# Petition for Writ of Certiorari — Younge v. State Board of Registration for the Healing Arts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1253%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 922 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1253%3A1. Public record. Not legal advice.