Kevorkian v. Arnett, CV-94-6089 CBM (Kx).

Decision Date11 September 1996
Docket NumberNo. CV-94-6089 CBM (Kx).,CV-94-6089 CBM (Kx).
Citation939 F. Supp. 725
CourtU.S. District Court — Central District of California
PartiesJack KEVORKIAN, M.D., and John Doe, Plaintiffs, v. Dixon ARNETT, as Executive Director of the Medical Board of California; Medical Board of California; and Daniel E. Lungren, Attorney General of the State of California, Defendants.

Daniel E. Lungren, Attorney General of California, Thomas S. Lazar, Deputy Attorney General by Thomas S. Lazar, Deputy Attorney General, for Defendants.

Lawrence Silver & Associates, Lawrence Silver, Mark E. Field, by Mark E. Field, Long Beach, for Plaintiffs.

ORDER

CONSUELO BLAND MARSHALL, District Judge.

This matter is before the Court on cross-motions for summary judgment filed by each remaining party to this action: Plaintiff Jack Kevorkian, M.D.; Plaintiff John Doe; and Defendant Daniel E. Lungren. The Court, the Honorable Consuelo B. Marshall, United States District Judge, presiding, has considered the motion papers, counsel arguments, and the evidence, and based thereupon, issues the following order:

THE REMAINING PARTIES

1. Plaintiff John Doe

John Doe is 35 years old and was first diagnosed as HIV positive in July, 1984. He was diagnosed as having AIDS on January 1, 1993. John Doe is in the advanced final stages of his disease and has been advised by his physician that his condition is terminal, though the exact amount of time left to him is necessarily an estimate. John Doe currently suffers from a T-cell count of 12 (normal being about 1000), leading to chronic fatigue. He also suffers from several as yet undiagnosed viruses which his immune systems lacks the ability to defeat. Recently, John Doe has been diagnosed as suffering from cytomegalovirus retinitis and has a catheter in his right arm for its treatment. However, this is a progressive degenerative disease of the optic nerve and will eventually destroy plaintiff's eyesight, preventing him from practicing his profession as a video editor.

John Doe is mentally competent and aware of the nature of his diseases and likely progress. In addition, John Doe contends that he has "seen his peers die without dignity and in horrible pain, and he does not want that fate to befall him." (Complaint, p. 22, ¶ 52.) John Doe wishes to obtain physician aid in dying.

2. Dr. Jack Kevorkian, M.D.

Dr. Kevorkian was issued California Physicians and Surgeons certificate No. C19165 on November 18, 1957. Dr. Kevorkian's medical license, however, was revoked on June 29, 1994 in default proceedings based on the fact that (1) he had been disciplined by the Michigan Board of Medicine and (2) he had assisted five patients to commit suicide.

On September 7, 1994, Dr. Kevorkian filed a petition for writ of administrative mandamus in the Los Angeles County Superior Court, seeking judicial review of the default decision. The Superior Court dismissed with leave to amend on the grounds that Dr. Kevorkian had neither exhausted his administrative remedies nor alleged that it was futile to do so. Dr. Kevorkian has appealed the ruling.

3. Attorney General Daniel E. Lungren

Attorney General Lungren is the chief law enforcement officer in the State of California. He possess discretion to initiate criminal prosecutions and general supervisory powers over the district attorneys in the state.

CALIFORNIA'S STATUTE PROHIBITING ASSISTED SUICIDE

California law does not criminalize suicide. In re Joseph G. 34 Cal.3d 429, 194 Cal.Rptr. 163, 667 P.2d 1176 (1983). California law also permits an individual to refuse or require the withdrawal of life-sustaining treatment. Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986), review denied, (June 5, 1986) (competent individuals have a right to refuse medical treatment that sustains life); see also People v. Adams 216 Cal.App.3d 1431, 265 Cal.Rptr. 568 (1990), review denied, (April 19, 1990) (a person has a constitutionally protected interest in refusing unwanted medical treatment or procedures). This right to refuse treatment or life-sustaining measures has not been limited to those who are terminally ill. See Bartling v. Superior Court, 163 Cal. App.3d 186, 209 Cal.Rptr. 220 (1984) (seriously ill patient may refuse treatment).

However, California law criminalizes those who aid a person in committing suicide. Cal.Penal Code § 401 states:

Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.
QUESTIONS PRESENTED

These cross-motions for summary judgment have been brought on numerous grounds: (1) whether Plaintiffs lack standing to assert their claims; (2) whether Eleventh Amendment immunity applies; (3) whether Cal.Penal Code § 401 facially violates the Due Process Clause of the Federal Constitution; (4) whether Cal.Penal Code § 401 violates the Equal Protection Clause of the Federal Constitution; (5) whether Cal.Penal Code § 401 facially violates the right to privacy under the California Constitution; and (6) whether Cal.Penal Code § 401 violates the Equal Protection Clause of the California Constitution.

ANALYSIS
1. STANDING

The Court will address first the Attorney General's challenge to Plaintiffs' standing. The Court finds that John Doe has standing but that Dr. Jack Kevorkian does not.

As required by Article III of the United States Constitution, this Court must determine at the threshold whether Plaintiffs present an "actual controversy." Steffel v. Thompson, 415 U.S. 452, 468-69, 94 S.Ct. 1209, 1220-21, 39 L.Ed.2d 505 (1974). A patient may challenge the constitutionality of a statute criminalizing the conduct of the physician even though the patient is not the direct object of the criminal statute. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); see also, Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995); National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir.1995). Moreover, after examining the pleadings and evidence, this Court concludes that Plaintiff John Doe has standing to challenge the constitutionality of the statute because the Attorney General has not stated affirmatively that his office will not enforce the statute. See Bland v. Fessler, 88 F.3d 729 (9th Cir.1996) (although Attorney General has never enforced a civil statute, without affirmative denial of enforcement plaintiff has standing). Thus, John Doe has standing to bring this action even though he is not the direct object of Cal.Penal Code § 401.

As a general principle, physicians have been found to have standing to assert the rights of their patients because of the special nature of the physician-patient relationship. See e.g., Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (physician may assert rights of patient in abortion context). Thus, although courts recognize that the actual right asserted resides with the patient, physicians have standing to assert the rights of their patients challenging the constitutionality of a criminal physician-assisted suicide statute even though they have not been prosecuted, or threatened with prosecution, for violation of the statute. Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir.1996), stay granted Washington v. Glucksberg, ___ U.S. ___, 116 S.Ct. 2494, 135 L.Ed.2d 187 (1996), reh'g en banc by full court denied, Compassion in Dying v. State of Washington, 85 F.3d 1440 (1996), cert. filed, 65 U.S.L.W. 3085 (July 03, 1996) (No. 96-110); see also Quill v. Koppell, 870 F.Supp. 78 (S.D.N.Y.1994). Dr. Kevorkian, however, is not licensed to practice in the State of California. Thus, he does not have standing to challenge the constitutionality of Cal.Penal Code § 401 as a physician.1

Although Dr. Kevorkian and John Doe both challenge the constitutionality of Cal.Penal Code § 401 under federal and state law, their claims relative to this statute differ according to their circumstances: John Doe asserts the right to receive medical assistance from a physician in committing suicide; Dr. Kevorkian asserts claims on behalf of his patients to medically assisted suicide and also his own right to practice medicine. To the extent, then, that Dr. Kevorkian's and John Doe's claims vary, this Court will only reach those claims asserted by John Doe.

2. ELEVENTH AMENDMENT IMMUNITY

Eleventh Amendment immunity "may be raised at any point in a proceeding." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) citing, Ford Motor Company v. Department of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945). It is, therefore, proper that this Court analyze Defendant's immunity claims at this time.

The Eleventh Amendment bars federal courts from entertaining suits brought by a private party against a state or its instrumentalities in the absence of state consent. Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 714 F.2d 946, 950 (9th Cir.1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 354 (1984). However, the Eleventh Amendment does not bar actions seeking only prospective declaratory or injunctive relief against state officers in their official capacities. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Long v. Van de Kamp, 961 F.2d 151 (1992). The claims in this action fall squarely within this exception to Eleventh Amendment immunity.

Under Ex Parte Young, the state officer sued "must have some connection with the enforcement of the allegedly unconstitutional act." Id. at 157. Lungren argues that as the Attorney General he does not have sufficient connection to the enforcement of Cal.Penal Code § 401 because he only has "general supervisory powers" over the district attorneys under Cal.Gov't Code §§ 12550, et seq., and 26501.

California Government Code § 12550, however, gives the Attorney General more than supervisory powers. Section 12550 provides that:

The Attorney General has direct supervision over the
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  • Krischer v. McIver, 89837
    • United States
    • United States State Supreme Court of Florida
    • July 17, 1997
    ...possesses in ending his life through the assistance of a third person in violation of the state's penal laws. Id. See Kevorkian v. Arnett, 939 F.Supp. 725 (C.D.Cal.1996) (there is no persuasive authority to believe that the California Supreme Court would hold contrary to Donaldson when dire......
1 books & journal articles
  • Three strikes: is an assisted suicide right out?
    • United States
    • Issues in Law & Medicine Vol. 15 No. 1, June - June 1999
    • June 22, 1999
    ...A federal court subsequently found no reason to believe the California Supreme Court would decide differently. Kevorkian v. Arnett, 939 F. Supp. 725 (C.D. Cal. (180) Id. at 101. (181) Id. (182) Id. at 102 (quoting the amicus brief of The Advocacy Center for Persons With Disabilities, Inc.).......

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