# Petition for A Writ of Certiorari — Mooring v. Louisiana State Board of Medical Examiners > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0442%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 400 U.S. 999 ## Text “£> 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 * 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." } ‘ | be — We consider the lack of a copy of the order insignificant under the circumstances. The judge's handwritten order to limit proof