IN THE CIRCUIT COURT OF CLINTON COUNTY STATE OF MISSOURI

MISSOURI VETERINARY MEDICAL BOARD

BROOKE RENE GRAY

And

B & B EQUINE DENTISTRY

Petitioner, ]

Defendants. ;

) Case No. 10CN-CV00842

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,

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Inc. v. Marschuetz, 196 S.W.3d 581, 585 (Mo.App. E.D. 2006).

III. In Order To Prevail, The Government Must Prove Specific Instances In Which

The Defendant Violated The Law.

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, the legislature has specifically

authorized courts to enjoin the unlicensed practice of veterinary medicine if the government

meets its "necessary burden." § 340.276.1. 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, which is the approach that federal

courts have used when applying federal statutes that provide for injunctions. See Weinberger v.

Romero-Bar celo, 456 U.S. 305, 320 (1982)("[A] major departure from the long tradition of

equity practice should not be lightly implied."); Sharp v. Parents in Community Action, Inc., 172

F.3d 1034,1038 (8th Cir. 1999)("When a federal statute authorizes injunctive relief, the

presumption is that Congress intends the courts to exercise their traditional equitable

discretion.") However, in State ex rel. Missouri State Board of Registration for Healing Arts v.

Southworth, 704 S.W.2d 219 (Mo. 1986), the only previous case in which a court applied a

provision similar to section 340.276, the Missouri Supreme Court stated that the words

"necessary burden" focused on the subsection immediately following that phrase, merely

requiring the government to prove that the defendant has performed the acts complained of

without a license, certificate, permit, or authority. ' In Southworth a government agency had

accused a woman of practicing midwifery without a license. Contrary to the facts of the instant

The Defendants contend that, insofar as Southworth suggested that courts need not balance equities before issuing an injunction authorized by statute, that case was wrongly decided and should be revisited.

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case, the Southworth defendant admitted that she had performed the specific acts alleged by the

government, so the Court did not address the question of the degree to which a finder of fact

must find the government's evidence persuasive. The Court considered the defendant's

admission to be a sufficient basis for the issuance of an injunction, although it did not require

that an injunction be issued in every case in which the government might meet its burden.

Indeed, section 340.276 merely states that where the government meets the necessary burden "a

court of general jurisdiction may grant an injunction," establishing that the issuance of an

injunction is not mandatory, but rather is left to the court's discretion.

In order to meet its "necessary burden" under section 340.276, RSMo., 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 340.200 to 340.330 require a

veterinary license.2 This proof must include several elements. First, the government must

identify the date and location within the state of Missouri at which it alleges a specific act took

place.3 Second, the government must prove that the specific act alleged to have occurred that

day satisfies the definition of veterinary medicine.4 Third, the government must prove that the

The Missouri Supreme Court recently stated, in State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc June 14,2011), 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.

The Missouri Veterinary Medical Board has no jurisdiction over acts that take place outside the state of Missouri.

" Veterinary medicine [is] the science of diagnosing, treating, changing, alleviating, rectifying, curing or preventing any animal disease, deformity, defect, injury or other physical or mental condition, including, but not limited to, the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthesia or other therapeutic or diagnostic substance or technique on any animal, including, but not limited to, acupuncture, dentistry, animal psychology, animal chiropractic, theriogenology, surgery, both general and cosmetic surgery, any manual, mechanical, 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^]" § 340.200(28).

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act complained of was done for "valuable consideration."5 And finally, the government must

prove that the person who engaged in the alleged act was, in fact, Brooke Gray. If the

government cannot prove any specific incident in which all of these factors are met, it cannot

prevail in this action against the Defendants.

IV. The Government Should Be Required To Prove Its Allegations Beyond a

Reasonable Doubt.

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. When the legal

action is a criminal prosecution, the government must prove every element of the crime beyond a

reasonable doubt. State v. Bisans, 104 S.W.3d 805, 807 (Mo.App. W.D. 2003). When it is a

normal civil action, such as an action to abate a public nuisance, the government need only prove

the requisite facts by a preponderance of the evidence. But Missouri courts have also long held

that certain legal proceedings occupy a murky middle ground, in which they might be

denominated as "civil" actions, but still require the government to prove its allegations beyond a

reasonable doubt. See City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo.App. E.D.

1990). This class of actions is termed "quasi-criminal" because a judgment in favor of the

government may subject the defendant to fines or prison. As the Kansas City Court of Appeals'

explained in Town of Glenwood v. Roberts, 59 Mo. App. 167, 170 (Mo.App. 1894), 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... nor is it a suit involving money

or property only, 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 340.200 to 340.330 to practice veterinary medicine or to do any act which requires knowledge of veterinary medicine for valuable consideration^]" § 340.216.1.

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accused. 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."

In the instant case, a government agency is pursuing a civil action to enjoin a citizen from

engaging in behavior that could also give rise to criminal prosecution. If this Court issues the

requested injunction and Defendant Gray is later found to have violated the injunction, 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; the imposition of those

penalties will not be appealable. See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573 (Mo.

banc 1994). No Missouri court has previously addressed the appropriate burden of proof in a

case such as this because, historically, 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. See, e.g., State ex rel. Cir. Atty. v. Uhrig, 14

Mo.App. 413 (1883), State ex rel. Attorney General v. Canty, 105 S.W. 1078, 1083 (Mo.

1907), State ex rel. Prosecuting Attorney of Jackson County v. Chambers, 182 S.W. 775

(Mo.App. 1916), Missouri Veterinary Medical Ass'n v. Glisan, 230 S.W.2d 169 (Mo.App. 1950),

City of Kansas City v. Mary Don Co., 606 S.W.2d 411 (Mo.App. W.D. 1980); Kinder v. Nixon,

2000 WL 684860 (Mo.App. W.D. 2000). 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. As such, 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, the government must prove each of its allegations beyond a

reasonable doubt.

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V. Conclusion

If any "civil" case warrants treatment as a quasi-criminal proceeding, it is this one. 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. See §§ 340.294, 340.276. 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". Glisan, 230 S.W.2d at 171. Treating the

government's injunction request as a purely civil proceeding allows the government effectively

to prosecute the crime - including, eventually, the imposition of fines and imprisonment -

without affording the accused the protections of the criminal process required by the U.S. and

Missouri Constitutions. Defendants maintain that the legislature cannot be allowed to construct

such a procedural end-run around its citizens' constitutional rights. Thus, this Court should rule

that the government cannot meet its "necessary burden" under section 340.276 unless it has

proven each of its allegations beyond a reasonable doubt.

Respectfully Submitted,

David E. Roland M&. Bar #60548 FREEDOM CENTER OF MISSOURI 5938 De Giverville Ave. St. Louis, MO 63112 Phone:(314)604-6621 Fax: (314)720-0989 dave@mofreedom.org

ATTORNEY FOR DEFENDANTS BROOKE GRAY AND B & B EQUINE DENTISRY.

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing was served by email, on September 16,2011, addressed to:

Edwin Frownfelter Office of the Attorney General 615 East 13,h Street, Suite 401 Kansas City, MO 64106 edwin.frownfelter@ago.mo.gov

David E. Roland Attorney for Defendants

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