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STATE OF MICHIGAN
COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,   FOR PUBLICATION
EX REL OAKLAND COUNTY PROSECUTING  May 12, 1995
ATTORNEY,                          10:15 a.m.
          Plaintiff-Appellee,

v                                  No. 138155
                                   LC No. 90-390963-AZ
JACK KEVORKIAN,
          Defendant-Appellant,

and

HEMLOCK OF MICHIGAN,
          Amicus Curiae.


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

MURPHY, P.J.

 The issue before this Court is whether the trial court erred by
permanently enjoining defendant from using or providing "any of
his 'suicide machines', or other similar devices, contrivances,
or other modalities or drugs (including nonprescription drugs)
on, or to, any persons seeking to end a human life, or
conducting any acts to help a patient commit suicide regardless
of the modality employed." We hold that no error occurred and
accordingly affirm the trial court.

 On June 4, 1990, defendant helped Janet Adkins commit suicide.
On June 6, 1990, plaintiff filed a complaint for injunctive
relief and a motion for a temporary restraining order. The
temporary restraining order was not granted, but the trial court
did issue an order to show cause why a preliminary injunction
should not issue. At the conclusion of a hearing on June 8,
1990, at which defendant testified, the trial court issued a
preliminary injunction temporarily enjoining defendant from
using or providing his suicide machines or other devices or drugs
in order to help a person seeking to end a human life.

 Trial was held on plaintiff's request for injunctive relief in
January, 1991. Although defendant did not testify at trial, his
testimony from the June 8, 1990, hearing was admitted as an
exhibit. In addition, a statement prepared by defendant was
admitted as an exhibit. Numerous other witnesses also testified.

 Defendant admitted that he helped Ms. Adkins commit suicide by
means of his "suicide machine," which consists of a frame
holding three chemical solutions fed into a common intravenous
line controlled by a switch and a timer. Defendant admitted that
he inserted the intravenous line needle into Ms. Adkins' arm,
but testified that Ms. Adkins activated the switch that turned
on the machine and that Ms. Adkins wished to die because she had
Alzheimer's disease and feared for the future. He testified that
he discussed the matter with Ms. Adkins and her husband.
However, he also admitted that he had no clinical training in
Alzheimer's disease and was unaware of the progress of the
disease in Ms. Adkins or whether modes of treatment were
available. He testified that he is certified in anatomic and
clinical pathology, that he has been unemployed in medicine
since 1982 and living off savings, in part because his actions
and theories have always been controversial, and that he has no
special training in Alzheimer's disease, geriatric diseases or
neurology. He admitted that the use of his machine is not a
medically accepted or recognized procedure. He also stated that
he will use his machine in the future in the absence of an
injunction preventing him from doing so.

 On February 5, 1991, the trial court issued an opinion and order
permanently enjoining defendant from using his machine or
otherwise assisting in suicide. The court found as fact that
defendant's actions in this case occurred as part of a
physician-patient relationship, and that his actions must
therefore be judged under currently operative standards of
medical practice, and not standards which might ensue in the
future. The court found that defendant is by education and
training a retired pathologist without any experience or any
knowledge in the fields of internal medicine, geriatric
medicine, psychiatry, neurology, or other areas which might be
helpful in diagnosing and managing Alzheimer's disease. The
court found that defendant was not professionally qualified to
evaluate the physical or emotional status of Ms. Adkins.
Moreover, the court found that defendant made no attempt to take
a comprehensive medical history, conduct a physical examination,
order any tests, assess Ms. Adkins' medical status, or consult
with experts. The court found that Ms. Adkins, who was 54 years
old, was neither imminently terminally ill nor suffering from
pain. After reviewing the videotaped interview conducted by
defendant with Ms. Adkins and her husband, the court found that
she was coherent, responsive to verbal communication, and
without any obvious physical or mental impairment. The court
noted reports that she had played tennis within days of her
death. Likewise, the video tape demonstrated that defendant made
no real effort to discover whether Ms. Adkins wished to end her
life, relying largely on the statements of her husband and a few
limited responses from Ms. Adkins. The court found that
defendant appeared to be in a hurry during the videotaped
interview. The court found that Alzheimer's disease was not
within the province of defendant's speciality, and that his
actions did not conform to accepted medical standards. In
particular, the court noted in its opinion that defendant had
threatened to use his machine again in the future in the absence
of an injunction preventing him from doing so.

 On appeal, defendant does not challenge any of the trial court's
findings of fact. Instead, defendant raises two questions of
law.

 First, defendant claims that the trial court erred in denying
its motion for summary disposition based upon the doctrine of
collateral estoppel and res judicata after a district court
judge ruled in a related criminal case that assisting suicide is
not a crime under the laws of the State of Michigan.

 In People v Hayden, 205 Mich App 412, 414415; 522 NW2d 336
(1994), this Court recently reiterated the rule that dismissal
of a prosecution at preliminary examination raises no bar under
res judicata or collateral estoppel to a subsequent prosecution.
If so, then we can see no reason why such a dismissal should
collaterally estop a subsequent civil action involving the same
facts. Moreover, it is now clear that the district court's
dismissal of the criminal charge against defendant was
erroneous. People v Kevorkian, 447 Mich 436; 527 NW2d 714
(1994), cert den sub nom Hobbins v Kelley, US (1995). For
these reasons, we find no merit to defendant's argument.

 Defendant also claims that the trial court lacked jurisdiction
to enjoin Dr. Kevorkian from committing a legal act. As
indicated above, it is now clear that Dr. Kevorkian's claimed
legal act was in fact illegal. Kevorkian, supra. Alternatively,
defendant argues that even if the actions of defendant were
criminal, injunctive relief should not be available in this
case. We disagree.

 Courts of equity will generally not interfere to prevent the
breach of a penal statute except to prevent the continuance of a
nuisance affecting health, morals, or safety or to protect a
public property right or interest. See Portage Twp v Full
Salvation Union, 318 Mich 693, 706; 29 NW2d 297 (1947); Muskegon
Bldg & Construction Trades v Muskegon Area Intermediate Sch
Dist, 130 Mich App 420, 429; 343 NW2d 579 (1983). See also 42 Am
Jur 2d, Injunctions, 157, pp 916-918. On the other hand, the
mere fact that an act sought to be enjoined is punishable under
the criminal law will not preclude either the state or an
individual from invoking the jurisdiction of equity whenever
other facts afford a basis for the exercise of equitable
jurisdiction. There equity would otherwise have jurisdiction,
the fact that the Legislature has made such conduct a crime does
not oust jurisdiction to enjoin "Criminality neither affords a
basis for, nor does it oust the jurisdiction of, the court to
grant an injunction." 42 Am Jur 2d, Injunctions, 157, p 918.
See Garfield Twp v Young, 340 Mich 616; 66 NW2d 85 (1954);
Dearborn Nat'l Ins Co v Comm'r of Ins, 329 Mich 107; 44 NW2d 892
(1950); Board of Health of Grand Rapids v Vink, 184 Mich 688;
151 NW 672 (1915); United States v US Klans, Knights of Ku Klux
Klan, Inc, 194 F Supp 897 (MD Ala, 1961); State ex rel Turner v
United-Buckingham Freight Lines, Inc, 211 NW2d 288 (Iowa,
1973); Chicago v Larson, 176 NE2d 675 (Ill App, 1961).

 In Attorney General v Peterson, 381 Mich 445, 465466; 164 NW2d
43 (1969), the Supreme Court held:

 We believe the better rule and the trend of modern authority is
that equity may enjoin the unlicensed practice of a profession.

 At common law, acts in violation of law constitute a public
nuisance. Harm to the public is presumed to flow from the
violation of a valid statute enacted to preserve public health,
safety and welfare. The attorney general, acting on behalf of
the people, is a proper party to bring an action to abate a
public nuisance or restrain unlawful acts which constitute a
public nuisance. The existence of a criminal or other penalty
for the practice of a profession without a license will not oust
equity from jurisdiction.

 We hold that the trial court did not err in exercising equity
jurisdiction in this case. Defendant's conduct before injunction
entered and his threatened conduct in the future supports
plaintiff's claim that recourse to the criminal courts alone may
not be adequate to restrain unlawful acts or threats thereof
which constitute, at a minimum, a public nuisance which affects
health, morals, or safety. Defendant stated under oath that he
would continue to aid in suicides even if his license was
revoked. Defendant's actions implicate criminal law and his
words and actions amount to an advertisement for criminal and
unethical conduct. Defendant has made clear that he stands ready
to assist people in ending their lives. Defendant has made clear
that neither the actions of the Legislature, the executive, nor
the judiciary will sway him from his course. We will see.

 Affirmed.

 /s/ William B. Murphy
 /s/ Michael J. Kelly



STATE OF MICHIGAN
COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,   FOR PUBLICATION
EX REL OAKLAND COUNTY PROSECUTING  May 12, 1995
ATTORNEY,                          10:15 a.m.
          Plaintiff-Appellee,

v                                  No. 138155
                                   LC No. 90-390963-AZ
JACK KEVORKIAN,
          Defendant-Appellant,

and

HEMLOCK OF MICHIGAN,
          Amicus Curiae.


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

 SAAD, J. (concurring).

 I concur in the result of the majority opinion and write
separately to express my view on this important topic.

 I

 Nature of the Case.

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

 II

 Facts.

 I concur in the majority's recitation of the facts; however, I
believe that the following facts deserve emphasis.

 Significantly, in response to the unlawful conduct at issue, the
Legislature passed a bill outlawing assisted suicide, 1993 PA 3,
and the Governor signed the bill into law that same day. MCL
752.1027; MSA 28.547(127). The Michigan Supreme Court has since
both upheld the statute against various constitutional
challenges, and reaffirmed that one who assists another to take
his life violates the criminal laws of this state. People v
Kevorkian, 447 Mich 436; 527 NW2d 714 (1994). Most recently, the
parties have filed petitions for certiorari with the United
States Supreme Court, which have been denied, sub nom Hobbins v
Kelly, US (1995). It is against this backdrop of legal
developments which reaffirmed the illegality of assisted suicide
that we now affirm the decision of the trial court.

 III

 Issue.

 Should a court of general jurisdiction use its extraordinary
injunctive powers to prohibit someone from helping another to
kill himself where such conduct is both threatened and criminal?

 IV

 Analysis.

 Though rare, courts have used injunctions against repeated and
threatened criminal conduct. 42 Am Jur 2d, Injunctions, 157, p
917; State ex rel. Turner v United-Buckingham Freight Lines,
Inc, 211 NW2d 288 (Iowa, 1973); Chicago v Larson, 31 Ill App 2d
450; 176 NE2d 675 (1961); United States v US Klans, Knights of
Ku Klux Klan, Inc, 194 F Supp 897 (MD Al, 1961); Garfield Twp v
Young, 340 Mich 616; 66 NW2d 85 (1954).

 But why do so here? Because the sanctity of life and the rule of
law are, at one and the same time, the most cherished and
vulnerable principles of our society and both are directly
challenged and would be undermined by the threatened conduct if
left unchecked.

 On the other hand, compassion for those dying painfully and the
concept of individual choice convince some citizens to support
euthanasia. Combine these powerful forces with a climate of
situational ethics in a world where matters of life and death
have become more decisional than natural and euthanasia to some
becomes a moral imperative. However, the people of Michigan,
through its Legislature, Governor and Supreme Court, have stated
unambiguously that helping another to kill himself is criminal.
Therefore, the issue raised by threatened violations of our laws
against assisted suicide is: What is the proper response of the
courts?

 And, it is the answer to this question which mandates that we
uphold the trial court's injunction against Dr. Kevorkian
helping others to kill themselves.

 The judiciary cannot avoid its responsibility to address
questions of life and death. Quill v Koppel, 870 F Supp 78 (SD
NY, 1994); Compassion In Dying v Washington, 49 F3d 586 (CA 9,
1995). Like it or not, these fundamental issues end up before
judges who admittedly are more comfortable with and able to
answer evidentiary rather than mortality issues. Yet, when faced
with threatened violations of life and law, courts cannot remain
adiaphorous, particularly where, as here, defendant's conduct
strikes at the very heart of both. Quill, supra; Compassion In
Dying, supra.

 Indeed, it is the concomitant centrality and fragility of the
principles of sanctity of life and respect for the law, [FN1]
combined with the frequency and ferocity of attacks on these
principles that oblige this Court to place its equity powers
squarely on the side of life and law. And this is especially
true where, as here, both of these cherished traditions are
threatened with one seductively insidious act. So, we affirm the
trial court's order to Dr. Kevorkian to obey the law.

 /s/ Henry William Saad

 END NOTES

  1 Judge Noonan recognized the paramount importance of the
principles of the sanctity of life and respect for the law in
Compassion in Dying, supra:

 In the two hundred and five years of our existence no
constitutional right to aid in killing oneself has ever been
asserted and upheld by a court of final jurisdiction Unless the
federal judiciary is to be a floating constitutional convention,
a federal court should not invent a constitutional right unknown
to the past and antithetical to the defense of human life that
has been a chief responsibility of our constitutional
government.