Petition — Gambrel v. Kentucky Board of Dentistry

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82-47 “Titre

; JUL @ we

a

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES E. GAMBREL,

Petitioner,

v.

KENTUCKY BOARD OF DENTISTRY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

George C. Pontikes

Sheldon Gardner

Foss, Schuman & Drake

ll South LaSalle Street

Chicago, Illinois 60603

(312)782-2610

Franklin S. Yudkin

Belker & Yudkin

730 West Main Street

Louisville, Kentucky 40202

(502)-589-4626

QUESTIONS PRESENTED

WHETHER PETITIONER JAMES E. GAMBREL WAS

DENIED DUE PROCESS BY THE TRIAL COURT'S

PAILURE TO CONDUCT AN ORDERLY AND FAIR

PROCEEDING AS GUARANTEED BY THE

CONSTITUTIONS OF THE UNITED STATES AND

COMMONWEALTH OF KENTUCKY?

TI PRESENTED

WHETHER PETITIONER JAMES E. GAMBREL WAS

DENIED DUE PROCESS BY THE TRIAL COURT'S

FAILURE TO CONDUCT AN ORDERLY AND FAIR

PROCEEDING AS GUARANTEED BY THE

CONSTITUTIONS OF THE UNITED STATES AND

COMMONWEALTH OF KENTUCKY?

ne 4

=

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES E. GAMBREL,1/

Petitioner,

v.

KENTUCKY BOARD OF DENTISTRY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

1/ James E. Renfro, Sr., an appellant

in the Commonwealth of Kentucky

Court of Appeals, is not a

respondent because the Circuit

Court's order finding him in

contempt was reversed and remanded

with instructions to vacate.

aSe

TABLE OF CONTENTS

_Page

QUESTIONS PRESENTED.....ceeecccccescceed

TABLE OF CONTENTS... ccccscccesssseseeed

TABLE OF AUTHORITIES... ccccceseceeseeed

DECISIONS BELOW... .cccccccsesessseseeeel

JURISDICTIONAL STATEMENT... .cececeeeeeed

CONSTITUTIONAL PROVISIONS INVOLVED....10

STATEMENT OF THE CASE...ceccecceesseeel?

ARGUMENT . cccccccccccesccccscececceecsesan

APPEMDIR. cccccocccecccscccscsecccceescoda

TABLE OF AUTHORITIES

STATUTES

KRS 313.010(2) cescccccccccccccccccccse eS

KRS BRE sSROc dcccesecedecvsesseccoscseeee

KRS SE SeOCs od 6060668666 O65 60666000008

CASES Page

Adams Real Estate Corp. v. Ward, 458

(Ky.

Bradford v. Sargraves, 556 S.W.2d 166

(Ky .App. 197 506eb 6066 b6 codes se cee

Cane v. Commonwealth, 556 S.W.2d 902

(Ky .App. ST VESs dh en's cutahdeices vonuccae

posseveccocccecceae

Combs v. Griffin, 429 S.W.2d 849 (Ky.

pecccccccccecceeseceeeeesecesecese

Compton v. Commonwealth, 602 &S.W.2d 150

y- BO)pvcccccdeccccccsecseccccescscene

Gibson v. Berryhill, 411 U.S. 564, 56

L.Ed. 24 (ee Se sce BOGGS ive eas coant

Harlan Coal and Cable v. Kinser, 262

Ss... 937 (Ky. TUES 0 00We vb Cee 0 bubesncee

Johnson v. Mississippi, 403 U.S. 212, 29

L.Ed.2a 423, ST BCe 1778 (2971) 6000082

May v. Hatterick, 261 S.W. 1091 (Ky.

Bp eccccsecccccerecececscescvecccoccsd4

McIntosh v. Commonwealth, 368 S.W.2d 331

y- Bhsccececsesoeeecésocesceheocesae

e ©

+a

TABLE OF AUTHORITIES

(Continued)

Page

aaey » 153 6.W.24 935

y- a ne edebcb oes bOGbe eC ceeoocenn

pe v. Arnett, 106 &.W. 828 (Ky.

Speccccccessesseseesesseseseceesees 4

Re: Peuition 3 green. 369 U.S. 689, 8

>. > , >. 7 1114 (1962)....+.-3l

ST Lee 333 U.8.267, 92 L.Ed. 682

ita se6eeses 6eeeoe seeeeeceeeesé eee

aabastian v. Commonwealth, 623 &.W.2d

y- peep era

pantosky Vv. amer, U.s. , 71

> . 599 UR ay ged

CELE CabET v. Smith, 411 F.2d 733

rc. -) PPPPTTTTITIIrrriiiiiiirt |

S v. Commonwealth, 305 &.W.2d 935

y- 1957 Woe 66 666660666006 0e000 0 CeCC Cae

v. Georgia, 450 U.S. 261, 67

mee cmatT S.Ct. 1097 (1981)....37

DECISIONS BELOW

The Kentucky Supreme Court denied

the petitioner's motion for discre-

tionary review on April 13, 1982. The

decision is unreported. A copy of the

order is found in the Appendix, page

a-17/ the opinion of the Court of

Appeals of the Commonwealth of Kentucky,

sustaining the issuance of an injunction

under KRS Chapter 313 against peti-

tioner, was rendered on December 18,

1981 at 10:00 a.m. This opinion is

unreported. A copy of the opinion is

found in the Appendix, Page A-2. The

Kentucky Court of Appeals also denied

petitioner's motion for rehearing on

2/ A refers to the appendix of this

petition.

February 26, 1982. A copy of this order

is found in the Appendix at A-12. The

injunction and finding of facts and

conclusions of law by the Honorable

Charles H. Anderson of the Jefferson

Circuit Court Third Division on

December 30, 1980 at 4:15 p.m. is found

at Appendix, page A-13.

JURISDICTIONAL STATEMENT

The petitioner invokes this Court's

jurisdiction under 28 U.S.C., Section

1257(3). ‘The order of the Supreme Court

of Kentucky was entered on April 13,

1982 at 10:00 a.m. This petition will

be timely if filed by mail on or before

July 12, 1982 without extension.

s

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

FOURTEENTH AMENDMENT

Which states in pertinent part:

-+-"nor shall any State deprive any

person of life liberty or property

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the law."

SIXTH AMENDMENT

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public Trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed, which district

shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witness against him; to

have compulsory process for

obtaining witnesses in his favor;

and to have the Assistance of

Counsel for his defense.

KENTUCKY CONSTITUTION

SECTION 11 BILL OF RIGHTS

In all criminal prosecutions

the accused has the right to be

heard by himself and Counsel; to

demand the nature and cause of the

accusation against him; to meet the

witnesses face to face, and to have

compulsory process for obtaining

witnesses in his favor. He cannot

be compelled to give evidence

against himself, nor can he be

deprived of his life, liberty or

property, unless by the Judgment of

his peers or the law of the land;

and in prosecutions by indictment

or information, he shall have a

speedy public trial by an impartial

jury of the vicinage; but the

General Assembly may provide by a

general law for a change of venue

in such prosecutions for both the

Defendant and the Commonwealth, the

change to be made to the most

convenient county in which a fair

Trial can be obtained.

STATEMENT OF THE CASE

On December 5, 1976 the respondent

filed a complaint against James E.

Gambrel, a licensed dental laboratory

technician, alleging that he violated

the Kentucky Dental Practice Act. In

support of its complaint, the Kentucky

Board of Dentistry attached an affidavit

of Donald L. White, an office associate

of the respondent's attorney, alleging

that James E. Gambrel had engaged in

cxv.tain acts constituting the illegal

practice of dentistry, thereby violating

KRS Chapter 313. The complaint sought a

permanent injunction against James E.

Gambrel pursuant to the act. James E.

Gambrel denied all allegations in the

complaint.

Hon. Judge Liebson, Ninth Division,

dismissed the action without prejudice

because the Kentucky Dental Board had

not authorized the action as required by

the Dental Practice Act.

At approximately the same time

Donald White also obtained a warrant

charging Gambrel with a violation of the

criminal section of the same Dental

Practice Act.

A new cause of action, Case No.

237585 was then filed and assigned to

Division Three of the Jefferson Circuit

Court. Defendant moved, pursuant to

Jefferson County Rule 905, a mandatory

transfer rule, to have this case

transferred to Division Nine, but was

overruled.

The case was heard before the Third

Division of the Jefferson Circuit Court,

Hon. Charles H. Anderson, together with

the case of the Kentucky Board of

Den-istry v. James E. Renfro, Sr., No.

55789. a totally &inrelated contempt

case. The Renfro case was reversed by

the Court of Appeals, See Footnote l.

This consolidation of trials was over

the objection of James E. Gambrel and

James E. Renfro, Sr.

In December 1977 a grand jury

indicted Gambrel after a November grand

jury refused to issue an indictment.

Lowell Thompsen, the respondent's

attorney and assistant Commonwealth

attorney had the case resubmitted to the

December grand jury.

ba

The Trial Court set the com-

mencement of the trial for Friday,

May 12, 1978, starting at 3:30 p.m. (Tr.

Vol. 1, p. 128) Defense counsel

objected (Tr. 127 and 30-31), based on

the failure of the Trial Court to follow

Civil Rule 40 and Jefferson County

Rule 103, as that was the day in whch

the Kentucky Bar Association has its

convention, and is not to be a Court

date. Further, defense counsel objected

on the day of trial reporting that he

was too ill to proceed. The Court

overruled his objection.

An assistant Commonwealth attorney,

Lowell Thompson, who was also represent-

ing the Kentucky Dental Board, an

official agency of the Commonwealth of

Kentucky, as a contract attorney,

-15-

pursuant to KRS 12.210 was at the trial.

Although the Kentucky Dental

Association, a private trade associa-

tion, was not a party to this suit,

their counsel, John T. Fowler and

John T. Fowler, III, participated in the

prosecution of the petitioner over

objection. The Fowlers were allowed to

participate in the trial in the unusual

capacity as attorneys for the members of

the Board individually, although the

individual members were not parties to

either of the actions. (Tr. 6-2-78,

p. 48)

The Board of Dentistry called their

witnesses on the evening of May 12,

1978. As the trial progressed, peti-

tioner counsel became progressively iil

(Tr. 5/12/78, p. 81). He repeatedly

#166

requested the Court to adjourn.

Petitioner's counsel was physically

unable to cross-examine the respondent's

witnesses (Tr. 5/12/78, pp. 88-92).

Subsequently, petitioner's counsel was

rushed to a hospital emergency room,

where he was treated for what was

diagnosed as intestincl flu.

The trial continued even though the

petitioner was unrepresented by counsel.

(Record Vol. II, p. 139) The petitioner

was not afforded the opportunity to

cross-examine the Board's witnesses.

Further, before adjourning for the

evening, the trial judge discussed the

case with the counsel for respondent and

the Kentucky Dental Association. The

petitioner Gambrel, who was unrep-

resented at this time, was excluded from

«Jo

ge

this discussion. The respondent, having

presented all its witnesses, rested its

case and the case was continued to

June 2, 1978.

On June 2, 1978, the Court first

announced the respondent had completed

its case (Tr. 6-7-78 p. 10) and the

Court entertained directed verdict

motions and mistrial motions. Then Hon.

Judge Anderson reversed his position

over objections and allowed the

respondent to continue is case with more

testimony (Tr. 5/12/78, p. 21).

Also on June 2, 1978, the Board was

allowed to recall its main witness,

Donald White, to the stand over objec-

tions. At the close of the Board's case

on June 2, 1978, the defendants moved

again for a directed verdict of acquit-

-18-

tal and a mistrial. The defense

continued on June 23, 1978, and the

trial ended on July 18, 1978. On August

4th, 1978, the trial court held a

hearing on petitioner's motion to hold

Donald White in contempt for filing a

false affidavit in support of the

petition for injunction. After the

hearing the court refused to hold him in

contempt.

On July 24, 1979, the petitioner,

Gambrel, was tried criminally, before

another division of the same Jefferson

Circuit Court on the same facts, under

the criminal section of the Dental

Practice Act, and the same testimony of

Donald White was given. At the end of

the Commonwealth's case, the judge gave

a directed verdict of acquittal, saying

that the Commonwealth had not met its

burden of proof. Two and one-half years

later, on December 30, 1980, the trial

court rendered its decision and issued

an injunction against petitioner

James E. Gambrel, although KRS 454.350

requires orders be issued within 90

days.

THE PETITIONER JAMES E. GAMBREL WAS

DENIED DUE PROCESS AS GUARANTEED BY

THE CONSTITUTION OF THE UNITED

STATES AND THE COMMONWEALTH OF

KENTUCKY BY THE TRIAL COURT'S

FAILURE TO CONDUCT A FAIR,

IMPARTIAL, ORDERLY NON BIASED

PROCEEDING AND TO DECIDE THE CASE

BASED ON THE STANDARD OF CLEAR AND

CONVINCING EVIDENCE.

Justice can only exist where the

legal system provides a formal structure

in which adversaries can logically

present evidence from which they may

argue their respective positions. The

greatness of the American System of

Justice is that the trier of fact, judge

or jury, is placed into a structure

which removes all of the irrelevancies.

The presumption that the judge as trier

of fact is capable of extracting

relevant information from irrelevant

-21-

matters, is overcome when the trial has

become bedlam. The refusal of the trial

court to follow court rules and laws of

this free democratic society deprived

the petitioner of due process, a fair

trial on his day in court.

The issue of a fair trial with

relevant evidence presented in an

orderly fashion is an issue separate

from that of the bias of the triai

court. The due process clause of the

Fourteenth Amendment to the United

States Constitution requires that a

defendant be tried before an unbiased

judge. Johnson v. Mississippi, 403 U.S.

212, 216, 29 L.Ed.2d 423, 91 S.Ct. 1778

(1971). This constitutional guarantee

presumes that the judge will conduct an

orderly procedure with a prompt and

continuing presentation of evidence

relevant to the issues raised by the

pleading and decide the case by applying

the appropriate standard for proof.

"Perhaps no precise definition

can be given it [a fair trial], but

it certainly must be one where the

accused's legal rights are

safeguarded and respected. There

must not only be a fair and

impartial jury and a learned and

upright Judge to instruct the jury

and pass upon the legal questions,

but there ought to be an atmosphere

of calm, in which the witnesses can

Geliver their testimony without

fear and intimidation, and in which

the attorneys can assert the

defendant's rights freely and

fully, and in which the truth may

be received and given credence

without fear of violence."

Raney v. Commonwealth, 153 S.W.2d 935,

937 (Ky. App. 1941).

To understand the overwhelming .

bedlam and bias that denied the peti-

tioner his right to due process and a

=23-

~~, * ¥.

fair trial, it is necessary to read the

entire transcript of a trial that on

May 12, 1978 was declared an emergency,

which continued until midnight and which

would ultimately take two and one-half

years to decide. While each incident

alone as listed below wovid probably not

in and of itself demonstrate that the

trial was unfair, these incidents, taken

as a whole and viewed in light of the

entire proceedings, demonstrate peti-

tioner's deprivation of due process and

a fair trial. The incidents cited will

generally be chronological.

l. VIOLATION OF PETITIONER'S

RIGHT TO DUE PROCESS BY

JOINING AN UNRELATED CONTEMPT

CASE WITH THE PETITIONER'S

CASE FOR TRIAL.

At the beginning of the trial

petitioner moved to sever the action

age ale

against James E. Renfro from the action

against himself. Kentucky Civil

Practice Rule 20.01 regarding parties,

states:

"All persons may be joined in

one action as Defendants if there

is asserted against them jointly,

severally, or in the alternative,

any right to relief in respect of

or arisi t of the

cronnantios currence, or series

The Rules, including local Rule 904,

clearly require common questions of ‘aw

and facts for joinder of parties to be

proper. Although misjoinder is not a

basis for dismissal; it is a basis for

severance of actions. Bradford v.

Sargaves, 556 S.W.22 166, 168 (Ky.App.

1978); Adam's Real Estate Corp. v. Ward,

458 S.W.2d 622 (Ky. 1978). The failure

-25-

:

of the trial court to grant the motion

to sever the actions against petitioner

from that of James E. Renfro, &r.

requires reversal because it was a clear

abuse of discretion. Compton v.

Commonwealth, 602 S.W.2d 150 (Ky. 1980).

In this case, there were no common

questions of law nor fact. See

Sabastian v. Commonwealth, 623 S.W.2d

880 (Ky. 1981). These actions were

initially brought separately and should

have been tried separately.

The vast factual difference between

the cases and differences in the types

of actions clearly required separate

trials. The action against James E.

Gambrel was an injunction suit, while

the action against James E. Renfro, Sr.,

was a contempt action. The plaintiff's

ef

.

burden of proof in the case zgainst

James E. Renfro, Sr., was provf beyond a

reasonable doubt. The plaintiff's

burden of proof in the case against

James E. Gambrel was based on clear and

convincing evidence. The allegations in

each suit were unrelated as to time and

place and different sections of the

Kentucky Dental Practice Act were

allegedly violated. Further, there were

different witnesses in each action. The

trial was incomprehensible with the

court constantly switching from one case

to the next. The petitioner contends

that the Kentucky Court of Appeals

committed error in not reversing on this

ground and in not allowing the defendant

his day in court.

It is arguable that the merger of

these two cases in effect should have

given petitioner greater protection

because of the added safeguards of the

Sixth Amendment due to the

quasi-criminal nature of the contempt

action being tried with petitioner's

action. However, the trial court also

failed to recognize the alleged contem-

nor's constitutional rights. °/

2. DENIAL OF PETITIONER'S DUE

PROCESS RIGHT TO COUNSEL.

Trial assignment of this case was

made when petitioner's counsel was out

of town. Petitioner's counsel had

requested respondent's counsel prior to

leaving not to put anything on the

3/ James E. Renfro, Sr., the alleged

contemnor, is not a party to this

petition.

3 ae

OE Ow

motion hour that week. (Record, pp.

127-128) In so doing the court violated

CR 40, See Combs v. Griffith, 429 S.W.2d

849 Ky. 1968) and Harlan Coal and Cable

v Kinser, 262 S.W. 937 (Ky. 1924).

In this case petitioner's counsel

became ill during the initial trial

proceeding which was declared an

emergency. Petitioner's counsel was °

unable to cross-examine the

Commonwealth's witnesses while he was

present. (Tr. 5/12/78, pp. 81-86, 88).

Subsequently, he went to the hospital.

The court's remarks to petitioner's

counsel after he collapsed and was

leaving for the hospital suggest a

belief that he was faking. This belief

was disproved by the deposition of the

doctor attending counsel at the

-29-

emergency room of Jewish Hospital (See

Dr. Friedman's deposition). Once

counsel became unable to proceed and

especially after he departed for the

hospital after collapsing, it became

incumbent upon the judge to protect the

constitutional rights of the unrep-

resented accused. Certainly the

examination of witnesses is a critical

portion of the trial. Even if one were

to assume, contrary to the facts, that

counsel for petitioner was at fault in

Geparting from the court room, this does

not excuse the judge from ignoring the

paramount rights of the Defendants to

counsel. The trial court failed to

understand that the right to counsel is

a right of the "accused" and not of the

"attorney." The petitioner was unrep-

-30-

resented while the trial continued. The

judge refused to delay the case, even

overnight. Further, he did not ask the

petitioner or the party who's case had

been joined if they would like to act on

their own behalf or have a court

appointed attorney act in the absence of

their attorney. See RE: Petition of

Green, 369 U.S. 689, 8 L.Ed.2d 198, 82

S.Ct. 1114 (1962).

Further the trial judge held

ex-parte discussions with the

respondent's counsel and the additional

counsel for the Kentucky Dental

Association. The petitioner was

excluded from the discussion and was

thereby prejudiced.

The Sixth Amendment to the United

States Constitution states:

@3l<

P

bw 4

Py

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public Trial, by an

impartial jury of the State and

Cistrict wherein the crime shall

have been committed, which district

shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witness against him; to

have compulsory process for

obtaining witnesses in his favor;

and to have the Assistance of

Counsel for his defense. (Emphasis

)

Similarly, §11 of the Bill of

Rights in the Kentucky Constitution

states:

In all criminal prosecutions

the accused has the right to be

heard by himself and Counsel; to

demand the nature and cause of the

accusation against him; to meet the

witnesses fact to face, and to have

compulsory process for obtaining

witnesses in his favor. He cannot

be compelled to give evidence

against himself, nor can he be

deprived of his life, liberty or

porperty, unless by the Judgment of

his peers or the law of the land;

and in prosecutions by indictment

or information, he shall have a

-32-

speedy public trial by an impartial

jury of the vicinage; but the

General Assembly may provide by a

general law for a change of venue

in such prosecutions for both the

Defendant and the Commonwealth, the

change to be made to the most

convenient county in which a fair

Trial can be obtained.

One of the elements of a fair Trial

is the right to be represented by

Counsel. The United States Supreme

Court has held that:

"That failure to afford the

Petitioner a reasonable opportunity

to defend himself against the

charge of false and evasive

swearing was a denial of due

process of law. A person's right

to reasonable notice of a charge

against him, and an opportunity to

be heard in his defense a right to

his day in Court are basic in our

system of juris-prudence; and these

ie trotades as a min

t

i

right to examine the uti

soaE LE hin ta obter teat ines

ains m o offer stimon

represen unsel.*

(Emphasis : ver,

U.S. 267, 273, 92 L.Bd. 662, 694

(1947). See also Argersinger v.

Hamlin, 407 U.S. 25, 326 Ed. 28

539, 92 $2006 (1972). (Emphasis

Added)

-33-

The State of Kentucky also

considers the right to be represented by

counsel, basic to a fair trial. Woods

v. Commonwealth, Ky. 305 S.W.2d 935

(1957). McIntosh v. Commonwealth, Ky.

368 S.W.2d 331 (1963); Cane v.

Commonwealth, Ky.App. 556 S.W.2d 902

(1977); and May v. Hatterick, Ky. 261

S.W. 1091 (1924) and Ray v. Arnett, Ky.

106 S.W. 828 (1908). This includes the

right to have effective assistance at

all critical stages of the proceedings

against the Defendant, United tes v.

Smith, 411 F.2d 733 (1969). In Smith,

the Sixth Circuit Court of Appeals held

that absence of counsel due to illness

at the time the verdict was rendered

violated the Defendant's Sixth Amendment

rights. The additional protections of

~ ae

the Sixth Amendment and Section 11 of

the Kentucky Constitution Bill of Rights

were applicable in this case because of

the contempt action that was joined with

petitioner's. However, the trial court

failed to afford these protections to

that party and in effect denied peti-

tioner the due process of law that the

was entitled.

3. THE TRIAL COURT DEPRIVED THE

PETITIONER OF HIS

CONSTITUTIONAL RIGHT TO A FAIR

AND IMPARTIAL FACT FINDER.

Petitioner's motion for mistrial

based on denial of counsel was denied on

June 2, 1982. This was the date the

trial was continued to by the trial

judge. The trial court attempted to

cure the deprivation of due process and

counsel by allowing Donald White to

retestify. White's testimony was the

only relevant evidence presented by

respondent to support the allegations in

its complaint, against petitioner,

although numerous subpoenaed witnesses,

who had no knowledge of the facts in the

complaint were paraded before the judge

and intimidated by hin.

The attempt by the trial court to

cure the petitioner's deprivation of

counsel at a critical portion of the

proceeding must fail because once the

deprivation has occurred, the damage has

been done and there is nothing that can

cure the deprivation. Allowing White to

retestify gave the respondent a second

opportunity to attempt to prove its case

and hurt the petitioner more than helped

because the deprivation had occurred and

-36-

couldn't be cured unless a new trial

were to take place.

The other items which reflect the

bias of the trial judge include:

1.

2.

3.

The trial judge allowed the

participation of counsel for

the Kentucky Dental Society, a

private trade group who never

filed an appearance of Record

in this case, over Defendants’

objection. (Tr. 5/12/78, pp.

28, 53; 6/2/78, p. 48). See

Wood v. ia, 450 U.S. 261,

67 L.Ed. , 101 S.Ct. 1097

(1981) and Gibson v Berryhill

ti) os. s6ln Se L es oe aes

93 S.Ct. 1689 (1973).

The trial court judge allowed,

over Defendants’ objections

testimony of several witnesses

who had been subpoenaed to

testify merely because they

were seen in or near the

Defendants’ place of business,

and who knew nothing of the

Defendants or the allegation

of the Plaintiff's Complaint.

This evidence was totally

irrelevant and immaterial.

(Tr. 6/2/78, pp. 81-90)

The trial court judge then

intimidated those tnesses

* > |

‘ee

4.

into testifying although they

had been subpoenaed through an

abuse of the subpoena process.

Age € 6/2/79, PP. 81-90),

CR 45.

After it became evident the

Plaintiff had failed to prove

his case, the trial judge

continued the matter until a

date three weeks after the

initial hearing, although he

originally proceeded late into

the evening of May 12, 1978

over Defendants’ counsel's

objection because of the

alleged emergency nature of

the case. (Tr. 5/12/78, pp.

62, 113)

The order entered continuing

the trial from May 12, 1978 to

June 2, 1978, reflects the

judge's bias because it

states, “Both parties having

appeared in person with

Counsel..." when in fact, the

Defendants were unrepresented

during a portion of the trial.

Further the order states,

"Part of the proof being

heard." Yet, on June 2, 1978,

Plaintiff's counsel stated

that their proof as to

James E. Gambrel was com-

pleted. (Tr. 6/2/78, p. 10).

The judge unilaterally decided

-38-

te an .

to reopen James E. Gambrel's

case (Tr., p- 17) and allow

the Plaintiffs to attempt to

cure the defect of May 12,

1978, wherein, Defendants were

unable to cross-examine

Donald L. White. Before

deciding to reopen the case,

the judge attempted to force

the Defendant to agree that

the defect would be cured by

having the witness testify

again. (Tr. 6/2/78, p. 22)

The trial judge denied

Defendants’ motion for a

mistrial based on the conduct

of the trial on May 12, 1978.

(Tr. 6/2/78, p. 18)

The trial court judge denied

the admission of

Dr. Friedman's evidentiary

deposition into evidence, as

irrelevant and immaterial.

The purpose of introducing

this deposition was to satisfy

the court that contrary to the

trial judge's remarks,

Defendants’ counsel was not

faking an illness. ({Tr.

6/2/78, Vol. 1, pp. 16,

18-21).

The trial judge denied

James E. Gambrel's motion for

a directed verdict after the

testimony of Donald L. White

-39-

10.

ll.

12.

13.

14.

was received for a second time

and for a second time, the

Plaintiffs failed to sustain

their burden of proof. (Tr.

6/2/78, Vol. 2, p. 4)

The trial judge then attempted

to separate the consolidated

cases and go forward with the

defense of James E. Gambrel.

After learning that the

Plaintiff's counsel had failed

to subpoena the Defendants,

the judge was willing to allow

a continuance to the

Plaintiffs although on May 12,

1978, he would not do so for

Defendants. (Tr. 6/2/78,

Vol. 2, p- 12)

Although the trial judge

allowed one woman to leave

after she stated she did not

want to testify, he did not

allow a man to leave who

didn't want to testify. (Tr.

6/2/78, Vol. 2, pp. 87-90)

The trial judge insulted

Defendants’ attorney. (Tr.

6/2/78, Vol. 2, pp. 87-90)

After it became evident that

these witnesses had been

improperly subpoenaed and had

no knowledge of the

Defendants, the trial judge

-40-

20.

21.

22.

4.

Rule 12 because he wanted to

hear what the Defendants had

to say. (Tr. 6/2/78, Vol. 2,

p- 160)

The trial judge overruled the

Defendants’ motion for

mistrial and motion that the

case be heard by a special

judge. (Tr. 6/2/78, pp.

169-173)

The trial judge's reflection

on the atmosphere of the court

room filled with sympathizers

of Defendants reflects his

bias. (Tr. 6/2/78, Vol. 2,

p- 181)

The trial judge waited two and

one-half years before deciding

a case which had stood

submitted all that time in

violation of KRS 454.350.

STANDARD OF PROOF.

The trial court violated the

petitioner's constitutional rights, by

issuing an injunction against him

without applying the standard of proof

of clear and convincing evidence. The

-42-

15.

16.

17.

18.

19.

still refused to exclude the

witnesees. (Tr. 6/2/78,

Vol. 2, pp. 114, 121, 134)

The trial judge thereafter

told Defendants' counsels to

submit written motions on

their objections when

previously he acknowledged

that written motions were

unnecessary. (Tr. 6/2/78,

Vol. 2, pp. 5, 125, 134)

The trial judge improperly

threatened an unsubpoenaed

party, who the Plaintiff

attempted to call to testify,

with contempt and a jail

sentence. (Tr. 6/2/78,

Vol. 2, pp. 131-135)

The trial judge denied

Defendants’ motion for

directed verdict. (Tr.

6/2/78, Vol. 2, p. 152)

The trial judge refused

Defendants' attorney an

opportunity to reply to

Plaintiff's response to

Defendants' motion. (Tr.

6/2/78, Vol. 2, pp. 153-154)

The trial judge overlooked the

fact that the Plaintiff's

proof must conform to his

pleading, and overruled

Defendants’ motion under

appellate court erred by not reversing

on this ground.

In this case, the petitioner

Gambrel was tried criminally on the

exact same charges, under the same

Dental Practice Act and with the same

testimony of Donald White (on May 24th,

1978) and received a directed verdict of

acquittal. To be placed under an

injunction, after this, is a deprivation

of the petitioner's 14th Amendment right

to due process, especially when the

courts refuse to state the standard used

for the injunction.

In Santosky v. Kramer, 71 L.Ed.24

599 (1982) involving the clear and

convincing standard, the court said,

p.- 608 The “minimum requirements

(of procedural due process) being a

matter of federal law, they are not

diminished by the fact that the

-43-

State may have specified its own

procedures that it may deem

adequate for determining the

preconditions to adverse official

action."

The Kentucky Board of Dentistry

applied for injunction pursuant to KRS

313.360. This statute relates back to

KRS 313.020 and KRS 313.010. The

Kentucky Board of Dentistry, the party

seeking the injunction, had the burden

of proving to the trial court that

James E. Gambrel practiced dentistry by

engaging in one or more of the acts

specified in KRS 313.020 by clear and

convincing evidence.

It is clear that this statute, KRS

313.010(2), breaks down into the

following elements:

"Any person shall be regarded as

"practicing dentistry”:

-~44-

(1) who, for a fee, salary or other

reward pare. or to be paid either

to himseif, or another person,

performs or advertises to perform,

dental operations of any kind,

(2) or who diagnoses or treats

diseases or lesions of human teeth

or jaws, or attempts to correct

malpostions thereof, or who

diagnoses or treats disorders, or

deficiencies of the oral cavity and

adjacent associated structures,

(3) or who takes impressions of the

human teeth or jaws to be used

directly in the farication of any

intraoral appliance, or shall

construct, supply, reproduce or

repair any prosthetic denture,

bridge, artificial restoration,

appliance or other structure to be

used or worn as a substitute for

natural teeth, except upon the

written laboratory procedure work

order of a licensed dentist and

constructed upon or by the use of

casts or models made from an

impression taken by a licensed

dentist,

(4) or who shall advertise, offers,

sell or deliver any such substitute

or the services rendered in the

construction, reproduction, supply

or repair thereof to any person

other than a licensed dentist,

-45-

2

(5) or who places or adjusts such

substitute in the oral cavity of

another,

(6) or who uses the words “den-

tist," “dental surgeon,” the

letters "D.D.S.," "D.M.D.," or

other letters or title in connec-

tion with his name, which in any

way represents him as being engaged

in the practice of dentistry."

The Board apparently was proceeding

on element (1), since the other sections

of the statute do not seem to fit the

facts. Thus, the essential element to

the Board's prima facie case was to show

that an agreement between Gambrel and

White had been reached. The

uncontradicted testimony of Donald White

demonstrated that no agreements as to

price or fee to be paid was ever reached

between Mr. Gambrel and Mr. White, and

Mr. Gambrel never quoted a fee to

Mr. White. Further, no denture or

-46-

appliance was ever made by Gambrel or

received by White. Yet, the trial court

found that James Gambrel quoted Donald

White a fee of $175.00. James E.

Gambrel argued in his brief to the trial

court and appellate court that there was

insufficient evidence to support the

finding of the trial court. The

Kentucky Court of Appeals in its

decision responded to that argument by

simply stating:

"We limit ourself to the legal

conclusion that such was sufficient

to sustain the issuance of any

injunction against Mr. Gambrel."

The evidence presented at the

trial, which went uncontradicted was

that Donald White and James Gambrel

never agreed upon a price for a denture,

and James E. Gambrel never quoted any

-47-

figure or price for any denture. The

Court's summary affirmation of the trial

court's finding is ambiguous, because it

is not clear whether the court is

establishing a new prima facie case for

the Board by the elimination of proof of

an essential element, or if the court is

suggesting that the uncontradicted

testimony of Donald White satisfied all

elements of the Kentucdy Board of

Dentistry case.

The testimony of Donald White,

clearly establishes that Donald White

and James Gambrel never agreed as to a

fee to be paid for the denture.

Further, no denture was made. The Board

clearly did not satisfy all the elements

necessary to establish a prima facie

case, yet prove its case by clear and

convincing evidence.

-48-

In Santosky v. Kramer, supra, the

court stated:

p. 609 "But this Court never has

approved case-by-case determination

of the proper Trees of proof for

a given rig ards of

proof, like ane. "procedural due

process rules(,) are shaped by the

risk of error inherent in the

truth-finding process as applied to

the of cases, not the

rare exceptions.” sis Vv.

Figstas: 424 U.S. » 47

Ed. 18, 96 &.Ct. 893 (emphasis

added). Since the litigants and

the factfinder must know at the

outset of a given proceeding how

the risk of error will be al-

located, the standard of proof

necessary must be calibrated in

advance. Retrospective

case-by-case review cannot preserve

fundamental fairness when a class

of proceedings is governed by a

constitutionally defective eviden-

tiary standard."

Clearly, the Commonwealth was

required to meet a burden of proof in

the criminal case against Gambrel and

failed to meet it. Likewise the

-49-

Commonwealth should be required to meet

a burden of proof in a civil injunction

case, a burden of clear and convincing

evidence. The injunction was issued

2-1/2 years after the dismissal of the

criminal charge on the exact same

evidence. Although the civil standard

is less than that required for a

criminal case, the Commonwealth failed

to meet either.

The petitioner has been harmed by

having an injunction placed against him,

in violation of the constitutional

standards of proof under the 14th

Amendment.

CONCLUSION

For the totality of the reasons set

forth above, the petitioner requests

that this Court issue a writ of certio-

rari to the Kentucky Court of Appeals.

Respectfully submitted,

George C. Pontikes

George C. Pontikes

Sheldon Gardner

Foss, Schuman & Drake

ll South LaSalle Street

Chicago, Illinois 60603

(312)782-2610

Franklin S. Yudkin

Belker & Yudkin

730 West Main Street

Louisville, Kentucky 40202

(502)-589-4626