Motion — Withrow v. Larkin

~ Supreme Court, U.

LIBRARY® FIL

: FILED

Supe oc COURTNY, 879.1573 MAY 22 1974

4 MICHAEL ROVAK, JR.

Iu the .

Supreme Court of the United States

Ocroser Term, 1973

HAROLD WITHROW, D.O.; THOMAS HENNEY, M.D.; AJ.

SANFELIPPO, M.D.; JOHN M. IRVIN, M.D.; J. W. RUPEL,

M.D.; A. L. FREEDMAN, M.D.; MARK T. O’MEARA, MD.;

THOMAS W. TORMEY, JR., M.D.; individually and as members

of the Medical Examining Board of the State of Wisconsin,

Appellants,

vs.

DUANE LARKIN, MD.,

Appellee.

MOTION TO DISMISS OR AFFIRM

AND APPELLEE'S APPENDIX

ROBERT H. FRIEBERT

Attorney for Appellee

Of Counsel:

SAMSON, FRIEBERT, SUTTON, FINERTY & BURNS

710 North Plankinton Avenue

Milwaukee, Wisconsin 53203

(414) 271-0130

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

The State of Wisconsin Statutes Involved o...0.00000000..... 2

Question Presented for Review 2.0.2.0... . sehone 7

Statement of the Case o.ccececececcececceceeceeeeeeseeeeeeeeee 8

AYQUMEN oie eeeeeeceeecescescececececeneececeseecececenseceseneeseseseeseseseeees 20

This Case Presents No Substantial Question Not

Previously Decided By This Court 00... 20

COnclusiOm .....-......2:---cec-censcosnsessoesscsecnseneceenesecsceeseepesneeseecieesees 29

Appendix:

Findings of Fact and Conclusions of Law, and

Decision of the State of Wisconsin Medical Ex-

amining Board uo... eeeeceseeceeecec ecco eeeeeeeeeeeeeeeees App. 1

AUTHORITIES CITED

Cases

American Cyanide Company v. FTC, 363 F.2d 757 (6th

0; AS | 1) ne enc Cn cnn nese ne ee 2

Amos Treat & Co., Inc. v. SEC, 306 F.2d 260 (D.C.

| LY 4) nee eee ere 22

Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970),

vac. on other grounds, 402 U.S. 903 (1971) 0... 8

Board of Regents v. Roth, 408 U.S. 564 (1972) ........21, 28

Bloom v. Illinois, 391 U.S. 194 (1968) oo0220 ce... 23

Gagnon v. Searpelli, 411 U.S. 778 (1973) 0... 22

Gibson v. Berryhill, 411 U.S. 564 (1973) _....... ae 25, 28

ii

PAGE

Glass v. Mackis 370 Mich. 482, 122 N.W.2d 651 (1963) .. 23

_ Hilboldt v. Ws. R. E. Brokers’ Bd., 28 Wis.2d 474,

BONN OO CLIO). aresctecictcesteitentBiectesi inne oeictee 24

‘In Re Murchisa, 349 U.S. 183 (1955) oe 23

In Re Ruffalo, 390 U.S, 544 (1968) oe 21, 28

Kennan v. Nicol, 326 F.Supp. 613 (1971) aff’d., 404

Op ie (1's i 5/5 0 rr ir 8

Kennan v. Warren, 328 F.Supp. 525 (1971) 0002000... 9

Larkin v. Brue, 352.F.Supp. 1076 (E.D. Wis. 1972) .. 16

Larkin v. McCinn, et al. No. 71-C-671 (E.D. Wis.) ... 9

Larkin v. With‘ow, 368 F.Supp. 793 (E.D.Wis. 1973) ..18, 19

Mack vy. Floridi State Board of Dentistry, 296 F.Supp.

1259 (S.D. Ha. 1969), aff. and vae’d. 480 F.2d 862

(Sth Cir, 19D); cert. den. 401 U.S. 954 (1971) ........ 22

Meyer v. Nebcaska, 262 U.S. 390 (1923) .............. 21, 28

Morrissey v. brewer, 408 U.S. 471 (1972) .................. 22

Offutt v. Unitel States, 348 U.S. 11 (1954) 0... 23

Pickering v. Bard of Education, 391 U.S. 563 (1968) 20, 28

State ex rel. Bruce v. Larkin, 346 F.Supp. 1065 (E.D.

WM N9G) i eecentsctgncseactrereestd-csterteieieeostencemnessaccainled 9

Texaco v. FTC, 336 F.2d 754 (D.C. 1964) 23

Trans World Airlines v. CAB, 204 F.2d 90 (D.C, 1958) 22-23

Wasson v. Trovbridge, 382 F.2d 807 (2nd Cir. 1967) . 21

Weiman vy. Uplegraff, 344 U.S. 183 (1952) oes. 28

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ........ 28

~

a

Other Authorities

PAGE

4<R BS OF, 4/2 -5 | 5) te en 9

Rule ofa), | he <1 Oy eee CY eee ne 24

\ Statutes

Sec. 227.08, Wis. Stats. ........... Peedi eees 10

eee L's a | ec 25

Sec. 448.02 (1) Wis. Stats. 20. ete eeceeeeeeeee 25

Sec. 448.02 (4), Wis. Stats. 2... ecececceceeeceeee 94

See. 448.16, Wis. Stats. 2... ce ccceecceeceseseeeeceeseees 25

Bea 448.18 (1)(b) Wis. Stats. 200. ova ie tee e Seneuesanvestiens 25

Sec, 448.18 (7), Wis. Stats. oo cccccucusesevasnsenne 14

Sec, 448.23 (1), Wis. Stats, occ ccccccccccccccccssssssssessstesneeneeeeee 26

Sec. 940.04, VUE SOUS, heaved eesqsemtiemseacaienritcece 29

In the

Supreme Court of the United States

OcrosBer Term, 1973

No. 73-1573

HAROLD WITHROW, D.O.; THOMAS HENNEY, M.D.; AJ.

SANFELIPPO, M.D.; JOHN M. IRVIN, M.D.; J. W. RUPEL,

M.D.; A. L. FREEDMAN, M.D.; MARK T. O’MEARA, WLD.;

THOMAS W. TORMEY, JR., M.D.; individually and as members

of the Medical Examining Board of the State of Wisconsin,

Appellants,

VS.

DUANE LARKIN, M_D.,

Appellee.

MOTION TO DISMISS OR AFFIRM

The appellee moves the Court to dismiss the appeal

herein or, in the alternative, to affirm the interlocutory

judgment of the United States District Court for the East-

ern District of Wisconsin on the grounds that it is clear

that the questions are so unsubstantial as-not to warrant

further argument.

2

THE STATE OF WISCONSIN STATUTES

- INVOLVED

§ 448.02 (1)

No person shall practice or attempt or hold himself

out as authorized to practice medicine, surgery, or

osteopathy, or any other system of treating the sick

as the term ‘‘treat the sick” is defined in s. 445.01 (1)

(a), without a license or certificate of registration from

the examining board, except as otherwise specifically

- provided by statute.

§ 448.02 (4)

No person shall practice medicine, surgery or osteo-

pathy, or any other system of treating bodily or mental

ailments or injuries of human beings, under any other

Christian or given name or any other surname than

that under which he was originally licensed or regis-

tered to practice in this or any other state, in any in-

stance in which the examining board, after a hearing,

finds that practicing under such changed name op-

erates to unfairly compete with another practitioaer

or to mislead the public as to identity or to otherwise

result in detriment to the profession or the public.

This subsection does not apply to a change of name re-

sulting from marriage or divorce.

§ 448.16 (1)

Sections 448.02: to 448.08, shall not apply to com-

missioned physicians of the medical corps of one of

the armed services or the federal health service of

.

3

the United States or to medical or osteopathic physi-

cians of other states or countries in actual consultation

with resident licensed practitioners of this state, nor

to the gratuitous prescribing and administering of

family remedies or to treatment rendered in an emer-

gency.

§ 448.17

The examining board shall investigate, hear and

act upon practices by persons licensed to practice medi-

cine and surgery under s. 448.06, that are inimical to

the public health. The examining board shall have the

power to warn and to-reprimand, when it finds such

practice, and to institute criminal action or action to

revoke license when it finds probable cause therefor

under criminal or revocation statute, and the attorney

general may aid the district attorney in the prosecution

thereof.

§ 448.18 (1)

‘‘Immoral or unprofessional conduct’’ as used in

this section mean: (a) Procuring, aiding or abetting

a criminal abortion; (b) advertising in any manner

either in his own name or under the name of another

person or concern, actual or pretended, in any news-

paper, pamphlet, circular, or other written or printed

paper or document the curing of venereal diseases,

the restoration of ‘‘lost manhood’’, the treatment and

curing of private diseases peculiar to men or women,

or the advertising or holding himself out to the public

in any manner as a specialist in diseases of the sexual

organs, or diseases caused by sexual weakness, self-

re

abuse or excessive indulgences, or in any diseases of

a like nature. or produced by a like cause, or the ad-

vertising of any medicine or any means whatever

whereby the monthly periods of women can be regu-

lated or the menses reestablished, if suppressed, or

being employed by or in the service of any person, or

concern, actual or pretended so advertising; (c) the

obtaining of any fee; or offering to accept a fee on

the assurance or promise that a manifestly incurable

disease can be or will be permanently cured; (d) wil- |

fully betraying a professional secret; (e) indulging

in the drug habit; (f) conviction of an offense involv-

ing moral turpitude; (g) engaging in conduct unbe-

comiag a person licensed to practice or detrimental to

the best interests of the public.

§ 448.18 (2)

(2) Upon verified complaint in writing to the dis-

trict attorney charging the holder of a license or cer-

tificate of registration from the examining board or

chiropractic examining board with having been guilty

of immorai or unprofessional conduct or with having —

procured his certificate or license by fraud or perjury,

or through error, the district attorney shall bring civil

action in the circuit court against the holder and in the

name of the state as plaintiff to revoke the license or

certificate. The court may appoint counsel to assist the

district attorney and either party may demand a jury.

No one shall be privileged from testifying fully or

producing evidence, but he shall not be prosecuted

or subject to penalty on account of anything about

which he so does, except for perjury in so doing. If

the court or the jury finds for the plaintiff, judgment

shall be rendered revoking or suspending the license

5

or certificate and the clerk of the court shall file a cer-_

tified copy of the judgment with the examining board

or the chiropractic examining board. The costs shall

be paid by the county, but if the court determines that

the complaint made to the district attorney was wilful

and malicious and without probable cause, it shall

enter judgment against the person making the com-

plaint for the casts of the action, and payment of the

same may be enforced by execution against the body

as in tort actions.

(3) When any person licensed or registered by

the examining board is convicted of a crime commit-

ted in the course of his professional conduct, the clerk

of the court shall file with the examining board a certi-

fied copy of the information and of the verdict and

judgment, and upon such filing the examining board

shall revoke or suspend the license or certificate, The

examining board shall also revoke or suspend any such

license or certificate upon satisfactory proof being

made of the conviction of such license or certificate

holder in a federal court of a crime committed the

course of his professional conduct. The action of the

, examining board in revoking or suspending such li-

-eense~or certificate may be reviewed under ch. 227.

§ 448.18 (7)

(7) <A license or certificate of registration may be

temporarily suspended by the examining board, with-

out formal proceedings, and its holder placed on pro-

bation for a period not to exceed 3 months where he is

known or the examining board has good cause to be-

lieve that such holder has violated sub. (1). The ex-

amining board shall not have authority to suspend a

x

6

license or certificate of registration, or to place a hold-

er on probation, for more than 2 consecutive 3-month

periods. All examining board actions under this sub-

section shall be subject to review under ch. 227.

§ 448.23 (1)

448,23 Fee splitting between physicians and others——

(1) SEPARATE BILLING REQUIRED. Any physician who

renders any medical or surgical service or. assistance

whatever, or gives any medical, surgical or any similar

advice or assistance whatever to any patient, physi-

cian, corporation, or to any other institution or organi-

zation ‘of any kind, including a hospital, for which a

charge is made to such patient receiving such service,

advice or assistance, shall render an individual state-

ment or accgunt of his charges therefor directly to such

patient, distinct and separate from any statement or

account by any physician or other person, who has

rendered or who may render any medical, surgical or

any similar service whatever, or who has given or thay

give any medical, surgical or similar advice or assist-

ance to such patient, physician, corporation, or to any

other institution or organization of any kind, includ-

ing a hospital. -

§ 448.23 (2)

(2) PuysICIAN PARTNERSHIPS PERMITTED. Notwith-

standing any other provision in this section, it is law-

ful for 2 or more physicians, who have entered into a

. bona fide partnership for the practice of medicine, to.

render a single bill for such services in the name of

such partnership.

-

QUESTION PRESENTED FOR REVIEW

Did the United States District Court for the Eastern

District of Wisconsin abuse its discretion when, sitting

as a three-judge court, it entered an interlocutory injune-

tion preventing the appellants from engaging in a hearing

to suspend the license of the appellee to practice medicine

in the State of Wisconsin for six (6) months when the per-

sons who would he the judges at the hearing were the very

same persons who personally investigated the charges and

had determined that the appellee had violated. some laws

regulating medicine and that there was probable cause to

believe that the appellee had violated the provisions of

the laws regulating the medical practice in Wisconsin,

thus*making the appellants the judges of the charges which

. they had investigated and brought?

==

STATEMENT OF THE CASE

Although this case on paper commenced on July 6, 1973,

it has its genesis in the stormy litigation in Prsmeesieie sur-

rounding the practice of abortion.

In 1970, a three-judge court sitting in the Eastern Dis-

trict of Wisconsin declared the Wisconsin abortion statute

unconstitutional. Babbitz v. McCann, 310 F.Supp. 293 (E.

D. Wis. 1970), vae. on other grounds, 402 U.S. 903 (1971).

That decision triggered a wave of resistance and a con-

certed effort by the Attorney General of Wisconsin, the

District Attorney in Milwaukee County, the District Attor-

ney in Dane County (Madison) and these appellants to

defy the decision of the United States District Court by

_ threatening all members of the medical profession who

engaged in the practice of abo:tion. The officials of the

State of Wisconsin were so successful in their effort that

only two doctors engaged in administering abortions in a

public manner, Dr. Alfred Kennan in Madison, Wisconsin

and Dr. Duane Larkin, the appellee here, in Milwaukee,

Wisconsin. The litigation surrounding Dr. Kennan was

first to follow the Babbitz decision.

Initially the District Attorney of Dane County, Mr.

Nichol, commenced a criminal action against Dr. Kennan.

That action was thwarted by the United States District

Court for the Western District of Wisconsin and subse-

qYfently by a three-judge court sitting there. Kennan v.

Nichol, 326 F.Supp. 613 (1971) aff’d., 404 U.S. 1055 (1971).

Pd o,6 7? .

However, the authorities of Wisconsin were not persuaded

to abate their conduct as ‘a result of the decision in the

Madison case. The Attorney General in concert with these

appellants, commenced an action against Dr. Kennan which

threatened his license to practice medicine. Again, the

9

federal court in Madison, Wisconsin restrained those activi-

ties. See Kennan v. Warren, 328 F.Supp. 525 (1971). Final-

ly, a circuit court judge in Dane County proceeded on his

own to attempt to stop Dr. Kennan and, that judge had to

be restramed by Judge Doyle. Ibid.

The history of the litigation in Milwaukee with respect

to Dr. Larkin is similar. However, most of his cases are

not reported. In December of 1971, Judge Myron L. Gor-

don entered a restraining order preventing enforcement

of the Wisconsin abortion statute against Dr.° Larkin.

Larkin v, McCann, et al, No. 71-C-671 (E.D. Wis.). While

the motion for a preliminary injunction was pending, the

Attorney General of Wisconsin commenced an action in

Madison, Wisconsin against Dr. Larkin for declara-

tory relief and obtained abatement of the federal court

proceedings pursuant to 28 U.S.C. § 2284(5). The litiga-

tion continued there until the entry of Mary Carpenter

Bruce. Mrs. Bruce commenced an action in the Circuit

Court of Milwaukee, Wisconsin against Dr. Larkin to

abate a public nuisance. During the course of those pro-

ceedings, which were removed to federal court and then

remanded back to the state court,’ Mrs. Bruce was suc-

cessful in obtaining a restraining order from a Circuit

Court judge.. Dr. Larkin commenced an action in the fed-

eral court against this Cireuit judge and, during the

pendency of that action, the Cireuit judge withdrew his

restrainigg order. Dr. Larkin also commenced an action

‘in the federal court against Mary Carpenter Bruce and,

Judge Myron Gordon held that that case stated a cause of

' State ex rel. Bruce v. Larkin, 346 F.Supp. 1065 (E.D. Wis.

1972).

10

action. See Larkin vy. Bruce, 352 F.Supp. 1076 (E.D. Wis.

1972). Thus, in both Madison and Milwaukee, the two

abortion clinics were hounded by the Attorney General,

the local District Attorney, and a local state Circuit Court

judge. At the time of the abortion decisions of the United

States Supreme Court, the only group who had not partici-

pated in Milwaukee who had participated in Madison was

the State Medical Examining Board, the appellants in

this case. They went after Dr. Larkin after the abortion

decisions of the United States Supreme Court.

On June 20, 1973, the appellant, Thomas W. Tormey,

Jr., M.D., acting on behalf of all of the other appellants,

executed a Notice of Investigative Hearing which stated

that the Board would ‘‘determine whether [Dr. Larkin]

has engaged in practices that are inimical to the public

health, whether he has engaged in conduct unbecoming a

person licensed to practice medicine, and whether he has

engaged in conduct detrimental to the best interests of the

public.’’ The Notice stated further:

‘*Based on the evidence adduced at said investiyative

hearing the Medical Examining Board will determine

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.’’

‘Service was attempted upon the appellee.* Shortly after

*Dr. Larkin has never been served with any documents by per-

sonal service. Sec. 227.08, Wis. Stats. authorizes agencies to adopt

rules for the service of notices and for the conduct of all of its hear-

ings. The Medical Examining Board has never promulgated any

rules whatsoever to govern the proceedings involved in this case. Thus,

there is no provision within the regulatory agency involved for

substituted service of any nature. Paragraph 2(c) of the Second

Cause of Action of the Amended Complaint alleges the constitutional

depravation due to the fact that the Board does not have any rules.

11

receiving a copy of the Notice, Dr. Larkin commenced this

action in the United States District Court for the Eastern

District of Wisconsin. A Motion for a Temporary Re-

straining Order was denied and this investigative hearing

commenced on July 12, 1973. On that same date, Dr.

Larkin filed an Amended Complaint. In the Second Cause

Action, Dr. Larkin ‘challenged the constitutional validity

of the Wisconsin statutory scheme in Paragraphs 2 and

3 as follows:

- The proceedings of the Medical Examining

Hoard as instituted against the plaintiff and as au-

thorized by Chapter 448, Wis. Stats., a copy of which -

is attached hereto as Exhibit D, are unconstitutional

and in violation of rights guaranteed to the plaintiff

by the First, Fourth, Fifth, Sixth, Ninth and Four-

teenth Amendments to the United States Constitution

in that:

(a) — phrases ‘‘inimical to the publie health’’,

“conduct unbecoming a person licensed to prac-

tice medicine’? and ‘‘conduct detrimental to the -

hest interests of the public’? are vague, overly

broad and cause men of reasonable intelligence

to guess as to their meaning and effect thereby

depriving the plaintiff of notice of prohibited

practices as well as providing the defendants with

authority to investigate and warn, reprimand or

institute criminal actions for activities of the

plaintiff which are protected by the Constitution

of the United States of America.

(b) The Notice of Investigative Hearing, Exhibit B,

states that at the conclusion of the hearing the

Board will determine whether to warn or repri-

mand the plaintiff or whether the Board will in-

stitute criminal actions or actions to revoke li-

cense if they conclude that probable cause exists

and, said notice prohibits the plaintiff and his at-

12

tomey from cross examining any of the witnesses

against him and from in any way appearing in

these hearings in a meaningful fashion thereby

subjecting the plaintiff to punishment and official

condemnation without being afforded his right to

be confronted by the witnesses against him, with-

out being afforded his right to notice of the

nature of the charges against him, without be-

ing afforded the opportunity to produce witnesses

ou his behalf, without being afforded the compul-

sory process for witnesses, and without being af-

forded a trial by jury or by persons other than

his accusers, all in violation of rights guaran-

feel to him by the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States

Constitution.

(c) The Medieal Examining Board of the State of

(d)

Wisconsin has not promulgated any rules with

respect to the conduct of these proceedings. Thus,

the proceedings will be regulated on an ad hoc

basis in violation of due process of law because

there are no rules to determine what process is

due the plaintiff. . .

The Notice of Investigative Hearing states that

a criminal action will be brought against the plain-

titf if the Board finds probable cause under the —

criminal statutes of the State of Wisconsin. This

proceeding denies to the plaintiff the right to have

a determination of probable cause made by an im-

partial, neutral, independent and detached judi-

cial officer or by a grand jury, in violation of

rights guaranteed to him by the Fourth, Fifth,

Sixth and Fourteenth Amendments to the United

States Constitution.

3. These proceedings as embodied in the Notice

of Investigative Hearing are brought pursuant to au-

thority which appears in Sec. 448.17 and 448.18, Wis.

13

Stats. These statutes authorize the Board to warn,

reprimand, determine probable cause, suspend a li-

cense, and temporarily suspend a license and, such

statutory scheme is in violation of rights guaranteed

to the plaintiff by the First, Fourth, Fifth, Sixth,

Ninth and Fourteenth Amendments to the United

States Constitution as more particularly set forth in

the preceding paragrayi.’* (emphasis supplied).

The Amended Complaint in its request for relief at 95

asked for a Temporary Restraining Order and a Prelim-

inary Injunction in the case.

At the time of the filing of the Amended Complaint, the

appellants were only investigating the appellee and, on

each and every occasion where they had an opportunity

to do so, they assured the United States District Court for

the Eastern District of Wisconsin that any effort to remove

the license of Dr. Larktr® either permanently or temporari-

ly, would only be done in a judicial proceeding and would

not be done by these appellants. The counsel for the ap-

pellants repeatedly compared the activities of the appel-

lants to a grand jury. See Appellant’s briefs filed in Dis-

trict Court.

At Page 1 of the appellants’ Reply Brief in support of

their Amended Motions to Dismiss, the appellants stated

the following:

‘““The Medical Examining Board is not authorized to

indict, but must go to the District Attorney to seek

prosecution or action to revoke or suspend the license

of one of its licensees.’’ (Emphasis supplied).

At Page 3 of that same brief, the appellants made the

following statement to the federal court:

‘‘The obvious distinction is that in the present case

the Medical Examining Board is conducting an inves-

14

‘tigative hearing and not a contested hearing. <Any

contested hearing will be held before a court and/or

jury.’’ (Emphasis supplied).

At Pages 5 and 6 of that same brief, the appellants stated

that any revocation proceedings would be ‘‘steeped in due

process provisions. ’’

In that posture and with those assurances regarding the

procedure being employed against Dr. Larkin, the United

States District Court for the Eastern District of Wisconsin

repeatedly denied requests for preliminary injunctive relief.

The proceedings against Dr. Larkin with respect to the

so-called investigative hearing were held on July 12 and

13, 1973, and were continued on October 4, 1973. Between

July 13, 1973 and October 4, 1973, and, on September 18,

1973, the appellants, acting pursuant to See. 448.18 (7),

Wis. Stats., completely changed their posture and issued

a Notice of Contested Hearing against Dr. Larkin. The

Board scheduled the contested hearing for the afternoon

of October 4, 1973. Thus, the contested hearing was di-

rected to take place at the conclusion of the investigative

hearing. The issues involved in the contested hearing

were identical to the issues which had been investigated

by the Board. They were concerned with:

1. Whether Dr. Larkin practiced medicine under a dif-

ferent name than the one which appears on his

license ;

bo

Whether Dr. Larkin allowed an unlicensed physician

to practice medicine at his clinic;

and

3. Whether Dr. Larkin split fees with other persons.*

3 This Notice of Contested Hearing was served in the same im-

proper manner as the original Notice.

15

On September 20, 1973, the appellee filed a copy of the

Notice of Contested Hearing with the United States Dis-

trict Court with an accompanying letter. Counsel for the

appellants have received all documents and letters referred

to herein. In the accompanying letter, the appellee stated

the following: .

‘‘The present posture of the proceedings is’ a classic

example of violations of due process of law. The so-

called investigation was conducted by the defendants.

Before that investigation is completed, the same de-

fendants bring charges against the plaintiff and are

his accusers, The judge and jury of the charges are

the same people who preferred them. At the conclu-

sion of the hearing, his accusers and judges will then

pass sentence upon him. Thus, the procedure vio-

lates most known tenets of due process of law. (Citing

cases).

‘We now ask the court for an immediate restraining

order to prevent irreparable harm which is being

threatened against Dr. Larkin in violation of the con-

stitution of the United States.”

On September 26, 1973, the appellee filed another Motion

for Temporary Restraining Order and Interlocutory In-

junction. That Motion focused upon the contested

hearing which was scheduled to commence on October 4,

1973 and incorporated as grounds the positions ‘‘more fully

set forth in the affidavits and briefs previously filed herein.’

The letter accompanying the Motion to Judge Gordon, a

copy of which was sent to counsel for the appellants, stated .

the following:

‘‘Enclosed is a Motion for Temporary Restraining

Order and Interlocutory Injunction which specifically

focuses upon the latest maneuver by the defendants

16

whereby they are attempting to suspend Dr. Larkin’s

license pursuant to the provisions of See. 448.18 (7),

Wis. Stats. The Amended Complaint in the case gen-

erally challenged the validity of See. 448.18, and Para-

graph 2(b) in conjunction with Paragraph 3 of the

Second Cause of Action specifically challenged the con-

stitutionality of the Board to invoke Sec. 448.18 (7) to

temporarily suspend the license without being afforded

a trial by jury or by persons other than his accusers,

inter alia.’’

- Ina decision dated October 1, 1973, the Honorable Myron

L. Gordon ordered the entry of a Temporary Restraining

Order. The court detailed the history of the proceedings

and noted that the action by the Board in pursuing a con-

tested hearing changed the proceedings ‘‘radically.’’ The

court summed up the situation which it was facing as

follows:

“‘The plaintiff, a licensed physician who performs

abortions in this state, brought this action against the

members of the state medical examining board for in-

junctive relief pursuant to 42 U.S.C. § 1983 and 28

U.S.C. § 1343.

‘“‘The complaint alleged that an investigative hear-

ing had been initiated concerning Dr. Larkin, but that

the notice thereof failed to disclose any specific allega- _

tions of misconduct. It was further alleged, upon in-

formation and belief, that the investigation was

launched in order to punish the plaintiff for perform-

ing abortions. °

‘*\ motion for a temporary restraining order, filed

with the complaint, was denied. I concluded that the

plaintiff’s complaint. was insufficient to justify inter-

ference with the examining board’s attempt to perform

17

"its statutory, investigative duty. The plaintiff was

given the opportunity, however, to submit memoranda

with respect to his motion for a preliminary injune-

tion.

‘Following a motion to dismiss filed by the defen-

dants, the plaintiff amended his complaint to challenge

the constitutionality of the statutes authorizing the

examining board to act. A request to convene a three-

judge court and a motion for a temporary restrain-

ing order or preliminary injunction were also filed.

The defendants amended their motion to dismiss so

as to make it applicable to the amended complaint.

‘The plaintiff’s motion for a temporary restraining

order was again denied. Although I believed then, as

I do now, that there is a serious question as to the

validity of legislation which allows an examining hoard

hoth to rule on and to punish for charges evolving

from its own investigation, that question was not pre- .

sented at that time.’ The challenge was only to the

activity then heing engaged in by the board, which was

investigation.

‘‘Again, however, the plaintiff was given the oppor-

tunity to submit authorities in support of his position,

and the defendants were allowed to brief the motion {o

dismiss. It was anticipated that the arguments pre-

sented by the parties would also be helpful toward re-

solving the question of ‘whether a three-judge court

was required,

‘‘Since that time, the status of this action has

changed radically. The board is no longer engaged in

an investigative proceeding, for it has notified the plain-

tiff that it has scheduled a ‘contested hearing’ at

which it will determine whether his license should be

temporarily suspended. The board’s current action

makes all allegations of the plaintiff’s amended com-

plaint germane. The positions of the parties ean no

longer be assessed in terms of a limited challenge in-

18

volving only investigative proceedings; the board's

present action calls into play all challenges to the

statutory scheme as detailed in the plaintiff’s com-

plaint.”’ Larkin v. Withrow, 368 F.Supp. 793, 794

(E.D. Wis. 1973). :

The appellants, in response to this order of Judge Gor-

don, did not proceed with theircontésted hearing, but they

did continue their investigative hearing on October 4, 1973.

They concluded that hearing on that date and, on October

5, 1973, the appellants issued Findings of Fact and Con-

clusions of Law. Those findings and conclusions resolve

every issue presented in the Notice of Contested Hearing

against the appellee, Dr. Larkin. See appellee’s appendix.

Subsequently, on November 19, 1973 the three-judge court

met and announced from the bench that the Motion for a

Preliminary Injunction would be granted. In lieu of Find-

ings of Fact and Conclusions of Law, the three-judge court

issued a written decision dated December 21, 1973. Larkin

v. Withrow, 368 F.Supp. 796 (E.D. Wis. 1973). In that

decision, the three-judge court stated that the loss to a phy-

sician of his right to practice medicine constitutes a loss

of his liberty or property. Furthermore, such a person

is entitled to procedural due process because of the ‘‘sig-

nificant interference with his property rights or his lib-

erty.’’ Id..at p. 797. The court stated:

‘Tu our view, the interference with a physician’s abil-

ity to practice his profession qualifies as an interfer-

ence with a property right. It is certainly ‘a suuicient

threat of personal detriment.’ Doe v. Bolton, 410 U.S.

179, 188 (1973).’’ Ibid. j

The court went.on to state that the suspension of a license

to practice medicine *‘presumptively has a serious adverse

affect on the physician’s reputation. Thus, it is clear that

19

the plaintiff’s liberty is also at stake.’ Ibid. In that

language, the court demonstrated its position that there

would be irrevocable injury to the appellee, The court

noted that there was no exhaustion available in the state

courts in the following language:

‘Tt is true that any action taken by the board pursuant

to Sec. 448.18 (7) is subject to judici al review under

See. 227, Wis. Stats. (1971). However, that review

statute goes only to the propriety of the board’s

exercise of statutory authority. We found that the

very statutory authority empowering the hoard to act

in the first instance w as itself unconstitutional.’’ (Em-

phasis, the court’s). Id. at p. 798.

The appellants appeal the entry of this interlocutory

Judgment to the United States Supreme Court.

20

ARGUMENT

*

THIS CASE PRESENTS NO SUBSTANTIAL QUESTION

NOT PREVIOUSLY DECIDED, BY THIS COURT.

~The issue involved in this case is whether a state admin-

istrative agency can suspend the license of a doctor after

it had held an investigative hearing wherein they heard

witnesses and concluded that the doctor had violated pro-

visions of the Wisconsin law. This case presents more than

some minor mixing of accusatorial and adjudicatorial fune-

tions i an administrative agency. This case presents a

‘factual situation where the board couducted a full and

complete investigation and had concluded in an ex parte

hearing that Dr. Larkin had violated the law and then

proposed to be the judge of its own accusation in a so-

called contested hearing. Tliere is no support in the settled

law of the United States for such bias on the part of ad-

ministrative boards,

In Pickering vy. Board of Education, 391 U,S. 563 (1968),

_ this ‘Court overturned the dismissaleof a school teacher

who had made critical remarks against his Board of Edu-

cation. It was that same Board of Education which tried

this teacher. The‘issue regarding mixing of functions »vas

raised for the first time on appeal. This Court commented

-on that issue in the following manner: —

‘* Appellant requests us to reverse the state courts’

decisions upholding his dismissal on the independent _

ground that the procedure followed above deprived

him of due process in that he was not afforded an im-

partial tribunal. However, appellant makes this con-

tention for the first time in this Court, not having

’

21

raised it at any point in the state proceedings. Be-

cause of this, we decline to treat appellant’s claim as

an independent ground for our decision in this ease.

On the other hand, we do not propose to blind our-

selves to the obvious defects in the fact-finding pro-

cess occasioned by the Board’s multiple functioning

vis-a-vis appellant. Compare Tumey y. Ohio, 273 U.S.

910 (1927); In Re Murchison, 349 U.S. 133 (1955).

Accordingly, since the state courts have at no time

given de novo consideration to the statements in the

letter, we feel free to examine the evidence in this

case completely independently and to afford little

weight to the factual determinations made by the

Board.’’ 391 U.S. at_p..578. (Emphasis supplied).

2

Indeed, the United States Court of Appeals for the

Second Circuit in a case involving the expulsion of a cadet

from the Merchant Marines Academy stated the obvious

proposition of law as follows:

‘*It is too clear to require argument or citation that a

fair hearing presupposes an impartial trier of fact

and that prior official involvement renders impartiality

most difficult to maintain.’*» Wasson v. Trowbridge,

382 F.2d 807, 813 (2nd Cir. 1967).

. Suspension or revocation of a right to practice a profes-

sion in a state is comparable to a criminal proceeding. See

In Re Ruffalo, 390 U.S. 544, 550-551 (1968).* Thus, the

hasie protections required in criminal cases must be grant-

ed to Dr. Larkin. One of those basie rights is trial by an

impartial fact-finder. With respect to revocation of parole

*In Meyer v. Nebraska, 262 U.S. 390, 399 (1923) and Board of

Regents v. Roth, 408 U.S. 564, 572 (19723, this-Court clearly held

that a citizen of the United States has a vested right to pursue the

common occupations of life and that this right can be protected

by a federal civil rights proceeding.

OO

22

and probation, the Court has held that one of the minimum

protections of due process of Maw is ‘tan independent de-

cision maker.” The decision on the merits of the allega-

tions against a parolee or a probationer must be made by

someone other than the person who brings the charges. $ee

Morrissey vy. Brewer, 408 U.S. 471 (1972) and Gagnon v.

Scarpelli, 411 U.S. 778, 786 (1973).

This case presents a most aggravated attempt to deprive

' the appellee of due process of law. At the time when the

three-judge court entered its preliminary injunction, the

appellants in this case had made formal Findings of Fact

and Conclusions of Law which resolved every issue in the

case against Dr. Larkin. This was done at the conclusion -

of an ex parte hearing. The Board, in that same decision

presented the matter to the District Attorney of Milwaukee

County with a finding of probable cause that Dr. Larkin

had violated the criminal laws of the State of Wisconsin

and that his license should be revoked on the basis of their

~ findings of fact. After this decision was made, these ap-

pellants then proposed to conduct a so-called Contested

Hearing. In that Contested Hearing, the appellants would

re-review the evidence and then decide whether the charges

which they had previously preferred against Dr. Larkin

supported a six (6) month suspension of his license to

practice medicine. This, the ‘‘grand jurors’? would be-

come the ‘‘petit jurors.’’ None of the other cases which

have struck down the mixing of functions in administrative

- agencies involved such an aggravated fact situation. See

American Cyanide Company v. FTC, 363 F.2d 757 (6th

Cir. 1966); Amos Treat & Co., Inc. v. SEC, 306 F.2d 260

(D.C. 1962); Mack v. Florida State Board of Dentistry,

296 F.Supp. 1259 (S.D. Fla. 1969), aff. and vae’d. 430 F.2d

862 (5th Cir. 1970); cert. den. 401 U.S. 954 (1971); Trans

23

World Airlines v. CAB, 254 F.2d 90 (D.C. 1958) ; Texaco

v. FTC, 336 F.2d 754, 760 (D.C. 1964) and Glass v. Mackie,

370 Mich. 482, 122 N.W.2d 651 (1963).

The mixing of functions which is present in this case

does not even present 4 close question under the Consti-

tution of the United States. In In Re Murchison, 349 U.S.

133 (1955), this. Court observed that no state has ever

forced a defendant to accept grand Jurors as his trial

jurors. In unmistakably clear language, this Court stated

the fundamental due process right as follows:

“It would be very strange if our system of law per-

mitted a judge to act as a grand jury and then try the

very persons accused as a result of his investigations.

Perhaps no State has ever foreed a defendant to accept

grand jurors as proper trial jurors to pass on charges

growing ott of their hearings. A single ‘judge-grand

jury’ is even more a part of the accusatorial process

than an ordinary lay erand juror. Having been a part

of that process a judge cannot be, in the very nature

of things, wholly disinterested in the conviction or ac-

quittal-of those aceused. While he would not likely

have the zeal of a prosecutor, it ean certainly not be

said that he would have none of that zeal. Fair trials

. are-too important a part of our free society to let

prosecuting judges be trial judges of the charges t 1

prefer.’’ Jd. at p. 137.

See also Offutt v. United States, 348 U.S. 11 (1954) and

Bloom v. Illinois, 391 U.S. 194, 202 ( 1968). This elemental

due process admonition which is applicable to judges and

juries is equally applicable to administrative agencies

which try to revoke and suspend the license of a doctor

to practice medicine.

The appellants raise other issues, none of which are

substantial.

24

The appellants claim that the Motion for a Preliminary

Injunction did not state the grounds. As pointed out in

the Statement of the Case, the Motion contains grounds;

. there was a Motion for a Preliminary Injunction incor-

porated with the Amended Complaint; and the letters

transmitting the Motion for a Preliminary Injunction

clearly set forth the nature of the Motion.

The three-judge court complied with Rule 52(a), FRCP

beeause its memorandum of decision constitutes sufficient

Findings of Fact and Conclusions of law.’

The appellants complain that there was an administra-

tive remedy available. However, the three-judge court

pointed out that there was no effective administrative

remedy available because the appeal only determines the

propriety of the exercise of the statutory authority of the

Board. In this case, the court concluded that the Board

itself was improperly constituted. Thus, the appeal is

meaningless because the reviewing court would only de-

termine whether there was sufficient evidence to support

the findings of the Board, were they allowed to proceed.

Hilboldt v. Wis. R. E. Brokers’ Bd., 28 Wis.2d 474, 482,

137 N.W.2d 482 (1965). The nature of the challenge here -

is that the Board was biased, and that their findings could

not be anything more than a reflection of their bias.* This

5 If the Court concludes that the opinion of the three-judge couft

is not specific enough, the remedy is merely a remand to comply-with

Rule 52(a).

® Although the merits of the charges against Dr. Larkin are not

at issue at this time, the fact of the matter is that Dr. Larkin has

legal and factual defenses to the charges. Section 448.02 (4), Wis.

Stats. does not prohibit practicing under a false name. That statute

prohibits practicing under a false name after the Board makes a find-

ing, after a hearing “that practicing under such changed name oper-

ates to unfairly compete with another practitioner or to mislead the

- Court stated in Gibson y. Berryhill, 411 US. 564 (1973) :

‘In the instant case the matter of exhaustion of ad-

ministrative remedies need not detain us long. Nor-

mally when a state has instituted administrative pro-

ceedings against an individual who then seeks an in-

(Footnote continued)

public as to identity or to otherwise result in detriment to the pro-

fession or the public.” The Statutory history shows that the State

of Wisconsin originally enacted an absolute prohibition against doctors

using assumed names. That absolute prohibition was modified by

the language quoted above. See History of Sec. 448.02 in Wis.

Stats. Annot.

There is no statute prohibiting soliciting patients by means of

agents. Indeed, Sec. 448.18 (1)(b) prohibits advertising with

respect to venereal diseases and lost manhood or womanhood. No

other prohibition against advertising has been found in Chapter 448.

Presumably, other forms of advertising are not prohibited in Wis-

consin. :

Although Sec. 448.02 (1) prohibits the practice of medicine with-

out a license, that statute contains exceptions. Section 448.16, Wis.

Stats. states that medical physicians of other states or countries in

consultation with resident licensed practitioners do not have to be

licensed by the State of Wisconsin, See 1927 Op. of the A.G. of

Wisconsin 702, where the Attorney General held that an Tllinojs

physician was not required to obtain a W isconsin license to practice

medicine in Wisconsin in the office of a doctor who was licensed

in Wisconsin. Dr. Young Whan Ahn was licensed to practice

medicine in the State of Georgia in the fall of 1972, and, upon in-

formation and belief was licensed to practice medicine at all times

pertinent in the Republic of South Korea. Also, a license is not

required for treatment rendered in an emergency. “Emergency” has

not been defined by cases in Wisconsin. It is a matter of public

record that the Medical Examining Board, in conjunction with the

Attorney General and the District Attorney of Milwaukee County

threatened the medical profession with punishment if any engaged in

the practice of administering abortions in violation of Sec. 940.04,

Wis. Stats. They were so successful in their intimidation that only

Dr. Kennan and Larkin regularly performed abortions in their clinics

-

26

junction in federal. court, the exhaustion doctrine

would require the court to delay action until the ad-

ministrative phase of the state proceedings is termi-

nated, at least where coverage or liability is con-

tested and administrative expertise, discretion or fact-

finding is involved, But this court has expressly held

in recent years that state administrative remedies

need not be exhausted where the federal court plain-

tiff states an otherwise good cause of action under 42

U.S.C. § 1983.’’ Id. at p. 574. (Emphasis supplied)

In addition, this is not a criminal case, and Dr. Larkin had

commenced this action in the federal courts prior to the

commencement of the so-called contested hearing whereby

the appellants attempted to suspend his license to practice

medicine.

The appellants complain that there was insufficient evi-

dence in the recorc to support the preliminary injunction.

This is a specious claim since the operative facts which

(Footnote continued)

under protection of the federal courts. Thus, women in need of

medical treatment and entitled under the law of medical treatment

were turned away by most doctors because of the public threats of

these public officials. These same public officials here sought to

investigate Dr. Larkin to pass judgment upon his response to the

medical emergency which they illegally created. :

The so-called fee splitting section, Sec. 448.23 (1), Wis. Stats.

is very limited in scope. The statute compels physicians to render

an individual statement for his charges even though the physician

is working for some institution or organization. The statute does.

not prohibit a doctor from paying another person money for any

reason whatsoever. e

The appellants have ‘disqualified themselves from resolving these

factual controversies because they were the investigators of Dr.

Larkin and, at the time of the entry of the Preliminary Injunction,

they had become his formal accusers due to the entry of their Find-

ings of Fact and Conclusions of Law. See appellee’s Appendix.

,

27

were relied upon by the District Court are uncontested.

They are as follows:

i

3.

The appellants investigated Dr. Larkin in an Ca

parte hearing;

At the conclusion of this investigative hearing, the

appellants made Findings of Fact and Conclusions

of Law which resolved the factual issues in the

case;

The appellants in those Findings 6f Fact and Con-

clusions of Law transmitted to the District Attor-

ney of Milwaukee County, Wisconsin a recommenda.

tion and finding of probable cause that criminal and

civil forfeiture of license proceedings be commenced

against Dr. Larkin; :

The appellants proposed by a Notice of Contested

Hearing to try Dr. Larkin upon charges which were

identical to the findings whieh had previously been

made and, at the conclusion of that so-called con-

tested hearing to decide whether to suspend Dr.

Larkin’s license to practice medicine for a period

of up to six months;

The statutory scheme of the State of Wisconsin

contained in Chapter 448 authorizes such proceed-

ings ;

None of the charges brought against Dr. Larkin at

any time challenged his qualifications as a physician

to practice medicine in the State of Wisconsin and

none of the allegations against him even remotely

suggest that he is incompetent to practice medicine in

the State of Wisconsin or that his clinic has in any

way injured any citizen of the State of Wisconsin

due to lack of proper medical treatment.

28

All of these operative facts were submitted in the form of

affidavits or by the Amended Complaint. These operative

facts were not in any way challenged by the appellants.

The appellants in their brief do not show whether they

disagree with any of the operative facts in the case. In

fact, they can have no disagreement with any of the opera-

tive facts since they are all documented by official records

_and statutes of Wisconsin.

The appellants complain that the district court did not

make a finding of irreparable injury. While those words

were not used in the decision by the trial court, it is clear

from their opinion that they found that the denial of the

right to practice medicine under these circumstances con-

stituted an irreparable injury, and also imposed a loss of

reputation in the community which was irreparable. Such

grounds were considered adequate with respect to the op-

tometry profession in Gibson v. Berryhill, 411 U.S. 564

(1973). Indeed, it is beyond dispute that the right to prac-

tice a profession is a valuable right and its suspension or

revocation is an irreparable injury. ee In Re Ruffalo, 390

U.S. 544 (1968); Meyer v. Tebralltece U.S. 390, 399

(1923) ; Board of Regents v. Roth, 408 U.S. 564, 572 (1972) :

Pickering v. Board of Education, 391-U.S. 563 (1968). Cf.

Wisconsin v. Constantineau, 400 U.S. 433 (1971); Weiman

y. Updeqraff, 344-U.S. 183 (1952).

Finally, the appellants complain that the court should

not have declared the Wisconsin statutory scheme uncon-

stitutional in a preliminary order. i this is technical-

ly correct, it is clear that the federal thfee-judge court con-

cluded that the chances of suecess by Dr. Larkin were sub-

stantial because in their view the statutory scheme as ap-

plied in this case was unconstitutional. At best, this is a

hypertechnical objection on the part of the appellants and,

29

if they desired any clarification with respect to the scope

of the decision, they were certainly free to request clari-

fication from the district court. They failed to request

this clarification, and they thus present themselves in a

position where they appear to be more interested in a

hypertechnical reversal than in determining the scope of

the decision of the United States District Court for the

Eastern District of Wisconsin. The opinion of the court

did not close the doors of the federal courts to these appel-

lants. They have not demonstrated how they have been

in any way harmed by this preliminary injunction,

CONCLUSION

On the basis of the foregoing it is respectfully requested

that the Court dismiss or affirm the Preliminary Injune-

tion in this case.

Respectfully submitted,

Rosert H. FRiesert

Attorney for Appellee

Of Counsel:

Samson, Frresert, Sutton, Frxerty & Burns

710 North Plankinton Avenue

Milwaukee, Wisconsin 53203

(414) 271-0130

meter necraamscracrsong,

ERNIT Sae

SNE