421 U.S. 35 (1975), 73-1573, Withrow v. Larkin

Docket NºNo. 73-1573
Citation421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712
Party NameWithrow v. Larkin
Case DateApril 16, 1975
CourtUnited States Supreme Court

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421 U.S. 35 (1975)

95 S.Ct. 1456, 43 L.Ed.2d 712




No. 73-1573

United States Supreme Court

April 16, 1975

Argued December 18, 1974




Wisconsin statutes prohibit various acts of professional misconduct by physicians and empower a State Examining Board to warn and reprimand physicians, to temporarily suspend licenses, and to institute criminal action or action to revoke a license. When the Board notified appellee licensed physician that a closed investigative hearing, which appellee and his attorney could attend, would be held to determine whether appellee had engaged in certain proscribed acts, appellee brought an action against appellant Board members seeking injunctive relief and a temporary restraining order against the hearing on the ground that the statutes were unconstitutional and that appellants' acts with respect to appellee violated his constitutional rights. The District Court denied the restraining order, and the Board proceeded with the hearing, and, after hearing testimony, notified appellee that a "contested hearing" would be held at which the Board would determine whether his license would be temporarily suspended. The court then granted appellee's motion for a restraining order against the contested hearing on the ground that a substantial federal due process question had arisen. The Board complied with the order and did not proceed with the contested hearing, but instead held a final investigative session and made "findings of fact" that appellee had engaged in certain proscribed conduct and "conclusions of law" that there was probable cause to believe he had violated certain criminal provisions. Subsequently, a three-judge court declared that the statute empowering the Board temporarily to suspend a physician's license without formal proceedings was unconstitutional, and preliminarily enjoined the Board from enforcing it on the ground that it would be a denial of due process for the board to suspend appellee's license "at its own contested hearing on charges evolving from its own investigation." After appellants appealed from this decision the District Court modified the judgment so as to withdraw its declaration of unconstitutionality and to preliminarily enjoin its enforcement against appellee only, stating that appellee would suffer irreparable injury if the

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statute were applied to him, and that his challenge to its constitutionality had a high likelihood of success.


1. The three-judge court's initial judgment should not have declared the [95 S.Ct. 1459] statute unconstitutional and erroneously enjoined the Board from applying it against all licensees. Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310. P. 43.

2. While a decision to vacate and remand for fuller emendation of the District Court's findings, conclusions, and judgment would be justified in view of their lack of specificity, such action, under the circumstances, would not add anything essential to the determination of the merits, and would be a costly procedure to emphasize points already made and recognized by the parties, as well as by the District Court. Pp. 44-46.

3. The District Court erred when it restrained the Board's contested hearing and when it preliminarily enjoined the enforcement of the statute against appellee, since, on the record, it is quite unlikely that appellee would ultimately prevail on the merits of the due process issue. Pp. 46-55

(a) The combination of investigative and adjudicative functions does not, without more, constitute a due process violation as creating an unconstitutional risk of bias. Pp. 46-54.

(b) Here, the processes utilized by the Board do not in themselves contain an unacceptable risk of bias, since, although the investigative hearing had been closed to the public, appellee and his attorney were permitted to be present throughout, and, in fact, his attorney did attend the hearings, and knew the facts presented to the Board; moreover, no specific foundation has been presented for suspecting that the Board had been prejudiced by its investigation or would be disabled from hearing and deciding on the basis of the evidence to be presented at the contested hearing, the mere exposure to evidence presented in nonadversary investigative procedures being insufficient in itself to impugn the Board's fairness at a later adversary hearing. Pp. 54-55.

4. The fact that the Board, when prevented from going forward with the contested hearing, proceeded to issue formal findings of fact and conclusions of law that there was probable cause to believe appellee had engaged in various prohibited acts, does not show prejudice and prejudgment, and the Board stayed within accepted bounds of due process by issuing such findings and conclusions after investigation. The initial charge or determination of probable cause and the ultimate adjudication have different

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bases and purposes, and the fact that the same agency makes them in tandem, and that they relate to the same issues, does not result in a procedural due process violation. Pp. 55-58.

Reversed and remanded. See 368 F.Supp. 796.

WHITE, J., delivered the opinion for a unanimous Court.

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The statutes of the State of Wisconsin forbid the practice of medicine without a license from an Examining Board composed of practicing physicians. The statutes also define and forbid various acts of professional misconduct, proscribe fee splitting, and make illegal the practice of medicine under any name other than the name under which a license has issued if the public would be misled, such practice would constitute unfair competition with another physician, or other detriment to the profession would result. To enforce these provisions, the Examining Board is empowered under Wis.Stat.Ann. § 448.17 and 448.18 (1974) to warn and reprimand, temporarily to suspend the license, and "to institute criminal action or action to revoke license when it finds probable cause therefor under criminal or revocation statute. . . ."1 When an investigative proceeding before the

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Examining Board was commenced against him, appellee brought this suit against appellants, the individual members of the Board, seeking an injunction against the enforcement of the statutes. The District Court issued a preliminary injunction, the appellants appealed, and we noted probable jurisdiction, 417 U.S. 943 (1974).


Appellee, a resident of Michigan and licensed to practice medicine there, obtained a Wisconsin license in August, 1971, under a reciprocity agreement between Michigan and Wisconsin governing medical licensing. His practice in Wisconsin consisted of performing abortions

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at an office in Milwaukee. On June 20, 1973, the Board sent to appellee a notice that it would hold an investigative hearing on July 12, 1973, under Wis.Stat.Ann. § 448.17 to determine whether he had engaged in certain proscribed acts.2 The hearing would be closed to the public, although appellee and his attorney could attend. They would not, however, be permitted to cross-examine witnesses. Based upon the evidence presented at the hearing, the Board would decide

whether to warn or reprimand if it finds such practice and whether to institute criminal action or action to revoke license if probable cause therefor exists under criminal or revocation statutes.

App. 14.

On July 6, 1973, appellee filed his complaint in this action under 42 U.S.C. § 1983 seeking preliminary and permanent injunctive relief and a temporary restraining order preventing the Board from investigating him and from conducting the investigative hearing. The District Court denied the motion for a temporary restraining order.

On July 12, 1973, appellants moved to dismiss the complaint. On the same day, appellee filed an amended complaint in which injunctive relief was sought on the ground that Wis.Stat.Ann. §§ 448.17 and 448.18 were unconstitutional and that appellants' acts with respect to him violated his constitutional rights. The District Court again denied appellee's motion for a temporary restraining order, [95 S.Ct. 1461] but did not act upon appellants' motion to dismiss. On July 30, 1973, appellants submitted an amended motion to dismiss.

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The Board proceeded with its investigative hearing on July 12 and 13, 1973; numerous witnesses testified and appellee's counsel was present throughout the proceedings. Appellee's counsel was subsequently informed that appellee could, if he wished, appear before the Board to explain any of the evidence which had been presented. App. 337.

On September 18, 1973, the Board sent to appellee a notice that a "contested hearing"3 would be held on October 4, 1973, to determine whether appellee had engaged in certain prohibited acts,4 and that, based upon

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the evidence adduced at the hearing, the Board would determine whether his license would be suspended temporarily under Wis.Stat. Ann § 448.18(7). Appellee moved for a restraining order against the contested hearing. The District Court granted the motion on October 1, 1973. Because the Board had moved from purely investigative proceedings to a hearing aimed at deciding whether suspension of appellee's license was appropriate, the District Court concluded that a substantial federal question had arisen, namely, whether the authority given to appellants both

to investigate physicians and present charges [and] to rule on those charges and impose punishment, at least to the extent of reprimanding or temporarily suspending

violated appellee's due process rights. Appellee's motion to request the convening of a three-judge court was also granted, and appellants' motion to dismiss was denied. 368 F.Supp. 793, 795-796 (ED Wis.1973).

The Board complied, and did...

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3 cases
  • Oen Yin Choy v Robinson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 5, 1988
    ...Federal district judges are frequently called upon to reconsider prior rulings without recusing themselves. SeeWithrow v. LarkinUNKUNK, 421 U.S. 35, 57, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975) (having the same judge retry a case after reversal does not violate due process); Fed. R.Civ.P.......
  • Detroit Newpapers I, (1998)
    • United States
    • August 27, 1998
    ...U.S. 820 (1989). The Supreme Court addressed generally the risk of bias or prejudgment in this sequence of functions in Withrow v. Larkin, 421 U.S. 35 (1975). The Court held that a state board’s determination resulting from a nonadversary investigation that there was “probable cause to beli......
  • Caterpillar, Inc., (1996)
    • United States
    • August 27, 1996
    ...35, 37 (2d Cir.1981); Eisenberg ex rel NLRB v. Holland Rantos Co.,583 F.2d 100, 104 fn. 8 (3d Cir. 1978). See generallyWithrow v. Larkin, 421 U.S. 35, 56–57 (1975).In my speech I reported the Board’s actions underSection 10(j). I did not, as the Respondent alleges,conclude that it ‘‘had eng......
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    • United States
    • JD Supra United States
    • July 20, 2020
    ...due process concerns at stake" requiring the parties to be afforded a "fair trial in a fair tribunal," citing Withrow v. Larkin, 421 U.S. 35, 46 (1975). APJs' neutrality is threatened by removing these civil service protections Arthrex argues because "it permits superiors to exert subtle ye......
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