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

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

Syllabus

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

Held:

1. The three-judge court’s initial judgment should not have declared the 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 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.