Petition for Writ of Certiorari — Younge v. State Board of Registration for the Healing Arts

| Office-Supreme Court, Us. |

PILED J

NOV 29 1999

PATE Das, cea

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1969.

WALTER A. YOUNGE, M. D.,

Petitioner,

V.

STATE BOARD OF REGISTRATION FOR THE HEALING ARTS,

Respondent.

PETITION FOR. WRIT OF CERTIORARI TO THE

« SUPREME COURT OF MISSOURI.

" MORRIS A. SHENKER,

CORDELL SIEGEL,

408 Olive Street,

St. Louis, Missouri63102, |

- MURRY L. RANDALL,

506 Olive Street,

St. Louis, Missouri 63101,

Attorneys for

Petitioner.

St. Louis Law Printing Co., Inc., 411-15 N. Eighth St., 63101

GE

» 314-231-4477.

BNA ARAN SER OETA

pRrsipnseey ne»

| ad

es INDEX

Page F

Opinion OR, oooh oa bake rpac ee ee ie ces 1

PUTIRGIOUION To. on cnc ciecwenes rate ey cigs etn:

Questions presented -... 25.04. veces e cee cccesessces 2

Constitutional provisions and statutes involyed ...... | 2

Statement of the case ....l..-....... Marre NO ee 4

Reasons for granting the writ ................ legates 8

_ 1. Double jeopardy +....... cece cece cece eee eee 8

2. Collateral estoppel and res judicata .. i Sree i =

fe Ee are eee ere rer ee pre ey re ena wes 14

Appendix A—Opinion of, Supreme Court of Missouri A-1

Appendix B—Order of Supreme Court of Missouri ..A-13

Appendix C—Order of Supreme Court of Missouri ..A-14

| Cases Cited |

Benton v. ge faa Per fe eee » 89 S. Ct. 2056,

. L. Ed. (1969) ; ERS Pie ot eg pele ore ree ere 8 f

Rides: Ween. 326 U. S. 135, 65 S. Ct. 1443, 89 ;

N 2 Sig es MN EIN Ses slp a wale ab wane eas 11 ;

9 : \

Coffey v. United States, 116 U. S. 436, 6 S. Ct. 437, tl

BD Ti a Ge CRO koa vcs Os Fahvlecwwsiseyer oes 12,13 :

aN > Cummings v. Missouri, 71 U. 8. (4 Wall.) 277, 18 L. :

uae We ico ic te ovis Fak oh chase ces vere 11 :

Ex parte Garland, 71°U. 8. (4 Wall.) 333, 18 L. Ed. ;

es 3 a rare er ee ers Sr cra ree 11 ;

/

: eas

Fong Haw Tan v. Phelan, 333 U. S. 6, ‘10, 68 S. Ct.

374, 92 L. Ed. 433 (1948) ......... iuSialal biriaace S44 bcs ee 8 |

Fuller v. Board of Medical Examiners, 14 Cal. App.

Om 458, 39 -F, 2A 171 (1986). cs. 9

Helvering v. Mitchell, 303 U. S. 391, 398, 58 8. Ct.

630, 82 L. Ed. 917 (1938) ........... pau en seh wus 8,13

Hoag v. New Jersey, 306 U. S. 464, %8 S. Ct. 829, 2

owe ic’ aS <) ap ee eer ener 11

Hughes v. State Board of Health, 348 . 1236, 159

S. W. 2d 277 2 SOS Dives weenie eee as 9

In re Kindschi, 52 Wash. 2d 8, 319 P. 2d 824 (1958) 9

Jacoby ,v. South Carolina State Board, 219 S. ©. 66,

ea By ME OO (ORE. 555s pao ae ees os 9

Jordan v. DeGéorge, 341 U. st 223, 71 S. Ct. 703, 95

L. Ed. 886 oi SEER PAA Ag Soa ae ea ogi mites:

Kennedy y. Mendoza- Martinez, 372 U. S. 144, 83 S.

Ct. 554, 9 L. Ed. 2d 644 PRM oh ak bs os lins! 11

Mississippi State Board of Dental Examiners v. Man-

¢ dell, 198 Migs. 49, 21 So. 2d 405 (1945) .,......... 9.

. New Jersey State Board of Uitekee | v. Nemitz,

21 N. J. Super. 18, 90 A. 2d 740 i 5 eta Weer lee

Randall v. Board of Medical Examiners, 110 Cal. App.

Ge es (i) a 9

Schireson v. Shafer, 354 Pa. 458, 47 A. 2d 665, 165

tes RM BRD GENE oi sce sie oe 9

Spevack v. Klein, 385 U. S. 511, 87 S. Ct. (625,17 L.

st Bocgal igh seo ts eisai MEMES MOOT TE as 11

State ex rel. Johnson v. Clark, 288 Mo, 659, 239 S. W.

OE A PPEE) 8 ss scary iE eg 9

State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So.

ed co ad PRE a ee wg ae eae 9

State ex rel. Lentine v. State Board of Health, 334

Mo. 220, 65 S. W. 2d 943 REOe hoes G rie Ge 9

a

a

iii

‘State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161

“0 BOW; TAGS: GIGS) i kee ieee ews ebeeve e's 9

State v. Buck, 200 Or. 87, 262 P. 2d 495 (1953) ,. pa eas 10 .

Texas State Board of Medical Examiners Vv. McClellan,

_ 807 S. W.. 2d 317 (Tex. App. pd 2S Sener weed reg. 9

United States ex rel. Marcus v. Hess, 317 U. 8. 537,

63 S. Ct. 379, 87 L. Ed. 443 (1943) ....... vaukaeeah . 8

. United States v. Chouteau, 102 U. 8S. (12 Otto) 608, :

96 0: Te NL ai iis ieee AS aeeere eres ee ae

United States v. LaFranca, 282 U. g, 568,- SE. S. Ct.

278, 75 L. Ed. 551 (1981) «...........- eee eee ~ 8

United States - v. Rangel-Perez, 179 F. - SHEP 619 (S. >.

- Calif. 1959) ........ \ ete. CME Dieu ae rues 5 11

United ‘States v.. Ulrici, 102 U. 'S. (12 Otto) 612, 26 .

“TO Ma; Sa CG io os a wm 8

‘U.S. v. One — Sedan ACA 3), 113 F. 2d 552 . 13

Statutes Cited

“2 98°U.. OO CA Pa eee ee citn ae

Constitution of the United Blakes :

Fifth amendment ........ We Aha Ne Peer ec daes 2, 8

Fourteenth amendment ..... case ewe ae ME 2,11, 14

Missouri Revised Statutes: “? 3

“OC ROEOI2 305... peeing ates arn tne tae 5,13

*'* § 161.212. RP Pye ers or en ee Pah Tee pore 5,13

(ee a Geka Lgieis itu ee

OAD. oo cccermaien ee aoa so 5, 13

4) : es Texts Cited :

41 Am. Jur. 172, Physisians and Surgeons, 6 44 aoe 9-10

Annot., 9 A. L. R. 3rd 203 (1966) ..... EU cea ee yal 13

‘McElroy, Do Jeopardy: The Ephemeral Guar- —

meget Bull, 370 (I9G9) cs aids; Ina

eh ae

>

IN THE — -

* SUPREME cou OF THE wre SINE.

OCTOBER TER 1969. =

We. ccveutes:

WALTER A. YOUNGE, M. D.;:

& ae

. STATE BOARD OF REGISTRATION FOR eer ARTS,

Respondent, es

. PETITION FOR WRIT OF ‘CERTIORARI TO THE

siaricnasieen couRT OF MISSOURI. /

; ,

Petitioner prays that a writ of certiorar! issue to review

the judgment of the Supreme Court of Missouri, entered -

in this cause onJuly 14, 1969. ee

[

S OPINION BELOW.

. The Spintion of the Supreme Court of Missouri, pe yet

reported, is printed in Appendix A, infra (Tr. 517-28).

. JURISDICTION. -

The judgment of the Supreme Court of Missouri (Ap- :

pendix B, infra; Tr. 516), was entered on July 14, 1969.

A .timely motion for rehearing or in the alternative to

ct

1 “Tyr.” references are to, the Transcript of the Record in the

Bupreme Court of Missouri.

—2—

transfer to the Court en banc (Tr. 530-31) was denied on

September 8, 1969 (Appendix C, infra; Tr. 545). The

jurisdiction of this Court is invoked under 28 U, 8. C.,

§ 1257 (3). . ¥ fe ?

QUESTIONS PRESENTED.

1, Whether a proceeding to revoke petitioner’s license

to practice medicine in Missouri for allegedly performing

an abortion imposes punitive sactions, so that such a pro-

. ceeding after a jury had acquitted petitioner in- a prior

criminal prosecution for the same alleged abortion, vio-

lates the Fifth Amendment as applicable to the States

through the Fourteenth Amendment of the Constitution

of the United States by placing petitioner twice’ in

jeopardy for the same offense?

2. (A) Whether the legal principles of collateral estop-

pel or res judicata are constitutional requirements of due

process under the Fourteenth Amendment of the Consti-

tution of the United States? |

(B) Should the principles of collateral estoppel or res

judicata have barred a proceeding to revoke petitioner’s

license to practice medicine in Missouri for allegedly per-

forming an abortion, where a jury in a prior criminal

prosecution had found that petitioner did not perform the

same alleged abortion?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED, = = ~~ —

.. Fifth Amendment, Constitution of the United States,

provides in pertinent part:” .

“. .. nor shall any persog be subject for the samic

: offedice to be twic® put in jeopardy of life or limb;’’

Fourteenth Amendment, Constitution of the United

States provides in_pertinent part:

>

" “, . , nor shall any State deprive any person of life,

liberty, or property without due process of law;”

&

Mo: Rev. Stat., § 334.100, provides in pertinent part:

“1, The board .may sleds to license individuals of

bad moral character, or persons guilty of unprofes-

sional or dishonorable conduct; and it may, on its

own.information or on complaint of any person, place

a licensee on probation, revoke of suspend a license or

other right to. practice, however derived, for like

causes as hereinafter provided. Without limiting the

foregoing general language, the following specifica-

tions shall be deemed unprofessional and dighonor-

aes conduct within the meaning of this section:

“(3) Committing an unlawful a

“(2) At least twenty days prior to the date set for

‘any hearing before the board for the revocation or |

suspension of license, the secretary shall cause written j

notice to be served personally upon the accused

wherever he may be found in the state, in the manner

‘prescribed for the serving of original writs in civil

actions. If the accused cannot be found in this state,

the board shall cause the notice to be published for

a period of not less than twenty days in a newspaper

of general circulation in the county in which the

accused maintained his last known -residence in ‘this

state, the last publication to be not less than twenty

~~ nor more than-thirty.days prior to the date set for

hearing. The notice shall contain an exact statement

of the charges and the date and place set for the hear-

ing before the board. If the party thus notified fails

to appear, either in person or by counsel, the board

- shall proceed with the hearing. The board. may re-

ceive and consider depositions and oral statements,

—4-—

and shall cause stenographic reports of the oral testi-

mony to be taken and transcribed, which, together

with all other papers pertaining thereto shall be pre-

served for two years. If a majority of thé board is

satisfied that the licentiate is guilty of any of the

offenses charged, the license shall be revoked or sus-

pended for such period of time as may be determined.

Before a license is revoked, there shall be included

‘in the majority of the board voting for the revocation,

the vote of at least one board member, if any, who is

a‘graduate of a professional school approved and

accredited as reputable by the association which has

approved and accredited as reputable the professional

school from which the licentiate himself graduated.

“3. Any person whose license .is revoked or sus-

pended by the board shall have the right to have the

proceedings reviewed as provided by law for the

review of decisions, rules and regulations of admin-

istrative officers and bodies existing under the con-

stitution and laws of this;state.” (Emphasis added.)

STATEMENT OF THE CASE.

Petitioner was indicted in the Circuit Court of the City

of St. Louis, State of Missouri, on the charge of having

‘committed an unlawful abortion on Margaret Pyle Port-

wood on February 11, 1966. On Ajpril 21, 1966, respondent,

the Missouri State Board of Registration for the Healing

Arts, filed a complaint against

ministrative Hearing Commissién alleging, as in the in-

dictment, that on February 11, /1966, petitioner committed

an unlawful abortion on Margaret Ann Pyles (Tr. 39-36) .?

The State Board of Registration for the Healing Arts is

an agency of the State of Missouri, created by Mo. Rev.

* Margaret Ann Pyles and Margaret Pyle Portwood are the

same person, as she married Robert Portwood on March 18, 1966

(Tr. 27,98). |

¢ e a

Stat., § 334.120 and included in the Department of Educa-

tion under Mo. Rev. Stat., §§ 161.012; 161.212.

Following a jury trial on September 15, 1966, petitioner

was acquitted of the criminal charge (Tr. 225), in State

v. Younge, Circuit Court of the City of St. Louis, Division

20, No. 1584-0.

On November 1, 1966, petitioner filed a motion to ,dis-

miss the complaint before the Hearing Commissioner on

the ground that having been acquitted in the criminal

ease, such acquittal was a bar to the proceeding before

the Hearing Commissioner under the principles of col-

lateral estoppel and res judicata (Tr. 37). On December

90, 1966 the Administrative Hearing Commisisoner denied

the motion to dismiss (Tr. 40), and thereafter testimony

was had before the Hearing Commissioner.

The factual issues in the proceeding before the Hearing

Commissioner were identical with those in the criminal

prosecution. Moreover, the witnesses at the criminal trial

and the proceeding before the Hearing Commissioner

» were the same, with the exception that one State witness,

who testified at the criminal trial that she had made the

arrangements for the abortion, was not called by respond-

ent at the proceeding before the Hearing Commissioner.

The evidence adduced at the criminal trial and before the

Hearing Commissioner was substantially the same, with

the exception of minor discrepancies or inconsistencies,

and the transcript of testimony of three witnesses at the

criminal trial was admitted by stipulation as evidence in

the proceeding before the Hearing Commissioner (Pet.

Ex. 8, Tr. 320-38; Pet. Ex. 10, Tr. 339-80; Resp. Ex. 1, Tr.

381A-83; Resp. Ex. 8, Tr. 388-422).°

On September 15, 1967, the Administrative Hearing

Commissioner filed its Findings of Fact, Conclusions of

3 “Pet, Ex.” references are to Petitioner’s Exhibits and “Resp.

Ex.” references are to Respondent’s Exhibits before the Ad-

ministrative Hearing Commissioner.

—6—.

Law and Decision finding that Dr. Younge had performed

the alleged abortion (Tr. 423-30). The State Board of

Registration for the Healing Arts entered an order on

November 7, 1967, revoking petitioner’s license, with per-

mission being granted to petitioner to apply for reinstate-

_ ment after the order of revocation had been in effect for

six months (Tr. 436-37).

On November 17, 1967, petitioner filed a petition for re-

view in the Circuit Court of the City of St. Louis, Mis-

souri, praying that the Court reverse the Order of Revo-

cation of petitioner’s license to practice the healing arts

in the State of Missouri, on the grounds, inter alia, that

the Complaint, Decision and Order were (a) ‘‘in violation

of ... the Fifth and Fourteenth Amendments of the Con-

stitution of the United States in that they twice placed

[petitioner] in jeopardy for the same offense and deprived

him of due process of law’’ and (b) ‘‘were authorized by

law for the reasons that they were barred by the prin-

cipals (sic) of collateral estoppel and res judicata...’

(Tr. 23-24). On August 27, 1968, the Circuit Court of the

City of St. Louis, Aronson, J., affirmed the findings, order

and decision of the respondent (Tr. 438), stating in a mem-

‘orandum opinion: 3

‘Finally this Court is convinced that there is no

issue of res’ judicata, collateral estoppel, nor double

jeopardy involved here, based on the petitioner’s ae-

quittal of a criminal charge of abortion arising from

_ the same facts: In criminal cases the State must make

proof beyond a reasonable doubt of the guilt of a

person charged with an offense. In proceedings .con-

cerning the revocation or suspension of licenses an

Administrative Agency makes its determination on

the basis of what it believes to be the greater weight

of the evidence. Without unnecessarily prolonging

this memorandum, it is clear that the result of the

feet. Ete

criminal prosecution does not bar the Administrative

Agency ‘proceedings which are here being reviewed,

and the result of the criminal prosecution is not bind-

ing upon, nor even relevant to this case’’ (Tr. 440).

The judgment was affirmed by the Supreme Court of

Missouri, Division 1, on July 14, 1969 (Appendix B, infra;

Tr. 516). In its opinion, the Court held that ‘‘the. pro-

visions against double jeopardy do not apply’’, stating as

a basis for its holding that:

‘6 | | [W]e now hold that our revocation statute is

not penal in nature and we reaffirm the later doctrine |

as just stated. In this view, it is wholly unnecessary

to consider the many authorities cited from other

states for our own policy is established. These revo-

cation proceedings are not penal, they are not ‘quasi-

criminal,’ they do not contemplate ‘punitive’ sanctions

and the provisions against double jeopardy do not

apply. The appellant is not being tried again for the

same ‘offense’. He is not, in fact, being tried for any

offense.’’ (Appendix A, infra, at pp. A-5-A-6; Tr. 521.)

The Court further held that the revocation proceeding

was not barred by the principle of res judicata or col-

lateral estoppel, stating: vat

‘‘Those cases are not in point here, for in them the

parties were identical, the causes of action were held

to be the-same, and the thing sued for (the punish-

ment, divided into parts) was the same (cit. omitted).

‘‘In' this case the parties are not the same; in the

criminal case the Sfate of Missouri was the prose-

cuting party, whereas in the present proceeding the

only party adverse to appellant is the Board, which

is not the State, but a ‘legal entity in the nature of

a quasi public corporation’ (cit. omitted). The causes

of action-are not the game; the first was strictly crim-

inal with the aim and purpose of puni hment; the

eS me

present proceeding is administrative in nature, reme-

dial and not penal. For the latter reason the thing

sued for was and is not the same in the two proceed-.

ings. We have said enough to demonstrate that no

determination made in the criminal case can be bind-

ing here by way of collateral estoppel or, if preferred,

as res adjudicata. The Board was free to pursue its

own proceedings independently. The point is denied.”?

(Appendix A, infra, at pp. A-7-A-8; Tr. 523-24.)

REASONS FOR GRANTING THE WRIT.

1. Double Jeopardy.

Last term, this Court first held the Fifth Amendment

guarantee against double jeopardy applicable to the States

through the due process clause of the Fourteenth Amend-

ment. Benton v. Maryland, ... U. S. ..., 89 S. Ct. 2056,

... L. Ed. ... (1969). The decision below of the Supreme

€ourt of Missouri involving that fundamental guarantee

is not in accord with applicable decisions of this Court,

which hold that an acquittal in a criminal prosecution

bars a subsequent civil action imposing punitive sanctions.

See e. g., United States v. LaFranca, 282 U. §. 568, 51 S.

Ct. 278, 75 L. Ed. 551 (1931); United States v. Chouteau,

102 U. S. (12 Otto) 603, 26 L. Ed. 246 (1880); United

States v. Ulrici, 102 U. S. (12 Otto) 612, 26 L. Ed. 249

(1880).* Of course, the applicability of the above authority

4 In Helvering v. Mitchell, 303 U. S. 391, 398, 58 S. Ct. 630,

632, 82 L. Ed. 917, 921 (1938), this Court although finding the

50 per cent civil fraud addition to tax deficiencies remedial in

nature, nevertheless stated the law as follows:

“Where the objective of the subsequent action likewise

is punishment, the acquittal is a bar, because to entertain

the second proceeding for punishment would subject the

defendant to double jeopardy; and double jeopardy is pre-

eluded by the Fifth Amendment whether the verdict was an

acquittal or a conviction.”

See also, United States ex rel. Marcus v. Hess, 317 U. S. 537,

63S. Ct. 379, 87 L. Ed. 443 (1943).

ea Oe

depends upon whether the physicians’ license revocation

statute under Mo.’ Rev. Stat., § 334.100 is construed as.

penal in nature. ;

>

In the instant case, the Supreme Court of Missouri ©

, found that Mo. Rev. Stat., § 334.100 was not penal in

nature, not quasi-criminal and did not contemplate puni-

ti¥e sanctions (Appendix A, infra at p. A-5, Tr. 521).°

However, the decisions in a host of other states have held

license revocation statutes similar to Mo. Rev. Stat., §

334.100 to be penal. See, Texas State Board of Medical

Examiners |v. McClellan, 307 S. W. 2d 317, 320 (Tex. App.

1957); In re Kindschi, 52 Wash. 2d 8, 319 P. 2d 824, 825

(1958); Schireson v. Shafer, 354 Pa. 458, 47 A. 2d 665,

667, 165 A. L: R. 1133, 1137 (1946); Fuller v. Board of

Medical Examiners, 14 Cal. App. 2d 734, 59 P. 2d 171)

175 (1936); Randall v. Board of Medical Examiners, 110

~ Cal. App. 61, 293 P. 790 (1930); New Jersey State Board

of Optometrists v. Nemitz, 21 N. J. Super. 18, 90 A. 2d

740, 747 (1952); State ex rel, Jordan v. Pattishall, 99 Fla.

296, 126 So. 147, 148 (1930); Jacoby v. South Carolina

State Board, 219 S. C. 66, 64 S. E. 2d 138, 151 (1951);

Mississippi State Board of Dental Examiners v. Mandell,

198 Miss. 49, 21 So. 2d 405, 409 (1945).° In fact, 44 Am.

5 It should be noted that the Supreme Court of Missouri once

held the predecessor of Mo. Rev. Stat., § 334.100 highly penal

in the cases of State ex rel. Spriggs v. Robinson, 253 Mo. 271,

284, 161 S. W. 1169, 1172 (1913) and State ex rel. Johnson v.

Clark, 288 Mo. 659, 671, 232 S. W. 1031, 1034 (1921), but over-

ruled those decisions in State ex rel. Lentine v. State Board of

Health, 334 Mo. 220, 236, 65 S. W. 2d 943, 951 (1933) and .

Hughes v. State Board of Health, 348 Mo. 1236, 1240, 159 S. W.

2d 277, 279 (1942).

6 The Supreme Court of Missouri although apprised of the

contrary decisions in other states (Appellant’s Statement, Brief

and Argument; Tr. 468-69), stated that it was “wholly unneces-

sary ta consider the many authorities cited from other states

for our own policy is established” (Appendix A, infra, at p. A-5;

Tr. 521). As grounds for a motion for rehearing or in the al-

ay ee

Jur. 172, Physicians and Surgeons, § 44, states as abroad,

rule: : ‘ie:

‘“‘The license to practice medicine is a valuable

property right, and a statute authorizing revocation

of a license to practice medicine must be strictly

- followed. Such statutes are highly penal and must

be construed in the physician’s favor.’? (Emphasis

supplied). . : |

See also, State v. Buck, 200 Or. 87, 262 P. 2d 495, 511

(Rossman, J. concurring) (1953).

As the matter now stands, if petitioner had been prac-

ticing medicine in California, Florida, Mississippi, New

_ Jersey, Pennsylvania, ‘South Carolina, Texas or Washing-

ton, the proceeding to revoke his license would have been.

barred as placing .petitioner twice in jeopardy for the

Same offense, whereas in Missouri that right is rendered

futile. Yet, where as here, an important constitutional

ight turns on the judicial construction of a statute, jus-

ands that the statute not be interpreted in an

bjective manner in the various states. As such,

the question presented here is of great importance in the

administration of criminal justice in order to apply the

guarantee against double Jeopardy uniformly and con-

sistently in the various states. The case at. bar presents

a singular opportunity for the Court to review and settle

the applicable law. Petitioner salso. points ‘out to the ~

Court’ the use of the terms ‘*accused,’? ‘‘charges,’’

““guilty’’ arid ‘offenses’? in Mo. Rev. Stat., mC:

which are terms commonly used in penal statutes, |

Additionally, the decision below is not in accord with ;

applicable decisions of this Court, which have character-

al

‘ternative to transfer to the Court en bane, petitioner pointed

out the failure of the Court to consider the authority from other

states (Tr. 530). The motion was overruled without an opinion.

(Appendix C, infra; Tr. 545),

eS

~ ized analogous administrative proceedings for the revo-

cation of a privilege or license as penal. See i. e., Cum-

mings v. Missouri, 71 U. S. (4 Wall.) 277, 320-22, 18 L.

Ed. 356, 362 (1867); Ex parte Garland, 71 U. S. (4‘Wall.)

383, 380, 18 L. Ed. 366, 370 (1867) (revocation of and

prevention from -holding office of honor, and being officer

or director of corporation or engaging in certain profes-

sions); Bridges v. Wixon, 326 U..S. 135, 154, 65 S. Ct. -

1443, 1452, 89 L. Ed. 2103 (1945); Jordan v. DeGeorge, 341

U. 8. 223, 231, 71 S. Ct. 703, 708, 95 L. Ed. 886 (1951);

Fong Haw Tan v. Phelan, 333 U. S. 6, 10, 68 S. Ct. 374,

376, 92 L. Ed. 433 (1948) (deportation) ; Kennedy v. Men-

doza-Martinez, 372 U. S. 144, 165-67, 83 S.- Ct. 554, 566-67,

9 L. Ed. 2d 644 (1963) (loss of nationality); Spevack v.

Klein, 385 U. 8. 511, 514-15, 87 S. Ct. 625, 628, 17 L. Ed.

2d 574 (1967) (disbarment). Whether license revocation

proceedings fall within the category of the above cases as

penal, is an issue that ee be determined by this

Court.

i Collateral Estoppel and Res Judicata.

(A) This Court has never decided whether the legal

principles of collateral estoppel and res judicata are

constitutional requirements of due process under the |

Fourteenth Amendment to the United States Constitu-

tion. Hoag v. New Jersey, 356 U. S. 464; 471, 78.8. Ct.

829, 834, 2 L. Ed. 2d 913 (1958). See also, United States —

v.-Rangel-Perez, 179 F. Supp. 619, 623 (S. D. Calif. 1959).

But the question posited is one of great magnitude and

far reaching scope, because of the multitudinous situations

similar to the case at bar. See the recent discussion of

this issue in McElroy, Double Jeopardy: The Ephemeral

Guarantee, 5 Crim. L. Bull. 375, 395-98 (1969).

(B) If the principles of collateral estoppel and res

judicata are constitutional requirements of due process,

—l—

then the decision of the Supreme Court of Missouri in

the present ‘case is not in accord with Coffey v. United

States, 116 U. S. 436,68. Ct: 437, 29 L. Ed. 684 (1896).

There, a three count information was filed for the for-

feiture o distilling equipment an kquor for unlawfully

withdrawing the liquor without payment of the tax

_ thereon with intent to defraud the United States. Prior

to the civil forfeiture proceeding, Coffey had been ac-

_ quitted of criminal “charges arising out of the same facts.

This Court held that the acquittal on the criminal prose-

-cution barred the civil forfeiture proceeding, stating: oe.

‘‘Yet, where an issue raised as to _the existence of

the act or fact denounced has been tried in‘a criminal

proceeding, instituted by the United States, and a

4 judgment, of acquittal has been rendéred in faver of a

particular person, that judgment is ‘conclusive in

favor of such person, on the subsequent trial of a suit

m rem by the United States, where, as against him

the existence of the same act or fact is the matter in

issue, as a cause for the forfeiture of the property

prosecuted in such suit in rem. It is urged as a reason

for not allowing such effect to the judgment, that the

P sag in the criminal case may have taken place

ecause of the rule requiring guilt to be proved be-

yond a reasonable doubt; and that, on the same evi-

dence, on the question of preponderance of proof,

there might be a verdict for the United States, in the

suit in rem. Nevertheless, the fact or act has been put

in issue and determined against the United States;

and all that is imposed by the Statute, as a conse-

quence of guilt, is a punishment therefore. There

eduld be no new trial of the criminal prosecution after

the acquittal in it; and a subsequent trial of the civil

suit amounts to substantially the same thing, with a

difference only in the consequences following a judg-

ment adverse to the claimant. Id., 116 U. S., at 443, 29

L. Ed. at 687. —

<

o_ 13 —

y

Although the Supreme Court of Missouri doubts the

‘(vigor of the Coffey case,” the Court apparently attempts

to avoid the rationale of that decision, by ruling that in the

instant case the parties are not the' same, the causes of .

action-are not the same and the thing sued for (the ish-

ment divided into parts) is not the same (See Appendix

A, infra, at p. A-7; Tr. 523:24). As to thé Court’s con-:

tention that the parties are not the same, the State Board

of Registration for the Healing™Arts is an ‘agency of the

State of Missouri created by Mo. Rev. Stat., § 334.120 and

included in the department of education under Mo. Rev.

Stat.; §§ 161.012, 161.212. Petitioner submits that at least.

‘insofar as the principles of collateral estoppel and res

judicata are concerned the nexus between the State of

‘Missouri (the plaintiff in the criminal prosecttion) and

the State Board of Registration for the Healing Arts (the

plaintiff in the instant proceeding) is sufficient to estab-

lish the requisite identity -of parties.

As to the latter two contentions by the Supreme Court

of Missouri, petitioner points out that identity of causes:

of action is not required under the principle of collateral

estoppel, Annot., 9 A. L. R., 3d 203, 221-22 (1966), and in

any event the ‘basis for the Supreme Court of Missouri

holding that the causes of action and thing sued for were -

not the same was that the criminal prosecution was penal

and ,the revocation proceeding remedial. Yet whether or

not the revocation proceeding is punitive, as before stated,

is an important question in the uniform administration of

criminal justice, see pp. 9-10, supra, and even more so

* In its opinion the Supreme Court of Missouri stated with

respect to the Coffey case: “The case has been rather roundly +

criticized, U. S. v. One Dodge Sedan, (CA 3) 113 F. 2d 552, and

it has been distinguished in the later case of Helvering v—

Mitchell, supra, 303 U. S. at pp. 405-406, as inapplicable when

the subsequent proceeding is administrative in nature” (Appen-

dix A, infra, at p. A-6; Tr. 523). Nevertheless the Coffey case

has never been overruled, despite the fact that it has been on

the books for 34 of a century.

.Y

~ | , me 14 ome

necessary for determination, if collateral estoppel and res

judicata are constitutional requirements of due process

under the Fourteenth Amendment to the Constitution.

Further, the instant case presents an opportunity for the

Court to review the validity, scope and extent of its de-

cision in Coffey v.. United States, supra, in light of the

criticism aimed at that.case by inferior courts,

e

e CONCLUSION.

For all of the reasons advanced, the petition should be

granted. :

Respectfully submitted,

MORRIS A. SHENKER,

CORDELL SIEGEL,

408 Ofive Street,

St. Louis, Missouri 63102, .

MURRY L. RANDALL,

’ 506 Olive Street,

St. Louis, Missouri 63101,

Attorneys for’ Petitioner.

/

IX.

PEND

AP

F

RY

E

gi:

Tati Si

oS ee

APPENDIX A.

In the Supreme Court of Missouri,

Division Number One.

Walter A. Younge, M. D., )

| Appellant,

vs.

F No. 54,160.

State Board of Registration for

the Healing Arts,

Respondent. j

_ Appeal From the Cireuit Court of the City of St. Louis,

Honorable Robert L. Aronson, Judge.

This is an appeal from an order of the Circuit Court

affirming, on petition for review, an order of the State

Board of Registration for the Healing Arts revoking ap-

pellant’s license to practice the healing arts. We note here,

however, that the Board’s order gave him leave to apply

for reinstatement after a period of six months. We shall

reserve a statement of the facts for our consideration of

appellant’s point on the supposed insufficiency of the evi-

dence. We state here, however, enough of the circum-

stances for a consideration of his first two points.

A complaint was filed on April 21, 1966 by the Respond-

ent Board charging that appellant on February 11, 1966,

performed an unlawful abortion on one Margaret Ann

Pyles in violation of § 334.100, 1 (3);1 it asked that serv-

ice be had, a hearing held, and that the Administrative

Hearing Commission transmit its findings of fact and con-

clusions of law (See §§ 161.252-.342, 1967 Cum. Supp.).

The appellant answered denying the allegations. There-

1 The correct name is Pyle, but no point is made on this,

See ee eee ee

mame? A eal

after, appellant having been indicted in the City of St.

Louis for the criminal offense of abortion, was acquitted

after trial by a jury. Following that acquittal he moved

to dismiss the present complaint on the grounds of res

adjudicata and collateral estoppel. The motion was over-

ruled by the Hearing Commissioner after consideration of

memorandum briefs.

The petition for review filed in the cireult court on No-

vember 17, 1967, asserts that the findings, conclusions, de-

cision and order are erroneous, because: (1) they are in

violation of the double jeopardy provisions of both the

state and federal constitutions (citing appropriate articles

and sections) and of due process; (2) that appellant’s —

acquittal in the criminal case was a bar to the present |

proceedings under the principle of res adjudicata and col-

lateral estoppel; and (3) that the findings were not sup-

ported by competent and substantial evidence upon the

whole record. The same three points are now raised in

appellant’s brief here and we shall not need to restate

them as such. Upon the filing of the petition the circuit

court stayed the order of revocation. When it later af-

firmed, that order was vacated. When the appeal was

lodged here we entered an order again staying the revo-

cation until the further order of this court.

Respondent Board has also filed a motion for the trans-

fer of the case to the St. Louis Court of Appeals on. the

ground that the supposed constitutional question or ques-

tions are not substantial, but merely colorable. We hold

first that the state is not a party and that we do not have

jurisdiction on that ground. Gaddy v. State Board of

Registration, Mo., 394 S. W. 2d 284. We must still deter-

mine, however, whether there is substance to the conten-

tion of double jeopardy. Respondent says there is none,

because the present proceedings are administrative and do

not constitute a criminal case within the constitutional

PLETED BE A EADIE GLEE TAN ADCS ND GLEE LINE LDR E LEVEL ANI RAR ALICE AA A LE Aneta nds

—A:3 — ae & J®,

7 if : é \ s 8 [# \opib

prohibitions. Noting that we ha Abn requirdil to\spend

at least two days in examining thé aut ed befo ‘e de-

ciding the question, we find that the contention of cet.

tutional construction is not mere] colorable, and that we

have jurisdiction. The motion to transfer is overruled.

have concluded, however, that the appellant has not by

the present proceedings been pu ‘fagain in jeopardy”? for

" the same offense (Art. 1, § 19, Const. Mo.) nor has he been

‘“*twice put in jeopardy’’ for the same offense. (5th Am.

‘U. S. Const.) It will be impossible to discuss all of the

cases cited. Appellant has cited 51 cases and 4 miscel-

laneous authorities on this point alone. While perhaps

we are only obligated by Rule 83.05 to examine the first

three, we have chosen to examine most of the others. We

see no justification for such a multitudinous citation of

authorities, and we do not feel that the practice is within

the spirit of ouf rules.

Appellant seemingly relies primarily upon his stated

proposition that the double Jeopardy clauses (and we need

not. distinguish here between the state and federal) bar

a subsequent civil action seeking to impose ‘punitive

sanctions’’ after the defendant has been acquitted in a

criminal trial. His leading authority seems to be the case

of United States v. Chouteau, 102 U. §. 603, 26 L. Ed. 246.

There a distiller had been indicted for illegal diversion

of liquor without payment of the tax; he effected a com-

promise with the government,‘paid the agreed amount,

and the indictments were dismissed. The statute: imposed

a fine, imprisonment and a ‘penalty of double the tax im.

‘posed * * *”? for any violation. The government then sued

him and his sureties on his distiller’s bond for the pen- :

alties provided in the statutes (presumably the double

tax) and he pleaded the compromise in bar. The court

held that a recovery of the penalty was made a part of

the ‘‘punishment”’ for the offense and that it could have

been enforced (like the fine and imprisonment) by a crim-

Ba eae

inal prosecution, had the government so chosen; that this .

was demonstrated by the fact that anyone who ‘‘aided or

abetted’’ was likewise made liable for the penalty, though

not otherwise interested in the property. So holding, the

court: further held that the compromise of the criminal

eases covered all the penalties and all ‘‘punishment’’. for

the acts in question. We regard the ease as not persuasive

on our facts. The same is true (on rather similar facts)

of U. S. v. La Franca, 282 U. 8. 568, 75 L. Ed. o01, and

U.S. v. Glidden Co. (CA 6), 78 F. 2d 639, also cited. The

cases of U. S. ex rel. Marcus v. Hess, 317 U. S. 537, 87

L. Ed. 443, and Murphy v. U. S., 272 U. 8. 630, 71 L. Ed.

446, also cited, seem to us to be more adverse to appel-

lant’s position than favorable. It is impossible, within

any reasonable space, to discuss all such cases. The case

of Kennedy v. Mendoza-Martinez, 372-U. S. 144, 9 L. Ed.

2d 644, held that a statute depriving one of citizenship,

without notice or hearing, for leaving or remaining out-

side the United States for the purpose of evading military

service, violated due process; the court spoke of the im-

- position as a ‘‘punishment,’’ but we do not consider the

case applicable on our facts. It did not concern double

jeopardy.

In Helvering v. Mitchell, 303 U. S. 391, 82 L. Ed. 917,

cited by respondent, it was held that an acquittal in an

income tax evasion trial did not bar a subsequent suit for

a 50% additional assessment imposed and assessed under

the statute. The court noted the difference i in the degrees

of proof required in the criminal and civil cases, and also

noted that the requirement of the additional assessment

should be considered as remedial in ndéure, and not a pun-

ishment. The court discussed and gave illustrations of

various, ‘‘remedial’’ sanctions (including that of disbar-

ment), and held generally that the constitutional guaran-

tees of criminal prosecutions did not apply to actions or

administrative proceedings of such nature. The opinion is

i RS

a very effective answer to the federal cases cited by ap-

pellant, and we shall not elaborate upon them further.

Insofar as the Missouri authorities are concerned, ap-

pellant relies chiefly on State ex rel. Spriggs v. Robinson,

Mo., 161 S. W. 1169, and State ex rel. Johnson y. Clark,

Mo., 232 S. W. 1031. It was stated in Spriggs that the

then-existing statute providing for the revocation of the

licenses. of physicians was penal in nature and was to be

construed liberally in favor of the physician, because it

deprived one of a ‘‘valuable privilege.’’ In Johnson, supra,

the statement in Spriggs was merely repeated with refer-

ence to the admissibility of certain evidence. Counse]

would use these eases as authority to the effect that our

present. statute is penal, that revocation is therefore a

punishment, and that this proceeding subjects appellant to

a second trial for the same “‘offense.’’ Insofar as Spriggs

and Johnson held the statute to be penal, they have been

overruled. Hughes vy. State Board of Health, Mo., 159

S. W. 2d 277; Gaddy v. State Board of Registration, Mo.

App., 397 S. W. 2d 347; Bittiker v. State Board of Regis-

tration, Mo. App., 404 §. W. 2d 402; State ex rel. Lentine

v. State Board of Health, Mo., 65 S. W. 2d 943. In Huglies,

the court directly held that (in this respect) the Spriggs

case had been overruled, that the statute Was one ‘‘for the .

protection of the publie in safeguarding public health,”

and that it was not an imposition of punishment. Counsel

for appellant seems to doubt the effect of these later de-

cisions. If any doubt remains, and there should be none,

we now hold that our revocation statute is not penal in

nature and we reaffirm the later doctrine as just Stated.

In this view, it is wholly unnecessary to consider the many’

authorities cited from other states for our own policy is

established. These revocation proceedings are not penal,

they are not ‘*quasi-criminal,”? they do not contemplate

‘punitive’? sanctions and the provisions against double

jeopardy do not apply. The appellant is not being tried

Ce

soe

again for the same ‘‘offense.’’ He is not, in fact, being

tried for any offense. 3

Appellant next contends that the judgment of acquittal

in the criminal case was res adjudicata or,.in the alterna-

tive, that it constituted a collateral ‘estoppel. The terms

are used more or less interchangeably here and we shall

consider the single principle. Before proceeding further

we note the requirements as generally recognized, as fol-

lows: there must be identity of the persons and parties,

identity of the cause of action, identity of the thing sued

for, and identity of the quality of the person for or against

whom the claim is made. Prentzler v. Schneider, Mo. Bane,

411 S. W. 2d 135; State-ex rel. Dalton v. Reorg. Dist. No.

11, Mo. Bane, 307 S. W. 2d 501. The principle may be ap-

plicable to a material fact litigated in the prior proceeding,

subject to the same requirements. In that event it is more

properly described, perhaps, as a collateral estoppel. The

acquittal in the criminal proceeding determined that the

State had not established beyond a reasonable doubt that

this appellant was guilty. In State ex rel. Hurwitz v.

North, Mo., 264 S. W. 678, aff. 271 U. S. 40, 70 L. Ed. 818,

the court held that there was no reason for postponing

the hearing in a revocation proceeding until after a crim-

inal prosecution (for an abortion) was terminated. This

-would certainly indicate that the court felt that the two

proceedings were wholly independent and. unrelated. In

/ Lewis v. Frick, 233 U. S. 291, the distinctions between “a

eriminal prosecution and an administrative inquiry’’ were

discussed in detail ‘and recognized, and the court held

that an acquittal in criminal proceedings for unlawfully

importing-a woman into the United States for prostitution

was not res adjudicata in subsequent proceedings for de-

portation of the defendant for the same act. See also Hel-

_ vering v. Mitchell, 303 U. S. 391, 82 L. Ed. 917, cited

. supra, which ruled against a contention of res adjudicata

on its facts as previously discussed.

‘ | ayy ee

In our case of In re Sympson, Mo., 322 8. W. 2d 808, the

court held that a disbarment proceeding was not main:

tained for punishment, but for the protection of the public

and the bar; and the court further noted there that an

acquittal upon a criminal charge is not a defense to a

disbarment proceeding for the same acts. See also In re

Richards, Mo., 63 S. W. 2d 672, - | :

‘Appellant relies strongly on Coffey v. U. S., 116 U. S.

436, 29 L. Ed. 684, where the defendant had been acquitted

on a criminal charge involving the unlawful withdrawal

of liquor without payment of the tax. In a subsequent pro-

ceeding in rem for the forfeiture of the property involved,

it was held that the acquittal was a bar, because the fact

of no statutory violation had been. determined there; the

court noted that the parties were the same and that the

issues were precisely the same, including the element of

Intent. The case has been rather roundly criticized, U. S.

v. One Dodge Sedan, (CA 3) 113 F. 24 002, and it has

been distinguished in the later case of Helvering v. Mit-

chell, supra, 303 U. 8. at pp. 405-406, as inapplicable when

the subsequent proceeding is administrative in nature. We

do not regard the Coffey case as applicable here. We have

considered appellant’s other eases and they are not persua-

sive. Certain of these also involve the forfeiture of prop-

erty by the government, after the trial of a cfiminal case;

they hold generally that the forfeiture is essentially a

criminal proceeding and that it secks to enforce a part of

the punishment provided by the statute, other parts being

fine and imprisonment; this it was held, in some instances,

that the result of the original case’ was res adjudicata.

Those cases are not in point here, for in them the parties

were identical, the causes of action were held to be the

same, and the thing sued for (the punishment, divided into

parts) was the same. Boyd vy. U. S., 116 U. S. 616, 29 L. Ea.

~ 746; U.S. v. One De Soto Sedan (D. C.N. C.), 85 F. Supp.

245, aff. 180 F. 2d 583, ;

oO

ee a

In this case the parties are not the same; in the crim-

inal case the State of Missouri was the prosecuting party,

whereas in the present proceeding the only party adverse

to appellant is the Board, which is not the State, but a

‘‘legal entity in the nature of a quasi publie corporation.’?’

Gaddy v. State Board of Registration, ‘Mo., 394'S. W. 2d

284. The causes of action are not the same; the first was

strictly criminal with thesaim and purpose of punishment;

the present proceeding is administrative in nature, reme-

dial and not penal. For the latter reason the thing sued

for was and is not the same in the two proceedings. We

_ have said enough to demonstrate that no _determination

made in the criminal case can be binding here by way of

collateral estoppel or, if preferred, as res adjudicata. The

Board was free to pursue its own proceedings independ-

ently. The point is denied. |

The last point’ of appellant is that the findings, cunclu-

sions, decision and order are not supported by competent

and.substantial evidence upon the whole record, § 536.140,

-R. S. Mo. 1959, V. A. M. S.,-and that they are contrary to -

the overwhelming weight of the evidence. The force of

this contention was considerably blunted when counsel con-

ceded on. page 35 of their brief that ‘‘* * * ease resolves

itself to questions of eredibility.”’ In effect: they argue

that because a jury. failed to convict appellant. on similar

evidence, there can be no substantial evidence to the con-

trary. This by no means follows. We do not decide credi-

bility here, nor did the circuit court. We find, and hold, ° .

that there was substantial and competent evidence to sup-

port the. decision and order, that they were ‘not contrary

to the overwhelming weight of the evidence, and that they

could reasonably have been made’ by the Hearing Com-

‘mission and the Board. Such is the test. Gaddy v. State

Board of SRegistration, Mo. App., 397 S. W. 2d 347;

Bridges v. State Board of Registration, Mo. App., 419

S. W. 2d 278; Rose v. State Board of Registration, Mo.,

397 S..W. 2d 570.

mane 2 ae

There was much detailed evidence at the beanie! in-

eluding certain parts transposed from the criminal trial.

We shall not make a detailed statement. The essence of

the evidence on behalf of the ‘Board Showed the facts

which we’ now state: One Margaret Pyle, 18 years of

age, came to Scott Air Force Base (east of St. Louis) as

a woman member of the Air Force in August 1965; she

| soon met Robert Portwood, also a member of the Air

Foree there, and Serving as.a dental technician. These

two -had repeated sexual relations from August or Sep-

tember 1965 for a period of. several months. In January

1966, Margaret had no menstrual period and she so told

Robert. On Friday ‘evening, February 11, 1966, Robert,

Margaret and one Cordie Thomas (also a member of the

women’s branch of the Air Force) traveled in Robert?s

car to the appellant’s office at 4635. Easton Avenue in

St. Louis; Robert waited in the car while the girls went

in and stayed for 1 to 1% hours. Cordie Thomas talked

to the receptionist for Margaret, but gave her (Cordie ’s)

name, stating that Margaret had a cold and sore throat;

they were taken to appellant and Cordie then told him

‘ that they had come to see if Margaret ‘could get an

abortion,’’ but that they only had $70; Margaret then and

there gave appellant the $70 and he took it and put it-in

his pocket; he then put her ( Margaret) into an examining

room, had her undress and get on a table with her legs

raised; only these two were present, and there were a lot

’ of instruments around; he distended her vagina with some |

instrument and used anothgf one which was shaped like

a long pair of scissors up inside her vagina; she felt mo-

tion, like he was ‘‘eutting’’; this went on for “3 or 4

minutes,’’ perhaps; he later placed cotton in her vagina,

told her to take it out When she got home, and left her.»

Margaret recalled no conversation regarding any pre-

scription. She dressed herself and she and Robert stayed

at a motel until Sunday, February 13th; the gir] began

— A-10—

to feel badly during the following week with a vaginal

discharge and pains in her stomach or abdomen; her

condition continued to deteriorate until Robert (ac-

companied again by Cordie) took her back to appellant’s

office on the evening of February 24th; at that time she

was assisted into the office; appellant examined her

vaginally, catheterized her~(hecause she could not then

urinate) and gave her a prescription which was not

filled until the next night;!she went back to appellant’s of-

fice the next night because of pain and was again exam-

ined with instruments being used in her vagina; he told

her to get the prescription filled and that she should go

to a hospital; she did get the medicine (through Cordie)

and returned to the Base; but on the next evening her

condition was so serious that Robert took her to the Base

Hospital. She was examined there promptly and the Air

- Foree surgeon found extensive pus, both inside and out-

side the vaginal canal, a circumferential, old laceration or

tear around the upper part of the vagina just below the

cervix, a large abscess between the uterus and the rectum,

and a highly septic condition. He stated that in his

opinion Margaret had had a septie abortion procured by

outside intervention; tests then made showed a recent

pregnancy; he further testified that any instrument in-

troduced into the uterus, even for a short time, could

cause an abortion. The infection was first drained and‘

this was followed very shortly by a complete hysterectomy.

This physician saw no burned or necrotic areas in the

vaginal canal. The recovery was apparently uneventful;

Robert and Margaret were married in March 1966. She

testified that she had done nothing to procure an abortion,

nor had anyone except appellant inserted any instrument

into her; her health was good until February 11, 1966.

She had been to no other physician. The foregoing, in

our opinion, constitutes competent and substantial evi-

dence upon which, the decision and order of the Board

might reasonably be made.

ee a °

Defendant denied all of this’ substantive testimony, in-

sofar as it concerned the matter of an abortion. He ad-

mitted that Margaret was in his office as Cordie Thomas

for a cold and sore throat on February 11, 1966, and said

that he treated her at that time and telephoned a” pre-

scription to his neighborhood drugstore. He further’ tes-

tified: that he examined her again on the evening of

February 24, 1966, at which time he found various areas

of necrosis inside her vagina, with an odor, temperature

and a distended abdomen; that she admitted at that time

that she had used a catheter and lysol on herself, and

that he promptly told her to get in touch with her mother

and enter a hospital; that he then gave her a prescription

for an antibiotic. He denied that she returned on Febru- *

ary 25th. In other words the appellant has completely

denied the acts charged, and plages the blame upon

Margaret herself; his office girl testified that -she was

present on both occasions and corroborated appellant in

all substantial respects. We need go no further into the

many details. As in other cases, there were inconsisten-

cies shown pro and con, and also corroborations. Among

the latter was the fact that Margaret could have re-

ceived free medical attention at her Base Hospital for

any legitimate complaint.

Most assuredly, as counsel in effect have conceded, this

case turned on the issue of credibility. This girl, very

naturally, could not know all that transpired on the eve-

ning of February 11th nor could she identify properly the

instruments used. The fact is obvious that she was preg-

nant and that she was aborted; further, she denied that

anyone except appellant did anything to procure the

abortion. The Hearing Commissioner and the Board have

believed the substance of Margaret’s testimony; it con-

stituted substantial and competent evidence and it af-

forded, if believed, an entirely reasonable basis for the

decision made. We do not find that the decision was

poe

— A-12—

against the overwhelming weight of the evidence. So

finding, we shall necessarily affirm.

We note one further matter. Counsel complain that the

Commissioner and the Board gave little or no considera-

tion to appellant’s ‘‘long and honorable record,’’ both in

medicine and public service; his accomplishments, it is

true, seem to be substantial. “His status is not a defense

on the merits to such a complaint as this; at best, it

could go only to his credibility and to the extent of the

‘discipline. On the first, the Commissioner and- the Board

have seen fit to disbelieve him and their decision is final.

On the second phase, it seems-to us that the Board has

considered his prior standing, in that it granted him

leave to apply for reinstatement after six months. That

decision also is final.

The judgment is affirmed and we now vacate the order

-of stay heretofore entered.

“seeevnevneevneevnevn eee eeae een ee eea een eae eee eeaeeaeeeee

Henry I. Eager, Special Commissioner.

Per Curiam: The foregoing opinion by Eager, Special

Commissioner, is adopted as the opinion of the Court. °

Seiler, P. J., concurs.

Storckman, J., and Henley, Alt. J., concur.

Holman, J., not sitting when cause was submitted.

OL a ALL at OE ae Le

— A-13 —

. We APPENDIX B.

cane “And Thereafter the following proceedings were had and

entered of record in said cause on the 14th of July, 1969,

to-wit:

Walter A. Younge, M. D.,

Appellant,

54160

State Board of Registration for the Healing Arts,

Respondent.

Now at this day come again the parties aforesaid, by

their respective attorneys, and the Court here being now

sufficiently advised of and concerning the premises, doth

consider and adjudge that the judgment aforesaid; in form

aforesaid, by the said Cireuit Court of St. Louis City

rendered, be in all things affirmed, and stand in full force

and effect; and that the said respondent recover against

the said appellant its costs and charges herein expended

and have therefor execution.

It is further ordered that the order of this court made

on October 4, 1968, staying the order of the respondent

State Board of Registration for the Healing Arts pending

determination of the appeal in this cause be, and is hereby

vacated (Opinion filed). .

— A-14—

APPENDIX C.

And Thereafter the following proceedings were had and

entered of record in this cause on the 8th day of Septem-

ber, 1969, to-wit:

Walter A. Younge, M. D.,

} Appellant,

54160

State Board of Registration for the Healing Arts,

! Respondent.

Now at this day the Court having seen and fully con-

sidered the motion of the appellant for a rehearing in the

aboye-entitled cause, or in the alternative, to transfer said

cause to the Court en Banc, doth order that said motion

be and the same is hereby overruled.

The Court further orders that the appellant’s motion for

stay of enforcement of the order of the State Board of

Registration for the Healing Arts in this cause be, and the

same is also overruled.

LIBRARY. [mere ogee

SUPREME COURT, U. S. |

| | DEC 31. 1989

——T JOHN F. BAVI, CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969.

No. 897

é WALTER A: YOUNGE, MD.,

Petitioner,

VS.

STATE BOARD OF REGISTRATION FOR THE

HEALING ARTS, |

‘Respondent.

- / ; :

BRIEF IN.OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

a C DANFORTH

Attorney General of Missouri

Supreme Court Building

Jefferson City, Missouri

| _ Avert J. STEPHAN, JR.

‘ \ | ' 818 Olive Street, Suite 1300

es St. Louis, Missouri 63101

Attorneys for Respondent

E. L. Mewpurnatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-8080

Statutes Involved Shida inc Mace slats hehehe ee

Reasons for Denying the Writ ..........-------- satis ine

I. Revocation of petitioner’s license after hie acquit-.

. tal of the criminal charge of abortion did not vio-

late his rights relating to double jeopardy ............

II. Petitioner’s acquittal of the criminal charge of

abortion did not, under the principles of res jud-

icata or collateral estoppel, bar this respondent

from maintaining administrative proceedings

leading to the revocation of petitioner’s license as

a physician. Moreover, such issue raises 1 no fed-

Oral CUeRtION. acne ccoe ba eotinlinicasinvananeb ins

aI rss iis ns sin dciecbadainemenns an naeeatekabaimnnccecnadaned

Cases CITED

Adderley v. Florida, (1966) 385 U.S. 39, 17 L.Ed.2d 149,

Se a Sh RAL nial e ANS TES Pk Ro Deel

Barsky v. Board of Regents of N. Y., (1954) 347 U.S.

442. OB LiEd, 829,74 S.Ct, 50 ncccpeccececimncennenceeneeneeeeeees

Bridges v. Wixon, (1945) 326 U.S. 135, 89 L.Ed. 2103,

OS i aoa casera etna ages

Coffey v. U. S., (1886) 116 U.S. 436, 29 L.Ed. 684, 6 S.Ct.

ry Reh REA ROR OCR SeaTac eee keer seni sea feu

Cummings v. Missouri, (1867) 71 U.S. 270, 18 L.Ed. 356

Ex parte Garland, (1867) 71 U.S. 333, 18 L.Ed. 366 ........

Flemming v. Nestor, (1960) 363 U.S. 603, 4 L.Ed.2d

PASS BO SCG. VIG T ncaa aces sacs een che stenteentasetetcncarogpenee

Fong Haw Tan v. Phelan, (1948) 333 U.S. 6, 92-L.Ed.

133, 68 S.Ct. 374 .......... SD Stas Nas tanec Sietnond a charen eats eiceeeraien

Gaddy v. State Board of Registration for the Healing

Arts, (Mo. Sup., 1965) 394 S.W.2d 284 .....................-.-

- Hawker v. State of New York, (1897) 170 U.S. 189, 42

10

14

10

Led 1008, 16 SCL StS us Bia erento oe 6,8