Brief in Opposition to Petition for Writ of Certiorari — Younge v. State Board of Registration for the Healing Arts

II INDEX

Helvering v. Mitchell, (1938) 303 U.S. 391, 62 L.Ed. 917,

Ws I pee eee oa a 5, 7, 11

Hoag, v. New Jersey, (1958) 356 U.S. 464, 2 L.Ed.2d

et rl iacenhuenconcsesouenees 10, 12

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

In re Ruffalo, (1968) 390 U.S. 544, 20 L.Ed.2d 117, 88

SE Ec ee od aleseh ina biteowenetntes i

Jordan v. De George, (1951) 341 U.S. 223, 95 L.Ed. 886,

Oe I I i acted heed nh sos Mangsasseiecnsconnenensinceabiecsaataoents 8

\ Kennedy v. Mendoza-Martinez, (1963) 372 U.S. 144, 9

She GRE nn IU I sa ideneduconnte 8

/ Lerner v. Casey, (1958) 357 U.S. 468, 2 L.Ed. 2d 1423,

ie RO Raa cecererecsheanscesecpeitotesenaisedacoanenieienit 5

Lewis'v. Frick, (1914) 233 U.S.-291, 58 L.Ed. 967, 34

a a ork Oe SY eases ennmiatamaaboaeiones 11

Murphy v. U. S., (1926) 272 U.S. 630, 71 L.Ed. 446, 47 /

Bin ME) SAREE Re aera Pen aca: SR nT CeO Oe 11

North Carolina v. Pearce,.(1969) 395 U.S. 711, 23 L.Ed. /

2d G56, BO S.Ct. nnn. <c-ceecceenneneeneonsonsonsnesovenvenseesnorenensensonse / 3

Rex Trailer Co. v. U. S., (1956) 350 U.S. 148, 100 L.Ed,

Bay ER) EE ir LS nee kee eae A a

Spevack vy. Klein, (1967) 385 U.S. 511, 17 L.Ed.2d

FM ET TRI I arcs cere nerstecententenctcnicescnsiscrenprcene 8

State ex rel. Johnson v. Clark, (1921) 288 Mo, 659,

Co Bt AE | See RRO OO ed ne ne ON SN 3-4

State ex rel. Spriggs v. Robinson, (1913) 253 Mo. 271,

161 S.W. TIGD xed | PEGE REI TEE SOOO. 3

United States ex rel. Marcus v. Hess, (1942) 317 US.

a ee es He Pr FE aces hercancinberercceornenrenseoneges 7

STATUTES CITED

Constitution of the United States:

Fifth Amendment ........------cc----s--« tied AO alan one 3,9

Missouri Revised Statutes:

§161.272, R.S. Mo. Cum. Sup. 1967 .............--..----0-00++- 2

$161.292,.R.S. Mo. Cum. Sup. 1967 -.......................... 2

$334.100 R.S. Mo. a é 2, 4, 6

INDEX

Section 11, Senate Bill 284, 73rd General Assembly, ,

T aren of Wiigatae so 5 , ..ccscsscsssmacstsonsiousetionpenydyaceaahocton

Senate Bill 284, 73rd General Assembly, Laws of Mis-

coy Wee aD Se OR INSTR POT Basten ae ck penn ee

" United States Sup. Ct. Rule 19, 28 U.S.C.A. .......-

. United States Sup. Ct. Rule 40-1 ~..................-..-- Phat

Ill

14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 897 —

WALTER A. YOUNGE, M_D.,

Petitioner, °

VS.

STATE BOARD OF REGISTRATION FOR THE »

HEALING ARTS,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Respondent adopts petitioner’s statement of the case

and the matters set forth in the petition as required by U.S.

Sup. .Ct. Rule 40-1(a), (b), (c) and (d), with the excep-

tion hereinafter noted.

r

.

oy

a4

STATUTES INVOLVED

Most of the provisions of Paragraph 2 of Section

334.100, R.S. Mo., set out on pages 3 and 4 of the petition

were effectively repealed in 1965 by the Seventy-Third

General Assembly of Missouri when it enacted Senate Bill

284, Laws of Missouri, 1965, p. 277.

Section 3 of said bill (now codified as Section 161.272,

R.S. Mo. Cum. Sup. 1967) reads in pertinent part:

“The administrative hearing commission shall con-

duct hearings and make findings of fact and conclu-

sions of law in those cases wherein, under the law, a

license issued by any of the following agencies may be

revoked or. suspended or wherein the licensee may be

placed on probation or wherein an agency refuses to

permit an applicant to be examined upon his qualifi-

cations or refuses to issue or renew a license of an ap-

plicant who has passed an examination:

* * *

State Board of Registration for the Healing Arts.

”

Section 11 of said bill (not codified by the Revisor of

Statutes but contained in Laws of Missouri, 1965, p. 280)

reads as follows: y

“Section 11. Any provisions of existing statutes per-

taining to the administrative agencies listed.in Sec-

tion 3 (161.272) which are in conflict with this act

are repealed.” a)

Section 5 of said bill (now codified as Section 161.292,

R.S. Mo. Cum. Sup. 1967) reads in pertinent part:

‘oor’ “TInon a finding in any cause charged by the complaint

for which the license may be suspended or revoked

as provided in the statutes and regulations relating to

the profession or vocation of the licensee, the commis-

° ‘ \

+. 8

.)

\

3

sion shall deliver or transmit by certified mail to the

agency which issued the license the record of the pro-

ceedings before the commission together with the

commission’s findings of fact and conclusions of law.

The commission may make recommendations as to ap-

propriate disciplinary action but any such recom-

mendations shall not be binding upon the agency.”

REASONS FOR DENYING THE WRIT

z:

Revocation of Petitioner’s License After His Ac-

quittal of the Criminal Charge of Abortion Did

Not Violate His Rights Relating to Double Jeopardy.

This Court has very recently said that the Fifth

Amendment guarantee against double jeopardy consists

“|. of three separate constitutional protectigns. It pro-

tects against a second prosecution for the yea offense

after acquittal. It* protects against a second prosecution

for the same offense after conviction. And it protects

against multiple punishments for the same offense.” North

Carolina v. Pearce, (1969) 395 U.S. 711, 23 L.Ed. 2d 656,

664-665, 89 S.Ct. . Hence, if petitioner’s contention

were correct, a physician convicted of abortion would be

immune from subsequent license revocation proceedings

»ased on the same act, because such proceedings would con-

stitute “multiple punishments”.

However, revocation of a physician’s license in Mis-

souri is not effected to punish the physician, but rather to

protect the public. This was the subject of extended discus-

sion in the opinion of the Missouri Supreme Court in this

case. In the opinion, the Court once again repeated that

two early cases characterizing the revocation statute as

penal were overruled: State ex rel. Spriggs v. Robinson,

(1913) 253 Mo. 271, 161 S.W. 1169; State ex rel. Johnson

4

v. Clark, (1921) 288 Mo. 659, 232 S.W. 1031. Th this case,

the Supreme Court of Missouri said (R. 521; Petition, Ap-

pendix A5-6): ©

“Insofar as Spriggs and Johnson held the statute to be

penal, they have been overruled. ‘Hughes v. 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 Registration, Mo.App., 404

S.W. 2d 402; State ex rel. Lentine v. State Board of

Health, Mo., 65 S.W. 2d 943. In Hughes, the court

directly held that (in this respect) the Spriggs case

had been overruled, that the statute was one ‘for the

protection of the public in safeguarding public

health,’ and that it was not an imposition of punish-

ment. Counsel for appellant seems to doubt the effect

of these later decisions. 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 un-

necessary 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 again

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

for any offense.” ,

Petitioner argues, with respect to double jeopardy, that —

he is protected by the principle “that an acquittal in a

criminal prosecution bars a subsequent civil action impos-

ing punitive sanctions.” Petitioner then concedes that the

“applicability” of his argument “depends upon whether the

physicians’ license revocation statute under Mo. Rev. Stat.,

§334.100 is construed as penal in nature.”

It is submitted that this concession alone would re-

quire the denial of the writ on this point because this Court .

traditionally accepts the construction accorded to a state

/

)

statute by the highest court of that state. Adderley v.

Florida, (1966) 385 U.S. 39, 46, 17 L.Ed. 2d 149, 155, 87 S.Ct.

242; Lerner v. Casey, ($958) 357 U.S. 468, 471, 2 L.Ed. 2d

1423, 1427, 78 S.Ct. 1311; Barsky v. Board of Regents of N.Y..,

(1954) 347 U.S. 442, 448, 98 L.Ed. 829, 837, 74 S.Ct. 650.

Moreover, this Court has explicitly held that the “ques-

tion” of whether a particular statute imposes a criminal

or remedial sanction “is one of statutory construction.”

Helvering v. Mitchell, (1938) 303 U.S. 391, 399, 82 L.Ed. 917,

922, 58 S.Ct. 630. Inasmuch as the Supreme Court of Mis-

souri has said “that our revocation statute is not penal in

nature” (R. 521; Petition, Appendix A5), it is submitted

that this Court should not undertake to construe it dif-

ferently.

But respondent need not rely upon this Court’s custom

of deferring to an interpretation of a state statute given by _

the highest court of that state, for this Court has long held

that statutes of the type here under scrutiny impose

remedial rather than criminal sanctions and therefore do

not violate double jeopardy.

y

It is undoubtedly true that the revocation of a practic-

ing physician’s license works a hardship on him and that

he is not to be deprived of the privileges conferred by such

license without procedural due process. In re Ruffalo,

(1968) 390 U.S. 544, 20 L.Ed. 2d 117, 88 S.Ct. 1222. But any

such hardship results as an adjunct to the fulfillment of the

fundamental purpose of license revocation procedures, i.e.,

the protection of the public by the exercise of the police

powers of the state. As this Court observed in Flemming

¥ Nestor, (1960) 363 USS. 603, 616, 4 L.Ed. 2d 1435, 1447-

'1448, 80 S.Ct. 1367:

. “Siniilarly, the setting by a State of qualifications for

the practice of medicine, and their modification from

time to time, is an incident of the State’s power to pro-

6

tect the health and safety of its citizens, and its deci-

sion to bar from practice persons who commit or have

committed a felony is taken as evidencing an intent to

exercise that regulatory power, and not a purpose to

add to the punishment of ex-felons.” (Emphasis

added).

In support of the foregoing, the Court cited Hawker v.

State of New York, (1897) 170 U.S. 189, 42 L.Ed. 1002, 18

S.Ct.-573, wherein this Court rejected an argument that a

eal prohibiting a convicted felon from practicing medi-

cme, which statute was enacted after the conviction, added

to his punishment and was therefore an ex post facto law.

There the Court said, 170 U.S. 189, 196, 42 L.Ed. 1002, 1006,

“The state is not’seeking to further punish a criminal, but

only to protect its citizens from physicians of bad char-

acter. The vital matter is not the conviction, but the vio-

lation, of law. The former is merely the prescribed evi-

dence of the latter.”

The instant case is directly analogous. Section 334.100,

R.S. Mo. Cum. Sup. 1967 (Petition, p. 3), authorizes re-.

spondent to revoke a license for unprofessional and dis-

honorable conduct and provides in part:

“Without limiting the foregoing general language, the

following specifications shall be deemed unprofes-

sional and dishonorable conduct within the meaning of

this section: |

ee er ae

)

(3) Committing an unlawful abortion; . . .

In the instant case, the “committing of an unlawful

abortion . . .” was the “prescribed evidence” of unprofes-

sional and dishonorable conduct warranting revocation.

Conviction or acquittal of the felony ot abortion was not

an issue. ©

7 %

In Helvering v. Mitchell, (1938) 303 U.S. 391, 82 L.Ed.

917, 922, 58 S.Ct. 630, 633, this Court specifically held that

the fifty percent penalty on evaded income tax, sought in

a civil action after an acquittal on criminal charges, did not

violate the principle of double jeopardy because it was a

civil and not a criminal sanction. At 303 US. 399-400, 82

L.Ed. 922, the Court said, “Remedial sanctions may be of

varying types. One which is characteristically free of the |

punitive criminal element is revocation of a privilege vol-

untarily granted.” By way of a footnote illustrating this

point, the Court said “Disbarment is likewise a sanction of

this typé. Ex parte Wall, 107 U.S. 265, 27 L.Ed. 992, 2 S.Ct.

569.” And at 303 U.S. 404, 82 L.Ed. 925, the Court said

“... finally, in the civil enforcement of a remedial sanction

there can be no double: jeopardy.” : : 7 \

Holdings similar to Helvering v. Mitchell, supra, are

found in other cases, including: United States ex rel. Mar-

cus v. Hess, (1942) 317 U.S. 537, 548-549, 87 L.Ed. 443, 451-

453, 63 S.Ct. 379, wherein the Court rejected a double jeo-

pardy argument in an informer suit for forfeitures of money

and double damages after the defendant had been convicted

of a crime arising out of the same acts. The Hess case is of

particular interest because the Gourt acknowledges that

enforcement of the statute may have the incidental effect

of punishing the wrongdoer, “. .°. but this is not enough to

Jabel it as a criminal statute.” Id. 317 U.S. at 551. And

see Rex Trailer Co. v. U. S., (1956) 350 U.S. 148, 100 L.Ed.

149, 76 S.Ct. 219, wherein, after a conviction for fraudu-

lently obtaining surplus war materials, the defendant com-

pany was held liable for a recovery of two thousand dollars

on each of its five purchases, in spite of the absence of a

showing of any actual damages and defendant’s plea of

- double jeopardy.

On the basis of the foregoing, it is submitted that the

opinion of the Missouri Supreme Court is in perfect ac-

a

orem) |

« 8

cord with the decisions of this Court. The cases cited by

the petitioner to the contrary are readily distinguishable

(Petition, p. 11): “Cummings v. Missouri, (1867) 71 US.

270, 18 L.Ed. 356, and Ex parte Garland, (1867) 71 U.S. 333,

18 L.Ed. 366, for the reasons stated in Hawker v. State

of New York, supra, 170 U.S. 189, 198-199; Bridges v. Wixon,

(1945) 326 U.S. 135, 154, 89 L.Ed. 2103, 65 S.Ct. 1443, 1452,

which condemns the use of unsworn written statements

in deportation proceedings; Jordan v. De George, (1951)

341 U.S. 223, 231, 95 L.Ed. 886, 892, 71 S.Ct. 703, 708, which

held that the vagueness doctrine must be applied to a stat-

ute stating grounds for deportation of aliens because of

the “grave nature of deportation”; Fong Haw Tan v.

Phelan, (1948) 333 U.S. 6, 10, 92 L.Ed. 433, 436, 68 S.Ct.

374, 376, which accorded to a deportation statute “the nar-

rowest of several possible meanings” because “the stakes

are considerable . . .”; Kennedy v. Mendoza-Martinez,

(1963) 372 U.S. 144, 9 L.Ed. 2d 644, 83 S.Ct. 554, which

held unconstitutional certain statutes which permitted for-

feiture of citizenship for leaving the country to evade the

draft because they imposed punishment withoui requiring

procedural due process; Spevack v. Klein, (1967) 385 U.S.

511, 17 L.Ed. 2d 574, 87 S.Ct. 625, wherein it. was held that

disbarment of an attorney upon grounds that he had as-

serted his right not to incriminate himself in a judicial

proceeding violated his rights under the Fifth and Four-

teenth Amendments. |

The mast that can be said for any of these cases is

that they require a degree of fairness in the conduct of the

proceedings commensurate with the importance of the mat-

ter in issue, i.e. procedural due process, which is not an

issue here. In none of the cases did the Court hold that

the proceedings violated the principle of double jeopardy,

in spite of the fact that several grew out of or were closely

related to criminal prosecutions.

9

Similarly, petitioner makes the broad claim that if-he

had been acquitted in some state which regards its revoca-

tion statute as penal, the principle of double jeopardy

would have prevented the revocation of his license. None

of the cases cited’ by petitioner on this proposition so hold

(Petition, pp. 9-10). What those cases, with the exception a,

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

hold is that for purposes of statutory construction revoca-

tion statutes are regarded-as penal and are therefore

strictly construed in favor of a physician on such issues as _

whether the acts alleged constitute a violation of the stat-

ute. The Kindschi case, supra, characterized revocation

proceedings as quasi-criminal, yet affirmed a suspension

of the physician’s license for a conviction of attempting to

evade the payment of federal income taxes. It is submitted-

that petitioner’s reliance upon these cases cannot be per-

Suasive on the issue at hand. A rule adopted to facilitate

statutory construction cannot be' elevated to the stature

of a constitutional requirement by its use of the word

“penal”. The fact that some states hold that a physician

will be given the benefit of the doubt in the interpretation

of revocation statutes by no means constitutes a holding

that a physician acquitted—or convicted—of a felony is

thereafter protected from having his license revoked by the

rule against double jeopardy. _

It is therefore respectfully submitted that the revoca-

tion of petitioner’s license in the instant case, being a re-

medial sanction for the protection of the public, does not

violate his right to the protection of the double jeopardy

clause of the Fifth Amendment. In the words of the Court

below “. . . 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 offerise.”

(R. 521; Petition, Appendix A5-6).

10

f

II.

Petitioner’s Acquittal of the Criminal Charge of

Abortion Did Not, under the Principles of Res

Judicata or Collateral Estoppel, Bar This Respond-

ewt from Maintaining Administrative Proceedings

Leading to the Revocation of Petitioner’s License _

As a Physician. Moreover, Such Issue Raises No caliee

3 Federal. Question.

In Hoag v. New Jersey, (1958) 356 US. 464, 470, 2

LEA. 2d 913, 919, 78 S.Ct. 829, this Court said:

“A common statement of the rule of collateral estoppel

is that ‘vhere a question of fact essential to the judg-

ment is actually litigated and determined by a valid

and final judgment, the determination is conclusive

between the parties in a subsequent action on.a dif-

ferent cause of action.’ Restatement, Judgments,

§68(1).”

. ‘An essential element of the foregoing definition is that,

to be conclusive, the determination must be between the

same parties. Such was not the case here. In the criminal

proceeding, the State of Missouri was the plaintiff; in the

license revocation proceeding, the Board of Registration for

the Healing Arts was the moving party. The Board isnot

the State of -Missouri; and the Supreme Court of: Missouri,

in Gaddy v. State Board of Registration for the Healing

Arts, (Mo.Sup., 1965) 394 S.W. 2d 284, said of a conten-

tion to the contrary: “This is incorrect and Respondent’s

motion to. transfer to the Court of Appeals must be sus-

tained. The party involved is the Board which is an

artificial legal entity in the nature of a quasi public cor-

poration.” (Emphasis added). The Supreme Court of Mis-

souri took the same position in its opinion herein (R. 523,

Petition, Appendix A8).

But an even more fundamental reason exists which

prevents the application of the principles of collateral

- \ .

‘ e > <4 . e x .

a r

“ :

.

‘ . ‘oa

. Mien in

estoppel and res judicata to the instant case: an ac-

quittal in a criminal case is not a determination of a “fact

essential :to the judgment” in a subsequent proceeding »

of this nature. In other words, petitioner’s acquittal of the

criminal charge does not amount to.a determination that

he did not perform the abortion.

As this Court said in Lewis v. Frick, (1914) 233 US.

291, 301-302, 58 L.Ed. 967, 973, 34 S.Ct. 488: 2

“|, the acquittal under¢the indictment was not equiv-

alent to an affirmative finding of innocence, but

merely to an adjudication that the proof was not suffi-

‘cient to overcome all reasonable doubt of the guilt of

the accused.: The distinction between a criminal pros-

ecution and an administrative inquiry by an execu-

tive department or subordinate officers thereof has

been often pointed out.” (Emphasis added).

Similarly this Court held in Helvering v. Mitchell,

(1938) 303 U.S. 391, 397, 82 L.Ed. 917, 921, 58 S.Ct. 630,

that a prior acquittal in an income tax evasion prosecu-

tion was not res judicata as to a subsequent civil ‘pro-

ceeding for the fifty percent penalty, saying “it (the

acquittal) did not determine that Mitchell had not will-

fully attempted to evade the tax. That acquittal on a

criminal charge is not a bar to a civil action by the Govern-

ment, remedial in its nature, arising out of the same facts

on which the‘criminal proceeding was based has long been

settled.” | (Parenthetical matter supplied.) See also

Murphy v. U. S., (1926) 272 U.S. 630, 632-633, 71 L.Ed.

446, 457, 47 S.Ct. 218.

Helvering v. Mitchell, supra, 303 U.S. 391, 405-406, 82

L.Ed. 917, 925-926, also effectively ‘distinguishes Coffey v.

U.S., (1886) 116 U.S. 436, 29 L.Ed. 684, 6 S.Ct. 437, on which

petitioner principally relies, by saying that the-rule of

Coffey presents no “obstacle” to a subsequent’ action “im-

posing a civil administrative sanction.” |

7

et ae

In Hoag v. New Jersey, supra, this Court, noting that

“jury verdicts are sometimes ‘inconsistent or irrational”,

declined to. hold that collateral estoppel is a constitutional

requirement. Hoag involved a criminal prosecution for

an armed robbery of one of five individuals after an ac-

quittal of an indictment for the simultaneous robbery of

three of the five.- The evidence was the same in both

cases, and the defendant relied on the same alibi in both.

This Court said that “. .. Wwe would have to embark on sheer

speculation in order to decide that the jury’s verdict at

‘the earlier trial necessarily embraced a determination

favorable to the petitioner on the issue of ‘identity’.” 356

US. 464, 472, 2 L.Ed. 24 913, 920.

In the instant case, the evidence before the Admin-

istrative Hearing Commission was substantially the same

as that adduced on the criminal trial. However, there were

some differences, an example of which is discussed in re-

spondent’s brief before the Supreme Court of Missouri, as

follows (R. 511-512): © . |

“Further corroborating Margaret’s testimony and cast-

ing further doubt on the veracity of Dr. Younge and

Mts. Eutz was the evidence concerning the ‘many’

burned areas within Margaret’s vagina. When Dr.

Fischer testified for the prosecution in the criminal]

case} he was not asked either on direct or cross-ex-

amination about the presence or absence of the ne-

crotic spots caused by a Lysol-like Substance. . . ,

After the prosecution rested, Dr. Younge testified in

the criminal trial that Margaret admitted to him on

February 24 that she had used Lysol to abort herself

and that he saw twelve or thirteen necrotic areas

caused by chemical burns. Before the Hearing Com-

mission on direct examination, Dr. Younge stated he

Saw ‘several areas of necrosis’ (R. 217); but when he

was reminded of his tria] testimony on cross-examina-

tion, Dr. Younge said there were ‘many’ such areas

(R. 246).

13

“However, these necrotic areas, which Younge

claimed were plainly visible throughout the vagina

(R. 248) and which were so necessary to his Lysol-

defense theory, were not present when Dr. Fischer ex-

amined the girl around midnight on February 27,

although he looked for such marks (R. 194). Dr.

Fischer testified unequivocally before the Hearing

Commission that, had the necrotic areas been present

on February 24, they would have been there on

February 27 or 28. Yet he found none (R. 190-191).”

(Transcript references in the foregoing quote have been

changed to conform to the pages in the Record before

this Court.)

From the foregoing, it may be seen that petitioner’s

. defense (that the girl aborted herself) was rebutted by

independent medical testimony in the administrative pro-

ceeding but not in the criminal trial. To attempt to apply

the principles of res judicata and collateral estoppel —

under these circumstances would be tantamount to holding

that this. respondent was irrevocably bound by the evi-

dence adduced by the prosecuting officials in the criminal

case. It is submitted that this respondent had not only

the right but the duty to seek, in the administrative forum

designated by law,'a determintion as to whether petitioner

had performed such acts as to warrant the revocation or

limitation of his right to practice medicine. A ruling to

the contrary in the name of due process for the petitioner

would prevent this respondent from performing’ one of its

most important functions, the protection of the public from

those who should net-practice the healing arts.

Furthermore, in the instant case, the difference be-

tween the degree of proof necessary for conviction and

that which was necessary to sustain the administrative

finding, in and of itself, militates against any holding that

the latter proceeding was barred by the acquittal in the

former:’ It is therefore submitted that no federal question

of substance exists and that the writ should not issue.

14

CONCLUSION

It is respectfully submitted that the foregoing demon-

strates that there are no “special and important reasons”

warranting the issuance of the writ of certiorari in this

case, U. S. Sup. Ct. Rule 19, 28 UWS.C.A., that this case

presents no federal question of substance not heretofore

decided by this Court, and that the decision of the Su-

preme Court of Missouri herein is in complete harmony

‘with prior decisions of this Court. It is therefore submitted

that the writ should not issue.

Respectfully submitted,

JOHN C. DANFORTH

Attorney General of Missouri

Supreme Court Building

Jefferson City, Missouri 65101

ALBERT J. STEPHAN, JR.

818 Olive Street, Suite 1300

St. Louis, Missouri 63101

Attorneys for Respondent