Case No. 10CN-CV00842

Defendants. ;
DEFENDANTS' MEMORANDUM REGARDING BURDEN OF PROOF I. Introduction This case presents an issue of first impression in Missouri courts: Where the legislature has defined the unlicensed practice of veterinary medicine as a criminal offense, may it circumvent the U.S. and Missouri Constitutions' protections for the criminally accused by creating an alternative "civil" remedy that would subject citizens accused of the unlicensed practice of veterinary medicine to fines and imprisonment while denying them the protections of criminal procedure? The Defendants contend that if Missouri courts are to allow government plaintiffs to seek to enjoin criminal acts, the courts must require the government to prove each allegation beyond a reasonable doubt. II. The Government Bears The Burden Of Proof. In this case, the government is seeking an injunction prohibiting Brooke Gray from engaging in the unlicensed practice of veterinary medicine. "The party seeking an injunction bears the burden of proving it is entitled to this relief." Supermarket Merchandising & Supply,


The Defendants contend that phrase "necessary burden" should be understood as a reference to the equitable analysis courts have traditionally employed when considering requests for injunctive relief. permit. III. Parents in Community Action. or authority. Inc.. insofar as Southworth suggested that courts need not balance equities before issuing an injunction authorized by statute. 704 S.2d 219 (Mo. that case was wrongly decided and should be revisited. 305.276. See Weinberger v. While Missouri courts have historically refused to use their equitable powers to enjoin criminal acts that have not been shown to be a public nuisance. merely requiring the government to prove that the defendant has performed the acts complained of without a license. 320 (1982)("[A] major departure from the long tradition of equity practice should not be lightly implied. 585 (Mo. -2- . 456 U. Contrary to the facts of the instant The Defendants contend that.W. v. which is the approach that federal courts have used when applying federal statutes that provide for injunctions. Marschuetz.1. certificate.") However. the Missouri Supreme Court stated that the words "necessary burden" focused on the subsection immediately following that phrase. The Government Must Prove Specific Instances In Which The Defendant Violated The Law. Sharp v. Southworth.D. E. In Order To Prevail. in State ex rel. the only previous case in which a court applied a provision similar to section 340. 1999)("When a federal statute authorizes injunctive relief.App.W.").3d 581. 1986).3d 1034." § 340. 196 S. the presumption is that Congress intends the courts to exercise their traditional equitable discretion. Missouri State Board of Registration for Healing Arts v. 172 F.S. the legislature has specifically authorized courts to enjoin the unlicensed practice of veterinary medicine if the government meets its "necessary burden.276. Romero-Barcelo.Inc. 2006).1038 (8th Cir. ' In Southworth a government agency had accused a woman of practicing midwifery without a license.

section 340.330 require a veterinary license.200(28). the government must prove that the specific act alleged to have occurred that day satisfies the definition of veterinary medicine. " Veterinary medicine [is] the science of diagnosing. acupuncture. the Missouri Veterinary Medical Board must prove that on at least one specific occasion the defendant performed or offered to perform an act for which sections 340. any manual. biologic.3 Second.276 merely states that where the government meets the necessary burden "a court of general jurisdiction may grant an injunction. Celis-Garcia. that it would be "manifest injustice" for a defendant accused of multiple distinct instances of illegal behavior to have a judgment rendered against them without a showing that the government had carried its burden of proof regarding any one specific instance. animal chiropractic. alleviating.4 Third. the Southworth defendant admitted that she had performed the specific acts alleged by the government.200 to 340." establishing that the issuance of an injunction is not mandatory. -3- . although it did not require that an injunction be issued in every case in which the government might meet its burden. First. in State v. including. both general and cosmetic surgery. The Court considered the defendant's admission to be a sufficient basis for the issuance of an injunction. In order to meet its "necessary burden" under section 340. RSMo. biological or chemical procedure for testing for pregnancy or for correcting sterility or infertility or to render service or recommendations with regard to any of the procedures in this paragraph^]" § 340. rectifying. but not limited to. dentistry. curing or preventing any animal disease. deformity.W. 344 S. medicine.2011). anesthesia or other therapeutic or diagnostic substance or technique on any animal. The Missouri Veterinary Medical Board has no jurisdiction over acts that take place outside the state of Missouri. the prescription or administration of any drug. surgery. application.2 This proof must include several elements. banc June 14. the government must prove that the The Missouri Supreme Court recently stated.3d 150 (Mo. but not limited to. injury or other physical or mental condition. theriogenology.276. apparatus. Indeed.. treating. but rather is left to the court's discretion. the government must identify the date and location within the state of Missouri at which it alleges a specific act took place. animal psychology. mechanical. including. changing. so the Court did not address the question of the degree to which afinderof fact must find the government's evidence persuasive.

"5 And finally. When the legal action is a criminal prosecution. 59 Mo. 1894). 170 (Mo. -4- . but still require the government to prove its allegations beyond a reasonable doubt.3d 805. but probably involving that dearer and more valuable right—the liberty of the 5 "It is unlawful for any person not licensed as a veterinarian under the provisions of sections 340. If the government cannot prove any specific incident in which all of these factors are met. Erickson. This class of actions is termed "quasi-criminal" because a judgment in favor of the government may subject the defendant tofinesor prison.216.D. Bisans.App. App. in fact. 1990). it cannot prevail in this action against the Defendants.App. 826 (Mo. the government must prove that the person who engaged in the alleged act was. nor is it a suit involving money or property only. 104 S. 167. the government must prove every element of the crime beyond a reasonable doubt.200 to 340.D.. There are two basic standards under which a court might weigh the sufficiency of evidence when a government entity pursues a legal action against a citizen.act complained of was done for "valuable consideration.App. the more stringent standard is appropriate because where the government is the plaintiff the case does not involve "one citizen against another standing on equal footing. W. 2003). Roberts. 789 S. IV. As the Kansas City Court of Appeals' explained in Town of Glenwood v. 807 (Mo.2d 824. the government need only prove the requisite facts by a preponderance of the evidence.330 to practice veterinary medicine or to do any act which requires knowledge of veterinary medicine for valuable consideration^]" § 340.W. See City of Webster Groves v. The Government Should Be Required To Prove Its Allegations Beyond a Reasonable Doubt. E.1.. But Missouri courts have also long held that certain legal proceedings occupy a murky middle ground.W. When it is a normal civil action. such as an action to abate a public nuisance. in which they might be denominated as "civil" actions. Brooke Gray. State v.

. Glisan.D. State ex rel. W. Nixon.W. Attorney General v. 1907). it is imperative that this Court should determine as a matter of first impression that if a government plaintiff seeks a statutory injunction against criminal acts that do not constitute a public nuisance.W. 2000 WL 684860 (Mo. 887 S.App. Atty. the government must prove each of its allegations beyond a reasonable doubt. Mary Don Co. 1078. 105 S. 2000).W. 1950). As such. 1083 (Mo. Missouri Veterinary Medical Ass'n v. Prosecuting Attorney of Jackson County v.. See.2d 573 (Mo. Chassaing v. v.W. Kinder v.App. 1916). 1980). historically.g. 606 S. These earlier concerns about the government's using civil injunctions to deprive citizens of their constitutional protections are springing to life in this very case." In the instant case. banc 1994). Canty. 413 (1883). W.App. Cir. 182 S. See State ex rel.2d 169 (Mo. State ex rel. City of Kansas City v.App.accused. -5- .W.2d 411 (Mo.D. the imposition of those penalties will not be appealable. Chambers. State ex rel. Uhrig. a government agency is pursuing a civil action to enjoin a citizen from engaging in behavior that could also give rise to criminal prosecution. Mummert. she may become subject to fines and imprisonment that would be assessed without her ever being granted a jury trial or the unconditional right to refrain from self-incrimination. 14 Mo. 230 S. No Missouri court has previously addressed the appropriate burden of proof in a case such as this because.App. Missouri courts have refused to countenance such cases (unless the government was alleging the existence of a public nuisance) precisely due to the threats facing Brooke Gray in this proceeding. It is from these considerations and for these reasons that the more enlightened nations of the earth require the guilt of the accused to be shown beyond a reasonable doubt. 775 (Mo. If this Court issues the requested injunction and Defendant Gray is later found to have violated the injunction. e.

230 S.2d at 171.294. St. Respectfully Submitted.276. and Missouri Constitutions. Treating the government's injunction request as a purely civil proceeding allows the government effectively to prosecute the crime . Thus. Glisan. eventually. this Court should rule that the government cannot meet its "necessary burden" under section 340.S. the imposition of fines and imprisonment without affording the accused the protections of the criminal process required by the U. Bar #60548 FREEDOM CENTER OF MISSOURI 5938 De Giverville Ave. Roland M&.276 unless it has proven each of its allegations beyond a reasonable doubt. Conclusion If any "civil" case warrants treatment as a quasi-criminal ATTORNEY FOR DEFENDANTS BROOKE GRAY AND B & B EQUINE DENTISRY. Defendants maintain that the legislature cannot be allowed to construct such a procedural end-run around its citizens' constitutional rights. The existence of the criminal penalty demonstrates that all citizens are already enjoined by law from engaging in such acts "with a prescribed punishment for their commission".including. -6- . Louis. See §§ 340. David E. MO 63112 Phone:(314)604-6621 Fax: (314)720-0989 dave@mofreedom. 340. it is this one.W. The statute at issue makes no distinction whatsoever between actions that permit the imposition of a civil injunction and actions constituting the Class A misdemeanor of unlicensed practice of veterinary medicine.

Roland Attorney for Defendants -7- . MO 64106 David E.2011. Suite 401 Kansas OF SERVICE I hereby certify that a copy of the above and foregoing was served by email. on September 16.h Street. addressed to: Edwin Frownfelter Office of the Attorney General 615 East 13.

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