sec. 752.1021, et seq., which took effect on February
25, 1993. That statute established a commission to study voluntary
termination of life and created a new crime of "criminal assistance of
suicide."2/ Two judges of the Wayne County Circuit Court, in two
separate cases, subsequently declared that the criminal provisions of
the new statute were unconstitutional. Judge Cynthia Stephens entered
a declaratory judgment declaring the new statute unconstitutional in a
declaratory judgment action filed by a terminally ill individual, Teresa
Hobbins, and seven health care professionals. Judge Stephens also held
that individuals have a constitutional right to commit suicide. Judge
Richard Kaufman held that "in some instances", a person has a
constitutional right to commit suicide. Finding that one of Kevorkian's
"patients", Donald O'Keefe, had a constitutional right to commit
suicide, Judge Kaufman dismissed the assisted suicide charge against
Dr. Kevorkian stemming from his assistance in O'Keefe's suicide.
The Wayne County Prosecutor appealed both cases. The appeals were
consolidated and in 1994, the Michigan Court of Appeals held that the
assisted suicide statute, by creating a commission to study issues
related to voluntary termination of life, with or without assistance, and
specifically criminalized assisted suicide, violated the "one-object"
provision of the Michigan Constitution. However, the appellate court
also found that there is no constitutional right to commit suicide.
Hobbins v. Attorney General, 205 Mich. App. 194, 518 N.W.2d 487
(1994).
The Michigan Supreme Court granted leave to appeal and held that (1)
the assisted suicide statute was validly enacted and did not violate the
one object clause of the Michigan Constitution; (2) the United States
Constitution does not prohibit states from imposing criminal penalties
for assisting someone in committing suicide; and (3) assisted suicide is
a common law crime in Michigan which may be prosecuted under the
common-law savings statute, M.C.L. Sec. 750.505. People v.
Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994). Kevorkian
petitioned the United States Supreme Court seeking to overturn the
Michigan Supreme Court's decision. The United States Supreme Court
denied that petition for certiorari. People v. Kevorkian, 115 S.Ct. 1795
(1995).
Meanwhile, following Kevorkian's assistance with the June 1990
suicide of Janet Adkins, on February 5, 1991, (i.e., before the
Wantz/Miller suicides which gave rise to the first charges filed against
Kevorkian) the Oakland County Circuit Court (Gilbert, J.) entered an
"Order of Permanent Injunction", permanently enjoining "Dr. Jack
Kevorkian, his agents, and employees, and those in active concert with
him. . . from: using, employing, administering, offering, 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."
People v. Kevorkian, Oakland County Cir. Ct. No. 90-390963-NZ.
In May of 1995, after the Michigan Supreme Court issued its ruling
finding assisted suicide to be a crime at common law, the Michigan
Court of Appeals affirmed the circuit court's imposition of the
permanent injunction. People v. Kevorkian, 210 Mich. App. 601, 534
N.W.2d 172 (1995). The Michigan Supreme Court denied leave to
appeal. People v. Kevorkian, 549 N.W.2d 566 (1996). Kevorkian
subsequently petitioned the U.S. Supreme Court for certiorari. See
People v. Kevorkian, 65 U.S.L.W. 3086 (7125196). That petition was
pending when this federal action was filed. The petition for certiorari
was denied on October 15, 1996, i.e., after oral argument on the
parties' cross-motions for summary judgment in this action was
completed. People v. Kevorkian, 117 S.Ct. 296 (1996).
In his cert petition, Kevorkian argued that (1) the injunction's
prohibitions against "offering" or "conducting any acts to help a
patient commit suicide" impermissibly burdens First Amendment
rights; (2) a mentally competent terminally ill adult has a constitutional
right to commit suicide which is protected by the Ninth and Fourteenth
Amendments; and (3) the Equal Protection Clause of the Fourteenth
Amendment is violated by premising the freedom to choose to hasten
death on the basis of whether a disease requires the use of life
sustaining treatment.
PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF IN THIS
ACTION
Kevorkian and his co-plaintiff in this action, Janet Good, seek a court
order precluding the Oakland County Prosecutor from prosecuting
Kevorkian for any other suicides which he has assisted (or may assist)
or at which he was or is present, including the death of Lois Howe
whose suicide is referenced in Plaintiffs' Amended Complaint in this
action.3/ Kevorkian and Good claim that an injunction is necessary
because other suicides at which Dr. Kevorkian was present -- including
Ms. Howe' -- are under police investigation and that Richard
Thompson "is threatening to file charges" in the Howe case. It is on the
basis of alleged "ongoing police investigations" and the alleged
threatened initiation of charges against Dr. Kevorkian for the death of
Lois Howe that Kevorkian claims he has standing to pursue the
injunctive and declaratory judgment relief he seeks in this action.4/
POST-HEARING DEVELOPMENTS
Following completion of oral argument in this case, on October 29,
1996, after the United States Supreme Court denied Kevorkian's
petition for a writ of certiorari on October 15, 1996 and allowed the
Permanent Injunction entered by the Oakland County Circuit Court in
February 1991 to stand, the Oakland County Prosecutor submitted to
the Oakland County Circuit Court an ex parse motion for an order to
show cause why Jack Kevorkian should not be held in criminal
contempt of court for violating the permanent injunction. That show
cause order is still pending.
Then, on October 31, 1996, a 20-count criminal complaint was filed in
Oakland County against Jack Kevorkian and others for assisting and
conspiring to assist in several suicides between June 20, 1996 and
September 7, 1996, in violation of Michigan common law and M.C.L.
Sec. 750.505 (i.e., the laws challenged in this action). Janet Good is
named, but not charged, as a co-conspirator in that Oakland County
criminal complaint.5/
In light of the foregoing post-hearing developments, the Court entered
an Order on November 6, 1996 directing counsel for the parties to
submit supplemental briefs addressing the effect of these
developments on the parties' previously-asserted legal arguments.
Supplemental briefing was completed on November 19, 1996.
Having reviewed and considered all of the parties' briefs and
supporting documents filed in this matter, and having further
considered the oral arguments of counsel at the hearing held on
September 26-30, 1996, the Court is now prepared to rule on the
parties' cross-motions for summary judgment. This Opinion and Order
sets forth that ruling.
FACTUAL BACKGROUND
Plaintiff Jack Kevorkian is a well-known advocate of the right to die
and the right to physician-assisted suicide. He has previously been
prosecuted in Oakland County for his assisted suicide activities, and
was acquitted in each instance. He has admitted assisting in numerous
suicides both prior to, and after, his last prosecution.
Plaintiff Janet Good is the former president of the Michigan Hemlock
Society. According to Plaintiffs' Amended Complaint, Ms. Good
suffers from terminal pancreatic cancer. She alleges in this action that
"if she seeks to obtain the assistance of a physician to end her pain and
suffering, she faces indictment as a co-conspirator." [Amended
Complaint, Para. 21.]
Although the parties have not included any sufficient "statement of
facts" in their briefs to provide a description of specific conduct which
allegedly gives rise to the potential prosecutions which Plaintiffs seek
to preclude, at oral argument, Plaintiffs' counsel stipulated that
Plaintiff Kevorkian's conduct in assisting in a suicide "generally" is the
conduct described in the reported Michigan Court of Appeals and
Supreme Court decisions concerning him.6/ This "general" conduct
was described by Plaintiff Kevorkian, himself, on the record on June 8,
1990, in connection with the Oakland County Prosecutor's request for
a preliminary injunction to enjoin Kevorkian from further assisting in
suicides following the suicide of Janet Adkins, and reported in People
v. Kevorkian, supra, 534 N.W.2d 172:
Defendant [Kevorkian] 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....
Id at 173-74.
Kevorkian's conduct in connection with the deaths of Sherry Miller
and Marjorie Wantz was described by the Michigan Supreme Court in
People v. Kevorkian, supra, 527 N.W.2d 714:
According to the testimony presented at the defendant's preliminary
examination, the plan was to use his "suicide machine". The device
consisted of a board to which one's arm is strapped to prevent
movement, a needle to be inserted into a blood vessel and attached to
IV tubing, and containers of various chemicals that are to be released
through the needle into the bloodstream. Strings are tied to two of the
fingers of the person who intends to die. The strings are attached to
clips on the IV tubing that control the flow of the chemicals. As
explained by one witness, the person raises that hand, releasing a drug
called methohexital, which was described by expert witnesses as a
fast-acting barbiturate that is used under controlled circumstances to
administer anesthesia rapidly. When the person falls asleep the hand
drops, pulling the other sting, which releases another clip and allows
potassium chloride to flow into the body in concentrations sufficient to
cause death.
The defendant tried several times, without success, to insert the
suicide- machine needle into Ms. Miller's arm and hand. He then left
the cabin, returning several hours later with a cylinder of carbon
monoxide gas and a mask apparatus. He attached a screw driver to the
cylinder, and showed Ms. Miller how to use the tool as a lever to open
the gas valve.
The defendant then turned his attention to Ms. Wantz. He was
successful in inserting the suicide-machine needle into her arm. The
defendant explained to Ms. Wantz how to activate the device so as to
allow the drugs to enter her blood stream. The device was activated
and Ms. Wantz died.7/
The defendant then placed the mask apparatus on Ms. Miller. The only
witness at the preliminary examination who was present at the time
said that Ms. Miller opened the gas valve by pulling on the screw
driver. The cause of her death was determined to be carbon-monoxide
poisoning.
Id. at 733-34.
The Court will use these "general" descriptions of Kevorkian's assisted
suicide activities as the factual context for its decision in this matter.
DISCUSSION
In seeking summary judgment/dismissal, Defendant Thompson has
argued:
(1) that Plaintiffs' complaint should be dismissed on
justiciability/jurisprudential grounds (a) for lack standing, (b) by
application of the Younger8/ abstention rule, and (c) by application of
the Rooker-Feldman9/ doctrine; and
(2) for lack of merit of Plaintiffs' substantive arguments of
unconstitutional vagueness, and due process and equal protection
violation.
The Court will address each of these issues seriatim.
A. STANDING
A plaintiff's standing is a jurisdictional matter for Article III courts,
and thus, is a threshold question to be resolved before the court may
address any substantive issues. Linda R. S. v. Richard D., 410 U.S.
614, 615, 93 S.Ct. 1146, 1148 (1973); O'Shea v. Littleton, 414 U.S.
488, 493, 94 S.Ct. 669, 675 (1974); Planned Parenthood Ass'n v. City
of Cincinnati, 822 F.2d 1390, 1394 (6th Cir. 1987).
Article III, section 2 of the United States Constitution confines federal
court jurisdiction to "cases" and "controversies". The case-or-
controversy requirements or Article III, however, are not satisfied
merely because a party requests a court of the United States to declare
his legal rights. Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S.464, 471, 102 S.Ct.
752, 758 (1982). As the Supreme Court explained in Valley Forge:
The judicial power of the United States defined by Art. III is not an
unconditioned authority to determine the constitutionality of
legislative or executive acts. The power to declare the rights of
individuals and to measure the authority of governments, this Court
said 90 years ago, "is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital controversy."
Otherwise the power "is not judicial. . . in the sense in which judicial
power is granted by the Constitution to the courts of the United
States."
As an incident to the elaboration of this bedrock requirement, this
Court has always required that a litigant have "standing" to challenge
the action sought to be adjudicated in the lawsuit.
Id.
Examination of the standing issue involves two levels of inquiry. The
first level of inquiry is whether the plaintiff has shown, "at an
irreducible minimum", some actual or threatened injury resulting from
the putatively illegal action. Valley Forge, supra; O'shea v. Littleton,
supra; Planned Parenthood Ass'n v. City of Cincinnati, supra. The
second inquiry involves considering whether, as a prudential matter,
the plaintiff is the proper proponent of the rights on which the action is
based. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 2873 (1976).
To satisfy the "injury" requirement of the first level of constitutional
inquiry, it is not enough for the plaintiff to assert some abstract injury.
It must be demonstrated that the plaintiff "has sustained or is
immediately in danger of sustaining some direct injury" as a result of
the challenged statute or official conduct. Massachusetts v. Mellon,
262 U.S. 447, 488, 43 S.Ct. 597, 601 (1923); Valley Forge, supra, 102
S.Ct. at 761. The injury or threat of injury must be both "real and
immediate" not "conjectural" or "hypothetical". O'shea v. Littleton,
supra.
In this case, although it is conceded that there have been no charges for
assisting with the suicide of Lois Hawes brought or threatened against
Dr. Kevorkian, and no charges were pending or threatened against him
when this case was filed, the cases involving attempts to enjoin
prosecutions in which no "case or controversy" injury was found seem
to hinge on the fact that there was nothing to suggest that the plaintiffs
in those cases would again engage in any conduct that would violate
the laws they were challenging. See, Eggar v. City of Livingston, 40
F.3d 312, 316 (9th Cir. 1994), cert. denied 115 S.Ct. 2566 (1995);
Knox v. McGinnis, 998 F.2d 1405, 1412-15 (7th Cir. 1993); Johnson
v. Moore, 958 F.2d 92, 94-95 (5th Cir. 1992). By contrast, Dr.
Kevorkian has openly continued to assist with suicides, and he has
asserted that he will continue to do so. See, People v. Kevorkian, 534
N.W.2d at 173-74.
More importantly, the Supreme Court has held that when prosecution
seems apparent, a litigant need not first expose himself to actual arrest
or prosecution to be entitled to challenge the constitutionality of a
statute. See, Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1208, 1215
(1974). The Court further stated in Babbitt v. United Farm Workers
National Union, 442 U.S. 289, 99 S.Ct. 2301 (1979) that when a
plaintiff "has alleged an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder, he
'should not be required to await and undergo a criminal prosecution as
the sole means of seeking relief.'" Id. at 2308, quoting Doe v. Bolton,
410 U.S. 179, 188, 93 S.Ct. 739, 745 (1973).
Relying on Babbitt, in Quill v. Vacco, 80 F.3d 716, 722-23 (2nd Cir.
1996), cert. granted 117 S.Ct.36 (1996) and Compassion in Dying v.
State of Washington, 79 F.3d 790, 794-97 (9th Cir. 1996) (en banc),
cert. granted, 117 S.Ct. 37 (1996), both the Second Circuit and Ninth
Circuit determined that physician and patient plaintiffs had presented a
sufficiently justiciable case or controversy to withstand Article III
standing scrutiny. As in this case, the Quill and Compassion in Dying
plaintiffs were challenging state laws which criminalized assisting in a
suicide.
The Court in this case similarly finds that the case or controversy
"injury" requirement is met. Although no criminal charges against
Kevorkian were pending when this action was filed, as indicated
above, an injunction in aid of the criminal law covering Kevorkian and
his assisted suicide activities was at the time of filing, and remains
now, in place. Furthermore, criminal charges have recently been filed
against Kevorkian in Oakland and Ionia counties, and those criminal
prosecutions are still pending.
As indicated above, however, the finding of a case or controversy
"injury" does not end the Article III standing inquiry. The second level
of inquiry is whether Kevorkian and/or Good are the proper parties to
assert the rights claimed in Plaintiffs' Amended Complaint.
The Sixth Circuit explained the standards applicable to this second
level of inquiry in Planned Parenthood Ass'n v. City of Cincinnati,
supra:
One of the standards relevant to this second question is the well-
established principle that a plaintiff"generally must assert his own
legal rights and interests and cannot rest his claim to relief on the legal
rights or interests of third parties." Warth [v. Seldin], 422 U.S. [490],
499, 95 S.Ct. [2197], 2205 [(1975)]. There are exceptions to this rule,
however, under which litigants have been permitted to assert the rights
of third parties. There are essentially two types of cases involving jus
tertii standing. The first is where the litigants challenge statutes which
regulate their activity and, as a result, violate the rights of third parties.
Plaintiffs in this type of case have uniformly been permitted to assert
the rights of the affected third parties. See Craig v. Boren, 429
U.S.190, 194-97, 97 S.Ct.451,455-57,50 L.Ed.2d 397 (1976);
Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 1033-35, 31
L.Ed.2d 349 (1972). The second genre of jus tertii cases involve
litigants seeking to assert solely the rights of third parties as being
impinged by a statute. Jus tertii standing in this type of case is more
difficult to establish, and generally depends on two factual elements.
The first is whether the litigant's relationship with the third party
whose right he seeks to assert is such that "the enjoyment of the right
is inextricably bound up with the activity the litigant wishes to
pursue." Singleton [v. Wulff], 428 U.S. [106], 114, 95 S.Ct. [2197],
2874 [(1976)]. The second is whether the third party is not able to
assert the affected right on his own behalf. Id. at 115-16, 96 S.Ct. at
2874-75.
822 F.2d at 1394. See also, Volunteer Medical Clinic, Inc. v.
Operation Rescue, 948 F.2d 218, 222-23 (6th Cir. 1991).
Volunteer Medical Clinic and Planned Parenthood, as well as the cases
cited in the above-quoted excerpt from that case, all deal with statutes
and ordinances regulating abortion and contraceptives, and the
potential prosecution of doctors, hospitals and abortion clinics under
those statutes. In these cases, the Supreme Court and the Sixth Circuit
have uniformly held that doctors have standing "to assert the rights of
women patients as against governmental interference with the abortion
decision." Singleton v. Wulff, supra. Accord Doe v. Bolton, 410 U.S.
179, 188, 93 S.Ct. 739 (1973).
It is this "physician-patient" standing that the courts found in
Compassion in Dying and Quill v. Vacco, and it is this same derivative
doctor-patient standing that Plaintiff Kevorkian asserts in this case.
See Plaintiffs' Amended Complaint, Para. 25. ("It is a well established
constitutional principle that physicians have standing to assert the
constitutional rights of their patients.")
Defendant argues that Kevorkian is not entitled to assert this
physician-patient standing because he is not a licensed physician. His
medical license has been suspended and he is no longer authorized to
practice medicine in Michigan. However, as Plaintiffs' counsel pointed
out at oral argument, the Michigan common law at issue here does not
only criminalize physician-assisted suicide. The Michigan law sweeps
even more broadly than the laws challenged in the abortion cases
because it precludes assistance in a suicide by anyone, not only
licensed physicians. Thus, that Kevorkian is not a licensed physician is
irrelevant for standing purposes in this case, and the Court accordingly
finds that Kevorkian may derivatively assert the constitutional rights of
his terminally ill clients.
The Court also finds that Plaintiff Janet Good has standing to pursue
this action. As alleged in Plaintiffs' Amended Complaint, Ms. Good,
herself, is terminally ill and she has asserted her desire to seek
assistance in dying. Thus, the constitutional infirmities which are
alleged in the complaint directly affect her rights. Moreover, Ms. Good
arguably is also covered by the Oakland County injunction to the
extent that it covers not only Kevorkian but also "his agents,
employees and those in active concert with him from conducting any
acts to help a patient commit suicide". Furthermore, during the
pendency of this action, Ms. Good, herself, has been charged in a
criminal indictment in Ionia County for assisting in a suicide under the
very law challenged in this action.
Based on the foregoing discussion, the Court rejects Defendant
Thompson's argument that this case should be dismissed for lack of
Article III standing.
2. YOUNGER ABSTENTION
Defendant Thompson also argues that even if the Court is satisfied that
Plaintiffs have standing to pursue this action, the Court should
nonetheless abstain from granting the relief sought by Plaintiffs under
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). See Ohio Civil
Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 625,
106 S.Ct. 2718, 2722 (1986) (finding that a ripe controversy existed
between the parties but determining that the district court should have
abstained from adjudicating the case under Younger v. Harris).
In Younger v. Harris, the United States Supreme Court held that
federal courts should not enjoin pending state criminal proceedings
except in a "very unusual circumstance" where an injunction is
necessary to prevent "both great and immediate" irreparable injury. Id.,
106 S.Ct. at 751. Grounded on principles of equity- and on the "more
vital consideration" of the concerns for comity and federalism, id. at
750, the Younger court found it perfectly natural for our cases to
repeat time and time again that the normal thing to do when federal
courts are asked to enjoin pending proceedings in state courts is not to
issue such injunctions.
Id at 751.
The Court explained that federal courts must be sensitive to "the
legitimate interests of both State and National Governments, and in
which the National Government, anxious though it may be to vindicate
and protect federal rights and federal interests, always endeavors to do
so in ways that will not unduly interfere with the legitimate activities
of the states." Id. at 750. Thus, the Younger court found the possible
unconstitutionality of a statute does not justify an injunction against
good faith efforts of the state to enforce it. Id. at 755.
Younger established the principle that in cases seeking to enjoin
ongoing state proceedings -- be they criminal, civil, or administrative -
- federal courts should not exercise jurisdiction but should instead
dismiss the cases in their entirety. See Gibson v. Berryhill, 411 U.S.
564, 577, 93 S.Ct. 1689 (1973); Huffman v. Pursue Ltd., 420 U.S. 592,
95 S.Ct. 1200 (1975); Ohio Civil Rights Commission v. Dayton
Christian Schools, supra. The abstention rule announced in Younger
with respect to injunctive relief applies with equal force to requests for
declaratory relief in federal courts. Samuels v. Mackell, 401 U.S. 66,
91 S.Ct. 764 (1971). See also, Younger, supra, 91 S.Ct. at 749 n. 2.
In determining the applicability of the Younger abstention rule, the
court should consider three factors: (1) whether there is a pending state
proceeding; (2) whether an adequate opportunity is provided to raise
the constitutional claims in the state proceeding; and (3) whether there
are extraordinary circumstances which nevertheless warrant federal
intervention. Zalman v. Armstrong, 802 F.2d 199, 202 (6th Cir. 1986).
If a state action is pending when the federal complaint was filed, the
federal action must be dismissed. Hicks v. Miranda, 422 U.S. 332, 95
S.Ct. 2281 (1975). As indicated above, the Supreme Court has held
that this rule applies not only to pending criminal prosecutions, but
also, it applies with to civil proceedings in aid of the criminal law,
Huffman, supra; a state civil contempt proceeding, Juidice v. Vail, 430
U.S. 327, 97 S.Ct. 1211 (1977), or a civil enforcement action brought
by the state. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911
(1977). Moreover, it is well-settled that for Younger purposes, the
state's "trial-and-appeals process is treated as a unitary system, and for
a federal court to disrupt its integrity by intervening midprocess would
demonstrate a lack of respect for the state as a sovereign." New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.
350, 369, 109 S.Ct. 2506, 2519 (1989).
Furthermore, even if no state prosecution is pending when the federal
action is filed, if a state prosecution is initiated after the federal action
is filed, the Younger abstention rule still may apply. In Hicks v.
Miranda, supra, the Supreme Court held
[W]here state criminal proceedings are begun against the federal
plaintiffs after the federal complaint is filed but before any proceedings
of substance on the merits have taken place in the federal court, the
principles of Younger v. Harris should apply in full force. . . absent
satisfactory proof of those extraordinary circumstances calling into
play one of the limited exceptions to the rule of Younger....
95 S.Ct. at 2292.
With respect to Dr. Kevorkian, although it is true that there were no
criminal prosecutions pending against him in Oakland County when
the federal complaint was filed, there has been litigation concerning
the permanent injunction imposed by the Oakland County Circuit
Court in 1991 pending at the appellate level throughout the pendency
of this action. That injunction is a state civil proceeding "in aid of the
criminal law" under Huffman, and its progeny, and therefore subject to
Younger. See People v. Kevorkian, supra, 210 Mich. App. at 607
(finding the permanent injunction was necessary, because with respect
to Dr. Kevorkian, "recourse to the criminal courts alone may not be
adequate to restrain unlawful acts or threats thereof.") Although
Plaintiff Kevorkian's appeal of the injunction ended with the October
15, 1996 denial by the Supreme Court of his petition for a writ of
certiorari, on October 29, 1996, i.e., during the pendency of this
federal action, the Oakland County Prosecutor initiated contempt
proceedings against Kevorkian by filing a motion for an order to show
cause why Plaintiff Kevorkian should not be held in criminal contempt
and, accordingly, fined and incarcerated, for violating the injunction by
assisting in four suicides in August and September 1996. [See
Defendant's Supplemental Pleading and Additional Facts, Ex. A.] Two
days later, on October 31, 1996, a 20-count criminal complaint was
filed against Kevorkian in Oakland County for violating the Michigan
common law and M.C.L. Sec. 750.505 by assisting in ten suicides
from June through September 1996. Both the criminal contempt
proceedings and the 20-count criminal complaint are still pending in
Oakland County.
By virtue of these "ongoing" criminal proceedings in Oakland County,
the Court finds the first Younger element satisfied with respect to Dr.
Kevorkian.
The second factor for applying Younger abstention is whether the
pending state proceedings implicate an important state interest. The
proper analysis of this issue is not to look merely to the interest in the
outcome of the particular case, but to the importance of the generic
proceedings to the state. New Orleans Pub. Serv., Inc. v. Council of
City of New Orleans, 491 U.S. at 364-65, 109 S.Ct. at 2516-17. See
also, Penzoil Company v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519
(1987). Where the requested federal injunction would interfere with
the execution of state judgments or contravene a state's interest in its
contempt process, Younger applies. Juidice v. Vail, supra. See also,
Middlesex County Ethics Committee v. Garden State Bar Association,
457 U.S. 423, 102 S.Ct. 2515 (1982); Moore v. Simms, 442 U.S. 415,
99 S.Ct. 2371 (1979). The Supreme Court has further held that where
the state proceedings involve the state's criminal law, a paramount
state interest is implicated. Huffman, supra, 95 S.Ct. at 1208. See also,
O'Neill v. City of Philadelphia, 32 F.3d 785, 791-92 (3rd Cir. 1994),
cert. denied, 115 S.Ct. 1355 (1995).
The pending contempt proceeding and criminal charges against
Kevorkian implicate these important state interests. The Oakland
County injunction prohibits Kevorkian from assisting anyone to
commit suicide. People v. Kevorkian, supra, 210 Mich. App. 601. The
Michigan Court of Appeals ruling -- which the U.S. Supreme Court let
stand -- was premised on the fact that assisted suicide is illegal and
amounts to criminal conduct in Michigan. Id. at 605-608. The Court of
Appeals concluded that Kevorkian's actions "implicate criminal law".
Id at 608.
The third requirement for Younger abstention, i.e., that there be an
adequate opportunity in the state proceedings to raise constitutional
challenges, is also satisfied in this case. Abstention is appropriate
unless state law clearly precludes the interposition of the constitutional
claims. Moore, supra, 99 S.Ct. at 237. The burden rests on the federal
plaintiff to show that state procedure bars the interposition of the
constitutional claims. Penzoil Company, supra, 107 S.Ct. at 1527. See
also, Fieger v. Thomas, 74 F.3d 740, 745-46 (6th Cir. 1996).
Kevorkian has not made such a showing here. In fact, the petition for
writ of certiorari filed by Plaintiff Kevorkian in the course of his
appeal of the Oakland County Circuit Court's imposition of the
injunction raised several of the very same constitutional issues raised
in this action. Kevorkian argued in his cert petition that
constitutionally cognizable privacy and liberty interests encompass the
right of a mentally competent terminally ill or suffering adult to hasten
his/her own death and that it is a denial of equal protection to permit
persons on life support to hasten their death while denying this right to
those suffering from terminal illness or intractable pain who are not on
life support. [Petition for Writ of Certiorari, Defendant's Ex. E.]
Kevorkian also is challenging the injunction on the basis that it is
overbroad. Id While it is true that Kevorkian did not raise in that
petition the argument that the common law savings clause is
unconstitutionally vague, overbroad and amounts to an ex post facto
law, he will clearly have an adequate opportunity to raise these federal
constitutional claims in the pending Oakland County contempt and
criminal proceedings. Therefore, the Court finds that the third
requirement of Younger abstention is met.
Once a court determines that the requirements for Younger abstention
are met in a given case, generally the plaintiff's claims will be
dismissed unless the plaintiff can show that one of the exceptions
applies. Federal courts will hear a case in which Younger applies only
in "extraordinary circumstances", id. at 755, such as official
harassment and bad faith. Hicks v. Miranda, supra, 95 S.Ct. 2281,
2292-93. Bad faith generally means that a prosecution has been
brought without a reasonable expectation of obtaining a valid
conviction. Kugler v. Helfant, 421 U.S. 1017, 95 S.Ct. 2425 (1975).
Animus or ill will between the parties does not, by itself, place a case
within this narrow exception to Younger abstention. Phelps v.
Hamilton, 59 F.3d 1058, 1067 (10th Cir. 1995). Nor does the fact that
several unsuccessful prosecutions have already been brought against
the federal plaintiff. Cameron v. Johnson, 390 U.S. 611, 617-18, 88
S.Ct. 1335, 1338 (1968); Younger, supra, 91 S.Ct. at 752. See also
Dombrowski v. Pfister, 380 U.S. 479, 482, 85 S.Ct. 1116, 1118
(1965). This is particularly true where prosecuting officials rely on
judicial authorization for their conduct. Hicks, supra, 95 S.Ct. at 2293.
Here, although there is clearly ill will between the parties, and perhaps
even animus, the Court cannot say that the prosecutions against
Kevorkian have been brought in bad faith in the sense that the
prosecutor did not have a reasonable expectation of a valid conviction.
The fact that previous prosecutions have been unsuccessful does not
establish bad faith as to future prosecutions; each of those prior
acquittals have turned on the particular facts of those cases, and the
Defendant prosecutor has proceeded on legal theories supported, at
least on their face, by statute and applicable case precedent.
Nor does Kevorkian come within the ambit of a second recognized
exception to Younger abstention, that the challenged statute "is
flagrantly and patently violative of express constitutional prohibitions
in every clause, sentence and paragraph, and in whatever manner and
against whomever an effort might be made to apply it." Younger, 91
S.Ct. at 755. Kevorkian's challenge to the common law savings statute
does not fall within this category, and Plaintiffs' counsel has provided
no authority that would support such a proposition. Further, Plaintiffs'
suggestion that the common law savings statute has a "chilling effect"
on the exercise of their constitutional rights does not place this case
within an exception to Younger. The Younger court held that a
"chilling effect", even in the area of first amendment rights (which the
Supreme Court has historically vehemently protected), has never been
considered a sufficient basis, in and of itself, for enjoining state action.
91 S.Ct. at 754. See also, Fieger v. Thomas, supra, 74 F.3d at 750.
Based on foregoing discussion, and by application of Younger v.
Harris and its progeny, the Court finds that it must abstain from
adjudicating Plaintiff Kevorkian's claims in this action. Therefore, the
Court will not enjoin Defendant Thompson from proceeding with the
ongoing contempt and criminal charges against Kevorkian.
However, the Court's abstention decision with respect to Plaintiff
Kevorkian and his requested injunction against the Oakland County
Prosecutor does not resolve this action in its entirety because there
remains a second Plaintiff, Janet Good, and her request for a
declaratory judgment. There have never been, nor are there are now,
any criminal proceedings pending in Oakland County against Ms.
Good. While the Court is aware of reports that criminal charges were
filed against Ms. Good during the pendency of this action, those
charges were brought by the Ionia County Prosecutor, not the
Defendant Oakland County Prosecutor, and those charges were not
filed until more than a month after oral argument and briefing in this
federal proceeding was completed. Therefore, the new Ionia County
indictment cannot be considered an "ongoing proceeding" for purposes
of Younger abstention. See, Doran v. Salem Inn, Inc., 422 U.S. 922, 95
S.Ct. 2561 (1975); Sullivan v. City of Pittsburgh, 811 F.2d 171, 177-
78 (3d Cir. 1987), cert. denied, 484 U.S. 849 (1987) (where no state
proceeding against federal plaintiff pending at time of filing of federal
action, and subsequently-filed state action was brought by a party other
than the federal defendant, abstention is inappropriate).
Therefore, the Court will proceed to address the remaining arguments
raised by Defendant Thompson with respect to Plaintiff Good.
4. THE ROOKER-FELDMAN DOCTRINE
Defendant Thompson has argued that even if the Court finds that
Younger does not mandate dismissal of Plaintiffs' complaint in its
entirety, to the extent that Plaintiffs in effect seek a reversal of either
(1) the Michigan Supreme Court's decision determining that assisted
suicide is a common law crime, subject to prosecution under the
common law savings statute, and/or (2) the Michigan Court of
Appeals' subsequent affirmance of the imposition of a permanent
injunction issued in aid of the criminal law and its re-affirmation that
assisted suicide is illegal in Michigan, federal courts lack appellate
jurisdiction over state court judgments in connection with modifying
them or vacating them. Rooker v. Fidelity Trust Co. 263 U.S. 412, 44
S.Ct. 149 (1923); District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S.Ct. 1303 (1983); Rhoades v. Penfold, 694 F.2d
1043 (5th Cir. 1983). The Rooker-Feldman doctrine stands for the
proposition that a federal district court may not hear what is effectively
an appeal of a case already litigated in state court. United States v.
Owens, 54 F.3d 271, 274 (6th Cir. 1995), cert. dismissed, 116 S.Ct.
492 (1995). The rule precludes federal jurisdiction when a federal
constitutional challenge is "inextricably intertwined" with claims
asserted in a state court proceeding. Keen Corp. v. Cass, 908 F.2d 293
(8th Cir. 1990). As the U.S. Supreme Court explained in Penzoil Co. v.
Texaco, Inc., supra:
The federal claim is inextricably intertwined with the state-court
judgment if the federal claim succeeds only to the extent that the state
court wrongly decided the issues before it. Where federal relief can
only be predicated upon a conviction that the state court was wrong, it
is difficult to conceive the federal proceedings as, in substance,
anything other than a prohibited appeal of the state court judgment.
Id., 107 S.Ct. at 1553.
However, a party cannot be said to be appealing a decision by a state
court when she was not a party to the state action. United States v.
Owens, supra, 54 F.3d at 274. As the Sixth Circuit observed in Owens,
"A person who was not a party in the state court action did not have an
opportunity to litigate its [sic] claims. That person must be allowed to
bring an action in federal court to attempt to vindicate its perceived
rights, otherwise it will have no opportunity to do so." Id. Because the
federal plaintiff was not a party to the state court action in Owens, the
Sixth Circuit determined that Rooker-Feldman did not preclude the
federal district court from exercising its jurisdiction to decide the
merits of the federal plaintiff's claims. See also, Valenti v. Mitchell,
962 F.2d 288, 297 (3rd Cir. 1992) (Rooker-Feldman does not apply to
bar a suit in federal court brought by a party that was not a party in the
preceding action in state court); Leaf v. Supreme Court of Wisconsin,
979 F.2d 589, 597-98 (7th Cir. 1992), cert. denied, 113 S.Ct. 2417
(1993) (Rooker-Feldman doctrine does not bar action by a party
against whom there is no state court judgment).
The foregoing authorities make clear that the Rooker-Feldman doctrine
does not apply to Plaintiff Janet Good in this action. Ms. Good was
never a party in any of the state court actions involving Jack Kevorkian
and his challenges of Michigan's assisted suicide laws.10/
Therefore, the Court will proceed to address the merits of Plaintiff
Good's constitutional claims in this action.
THERE IS NO COGNIZABLE CONSTITUTIONAL RIGHT TO
ASSISTED SUICIDE
In Count II of their Amended Complaint, Plaintiffs contend that there
is a constitutional right to assisted suicide. Plaintiffs' argument that a
mentally competent adult has a protected liberty interest to a physician
assisted suicide under the Due Process Clause of the Fourteenth
Amendment is based primarily upon Supreme Court decisions
concerning abortion, e.g., Planned Parenthood v. Casey, 505 U.S. 833,
112 S.Ct. 2791 (1990), and withdrawal of life support, Cruzan v.
Director, Missouri Department of Health, 497 U.S.261, 110 S.Ct. 2841
(1990). Thus, Plaintiffs' specifically attack the Michigan Supreme
Court's ruling that these cases do not suggest any inclination on the
part of the Supreme Court to expand the notion of constitutionally
protected liberty interests to encompass a right to suicide: "[Such] a
right is not expressly recognized anywhere in the United States
Constitution, or in the decisions of the United States Supreme Court,
and cannot be reasonably inferred." People v. Kevorkian, supra, 527
N.W. 2d at 732.
In Cruzan, the Court considered whether a severely ill or injured
person has a constitutional right to request a hospital to withdraw life-
sustaining treatment; whether the right could be exercised on behalf of
the patient by her parents; and whether the exercise of the right was
unduly hampered by an evidentiary ruling imposed by the Missouri
state court, precluding the admission into evidence of statements made
by Cruzan to her former housemate that she would not wish to
continue her life if she were sick or seriously injured unless she could
live at least halfway normally.
In resolving these issues, the Supreme Court acknowledged that "the
principle that a competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment may be inferred
from our prior decisions." 110 S.Ct. at 2851 (emphasis added). The
Court went on, however, to make clear that "determining that a person
has a liberty interest under the Due Process Clause does not end our
inquiry; 'whether respondent's constitutional rights have been violated
must be determined by balancing [her] liberty interests against the
relevant state interests.'" Id. at 2851-52 (citation omitted).
Although the Cruzan Court stopped short of defining a clearly
cognizable liberty interest, it assumed the existence of such a
constitutional right to terminate unwanted lifesustaining medical
treatment in order to reach the specific issue presented in the case, i.e.,
whether Missouri's requirement that evidence of a mentally
incompetent patient's wishes as to the withdrawal of life-sustaining
medical treatment, expressed while the patient was competent, be
established by "clear and convincing evidence" comports with the
United States Constitution:
Although we think the logic of [the right to refuse medical treatment]
cases discussed above would embrace such a liberty interest, the
dramatic consequences involved in refusal of such treatment would
inform the inquiry as to whether the deprivation of that interest is
constitutionally permissible. But for purposes of this case, we assume
that the United States Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving hydration and
nutrition.
Id. at 2842.[11/]
Further, as indicated above, the Cruzan court emphasized that if such a
liberty interest existed, it would have to be balanced against relevant
state interests such as the preservation of life.12/
As Defendant Thompson points out, recognition of rights that are not
readily identifiable in the text of the Constitution depends on whether
they are "implicit in the concept of ordered liberty" so that "neither
liberty nor justice would exist if they were sacrificed." Palko v.
Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 151-53 (1937);
Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332 (1934).
Such rights must be "deeply rooted in the Nation's history and
traditions." Moore v. City of East Cleveland, 431 U.S. 494, 503, 97
S.Ct. 1932, 1938 (1977).
This Court finds that a right to suicide or assisted suicide is not
"deeply rooted in the Nation's history and traditions." Our analysis
begins with the historical and legal status of suicide itself. Suicide has
traditionally been a criminal offense. 2 LaFave & Scott, Substantive
Criminal Law, Sec. 7.8, pp. 246-251. Indeed, suicide was a crime at
English common law, punishable by forfeiture of lands and chattels.
People v. Kevorkian, supra, 527 N.W.2d at 731 note 49. English
attitudes toward suicide, including its criminality, carried over to
America. Thomas J. Marzen, Suicide: A Constitutional Right, 24
Duq.L.Rev. 1, 6465, citing A. Scott, Criminal Law in Colonial
Virginia at 198-199 & n.16 (1930). It remained a crime on the books in
the majority of states through most of the nineteenth century. Marzen,
supra, at 85.
With respect to "assisted suicide", as the Michigan Supreme Court
pointed out, at the time the Fourteenth Amendment was ratified, at
least 21 of the 37 then existing states proscribed assisted suicide either
by statute or as a common law offense. Id., 527 N.W.2d at 731.
Presently, 32 jurisdictions have statutes that criminalize assisted
suicide. Id. at n. 51. The Model Penal Code also provides penalties for
assisted suicide. Model Penal Code, Secs. 210.5 and 3.07(5).13/
As the foregoing discussion makes clear that it cannot be said that
assisted suicide is "deeply rooted in the nation's history and traditions."
It was this analysis that persuaded the Michigan Supreme Court to
reject this same argument. In People v. Kevorkian, the court reviewed
the history of suicide in England and in this country and concluded
that such "a right is not expressly recognized anywhere in the United
States Constitution or in the decisions of the United States Supreme
Court, and cannot reasonably be inferred." 527 N.W.2d at 732. Based
on this conclusion, the court held that the "Due Process Clause of the
federal constitution does not encompass a fundamental right to commit
suicide, with or without assistance, and regardless of whether the
would-be assistant is a physician." Id. at 733.
The Second Circuit also declined to find a fundamental right to
assisted suicide in Quill v. Vacco, supra.14/ In Quill, the plaintiffs
sought a declaratory judgment declaring that the New York statute
criminalizing assisted suicide was unconstitutional. The Quill court
explained its rejection of the plaintiffs' due process-fundamental right
argument as follows:
[T]he Supreme Court has drawn a line, albeit a shaky one, on the
expansion of fundamental rights that are without support in the text of
the Constitution. In Bowers [v. Hardwick, 478 U.S. 186 (1986)], the
Supreme Court framed the issue as "whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy
and hence invalidates the laws of the many States that still make such
conduct illegal and have done so for a very long time." 478 U.S. at
190, 106 S.Ct. at 2843. Holding that there was no fundamental right to
engage in consensual sodomy, the Court noted that the statutes
proscribing such conduct had "ancient roots." Id at 192, 106 S.Ct. at
2844-45. The Court noted that sodomy was a common law criminal
offense, forbidden by the laws of the original 13 states when they
ratified the Bill of Rights, and that 25 states and the District of
Columbia still penalize sodomy performed in private by consenting
adults. Id. at 192-93, 106 S.Ct. at 2844-46.
As in Bowers, the statute plaintiffs seek to declare unconstitutional
here cannot be said to infringe upon any fundamental right or liberty.
As in Bowers, the right contended for here cannot be considered so
implicit in our understanding of ordered liberty that neither justice nor
liberty would exist if it were sacrificed. Nor can it be said that the right
to assisted suicide claimed by plaintiffs is deeply rooted in the nation's
traditions and history. Indeed, the very opposite is true. The Common
Law of England, as received by the American colonies prohibited
suicide and attempted suicide. Although neither suicide nor attempted
suicide is any longer a crime in the United States, 32 states, including
New York, continue to make assisted suicide an offense. Clearly no
"right" to assisted suicide ever has been recognized in any state in the
United States.
In rejecting the due process-fundamental rights argument of the
plaintiffs, we are mindful of the admonition of the Supreme court:
Nor are we inclined to take a more expansive view of our authority to
discover new fundamental rights imbedded in the Due Process Clause.
The Court is most vulnerable and comes nearest to illegitimacy when it
deals with judge-made constitutional law having little or no cognizable
roots in the language or design of the Constitution.
Bowers, 478 U.S. at 194, 106 S.Ct. at 2846. The right to assisted
suicide finds no cognizable basis in the Constitution's language or
design, even in the very limited cases of those competent people who,
in the final stages of terminal illness seek the right to hasten death. We
therefore decline the plaintiffs' invitation to identify a new
fundamental right, in the absence of a clear direction from the Court
whose precedents we are bound to follow. The limited room for
expansion of substantive due process rights and the reasons therefor
have been clearly stated: "As a general matter, the Court has always
been reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended."
80 F.3d at 724-35 (some citations omitted).
The Court is mindful that in its en banc opinion in Compassion in
Dying, supra, 79 F.3d 790, the Ninth Circuit determined that the
Constitution does encompass a due process liberty interest in
controlling the time and manner of one's death.15/ However, the Court
believes that the majority's reasoning in that case is seriously flawed.
Like Plaintiffs here, the Compassion in Dying majority relied almost
exclusively on Planned Parenthood v. Casey, supra, and Cruzan, supra,
and whole-heartedly rejected an historical analysis, even though it
conceded that the three-judge panel's historical analysis was
"indisputably correct".16/ The Ninth Circuit agreed with the district
court's finding of a cognizable constitutional interest and its finding of
the Court's reasoning in Casey to be "highly instructive" and "almost
prescriptive" for determining what liberty interest may inhere in a
terminally ill person's choice to commit suicide. 79 F.3d at 813.
This Court believes that the original panel in Compassion in Dying
correctly saw the flaw in the application of Casey, an abortion case:
The language taken from Casey, on which the district court pitched its
principal argument, should not be removed from the context in which
it was uttered. Any reader of judicial opinions knows they often
attempt a generality of expression and a sententiousness of phrase that
extend far beyond the problem addressed.... To take three sentences
out of an opinion over thirty pages in length dealing with the highly
charged subject of abortion and to find these sentences "almost
prescriptive" in ruling on a statute proscribing the promotion of suicide
is to make an enormous leap, to do violence to the context and to
ignore the differences between the regulation of reproduction and the
prevention of the promotion of killing a patient at his or her request.
--. . . The decision to choose death, according to the district court's use
of Casey's terms, involves "personal dignity and autonomy" and "the
right to define one's own concept of existence, of meaning, of the
universe and of the mystery of human life." The district court
attempted to tie these concepts to the decision of a person terminally
ill. But there is no way of doing so....
Id. at 591. Thus, the three-judge panel found the district court's
decision to be
[u]nsupported by the gloss on "liberty" written by Casey, a gloss on a
gloss, inasmuch as Casey developed an interpretation of"liberty" first
elaborated in Eisenstadt v. Baird, [406 U.S. 438, 453 (1972)] and
implicitly controverted by Cruzan....
Id.
This Court agrees that attempting to equate abortion rights and their
constitutional status with a right to have someone assist in a suicide
confuses constitutional analysis with individual or moral notions of
"human dignity". In the case of abortion rights, the Supreme Court
balanced society's interest in protecting an inchoate life against the
liberty interests of a woman to determine how she will live her life.
Whether the Supreme Court has appropriately struck this delicate
balance is not for this Court to say. But, the distinction between this
fulcrum of constitutional analysis seems clearly different and separate
from that presented in cases such as this in which there is claimed a
constitutional right to have assistance in killing oneself.
The fallacy of equating abortion rights with assisted suicide rights in a
constitutional due process context becomes starkly evident by virtue of
the fact that the abortion decisions themselves uniformly recognize
that at the point the fetus attains viability, the state's interest in
protecting that life predominates over the mother's liberty interest to
choose to end that life. See, Roe v. Wade, 410 U.S. 113, 159-164, 93
S.Ct.705, 730-732 (1973). Indeed, Roe strictly forbids the abortion of a
viable fetus except when absolutely necessary to save the life of the
mother. Id., 93 S.Ct. at 732. Clearly, the fulcrum point that the Court
has formed in identifying the end point of the woman's liberty interest
and the beginning of the state's interest is at the point of the fetus'
ability to achieve and sustain life on its own.
Thus, this Court believes that rather than supporting a liberty interest
in assisted suicide for those who are able to sustain life without life-
support systems, the abortion decisions -- by affirming the states'
paramount interest in protecting viable life -- actually supports the
view that the state has a strong interest in protecting vulnerable, but
viable, life.
In reaching its determination that no constitutionally-protected liberty
interest is implicated by the prohibition of assisted suicide, the Court is
sensitive to the separation of powers and federalism issues inherent in
Plaintiffs' request to declare a constitutional right to assisted suicide.
First, it seems to the Court that this very difficult question is
fundamentally and quintessentially a policy question which should be
decided by the policy branches of government, not the courts. The
issue of assisted suicide presents profound questions of medicine and
medical ethics, theology and sociology, and numerous other far-
reaching public policy issues. These are precisely the kinds of issues in
which public input is vital, and courts are simply not equipped to
conduct the type of comprehensive, broad-based hearings at which
witnesses and experts on all sides of the question would testify about
the broader policy ramifications of creating and regulating a right to
assisted suicide. It is the Legislative and Executive branches which, in
our system, are uniquely well-equipped to pursue these issues. Courts
have before them only the legal arguments of lawyers and, while
questions of law are certainly part of the equation, the core issues
presented are fundamentally grounded in questions of policy and how
we view ourselves as a society. In a democracy, these questions are
best answered by those who must answer to the people for their policy
product, not by those who have no accountability to the people.
We must be very clear here about what is really being asked of courts
when they are requested to strike down laws prohibiting assisted
suicide. What is being requested is that judges declare unconstitutional
a law which prohibits assistance in taking a viable, self-sustaining life.
This strikes the Court as not merely asking courts to venture into
uncharted legal waters, but also uncharted moral and ethical waters.
Viewed in this context, it seems particularly critical for the policy
branches of government to establish such a right, if one is to be
established. Given the historical treatment of suicide and assisted
suicide, the Court is loathe to find or create new constitutional rights
where none existed before. As this Court has observed in the past, the
Constitution is not a Rorschach test in which judges are free to find
whatever shapes of morality and "human dignity" we wish. In a
democracy, judges are not free to simply look at the Constitution and
declare new rights to correct every perceived wrong, for if the
Constitution comes to mean everything to everybody -- a veritable
grabbag of rights -- it will mean nothing when we really need it to
protect those fundamental rights which are clearly delineated, because
its legitimacy and grandeur will have been drained from it.17/
Nor does this Court accept Plaintiffs' argument that because the policy
branches of government have not acted, the courts must. First, the fact
that the policy branches of government have not acted to create a new
right of assisted suicide is an indication that perhaps our society is not
yet prepared to declare such a right. It is also of some import that the
advocates of this right have been unsuccessful in placing this issue
before the people through the ballot initiative process. This absence of
a public mandate for action should make courts even more reticent to
declare new rights in this area.
Finally, important principles of comity and Federalism are implicated
here and must inform the Court's decision. Plaintiffs have asked this
federal Court to strike down a law adopted by the State of Michigan,
through its Supreme Court, in an area which has traditionally been left
to the states -- the regulation of medical and ethical conduct and the
definition of crimes involving the taking of life. The regulation of this
area goes to the heart of a state's traditional responsibility to define
crimes and make determinations governing general health and welfare
issues. Before federal courts invade and preempt this province of the
states, it must be shown that there is an overriding federal
constitutional interest which dictates such extraordinary action. Here,
there has been no showing made of an overriding federal interest
which would require displacement of state law.
For all of these reasons, the Court must decline Plaintiffs' invitation to
find a due process liberty interest right in the Constitution which
confers constitutionally protected status upon assisted suicide.
PLAINTIFFS' EQUAL PROTECTION CLAIM ALSO IS WITHOUT
MERIT
In Count III, Plaintiffs contend that persons seeking physician
assistance with suicide are denied equal protection under the laws
when the law protects the right to reject medical treatment for those on
life support, but those not on life support are denied assistance with
suicide. Plaintiffs' argument is based on the notion that a withdrawal of
life supporting nutrition and hydration is indistinguishable from
assisted suicide. They contend that the withdrawal of food, water and
respiration are "overt" acts, not "omissive" conduct. They argue that
because these acts are overt, there is no rational distinction between
them and acts to hasten death by means of assisted suicide.
The Michigan Supreme Court rejected this same argument in People v.
Kevorkian, supra:
Indeed, the notion that there is a difference between action and
inaction is not unfamiliar to the law. For example, the distinction
between "misfeasance" and "nonfeasance" (the distinction between
active misconduct and passive inaction) is deeply rooted in the law of
negligence. The reason for the distinction is said to lie in the fact that a
defendant creates a new risk of harm by misfeasance, but merely fails
to benefit another by nonfeasance. As Dean Prosser explains, the duty
to do no wrong is a legal duty, while the duty to protect against wrong,
is for the most part, a moral obligation.
527 N.W.2d at 728.
Plaintiffs rely on Justice Scalia's concurrence in Cruzan for the
proposition that there is no meaningful difference between the
withdrawal of life support and an overt act to terminate life. But the
Cruzan majority rejected Justice Scalia's position. Furthermore, Justice
Scalia's discussion does not support an equal protection challenge in
these circumstances. Justice Scalia stated that the legislative line-
drawing should not be between action and inaction. In his view, the
line should be drawn between "those forms of inaction that consist of
abstaining from 'ordinary' care and those that consist of abstaining
from 'excessive' or 'heroic' measures." Cruzan, 110 S.Ct. at 2861. This
reasoning actually supports the notion that the distinction between the
withdrawal of artificial life support provided to a comatose, vegetative-
state individual, such as Nancy Cruzan, may be permissible while
affirmative steps to hasten the death of a medically alert, competent,
albeit suffering, adult may not. Thus, even under Justice Scalia's view,
Plaintiffs equal protection claim fails.
Furthermore, although the Cruzan court recognized a common law and
a constitutional right to reject medical treatment, the court emphasized
that no general right to suicide exists:
We do not think a State is required to remain neutral in the face of an
informed and voluntary decision by a physically able adult to starve to
death.
110 S.Ct. at 2852.
There is a rational basis for distinguishing withdrawal of life support
from assisting at a suicide. As the Michigan Supreme Court explained:
[W]hereas suicide involves an affirmative act to end a life, the refusal
or cessation of life-sustaining medical treatment simply permits life to
run its course, unencumbered by contrived intervention. Put another
way, suicide frustrates the natural course by introducing an outside
agent to accelerate death, whereas the refusal or withdrawal of life-
sustaining medical treatment allows nature to proceed, i.e., death
occurs because of he underlying condition.
527 N.W.2d at 728.
This distinction is also recognized in the Guidelines for State Court
Decision Making in Life-Sustaining Medical Treatment (1992):
There are significant moral and legal distinctions between letting die
(including the use of medications to relieve suffering during the dying
process) and killing (assisted suicide/euthanasia). In letting die, the
cause is seen as the underlying disease process or trauma. In assisted
suicide/euthanasia, the cause of death is seen as the inherently lethal
action itself.
Id. at 143-45.
The equal protection clause of the Fourteenth Amendment requires
only that states treat in a similar manner all individuals who are
similarly situated. Rotunda & Nowak, Treatise on Constitutional Law,
supra, Sec. 18.2. As the Supreme Court has explained, "so, too, the
Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same." Plyer v.
Doe, 457 202, 216, 102 S.Ct. 2382 2394 (1982). As the Plyer court
declared, the initial discretion to determine what is "different" and
what is "the same" resides with the States, and the States "must have
substantial latitude to establish classifications that roughly
approximate the nature of the problem perceived, that accommodate
competing concerns both public and private, and that account for
limitations on the practical ability of the State to remedy every ill." Id.
Since, as discussed above, no "fundamental right" is involved, in the
area of social welfare, all that is needed to pass equal protection muster
in the area of social welfare is that the classification at issue bear some
fair relationship to a legitimate public purpose. Quill v. Vacco, supra,
80 F.3d at 726-27. The Second Circuit in Quill found no legitimate
state interest furthered by the New York statutes prohibiting assisted
suicide and, therefore, determined that, in view of the statutory and
common law schemes allowing "suicide" through the withdrawal of
life-sustaining treatment, the assisted suicide statutes violated the equal
protection clause. This Court disagrees with the Quill court's
conclusion.
The Quill court looked to the "state interests" identified by the three-
judge panel in Compassion in Dying. The panel there found that the
Washington statute prohibiting assisted suicide furthered the following
state interests: the interest in denying to physicians "the role of killers
of their patients"; the interest not subjecting the elderly or infirm to
psychological pressure to consent to death; the interest of preventing
the exploitation of the poor and minorities; the interest in protecting
handicapped persons against societal indifference; the interest in
preventing the sort of abuse that has occurred in the Netherlands. 49
F.3d at 59293. The Quill court determined that none of these interests
were furthered by the statutes prohibiting assisted suicide in light of
New York law allowing withdrawal of life support.18/
This Court disagrees with the conclusion that none of these interests is
furthered, and contrary to the Quill court's conclusion, the Court
particularly believes that the first noted interest -- the interest in
denying to physicians "the role of killers of their patients" -- is
furthered. The Quill court obviously found this interest not to be
furthered because it, like Plaintiffs here, rely on Justice Scalia's
passing discussion in Cruzan disagreeing with drawing a line between
action and inaction. Like the Michigan Supreme Court, this Court
finds that distinction is worthy of recognition, and recognizing that
distinction, the Court finds that the Quill court's conclusion that
"[p]hysicians do not fulfill the role of 'killer' by prescribing drugs to
hasten death any more than they do by disconnecting life-support
systems", 80 F.3d at 730, is wrong.
The Court is also impressed with the strength of the state's interest in
regulating the circumstances under which a life may be ended. This is
perhaps the strongest interest a state has, and it is precisely the interest
the Supreme Court recognized in Cruzan when it found that Missouri
could lawfully regulate the circumstances surrounding the withdrawal
of life support. See Cruzan, supra, 110 S.Ct. at 2852-54. Here, the
Michigan law clearly furthers that interest and a state's traditional
authority to define crimes and issues of public welfare. Too, the
Michigan law against assisted suicide furthers the state's legitimate
interest in protecting vulnerable, but viable, people from the self-
interested importuning of third parties. All of these valid state interests
are furthered by the Michigan law.
PLAINTIFFS' CLAIMS OF VAGUENESS, OVERBREADTH AND
EX POST FACTO VIOLATION
In Count I, Plaintiffs allege that both the common law regarding
assisted suicide as "created" by the Michigan Supreme Court in 1994,
and MCL Sec. 750.505 (the common law savings statute) are
unconstitutionally vague, overbroad, and violative of the prohibition
against ex post facto laws.
With respect to vagueness and overbreadth and the common law
savings statute, Plaintiffs argue that MCL Sec. 750.505 is "irreparably
vague and overbroad" because it does not take into consideration the
nature of the "common law" crime which the statute makes a felony.
They contend that if left standing as a valid statute, MCL Sec. 750.505
"gives Michigan courts the unfettered power to imposed judicially
created law at whim" because the statute does not define any crime, yet
imposes a penalty of 5 years imprisonment. Plaintiffs have not,
however, cited any authority holding that a savings statute, in
Michigan or anywhere else, can be struck down on the basis of
vagueness or overbreadth merely because the statute preserves earlier
common law.
The common law savings statute at issue, M.C.L. Sec. 750.505
provides as follows:
Any person who shall commit any indictable offense at the common
law, for the punishment of which no provision is expressly made by
any statute of this state, shall be guilty of a felony, punishable by
imprisonment in the state prison not more than 5 years or by a fine of
not more than $10,000, or both in the discretion of the court.
"State statutes, like federal ones, are entitled to a presumption of
constitutionality."
Davies Warehouse Co. v. Bowles, 321 U.S. 144, 153, 64 S.Ct. 474,
479 (1944); Beech v. Melancon, 465 F.2d 425, 426 (6th Cir. 1972),
cert. denied, 409 U.S. 1114 (1973).
The doctrine of unconstitutional vagueness19/ requires only that the
legislature establish a general guideline to govern law enforcement.
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983). The
doctrine imposes a "fair notice" requirement to prevent states from
holding an individual criminally responsible for conduct which he
could not reasonably understand to be proscribed. Rose v. Locke, 423
U.S. 48 (1975). However, it is not required that statutes specify in
every detail the proscribed behavior, and courts have found it
sufficient "fair notice" to survive a vagueness challenge for the statute
to incorporate the common law definition of a crime.
For example, in United States ex rel. Almeida v. Rundle, 383 F.2d 421
(3rd Cir. 1967), the Third Circuit addressed a claim that Pennsylvania's
first-degree murder statute was unconstitutionally vague because it did
not define murder. The court acknowledged that Pennsylvania had no
statutory definition of murder, at all. The definition of murder in
Pennsylvania, as the Almeida court observed, was provided in the
common law. The court found this sufficient to preclude the
defendant's unconstitutional vagueness argument: "The absence of a
definition of murder in the degree statute is not a defect at all. True, the
common law may be imprecise, but that is not a determinative factor
here. The common law of murder is well-enough defined...." Id. at
425.
Michigan courts have repeatedly upheld Sec. 750.505 in cases raising
the same void-for-vagueness challenges. See People v. Pickett, 339
Mich. 294, 63 N.W.2d 681 (1954); People v. O'Neal, 22 Mich.
App.432, 177 N.W.2d 636 (1970). In Pickett and O'Neal, the Michigan
courts examined the common law regarding conspiracy and held that
the defendants' argument regarding the vagueness of Sec. 750.505 was
without merit because criminal conspiracy was defined in the common
law.
Michigan specifically recognizes all common law offenses except
those expressly abrogated by Constitution or statute. Bugbee v. Fowle,
277 Mich. 485, 492, 269 N.W. 570, 572 (1936); People v. Schmitt,
275 Mich. 575, 267 N.W. 741 (1936) (the common law definition of
crimes prevails unless it has been changed by a penal statute); People
v. McDonald, 409 Mich.110, 117, 293 N.W.588, 590 (1980)
(underlying the criminal statutory scheme of Michigan is the common
law). This policy is further specifically embodied in the Michigan
Constitution: "the common law and the statute laws now in force, not
repugnant to this Constitution, shall remain in force until they expire
by their own limitations, or are changed, amended or repealed." Mich.
Const. 1963, art. 3, Sec. 7. The "'common law' is but the accumulated
expressions of the various judicial tribunals in their efforts to ascertain
what is right and just...." Bugbee v. Fowle, supra, 277 Mich. at 492.
Providing by statute penalties for crimes indictable at common law but
not statutorily delineated is not a concept unique to Michigan; several
states have such "common law savings statutes". See People v.
Causley, 299 Mich.340, 350-51, 300 N.W. 111 (1941) and citations
therein. See also, State v. Price, 672 A.2d 893 (R.I.1996); State v.
Woodworth, 234 N.W.2d 243 (N.D. 1975). The purpose of such
common law offense statutes is to assure that a person who has
committed an offense at common law cannot evade prosecution and
punishment merely because the offense has not been declared a crime
in the statutes of the state. Wayne R. LaFave and Austin W. Scott, Jr.,
1 Substantive Criminal Law, Sec. 2.1 (f) at 101. As the Michigan
Supreme Court observed in People v. Stevenson, 416 Mich. 383, 391,
331 N.W.2d 143 (1982), "The suggestion that crimes can only be
defined by statute is not well-taken, particularly in light of the fact that
in Michigan, [even] murder is defined by the common law and not by
statute."
Thus, to the extent that Plaintiffs' challenge the common law savings
statute as unconstitutionally vague merely because no crime is defined
therein, the Court finds no merit in that argument.
However, at oral argument, it became clear that Plaintiffs' principal
unconstitutional vagueness argument is aimed at the Michigan
Supreme Court's December 1994 declaration of assisted suicide as a
well-established common law crime in Michigan in People v.
Kevorkian, supra, 527 N.W.2d 714. The Michigan Supreme Court
noted in Kevorkian that aiding another person in committing suicide
was recognized as an indictable crime under the common law since
1920 when the Michigan Supreme Court decided People v. Roberts.
211 Mich. 187, 178 N.W. 690 (1920).
In Roberts, the defendant was convicted of murder for helping his wife
commit suicide. The defendant's wife was bedridden and helpless with
incurable multiple sclerosis. She had previously tried to commit
suicide, but was unsuccessful. Therefore, she asked her husband to
help her. At Mrs. Roberts' request, the defendant mixed deadly poison
in a cup and placed it on a chair near her side. The defendant knew his
wife wanted to die and she did, in fact, drink the poison and die.
On appeal to the Supreme Court, the defendant claimed that he
committed no crime. He argued that since suicide was not a crime,
aiding his wife in doing something that was not criminal could not be a
crime, either. The Supreme Court held that Roberts' acts constituted
murder by poison. In reaching that conclusion, the Roberts court
examined the common law of murder and assisting in a suicide, at
length:
In considering the status of one who advises or aids another to commit
suicide, 37 Cyc. p. 521, has this to say:
"Where one person advises, aids, or abets another to commit suicide,
and the other by reason thereof kills himself, and the adviser is present
when he does so, he is guilty of murder as a principal, or in some
jurisdictions of manslaughter; or if two persons mutually agree to kill
themselves together, and the means employed to produce death take
effect upon one only, the survivor is guilty of murder of the one who
dies. But if the one who encourages another to commit suicide is not
present when the act is done, he is an accessory before the act and at
common law escapes punishment because his principal cannot be first
tried and convicted. The abolition of the distinction between aiders and
accessories in some jurisdictions, has, however, carried away this
distinction, so that a person may now be convicted of murder for
advising a suicide, whether absent or present at the time it is
committed, provided the suicide is the result of his advise."
It is said in Tiffany on Criminal Law, p 979, that:
"He who kills another at his own desire or command is a murderer as
much as if he had done it of his own head; and the person killed is not
a felo de se."
To the same effect, 1 McLain's Criminal Law, 290; State v. Ludwig,
70 Mo. 412; Commonwealth v. Bowen, 13 Mass. 356; Commonwealth
v. Mink, 123 Mass.422; Commonwealth v. Hicks, 118 Ky. 637 (82
S.W.265); Burnett v. People, 204 Ill. 208 (68 N.E. 505, 66 L.R.A.
304); Blackburn v. State, 23 Ohio St. 146.
In the last case cited the facts and questions raised bear a close analogy
to the case we are considering. A like contention was made with
reference to suicide, and in answering it the court said:
"It is said by counsel that suicide is no crime by the laws of Ohio, and
that therefore there can be no accessories or principals in the second
degree in suicide. This is true, but the real criminal act charged here is
not suicide, but the administering of poison. And to this criminal act
there may be accessories, and principals in the second degree. If I
furnish poison to a guilty agent, an accomplice, to be administered by
him, and he administers it accordingly, I am an accessory before the
fact; and if I stand by and counsel or encourage him in the act of
administering the poison to another, I am a principal in the second
degree. But no question of this kind arises in the present case, either
upon the indictment or in the evidence. There is no claim or pretense
that there was any guilty third person participating in the transaction.
The charge is that the prisoner, as principal in the first degree, is guilty
of administering poison, and thereby causing death."
Whether the act of mixing the strychnine with wine and giving it to the
deceased to drink was administering poison within the meaning of the
statute, the opinion says:
"We think also that the court was right in instructing the jury, as in
substance and effect it did, that it is immaterial whether the party
taking the poison took it willingly, intending thereby to commit
suicide, or was overcome by force, or overreaching by fraud. True, the
atrocity of the crime, in the moral sense, would be greatly diminished
by the fact that suicide was intended; yet the law as we understand it,
makes no discrimination on that account. The lives of all are equally
under the protection of the law, and under that protection to their last
moment. The law of those to whom life has become a burden -- of
those who are hopelessly diseased or fatally wounded -- nay, even the
lives of criminals condemned to death, are under the protection of the
law, equally as the lives of those who are in the full tide of life's
enjoyment, and anxious to continue to live. If discriminations are to be
made in such cases as to the amount of punishment due to offenders,
they must be made by the exercise of executive clemency or legislative
provision. Purposely and maliciously to kill a human being, by
administering to him or her poison, is declared by the law to be
murder, irrespective of the wishes or the condition of the party to
whom the poison is administered, or the manner in which, or the
means by which, it is administered. The fact that the guilty party
intends also to take his own life, and the administration of the poison
in pursuance of an agreement that both will commit suicide, does not,
in a legal sense, vary the case. If the prisoner furnished the poison to
the deceased for the purpose and with the intent that she should with it
commit suicide, and she accordingly took and used it for that purpose;
or if he did not furnish the poison, but was present at the taking thereof
by the deceased, participating by persuasion, force, threats, or
otherwise, in the taking thereof, or the introduction of it into her
stomach or body; then in either of the cases supposed, he administered
the poison to her within the meaning of the statute."
* * *
We are of the opinion that when defendant [Roberts] mixed the parts
green with water and placed it within reach of his wife to enable her to
put an end to her suffering by putting an end to her life, he was guilty
of murder by means of poison. . . even though she requested him to do
so. By this act the deliberately placed within her reach the means of
taking her own life, which she could have obtained in no other way by
reason of her helpless condition.
211 Mich. at 196-198.
In People v. Kevorkian, the Michigan court modified the Roberts
ruling, but expressly declared that the criminality of assisting suicide
was not abolished. The Kevorkian court explained:
In the years since 1920, when Roberts was decided, interpretation of
causation in criminal cases has evolved in Michigan to require a closer
nexus between an act and a death than was required in Roberts.... The
United States Supreme Court has also addressed the importance of
relating culpability to criminal liability....
[T]his court has modified the common law when it perceives a need to
tailor culpability to fit the crime more precisely than is achieved
through application of existing interpretations of the common law....
[W]e perceive such a need here. Accordingly, we would overrule
Roberts to the extent that it can be read to support the view that the
common-law definition of murder encompasses the act of intentionally
providing the means by which a person commits suicide. Only where
there is probable cause to believe that death was the direct and natural
result of a defendant's act can the defendant be properly bound over on
a charge of murder. Where a defendant merely is involved in the
events leading up to the death. such as providing the means. the proper
charge is assisting in a suicide.
527 N.W.2d at 738 (emphasis added).
Defendant Thompson argues that the definition of the crime of assisted
suicide is ascertainable from a review of the common law and,
therefore, Plaintiffs' argument that Michigan's common law savings
statute is void for vagueness should be rejected.
The Court agrees with Defendant that on a "going forward" basis, i.e.,
after December 13, 1994, the date on which the Supreme Court
decided Kevorkian, there is certainly no merit in an unconstitutional
vagueness challenge with respect to Michigan common law, and since
Plaintiff Good was never charged nor implicated in any of Dr.
Kevorkian's "assisted suicide" until June 1996, her void for vagueness
challenge fails.
However, to the extent that Ms. Good's claim in this case is predicated
on her belief that she may be prosecuted for assisting in Lois Hawes'
September 26, 1992 suicide, it cannot be said that it would have been
readily ascertainable from a review of the common law as it existed
prior to that date that assisted suicide was a crime in Michigan.
Although it is true that the Roberts decision was on the books since
1920, in 1983, the Michigan Court of Appeals decided People v.
Campbell, 124 Mich. App. 333, 335 N.W.2d 27 (1983), a case
involving facts substantially similar to Roberts. In the Court's view,
this decision seriously muddied the waters as to what type of conduct
was prosecutable in the context of aiding one to kill himself.
In Campbell, the decedent, Kevin Basnaw, and the defendant, Steven
Campbell, had been drinking quite heavily when, late in the evening,
Basnaw began talking about committing suicide. Some time during the
talk of suicide, Basnaw told Campbell that he did not have a gun. At
first Campbell told Basnaw that he would not loan or sell him one of
his guns, but he subsequently changed his mind, and told Basnaw that
he would sell him a gun for whatever amount of money he had in his
possession. At first Basnaw did not accept the offer, but Campbell
persisted in alternately encouraging and ridiculing him.20/ Campbell
and Basnaw then drove to Campbell's house to get the gun, leaving
Basnaw's girlfriend behind. They returned to Basnaw's house with the
weapon and five bullets 15 minutes later.
Campbell left the gun and bullets with Basnaw, and then left with
Basnaw's girlfriend. After they left, Basnaw wrote a suicide note and
shot himself.
The prosecutor brought charges against Campbell relying on Roberts,
contending that inciting to suicide, coupled with the overt act of
providing Kevin Basnaw with the means to commit suicide, rendered
Campbell criminally liable for open murder under Michigan common
law. After his motion to dismiss was denied, Campbell appealed to the
Michigan Court of Appeals. The Court of Appeals found the facts
giving rise to the charges against Campbell to be indistinguishable
from Roberts. More importantly to this analysis, however, the court
went on to find in Campbell that Roberts was no longer good law:
We now consider whether the Roberts case still represents the law of
Michigan, and we find it does not. Recent cases of our Supreme Court
cast doubt on the vitality of the 1920 Roberts decision.
335 N.W.2d at 29.
The Campbell court, thus, concluded, "While we find the conduct of
the defendant morally reprehensible, we do not find it to be criminal
under the present state of the law." Id. at 31.
Thus, this Court finds that, in light of the Campbell decision and the
unsettled nature of the law following that decision, it cannot be said
that in 1992, the common law would have provided Janet Good with
"fair notice" that assisting in a suicide was a crime in Michigan.
Indeed, the fact that the Michigan Supreme Court indicated in
Kevorkian that the law in this area had "evolved" is an implicit
recognition by that Court that the parameters of a crime involving
assistance in a death was less than clearly defined.21/ It was not until
the Michigan Legislature passed the now-expired assisted suicide
statute in December 1992 that it can be said that a reasonable person
could have reasonably understood that assisting in a suicide was a
crime in Michigan.
Thus, to the extent that Defendant may intend to bring charges against
Ms. Good under the Michigan Supreme Court's December 1994
interpretation of the common law in People v. Kevorkian for assisting
in any suicides prior to December 1992, such charges would not pass
constitutional muster.
CONCLUSION
For all of the reasons stated in this Amended Opinion and Order,
THE COURT HEREBY DECLARES AND ORDERS AS
FOLLOWS:
IT IS HEREBY ORDERED that, for the reasons stated in this
Amended Opinion and Order, Plaintiffs' request for injunctive relief is
hereby DENIED.
IT IS HEREBY DECLARED that a mentally competent, terminally ill
or intractably suffering adult does not have a liberty interest protected
by the Fourteenth Amendment's Due Process Clause in assisted
suicide.
IT IS FURTHER DECLARED that the Equal Protection Clause of the
Fourteenth Amendment is not violated by denying a mentally
competent, terminally ill or intractably suffering adult not on life
support the right to assisted suicide.
IT IS FURTHER DECLARED that the Michigan law criminalizing
assisting in a suicide as interpreted by the Michigan Supreme Court in
People v. Kevorkian, 447 Mich. 436 (1994), and as applied to acts of
assisted suicide prior to December 1992, is unconstitutionally vague,
because the law as it existed from the date of the Campbell decision in
1983 until December 1992 would not have provided "fair notice" that
assisting in a suicide was a crime in Michigan.
/s/
Gerald E. Rosen
United States District Judge
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK KEVORKIAN
and JANET GOOD,
Plaintiffs,
vs.
RICHARD THOMPSON,
Prosecuting Attorney for the
County of Oakland, Michigan,
Defendant.
No. 96-CV-73777-DT,
Hon. Gerald E. Rosen
AMENDED JUDGMENT
At a session of said Court, held in the U.S. Courthouse, Detroit,
Michigan on Jan. 6, 1997
PRESENT: Honorable Gerald E. Rosen
United States District Judge
The Court having this date entered an Amended Opinion and Order
regarding the parties' cross-motions for summary judgment in this
delcaratory[sic] judgment/injunctive relief action,
NOW, THEREFORE,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
JUDGMENT be entered in accordance with the Court's Amended
Opinion and Order of this date, as follows:
IT IS HEREBY ORDERED that, for the reasons stated in the Court's
Amended Opinion and Order of this date, Plaintiffs' request for
injunctive relief is hereby DENIED.
IT IS HEREBY DECLARED that a mentally competent, terminally ill
or intractably suffering adult does not have a liberty interest protected
by the Fourteenth Amendment's Due Process Clause in assisted
suicide.
IT IS FURTHER DECLARED that the Equal Protection Clause of the
Fourteenth Amendment is not violated by denying a mentally
competent, terminally ill or intractably suffering adult not on life
support the right to assisted suicide.
IT IS FURTHER DECLARED that the Michigan law criminalizing
assisting in a suicide as interpreted by the Michigan Supreme Court in
People v. Kevorkian, 447 Mich. 436 (1994), and as applied to acts of
assisted suicide prior to December 1992, is unconstitutionally vague,
because the law as it existed from the date of the Campbell decision in
1983 until December 1992 would not have provided "fair notice" that
assisting in a suicide was a crime in Michigan.
/s/
Gerald E. Rosen
United States District Judge
ENDNOTES
1/ This matter originally came before the Court on Plaintiffs' Motion
for Preliminary Injunction. However, at the September 26, 1996
hearing, counsel for the parties stipulated to the conversion of
Plaintiffs' Motion for Preliminary Injunction to a motion for summary
judgment. Defendant also asked for a summary judgment dismissal
decision in his Opposition Brief, and Defendant's counsel orally cross-
moved for summary judgment in favor of Defendant at the September
26 hearing.
2/ That statute has now expired.
3/ Although Lois Howe's September 26, 1992 suicide is the only
suicide specifically referenced in Plaintiffs' First Amended Complaint,
a number of Plaintiffs' claims and indeed, a number of the arguments
of Plaintiffs' counsel in his briefs and in oral argument are "global"
arguments, i.e., that Kevorkian should not be prosecuted for having
assisted in any suicides in the past or for assisting in any suicides in
the future. Accordingly, when necessary, the Court will also address
the issues raised in this case, both globally and specifically as they
apply to Ms. Howe's death in 1992.
4/ With respect to Kevorkian's co-plaintiff, Janet Good, her "standing"
argument is boot-strapped onto Kevorkian's. She claims that "[a]s a
result of the purported criminalization of physician aid in dying under
an unwritten common law, Mrs. Good is denied constitutional rights
under the privacy and liberty provisions of the United States
Constitution for she is prevented from seeking and/or obtaining
physician aid in dying." [Amended Complaint, Para. 11.] She re-
phrases this standing argument in Plaintiffs' Brief, and alleges that the
common law under which Kevorkian was last prosecuted "mak[es] it a
crime for [her] to seek and/or obtain physician aid in dying give rise to
the Plaintiffs' standing to bring this action." [Plaintiffs' Brief, p. 2-3.]
According to Plaintiffs, the existence of this common law and the
threat of future prosecution of Dr. Kevorkian confer them both with
standing to pursue the declaratory and injunctive relief they seek.
5/ Good was subsequently charged, along with Kevorkian, by an Ionia
County Grand Jury on November 6, 1996 for assisting in a suicide
with Kevorkian in that county in August 1996.
6/ The Court asked counsel for the parties to submit a stipulated
statement of facts following the September 30 hearing. However, the
only fact to which the parties were able to stipulate was that there were
no criminal prosecutions against Plaintiff Kevorkian pending as of that
date.
7/ The Michigan Supreme Court noted that no one who testified at the
preliminary examination actually witnessed the activation of the
suicide device. The only persons in the cabin at the time were the two
decedents, Jack Kevorkian, and Kevorkian's sister, who since has died.
Mr. Wantz's husband was walking away from the cabin where the
deaths occurred. He testified as follows:
Q: You don't know who pulled the string? A: I have no idea. She knew
that she had to pull the string when I left.
Q: You don't know if she tried to pull the string and it didn't work
and Kevorkian pushed her hand at all, do you?
A: I can say this, when I left the room she was in the process of trying
to pull the string.
* * *
Q: You don't know who pulled the string? That's what you're telling
me?
A: I can tell you she was in the process of trying to pull the sting when
I left the room, but I did not see her pull the string. The only thing I
can. . . tell you is once I left the room, Dr. Kevorkian did -- I heard Dr.
Kevorkian say, "Marj, you have to hold your hand up," and that is the
only thing I know.
527 N.W.2d at 734, n. 62.
8/ Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971).
9/ Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103
S.Ct. 1303 (1983).
10/ The Court notes, however, that Rooker-Feldman would apply to
Jack Kevorkian since he was a party in the state court actions and had
a full and fair opportunity to litigate in the state court most of the
constitutional claims raised in this action.
The Michigan Supreme Court determined the United States
Constitution does not prohibit states from imposing criminal penalties
for assisting someone in committing suicide and that assisted suicide is
a common law crime in Michigan which may be prosecuted under the
common-law savings statute, M.C.L. Sec. 750.505. People v.
Kevorkian, supra, 527 N.W.2d 714. The Court unequivocally held that
"the Due Process Clause of the federal constitution does not
encompass a fundamental right to commit suicide, with or without
assistance, regardless of whether the would-be assistant is a
physician." 527 N.W.2d at 732.
The court further rejected Kevorkian's equal protection argument, i.e.,
that terminally ill individuals who want help in ending their lives are
denied a right enjoyed by terminally ill persons who opt to forego or
discontinue life-sustaining medical treatment. Id. at n. 57.
Further, with respect to the "common law savings statute", M.C.L.
Sec. 750.505, under which assisted suicide may be criminally
prosecuted, the Michigan Supreme Court determined that under its
reinterpretation of the common law regarding assisted suicide, there is
no federal or state constitutional violation of the prohibition against ex
post facto laws. Id. at 739.
Thus, Rooker-Feldman would bar Kevorkian from proceeding in this
court with his due process, equal protection and ex post facto claims.
11/ The facts of Cruzan are set forth at 110 S.Ct. at 2845-46. They are
summarized as follows.
Nancy Cruzan was rendered incompetent as a result of severe injuries
sustained in an automobile accident. After it had become apparent that
Nancy had virtually no chance of regaining her mental faculties, her
parents asked hospital employees to terminate life supporting nutrition
and hydration procedures, which all parties agreed would terminate her
life. The employees refused to honor the parents' request without court
approval. The parents then sought and received authorization from the
state trial court for termination of life support. The state court found
that a person in Nancy's condition had a fundamental right under the
State and Federal Constitutions to refuse or direct the withdrawal of
life support. The trial court also found that thoughts Nancy had
expressed to her former roommate regarding not wanting to prolong
her life if she were seriously ill or injured unless she could live at least
half way normally suggested that she would not want to continue with
her nutrition and hydration.
The Missouri Supreme Court reversed. It found no State or Federal
Constitutional right that would support the right of a person to refuse
medical treatment in every circumstance, and further found that the
Missouri Living Will statute, Mo. Rev. Stat. Sec. 459.010 et seq.,
embodied a state policy strongly favoring the preservation of life.
Because of this strong life-protecting policy, the Missouri Court
concluded that "no person can assume [the choice to terminate life-
sustaining medical treatment] for an incompetent in the absence of
clear and convincing, inherently reliable evidence...." 110 S.Ct. at
2846. The court found that in Nancy Cruzan's case, the statements she
made to her roommate were unreliable for the purpose of determining
her intent. Therefore, it found insufficient clear and convincing reliable
evidence to support Cruzan's parents' authority to order termination of
life support on her behalf.
12/ Other relevant state interests were delineated by the Ninth Circuit
in Compassion in Dying v. State of Washington, supra. According to
the Ninth Circuit, in addition to the state's general interest in
preserving life, these interests include the interest in preventing
suicide; the interest in avoiding the involvement of third parties and in
precluding the use of arbitrary, unfair, or undue influence; the interest
in protecting family members and loved ones; and the interest in
protecting the integrity of the medical profession.79 F.3d at 816-17.
13/ Three additional states and the District of Columbia do not impose
explicit criminal sanctions on assisted suicide, but nonetheless
condemn assisted suicide in statutes allowing the withdrawal of
medical treatment. See Compassion in Dying v. State of Washington,
supra, 79 F.3d at 847 n. 11 (Beezer, J. dissenting). An additional four
states, including Michigan, impose criminal penalties under case law.
Id. at n. 12.
14/ As discussed infra, the Quill court did, however, find that New
York statute criminalizing assisted suicide violated the Equal
Protection Clause.
15/ Compassion in Dying involved a declaratory judgment action
brought in the United States District Court for the Western District of
Washington by three terminally ill individuals, four doctors and
"Compassion in Dying", a nonprofit organization whose avowed
purpose is to assist competent terminally ill persons to hasten their
death by providing them with information and counseling. The
plaintiffs sought a declaration that a Washington statute which
criminalized assisting in a suicide, R.C.W. 9A.36.060, was
unconstitutional.
The district court agreed with the plaintiffs and declared that the
statute was unconstitutional, finding that the statute "places an undue
burden on the exercise of a protected Fourteenth Amendment liberty
interest by terminally ill, mentally competent adults" and "violates the
right to equal protection under the Fourteenth Amendment by
prohibiting physician-assisted suicide while permitting the refusal or
withdrawal of life support systems for terminally ill individuals".
Compassion in Dying v. State of Washington, 850 F. Supp. 1454,
1467 (W.D. Wash. 1994).
The State of Washington appealed, and the original three-judge
appellate panel reversed the district court's decision in toto.
Compassion in Dying v. State of Washington, 49 F.3d 586 (9th Cir.
1995).
On rehearing en banc, the Court of Appeals vacated the original three-
judge panel's decision and held that "a liberty interest exists in the
choice of how and when one dies, and that the provision of the
Washington statute banning assisted suicide as applied to competent,
terminally ill adults who wish to hasten their deaths by obtaining
medication prescribed by their doctors, violates the Due Process
Clause." 79 F.3d at 838. (Because it found a due process violation, the
en banc panel declared it unnecessary to review the equal protection
decision. "One constitutional violation is enough to support the
judgment that we reach here." Id )
16/ The original three-judge panel in Compassion in Dying, like the
Second Circuit in Quill v. Vacco found that
the decision of the district court lacks foundation in recent precedent. It
also lacks foundation in the traditions of our nation. [Citations
omitted.] 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.
Id. at 591.
17/ The Court does not mean to trivialize the issue presented here,
because it is a vitally important one to our society and it presents
serious legal and constitutional questions. However, the Court cannot
help but observe that we live in an age of instant gratification -people
want things when they want them and how they want them. Those who
are unable to achieve the result the wish from the policy branches of
government (or through the referendum process) immediately come to
the courts for relief; and, all too often, courts are seduced by the siren
call to "do justice." Indeed, it sometimes seems that the Judiciary is in
danger of becoming the "fast-food" institution of government. (If we
are not careful, the sign "Welcome to McJustice" may replace "Equal
Justice Under Law" above courthouse doors.)
18/ According to the Quill court:
Physicians do not fulfill the role of"killer" by prescribing drugs to
hasten death any more than they do by disconnecting life-support
systems. Likewise, "psychological pressure" can be applied just as
much upon the elderly and infirm to consent to withdrawal of life-
sustaining equipment as to take drugs to hasten death. There is no clear
indication that there has been any problem in regard to the former, and
there should be none as to the latter. In any event the state of New
York may establish rules and procedures to assure that all choices are
free of such pressures. With respect to protection of minorities, the
poor and the non-mentally handicapped, it suffices to say that these
classes of persons are entitled to treatment equal to that afforded to all
those who now may hasten death by means of life-support withdrawal.
In point of fact, these persons themselves are entitled to hasten death
by requesting such withdrawal and should be free to do so by
requesting appropriate medication to terminate life during the final
stages of terminal illness.
As to the interest in avoiding abuse similar to that occurring in the
Netherlands, it seems clear that some physicians there practice
nonvoluntary euthanasia although it is not legal to do so. The plaintiffs
here do not argue for euthanasia at all but for assisted suicide for
terminally-ill, mentally competent patients, who would self-administer
the lethal drugs. It is difficult to see how the relief plaintiffs seek
would lead to the abuses found in the Netherlands.
80 F.3d at 730.
19/ Vagueness and overbreadth are often spoken of together, as
Plaintiffs do in this case. However, in a non-first amendment areas,
generally it is actually only the void-for-vagueness doctrine that
applies. Rotunda & Nowak, Treatise on Constitutional Law. Substance
and Procedure, 2nd Sec. 20.9. The arguments of Plaintiffs' counsel at
the hearing held on this matter make clear that it is, indeed, a "void for
vagueness" argument that Plaintiffs assert in this case.
20/ It appears that about two weeks prior to the evening in question,
Campbell caught Basnaw in bed with his wife.
21/ The Court notes that two members of the Campbell panel were
members of the Michigan Supreme Court when Kevorkian was
decided.
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