# Brief in Opposition to 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%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 922 ## Text 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. <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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1253%3A2. Public record. Not legal advice.