IN THE CIRCUIT COURT OF CLINTON COUNTY STATE OF MISSOURI

MISSOURI VETERINARY MEDICAL BOARD Petitioner, ]

BROOKE RENE GRAY And B & B EQUINE DENTISTRY

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,

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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-Barcelo, 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 afinderof 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 tofinesor 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 rightthe liberty of the

"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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