Kevorkian v. Thompson

947 F.Supp. 1152

Jack KEVORKIAN and Janet Good, Plaintiffs, v. Richard THOMPSON, Prosecuting Attorney for the County of Oakland, Michigan, Defendant.

No. 96-CV-73777-DT.

United States District Court, E.D. Michigan, Southern Division.

January 6, 1997.

COPYRIGHT MATERIAL OMITTED

Geoffrey N. Fieger, Southfield, MI, for plaintiffs.

Mary Massaron Ross, Detroit, MI, for defendant.

AMENDED OPINION AND ORDER REGARDING THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT¹

ROSEN, 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. § 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. § 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. § 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. § 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. § 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. Kevorkian v. People, ___ U.S. ___, 115 S.Ct. 1795, 131 L.Ed.2d 723 (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 (7/25/96). 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. Kevorkian v. People, ___ U.S. ___, 117 S.Ct. 296, 136 L.Ed.2d 215 (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 parte 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. § 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...