Petition for A Writ of Certiorari — Mooring v. Louisiana State Board of Medical Examiners

“£>

Supreme Court, US

FILED

SEP 28 6

© ROBERT SEAVER ¢

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

1970

LA eS eS SSNS

wn. 760

FRANK MOORING, ET AL,

Petitioners

versus

LOUISIANA STATE BOARD OF

MEDICAL EXAMINERS :

PETITION FOR WRIT OF CERTIORARI TO

THE LOUISIANA SUPREME COURT

Joel T. Chaigson

Box 73 =

Luling, Louisiana

& is G. DeSonier, .

3305 Metairie Road

Metairie, Louisiana

4

BA. LD £ xX

e 4

¢

* 4

0

petition ff. 2 cette“ 1

Opinions Beiow | 2

Juriediction 3

Questions Presented 3 9.

Statement of Facts f 43

Reasons for Granting the Writ 6, 167

Conclusion f a

Certificate | 9

”. [appendix A ae ao

Appendix 5 15. 12, 13, 16,

Appendix c | 17

IN THE

SUPREME COURT OF THE UNITED STATES

1970

— RN

LOUISIANA STATE BOARD OF MEDICAL EXAMINERS

versus

FRANK MOORING

——

MOTION TO DISPENSE WITH PRINTING or

PETITION FOR WRIT OF CERTIORARI

To the Chief Justice of the United States and the

Justice of the Supreme Court of the United States

The appellants hereby move to dispense with the printing of

his Petition for Certiorari.

Appellants are persons of limited means, upon when the coote

of this litigation have already imposed an extensive burden.

Although appellants do not feel that they can appropriately

execute the affidavit required under the ip forms pauperis

10 v. 8. c. 4. sect. 1915, and therefore appellants are paying the

filing fee sequbeed for the docketing of this appeal, neverthe

their limited means make it desirable the further costs of

this litigation be minimized. Appel do not possess any

substantial savings, and their living expenses and other obliga-

tions are nearly equal to their income. Accordingly, leave is

requested to dispense with the printing of the Petition for Writ

of Certiorari which this motion accompanies.

Z Attorney for Appel Lente ;

IN THE

SUPREME COURT OF THE UNITED STATES

OCTCBER TERM 1970

LOUISIANA STATE BOARD OF MEDICAL EXAMINERS

versus

FRANK MOORING

PETITION FOR WRIT OF CERTIORARI TO THE LOUISIANA

SUPREME COURT

“bh

To the Chief Justice of the United States and tie

Justices of the Supreme Court of the United States

Petitioners, Frank Mooring, and Mrs. James Coombes, et al,

pray that a writ of certiorari issue to review the judgmesit of

the Louisiana Supreme Court senceoed in these proceedings on June

29, 1970. 5 . 2 5

| OPINIONS BELOW

The opinion of the 29th Judicial District Court, Parish

of St. Charles, State of Louisiana, appears at Appendix A, infra,

Pp. 9 and 10. The opinion of the Court of Appeals, Fourth Circuit,

N appears at Appendix 3, int ra PP. il, 12. 13, 14, 15 and 16. The

judgment of the Louisiana Supreme Court affirmed the judgment of che

Court of Appeals, Fourth Circuit, without, cpinion, anaes Cc,

infra, pp. 17. ~

sae

0

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JURISDICTION

This petition for certiorari was filed less than ninety (90)

days from judgment of Louisiana Supreme Court on June 29, 1970.

The jurisdiction of this Court is invoked under 28 U.S.C. Section

1257(3).

QUESTIONS PRESENTED

1. Is the right of citizens.to choose a reasonable method

of treatment of their ills a civil, natural and constitutionally

protected right?

2. Is the right of citizens to choose chiropractic as a

reasonable choice for treatment of their ills a civil, natural and

constitutionally protected right?

3. Is the State of Louisiana, through its judicial and

legislative officers, under the guise of acting in the public in-

terest and health, violating the civil, natural and constitutional

rights of citizens desiring to use chiropractic services, by

(1) failing to legislate reasonable licensing regulations for

Chiropractors (2) interpreting and administering the Louisiana

Medical Practice Act in such a manner as to make it virtually

impossible for a chiropractor who is not also a medical doctor to

obtain a license ‘to practice his profession.

. CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV, Section 1

- +» "No State shall make or enforce any law which

shall abridge the 882 or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

3 its jurisdiction the equal protection of the

aw.

STATEMENT OF FACTS

The Louisiana State Board of Medical Examiners instituted

an action for a temporary restraining order and preliminary in-

junction to enjoin and prohibit Frank Mooring from practicing

medicine (chiropractic) in any of its departments as defined by

L. R. S. 37:1261,

Defendant filed his answer, refusing to answer the alle-

gations of the plaintiff's petition on grounds that to answer may

tend to incriminate him and he envoked the Fifth Amendment of the

Constitution of the United States, Additionally, Mrs. James Coombes

and Eighty (80) other patients were allowed to intervene in the

case on behalf of br. Mooring. In their petition they averred

that because of the arbitrary failure of the Louisiana Legislature

tea permit the licensing and regulation of the art or profession of

chiropractic, that they and all individuals similarly situated

are being denied the right to exercise a reasonable choice in the

method of treatment of their ills; that this deprivation is viola-

tive of their civil and constitutional rights and in this respect

the Louisiana Medical Practice Act, which makes no provision to

er

exempt chiropractic, is unconstitutional. U. S Constitution,

Fifth and Fourteenth Amendments. They averred that chiropractic

is a useful profession; that to deprive thew of the right to seek

and use the services of defendant and other chiropractors is to de-

| prive them of life and “liberty without due process of law; that to

enjoin defendant and other chiropractors under color of state law

| from practicing their profession in Louisiana will endanger the

| lives of intervenors and others desiring to be treated by chiro-

_ Practors for which plaintiff should be held liable for damages and

! attorneys fees. 42 U.S.C. A. 1983,

The lower court refused to hear testimony in this case

and tried the cese on affidavits only. In his judgment, the

district judge held that since respondent offered no evidence

controverting the allegations of mover's petition or affidavits

that he must find respondent to have violated the provisions of

the Louisiana Medical Practice Act, L. R. S. 37:1261, et seq.

The court further held that “intervenor's right to the

pursuit of life and liberty does not allow the substitution of

their wishes for the wisdom of the legislature when, acting in

the public interest and public health, it prescribes Standards to

be met by those engaged in the practice of medicine. Nor do these

wishes render unconstitutional such regulations", |

In accordance with his findings, the lower court enjoined

defendant from practicing medicine in the State of Louisiana until

he has complied with the provisions of the Louisiana Medical

Practice Act. L. R. S. 37:1261, et seq.

Frank Mooring and intervenors appealed to the Louisiana

Court of Appeal, 4th Circuit. On appeal it was argued that inter-

venors had presented a question not considered in previous chiro-

practic litigation, i.e., the right of interverors, as chiroprac-

tic patients, to excercise a reasonable choice in the method of

treatment of their ills. The court of appeal held this right to

be correlative to that of the chiropractor; and the court held

that intervenors right may constitutionally be limited by the

same regulations and restrictions which may be validly imposed

upon the chiropractor by a state in the interest of public health

| and welfare. The court cited Head v. New Mexico Board of Eam'rs

in Optometry, which it found to be somewhat analogous. 374 U.S.

424, 83 S.Ct. 1759, 10 L. Ed. 20 983 (1963). N

Frank Mooring and intervenors applied for writs to the

Louisiana Supreme Court and writs were denied on June 29, 1970,

REASONS FOR GRANTING THE WRIT

The decisions below directly conflict with the 14th Amend-

ment, U.S. Constitution. THE CONSTITUTIONAL QUESTIONS PRESENTED

IN THIS APPLICATION FOR WRITS HAVE NOT BEEN PREVIOUSLY CONSIDERED

BY A FEDERAL COURT IN ANY OF THE PREVIOUS CHIROPRACTIC LITIGATION.

While it appears that in Louisiana with respect to the

chiropractor himself, the issues have been resolved against him

the rights of chiropractic patients have never been considered and

ruled upon nor how their rights affect that of their chiropractic

doctor.

In this case intervenors are seeking protection of their

right to exercise a reasonable choice in the method of treatment

of their ills. Unquestionally, the "liberty" guaranteed by the

14th Amendment protects this precious right. Were it not so pro-

tected, the right to life, liberty and pursuit of happiness would

have a shallow meaning indeed. This Honorable Court said in

Meyer v. Nebraska, 262 U.S. 390, 399 (1923), "While e (the)

Court has not attempted to define with exactness the liberty thus

guaranceed, the term has received much consideration and some of

the included things have been definitely stated. Without doubt,

it denotes not merely freedom from bodily restraint but also right

of the individual io contract, to engage in any of the common oc-

| cupations of life, to acquire useful knowledge, to marry, establish

a home and bring up children, to worship God according to the dic-

: tates of his own conscience, and generally to enjoy those privileges

long recognized at common law as essential to the orderly pursuit

of happiness by free men." | |

| The District Judge would not permit the intervenors, eighty

(80) patients of Dr. Frank Mooring, to testify to the usefulness

of chiropractic and to show that ghtvepeastis was a reasonable

| choice for treatment of their ills. The very fact, however,

that chiropractic is legalized in all of the other states of this

>

Union shows that it is a useful profession and that it is a reaso-

nable method for treatment of ills. A number of the intervenors

in this case had come to Louisiana from other States where there

were rational and reasonable licensing regulations for chiroprac-

tors. Because of this State's requirement that a chiropractor

must meet the requirements of a medical doctor in effect and quali-

fy under the provisions of the Louisiana Medical Practice Act, a

requirement that bears no reasonable relation to the practice of

chiropractic, citizens are denied their "freedom of choice" in

the method of their treatment. In this respect the Medical Prac-

tice Act is unconstitutional in that these citizens are denied

the equal protection of the laws and the privileges and immuni-

ties under the law afforded to citizens of other states. U.S. b

Constitution, Fourteenth Amendment. This discrimination is obvious

as Congress itself authorized chiropractic services under Medicaid,

Title XIX of the Social Security Act, yet intervenors cannot avail

themselves of this law in Louisiana.

Statistics from the United States Public Health Service

Indicate that in 1963 - 1965, 4,250,000 persons in the United

States or 2.3 per cent of the civilian non-instituional popula-

care

tion consulted a doctor of chiropractic and of the p |

age (45 - 64), 4.2 per cent of the population of the United

States received chiropractic services. Indications are that since

this time, many more persons are seeking chiropractic treatment.

It is obvious, therefore, that chiropractic is a useful

and accepted method of treatment for many citizens of this country

and that the State of Louisiana by failing to establish reasonable

sitar panes for chiropractors is doing more than is necessary to

protect the health of its citizens and hence in its Medical , |

Practice Act and the administration thereof has exceeded consti-

tutional bounds.

In actual fact, the State of Louisiana, by failing to re-

‘| gulate chiropractors is doing its citizens a disservice because of

the fact that end State Board of Medical Examiners does not dili-

gent ly administer the Act against chiropractors thereby allowing

those in the profession who are not — chiropractors to

| continue practicing upon the public. ;

CONCLUSION

Applicants respectfully pray that this Honorable Court issue

a writ of certiorari to review the judgment of the Louisiana

Supreme Court and after due proceedings had that the Louisiana

i Medical Practice Act be declared unconstitutional’ insofar as it

| deprives the citizens of a reasonable choice of the method of

|. treatment of their illnesses and deprives them of equal protec*

tion of the laws and life and liberty without. due process of law.

‘ Respectfully Submitted,

Luling, Louisiana 70070

Attorney for Petitioners

s U.

3305 Metairie

Metairie, Louisiana

Of Counsel:

Joel r. Chaisson

Box 73, ey

Luling, Louisiana 70070

Louis DeSonier, Jr.

3305 Métairie Road

Metairie, Leuisiana

-

a .

CERTIFICATE

STATE OF LOUISIANA

PARISH OF JEFFERSON !

I, Louis 6. DeSonier, Jr., Counsel for petitioners and a

member of the United States Supreme Court, hereby affirm under

oath that a copy of the foregoing petition for writs of certiorari

has been served on the parties hereto by mail, in a properly ad-

dressed envelope, postage prepaid as follows, to wit: |

Honorable Melvin J. Keenan, Clerk |

Louisiana Court of Appeals, Fourth Circuit

New Orleans, Louisiana

Honorable Harold A. Moise, Jr.

Louisiana Supreme Court

New Orleans, Louisiana

James E. Blazek

847 National Bank of Commerce Building

New Orleans, Louisiana 70112

Metairie, Louisiana, this 25th.day of September, 1970.

| Sworn to and subscribed

| before me this 25th day

| of September, 1970, at Metairie, Louisiana.

OP MEDICAL EXAMINERS *s,, | 29°, JUDICIAL DISTRICT count

\ I PARISH.OF ST. CHARLES

PRANK MOORING | I STATE OF Louzsrana

NOs 21383 ,

mate him. Respondent offered no evidence controverting the

ina »@llegations of never petition or of mover's affidavits,

Hence, this Court must find respondent to: have

violated the provisions of the Louisiana Nedical Practice act,

This Court 1s of the opinion that intervencr's

wians Se tho parenit of life and liberty dese net allow the 3

substitution of their wishes for the wisdom of the legislature

—

_ enjoining and prohibiting Prank Mooring from practicing

. _ Bedieine in the State of Louisiana until he hes complied

7 with the provisions of the Louisiana Medical Practice Act, |

. . 8. 3711261, et seq. et

Louisiana this lst Day of April, 1969, at Lr. n.

— — 2 , „

a CO |

APPENDIX B | |

|

LOUISIANA STATE BOARD OF : do. 3834

MEDICAL EXAMINERS :

: COURT OF APPEAL

VERSUS : me

: FOURTH CIRCUIT

FRANK MOORING : . |

2 _ STATE OF LOUISIANA

3 |

APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT

Fo THE PARISH OF ST. CHARLES, NO. 11,183,

HONORABLE C. WILLIAM BRADLEY, JUDGE

(Court composed of Judges Paul E. Chasez,

William V. Redmann and Leon J. LeSueur)

ADAMS AND REESE, James Z. Blazek, Attorneys for

Plaintiff-Appel lee

CHAISSON, ACCARDO & MOREL, Joel T. Chaisson, Attorneys

for Defendant and Intervenors-Appellants

Defendant, Chiropractor Frank Mooring, and

intervenors, some 80 of nis patients, appeal from a

preliminary injunction restraining Mooring from practicing |

mecicine until he has complied with the provisions of ‘the

Louisiana Medical Practice Act, LSA-R.S. 37:1261 et seq.

It appears uncontroverted that defendant is engaged

in the practice of chiropractic, defined by its proponents

as a system of adjusting or subluxating displaced vertebrae

of che spinal column by hand for the restoration of health,

Louisiana St. Bd. of Med. Exam'rs v. Cronk, 157 La. 318,

102 So. 415 (1924).

Plaintiff's petition was met with an answer“

ceclining to answer and citing U.S. Const. Amend. V's

privilege against self-incrimination. No attempt was |

made by defendant to rebut the allegations of the petition

and supporting affidavits filed by plaintiff in support of

its request for an injunction.

.

ex)

The petition of intervention aMeges chat inter-

venors are “patients of Dr. Frank Mooring who is eecisting

this effort by the 232 to enjoin him from practicing

chiropractic." fee!

Chiropractors are engaged in "the practice of nedicing”

within the ‘provisions of LSA-R.S. 37:1261; Louisiana St. Bd. of

Med. Exam'rs v. Beatty, 220 La. 1, 55 80. 20 761 (1951); !

Louisiana St. Bd. of Med. Exan'rs v. Fife, 162 La. 681,

111 So. 38, 54 A. Be R. 594 (1926), aff'd, 274 U. 8. 720, 47 S. Cr. 590,

71 L.Ed. 1324 (1927); Louis ia a St. Bd. of Med. ‘xan’ r .

Cronk, supra.

The United States Supreme Court has upheld the

| Louisisna Medical Practice Act against constitutional attacks

on two occasions; England v. Louisiana St. Bd. of Med. Exam'rs,

246 F.Supp. 993 (E.D. La. 1965), aff'd, 384 U.S. 885, 86 8. ot. 1924,

16 L.Ed.2d 998 (1966) ; Louisiana St. Ba. of Med. Exan'rs: v.

Fife, supra. |

Intervenors argue, iowever, that this appeal presents

& question not considered in previous litigation. This is

the right of intervenors, as chiropractic patients, to exercise

* reasonable choice in the method of treatment of their ills.

Tntervenors" right to exercise this choice is.

correlative te that of the chiropractor: 8

ra

a 0

*

* * * the State cannot deny to any individual

the right to exercise a reasonable choice in

the method of treatment of his iils, nor the

correlative right of practitioners to engage

in the practice of a useful profession."

England v. Louisiana St. Bd. of Med. Exam'rs,

259 F. 2d 626, 627 (5 Cir. 1958).

Being correlative to the chiropractor's right to

practice, intervenors' right may constitutionally be

limited by the same regulations and restrictions which may

be validly imposed upon the chiropractor by a state in the

interest of public health and welfare. See the somewhat

analogous Head v. New Mexico Bd. of Exam'rs in Optometry,

374 U.S. 424, 83 S. cr. 1759, 10 L. Ed. 2d 983 (1963).

Appellants also complain that the use of verified

pleadings oun affidavits at the hearing below deprived

then of a full hearing on the merits. We believe that the

trial judge's order in this respect is fully within the

discretion granted him by LSA-C.C.P. art. 3609 governing

preliminary injunction. Appellants may present additional

admissible evidence on the trial for permanent injunction;

see Pearce v. Johnson, 213 So.2d 117 (La. App. 3d Cir. 1968),

cert. denied 252 La. 960, 215 So.2d 129.

Counsel for defendant further complains that he

was not served with a copy of the court's order as required

by art. 3609:

% * * If the application [for a preliminary

injunction] is to be heard upon affidavits, |

the court shall.so order in writing, and a copy

of the order shall be served upon the defendant

at the time the notice of hearingis served."

}

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|

be

—

We consider the lack of a copy of the order

insignificant under the circumstances. The judge's

handwritten order to limit proof <o verified pleadings and 1

affidavits was signed in the presence of defendant's counsel

on the cate originally set for hearing, March 26, 1969, when

it was postponed until March 31 to allow appellants time to

apply for writs. A copy would have been superfluous but

could have been made had defendant desired.

‘ag

Art. 3609 ede copies of affidavits to be

delivered to the adverse party 24 hours before the hearing

(or such shorter time as the court might order), which was

not done. However, cefendant wes fully apprised by the

petition of the names of persons alleged to have been treated

by him and the dates of treatment and the kind of treatment,

which was the substance of the supporting affidavits.

Defendant does not suggest any dis advantage he suffered by

not having the allegations in affidavit form; he certainly

was in a position to have prepared counter-affidavits. Thus,

aithough we recognize the importance of the adverse party's

right to have copies of the aifidavits beforehand, in

substance defendant dic have several days earlier all the

information art. 3609 is designed to provide him.

The judgment appealed from is affirmed at defendant's

cost. 4

AFFIRMED.

— a

We consider the lack of a copy of the order

insignificant under the circumstances. The judge's

hancwritten order to limit proof <o verified pleadings and

aiiidavits was signed in the preseace of defendant's counsei

on the date originally set for hearing, March 26, 1969, when

it was postponed until March 31 to allow appellants cine to

apply ior writs. A copy would have been superfluous but

could have been made had defendant desired.

Art. 3609 requires copies of affidavits to be

delivered to the adverse party 24 hours before the hearing

(or such shorter time as the court might order), which was

not done. However, cefendant was fully apprised by the

petition of the names of persons alleged to have been treated

by him and the dates of treatment and the kind of treatment,

which was the Subs tance of the supporting affidavits.

Defendant does not suggest any disadvantage he suffered by

not having the allegations in affidavit form; he certainly

was in a position to have prepared 999% | Thus,

although we K che importance of the adverse party’ 3

right to have ds of the affidavits beforehand, in:

substance defendant did have several days * all the

information art. 3609 is designed to provide him.

The judgment appealed from is affirmed at defendant's

4

? i

cost. 0

AFFIRMED.

Supreme Court of Louisiana

_ NEW ORLEANS, 7on2 APPENDIX C

LOUISIANA STATE BOARD OF June 29, 1970

MEDICAL EXA 2

V.

FRANK MOORING No. 50,652

In re: Frank Mooring and Mrs. James Coombes, et al ,

for certiorari, or writ of review, to the Court of Appeal,

Fourth Circuit, Parish of St. Charles.

Writ Refused. ;

On the facts found by the Court of Appeal, the result is correct.

Emtec

4 JBF

/s/. WBH

4 s

/s/ MEB

A TRUE Copy

Clerk's Office

Supreme Court of Louisiana

New Orleans

June 29, 1970

*

/s/ S. Wallace Miller

Deputy Clerk