Hobbins v. Attorney General

518 N.W.2d 487, 205 Mich. App. 194

• Court: Michigan Court of Appeals
• Decided: May 10, 1994
• Docket: Docket 164963, 171056, 172399
• Status: Published

Opinions

Fitzgerald, P.J.,

In these consolidated appeals, we are asked to determine the constitutionality óf 1992 PA 270, as amended by 1993 PA 3, ¹ MCL 752.1021 et seq.; MSA 28.547(121) et seq. Specifically, in Docket No. 164963, the Attorney General appeals as of right the May 24, 1993, order of Wayne Circuit Judge Cynthia D. Stephens, which declared unconstitutional the criminal provision of the act for violating Const 1963, art 4, § 24. Judge Stephens also held that individuals have a constitutional right to commit suicide. In Docket No. 171056, the prosecution appeals as of right the December 13 and 14, 1993, orders of Wayne Circuit Judge Richard C. Kaufman, who held that a ban on assisted suicide is overbroad because, in some instances, a person has a constitutional right to commit suicide. Finding that Donald O’Keefe had a constitutional right to commit suicide, Judge Kaufman dismissed the assisting suicide charge against Dr. Kevorkian stemming from his assistance in O’Keefe’s suicide. Judge Kaufman also held that the act did not violate art 4, § 24. In Docket No. 172399, the prosecution appeals as of right the January 28, 1994, order of Oakland Circuit Judge Jessica Cooper, who also declared unconstitutional the criminal provision of the act for violating art 4, § 24, and therefore dismissed assisting suicide charges against Dr. Kevorkian.

Teresa Hobbins is a terminally ill person who, along with seven health care professionals and another terminally ill person,² sought a declaratory judgment that 1992 PA 270, as amended by 1993 PA 3, MCL 752.1027; MSA 28.547(127), is unconstitutional. Dr. Kevorkian is a physician who has been charged with assisting a suicide in violation of MCL 752.1027; MSA 28.547(127).

Ms. Hobbins and Dr. Kevorkian first contend that 1992 PA 270, as amended by 1993 PA 3, is unconstitutional for violating Const 1963, art 4, § 24, which states: "No law shall embrace more than one object, which shall be expressed in its title.” The question presented is governed by a standard of review de novo. Mooahesh v Dep’t of Treasury, 195 Mich App 551, 562; 492 NW2d 246 (1992).

The object of a law is the aim or general purpose of the enactment. Livonia v Dep’t of Social Services, 423 Mich 466, 497; 378 NW2d 402 (1985). While the object must be expressed in the title, the body of the law must be examined to determine whether it embraces more than one object. Kent Co, ex rel Bd of Supervisors of Kent Co v Reed, 243 Mich 120, 122; 219 NW 656 (1928).

The purpose of the one-object provision is to avoid bringing into one bill diverse subjects that have no necessary connection. Mooahesh, supra at 564. An act may contain all matters germane to its object, Reed, supra, and any provisions that directly relate to, carry out, and implement the principal object. Livonia, supra at 499. Legislation, if it has a primary object, is not invalid because it embraces more than one means of attaining its primary object. Local No 1644, AFSC&ME, AFLCIO v Oakwood Hosp Corp, 367 Mich 79, 91; 116 NW2d 314 (1962)._

The one-object provision is to be construed reasonably and not in so narrow or technical a manner as to frustrate the legislative intent. Kuhn v Dep’t of Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971). However, the Supreme Court has not hesitated to hold void legislation enacted to evade the procedural requirements that the constitution places on legislation. United States Gypsum Co v Dep’t of Revenue, 363 Mich 548, 554; 110 NW2d 698 (1961).

1992 PA 270 is entitled:

An act to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; to provide for the development of legislative recommendations concerning certain issues related to death and dying; to prohibit certain acts pertaining to the assistance of suicide; to prescribe penalties; and to repeal certain parts of this act on a specific date.

Section 1 of the act provides:

The legislature finds that the voluntary self-termination of human life, with or without assistance, raises serious ethical and public health questions in the state. To study this problem and to develop recommendations for legislation, the Michigan commission on death and dying is created. [MCL 752.1021; MSA 28.547(121).]

Sections 2 through 6 of the act establish the membership of the commission and define its role and duties.

Section 7 of the act creates a new crime of "criminal assistance to suicide,” which makes it a felony where a person does either of the following:

(a) Provides the physical means by which the other person attempts or commits suicide.

(b) Participates in a physical act by which the other person attempts or commits suicide. [MCL 752.1027(l)(a), (b); MSA 28.547(127)(l)(a), (b).]

1992 PA 270 had its origin in House Bill 4501. Examination of both the title and content of HB 4501 at various states of the legislative process is necessary to aid in the inquiry whether 1992 PA 270 contains more, than one object.

As first introduced on March 7, 1991, the sole purpose of HB 4501 was to create a new public act to establish a commission to study certain issues related to death and dying. House Bill 4501 was entitled:

A bill to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; and to provide for the development of legislative recommendations concerning certain issues related to death and dying.

At the time HB 4501 was introduced, Senate Bill 32 and House Bill 4038 were pending before the House Judiciary Committee. The bills were devoted to amending the Penal Code to "prohibit a person from causing, providing the means of, or acting as a participant in a suicide or attempted suicide.”

On November 12, 1992, the House Judiciary Committee approved HB 4501. The title and provisions of HB 4501 were amended after the second reading on November 24, 1992, the day after Dr. Kevorkian provided assistance to another suicide, to include criminal proscriptions similar to those contained in SB 32. The amended version of HB 4501 became 1992 PA 270.

The original purpose of HB 4501, as expressed in both the title and body of the bill, was to create a new public act to study certain issues related to death and dying. This bill had no regulatory authority. When HB 4501 was amended to add the substance of SB 32, the additional provisions had another and different objective — to amend the Penal Code to create the crime of criminal assistance to suicide.

The Attorney General posits both objectives are within the act’s primary purpose of regulating assisted suicide. However, neither the original title of HB 4501 nor the title of 1992 PA 270 as enacted declare such a purpose.³ A fair reading of 1992 PA 270 reveals that, although encompassing a single "subject,”⁴ the legislation has two primary objectives. These objectives were originally the subjects of two distinct bills. One bill (HB 4501) encompassed the study of issues related to voluntary self-termination of life, with or without assistance, and another (SB 32) encompassed only the crime of criminal assistance to suicide. The suggestion that the amendment of HB 4501 to include the substantive provisions of SB 32 resulted in one primary purpose of "regulating assisted suicide” is unpersuasive in the absence of a comprehensive declaration of such a purpose in the title of the act. People v Milton, 393 Mich 234, 246-247; 224 NW2d 266 (1974).

Had the Legislature intended to codify or regulate the general "subject” of assisted suicide,⁵ it could have notified the public of this intention by declaring a single broad purpose and by joining the object contained in HB 4501 with the object contained in SB 32 together in one bill. This the Legislature did not do. This failure resulted in the body of the act containing two distinct objects. The fact that the title was amended to reflect the addition of § 7 does not cure the constitutional infirmity. The one-object provision may not be circumvented by creating a title that includes different legislative objects. Hildebrand v Revco Discount Drug Centers, 137 Mich App 1, 11; 357 NW2d 778 (1984). We find, therefore, that 1992 PA 270 as enacted has two distinct objects that, although encompassing the same "subject,” are not germane to each other, are directed toward different purposes and, when grouped together in one act, offend the constitutional one-object provision.⁶ In reaching this conclusion, we recall the Supreme Court’s pronouncement in Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 133; 240 NW2d 193 (1976):

This Court is mindful of the worthy purpose and high motivation of the Legislature and the proponents of the subject Act. It also is mindful of the basic dictates of the Constitution of this state. Our test cannot be one of policy but one of constitutionality. On that test, the Act must fall.

The Oakland County Prosecutor relies on People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980). In Trupiano, provisions of the Public Health Code creating departments charged with enforcing the code and including a provision to prescribe criminal penalties for possession of controlled substances, survived a constitutional challenge based on a violation of the one-object provision.

Trupiano is distinguishable from the instant case. Trupiano involved a legislative enactment that constituted a "code.” As noted by the Court in Trupiano, supra at 420:

The Supreme Court has recognized a wide degree of discretion in reviewing legislative enactments which constitute a "code.” In Advisory Opinion re Constitutionality of 1972 PA 294 [389 Mich 441; 208 NW2d 469 (1973)], the Court noted at 463:

"Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the 'one-object’ limitation is present in the constitution.”

Thus, codes that have a general purpose or aim that is implemented through a number of specific statutory provisions have survived challenges based on a violation of the one-object provision because if too strict a reading is given art 4, § 24, no codes enacted in Michigan would be constitutional. See Advisory Opinion re Constitutionality of 1972 PA 294, supra at 463. The act in this case is not a codification, and, as previously noted, the attempt to define the object broadly to encompass all subjects related to the issue of assisted suicide is unpersuasive.

1992 PA 270, as amended by 1993 PA 3, violates the one-object provision of Const 1963, art 4, § 24 and, therefore, is unconstitutional. In light of this conclusion, we need not address the remainder of the constitutional challenges to the act. However, in anticipation of Supreme Court review, and in the interest of judicial economy, we will briefly address Ms. Hobbins’ argument that Michigan’s assisted suicide statute deprives its citizens of a constitutional right protected by the Due Process Clause of the Fourteenth Amendment.

In Roe v Wade, 410 US 113, 153; 93 S Ct 705; 35 L Ed 2d 147 (1973), the United States Supreme Court posited the existence of a "right of privacy, . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, . . . broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court, however, expressly stated that this "privacy right . . . cannot be said to be absolute,” and noted that it has consistently "refused to recognize an unlimited right of this kind in the past.” Id. at 154. Essential to the analysis in the case at bar is the Supreme Court’s recognition and affirmation of the state’s compelling interest in protecting life: "[T]he State’s important and legitimate interest in . . . protecting] . . . fetal life after viability [justifies legislation that] may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” Id. at 163-164. Furthermore, "a State [has] an unqualified interest in the preservation of human life.” Cruzan v Director, Missouri Dep’t of Health, 497 US 261, 282; 110 S Ct 2841; 111 L Ed 2d 224 (1990). The constitutionality of legislative enactments to protect life is clearly established in our law.⁷_

When individuals assert constitutional rights against state regulation, whether encompassed by the "zones of privacy” recognized in Roe or acknowledged as a liberty interest protected by the Due Process Clause of the Fourteenth Amendment, a court must balance the individual interest against the state’s interest. Cruzan, supra at 279; Roe, supra at 154. It is, of course, necessary that the asserted right be one that is accorded constitutional protection under our law. That is not the case in the instant matter.

Determination of the existence of "rights not readily identifiable in the Constitution’s text” sometimes, as in the opinions under review here, seems merely "the imposition of the [judges’] own choice of values.” Attempting "to identify the nature of the rights qualifying for heightened judicial protection,” the Supreme Court has ruled "that this category includes those fundamental liberties that are 'implicit in the concept of ordered liberty,’ such that 'neither liberty nor justice would exist if [they] were sacrificed.’ [Alternatively,] they are characterized as those liberties that are 'deeply rooted in this Nation’s history and tradition.’ ” Bowers v Hardwick, 478 US 186, 191-192; 106 S Ct 2841; 92 L Ed 2d 140 (1986) (citations omitted). The "right” asserted by Ms. Hobbins— the right to commit suicide — satisfies neither definition.

The scope of rights encompassed by the concept of ordered liberty does not include the right to commit suicide, much less the right to assisted suicide. The "guarantee of personal privacy” has been "extenfded] to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.” Roe, supra at 152-153 (citations omitted). Judicial discovery of a right to terminate one’s life is not a logical extension of this catalog of rights.⁸ Liberty and justice will not cease to exist if a right to commit suicide is not recognized.

Ms. Hobbins argues that the liberty interest⁹ recognized in Cruzan supports the broader concept of a right to self-determination, which necessarily encompasses the right asserted here. However, Ms. Hobbins misapprehends the true nature of the right recognized in Cruzan.

The Supreme Court began its discussion of the issue before it in Cruzan by noting the common-law basis of "the right of a competent individual to refuse medical treatment [and stating] that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” The Court noted: "This is the first case in which we have been squarely presented with the issue whether the United States Constitution grants what is in common parlance referred to as a 'right to die.’ ” The Court then made clear its intention to "follow the judicious counsel . . . 'not to attempt, by any general statement, to cover every possible phase of the subject.’ ” Cruzan, supra at 277-278 (citation omitted). The right recognized in Cruzan was only to refuse unwanted medical treatment and passively die a natural death, not to actively intervene so as to hasten one’s death. Furthermore, even this limited right is not absolute: "It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.” Id. at 281. The right asserted by Ms. Hobbins is not a fundamental liberty; liberty and justice will not cease to exist as a result of this Court’s decision not to accord it constitutional status.

Neither is the right to commit suicide deeply rooted in this nation’s traditions. At common law, a suicide incurred criminal liability and harsh penalties. "Although the States abolished the penalties . . . , they did so to spare the innocent family and not to legitimize the act.” Id. at 294 (Scalia, J., concurring). Furthermore, "[c]ase law at the time of the adoption of the Fourteenth Amendment generally held that assisting suicide was a criminal offense. . . . And most states that did not explicitly prohibit assisted suicide in 1868 recognized, when the issue arose in the 50 years following the Fourteenth Amendment’s ratification, that assisted and (in some cases) attempted suicide were unlawful.” Id. at 294-295 (citation omitted). There is, therefore, no significant support for the proposition that a right to commit suicide is rooted at all in our nation’s history.

There is a "rationalizing principle” that justifies the inclusion of nontextual rights on the list of protected rights, that designates them as "implicit in the concept of ordered liberty.” Faced with an individual-rights challenge to a legislative enactment, the courts must answer this question: "Does [the statute] violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?’ ” Palko v Connecticut, 302 US 319, 325, 328; 58 S Ct 149; 82 L Ed 288 (1937) (citation omitted). With regard to an alleged right to commit suicide, the answer is clearly no. We therefore decline to find such a right.

The wisdom of judicial circumspection in discovering new constitutional rights has been cogently expressed by Justice Byron White:

That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the 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 even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, . . . the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever, the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority. [Moore v East Cleveland Ohio, 431 US 494, 544; 97 S Ct 1932; 52 L Ed 2d 531 (1977) (White, J., dissenting).]

The orders in Docket Nos. 164963 and 172399 regarding the constitutionality of the statute are affirmed. The orders in Docket Nos. 171056 and 172399 dismissing the charges of providing assistance to suicide are affirmed.¹⁰ Judge Stephens’ order in Docket No. 164963 and Judge Kaufman’s order in Docket No. 171056 are reversed with respect to their holdings regarding a constitutional right to commit suicide. Judge Kaufman’s order in Docket No. 171056 regarding the constitutionality of the statute is also reversed.

1 Aside from reorganizing the language in the title and making minor amendments of the language contained in § 7, 1993 PA 3 did little more than give immediate effect to 1992 PA 270.

2 The health care professionals were dismissed by the trial court for lack of standing, and the remaining plaintiif is not a party to this appeal.

3 If the primary purpose of HB 4501 was to regulate assisted suicide, it would have been unnecessary for the Legislature to amend the title of HB 4501 because a title need not be an index of an act’s provisions. Builders Square v Dep’t of Agriculture, 176 Mich App 494, 498; 440 NW2d 639 (1989).

4 The one-object provision may not be circumvented by enacting a law that involves a single subject but is designed to accomplish different objectives. Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 129-130; 240 NW2d 193 (1976).

5 See, e.g., Builders Square, supra, n 3 (a case on which the Oakland County prosecutor relies), and numerous other codified areas of the law, e.g., the Drain Code, MCL 280.1 et seq.; MSA 11.1001 et seq., and the Insurance Code, MCL 500.100 et seq.; MSA 24.1100 et seq.

6 To buttress our conclusion, though certainly not controlling, we have in this case the opinion from the counsel for the House Judiciary Committee that the amendment of HB 4501 would violate the one-object provision of art 4, § 24. Similarly, in analyzing HB 4501 as enrolled, the House Legislative Service Bureau opined that the bill is subject to a constitutional challenge based on art 4, § 24.

7 The legitimate state interest in protecting life recently was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US —, —, —, —, —; 112 S Ct 2791; 120 L Ed 2d 674, 710, 738, 773, 783 (1992).

8 Even in these areas, the Supreme Court has not found that all rights are implicit in the concept of ordered liberty. For example, the Court has expressly rejected the contention that a right to consensual sodomy is implicit in the concept of ordered liberty, or that an unwed father’s liberty interest was violated by a statute’s presumption that the husband of the child’s mother is the child’s father and that denied him any right to visitation. Bowers, supra; Michael H v Gerald D, 491 US 110; 109 S Ct 2333; 105 L Ed 2d 91 (1989).

9 The Cruzan Court noted that "many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy,” [see, e.g., In re Quinlan, 70 NJ 10; 355 A2d 647 (1976)] but expressed its belief that "this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest.” Cruzan, 497 US 279, n 7.

10 Judge Kaufman reached the correct result in dismissing the case, albeit for the wrong reason.