WITHROW v. LARKIN

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Argument of Betty R. Brown

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1573, Withrow against Larkin.

Ms. Brown you may proceed.

Ms Betty R. Brown: Mr. Chief Justice, May it please the Court.

This is an appeal from the judgment of the United States District Court for the Eastern District of Wisconsin in which that Court declared Section 448.18 (7) of the Wisconsin statutes unconstitutional and preliminarily enjoined all utilization of that subsection of the statute.

This preliminary injunctive relief was granted in an action brought in the District Court under the Civil Rights Act by the appellee whose name is Dr. Larkin against the appellants who are the members of the Wisconsin Medical Examining Board.

There are three questions in this case.

The first question is whether a District Court in granting a mere motion for a preliminary injunction can declare a state statute unconstitutional and preliminarily enjoin all utilization of that statute.

Justice Potter Stewart: Ms. Brown, I certainly -- it's not my purpose to disturb the planned order of your argument but I trust that sometime during the course of your argument you will get to the point that the three judge Court order has now been amended and no longer does declare a statute unconstitutional?

Ms Betty R. Brown: That's right.

Over six months after this appeal was taken and jurisdiction was noted and the briefs were submitted.

There was a modification of the judgment and so we also have that situation presently existing, in which the Court instead of saying as an orally declared and as included in its decision and judgment that the statute was unconstitutional, it now in the modified judgment said there is a likelihood of success and it also without any evidence to support this modified the judgment to assert that there is irreparable harm.

Justice Potter Stewart: Right.

Ms Betty R. Brown: So there has been --

Justice Potter Stewart: So then that -- is that were the only judgment that we have from the beginning, it would be very clear that this Court would be without jurisdiction of this appeal, would it?

Ms Betty R. Brown: No, I don't believe so Your Honor.

Justice Potter Stewart: But just looking at the language of the now existing judgment which appears on page 20 of the suggestion of mootness filed here on September 3.

It doesn't declare anything unconstitutional but just enjoins the applications of these statutes against the plaintiff Duane Larkin M.D. on the grounds that he would suffer irreparable injury, if the statute were to be applied against him and that the plaintiff's challenged to the constitutionally of said statute has a high likelihood of success.

You don't -- we don't have -- we wouldn't have direct appellate jurisdiction of any such order as that, would we?

Ms Betty R. Brown: We wouldn't be here Your Honor if that was the initial order.

But we --

Justice Potter Stewart: You could be - you could be here, could you?

Ms Betty R. Brown: Right, but we would have been here because of the content of the decision which would be followed by a final injunctive order and it came to same conclusions which we believe are completely erroneous.

Namely, that there's a violation of Due Process by the per se possession of investigative and adjudicative powers by an administrate agency.

So that if the modified judgment had been entered initially, we couldn't be here but when the final judgment was entered we would've been.

Justice Potter Stewart: So when as or if some final judgments were entered declaring this statute unconstitutional, but the --

Ms Betty R. Brown: Well, I doubt that there would be any and or if primarily because of the content of their decision Your Honor -- they had made up their minds.

Justice Byron R. White: Well the -- this maybe of that the injunction may have been amended but the Court had already declared the statute unconstitutional?

Ms Betty R. Brown: Yes, Your Honor.

Justice Byron R. White: Did they -- they withdraw that declaration?

Ms Betty R. Brown: No, the decision is still in effect, it's being cited and it's being followed.

Justice Potter Stewart: Well, they did amend their judgment of January 31, 1974, didn't they?

That's what this says on the top of page 20.

Ms Betty R. Brown: Yes, Your Honor.

Justice Potter Stewart: Well, to that extent they did change the original --

Justice William H. Rehnquist: Let me read you a sentence from 28 USC Section 1253 in order to call my brother Stewart's attention to it and, “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying after a notice in hearing and interlocutory or permanent injunction”.

Now I take it that you meet the -- even if you take it that the amended judgment as before and it's an amended judgment.

It's an interlocutory injunction and then it goes on to say “Required to be heard by a Court of three judges”.

Now, if it meets that test, it certainly wasn't interlocutory injunction?

Ms Betty R. Brown: Yes, yes it was Your Honor.

So that there was this modification but there is also of course other questions here which in any shape or form will arise again and do need resolution.

And this of course is the real question on the merits here and that is whether the per se by itself possession and exercised by an administrative agency uphold statutory powers to investigate and statutory powers to adjudicate is a violation of the Due Process Clause of the Fourteenth Amendment.

Chief Justice Warren E. Burger: Suppose if it is that might have -- I think you're suggesting your briefs on the impact on the federal communications commissions for example.

Ms Betty R. Brown: I think it would have an impact Your Honor on all administrative agencies, state, federal, local, I think that it has an impact.

I think that under the broad holding in this case the Federal Administrative Procedure Act is unconstitutional because it does recognize that these various functions which are the basic nature of administrative agencies can exist and be exercised by such agencies.

There is also a third question here which I think is a very important one and that is whether under the circumstances of this case, the District Court had any discretion, any power to grant a motion for a preliminary injunction and if it had any discretion whether it abused that discretion in this case.

The fact situation somewhat briefly I hope is this.

Chief Justice Warren E. Burger: Would you tell us to what evidence was taken on this subject or did the Court act solely on the pleadings?

Ms Betty R. Brown: There was absolutely no evidence in any shape or form which, either showed the availability of injunctive relief in this type of case or established grounds for the granting of the motion.

There was nothing, no evidence in the form of testimony, in the form of affidavits, in any shapes or form, which established that there was no adequate remedy at law, that there had been exhaustion of administrative remedies if applicable, that there would be irreparable harm if the requested relief was not granted, that there was a reasonable likelihood of success on the merits and that granting the relief would not do or undo harm to the public interest, which of course I think Your Honors is a big and important concern when we are dealing with state statutes which are aimed at protecting the welfare of the citizens of the state.

There was no evidence at any of these in any shape or form.

The facts are briefly this, Dr. Larkin who was the appellee here is a resident of the state of Michigan.

He applied to the appellant's, the Wisconsin Medical Examining Board for a license to practice medicine in the state of Wisconsin.

He was granted that license in August 1971 on the basis of the reciprocity provisions between the Wisconsin and Michigan.

The Medical Examining Board is a state administrative agency.

It's the agency which issues license to practice medicine and surgery.

It is an agency also which has the statutory duty to investigate practices and amicable to public health and if it finds such practices to either warn or reprimand the licensee or if necessary refer the matter to the District Attorney for either criminal prosecution or civil revocation of a license.

The board itself has no power to suspend other than temporarily or revoke the medical license of a doctor.

This has to be --

Justice Potter Stewart: Was it from the Gibson v. Berryhill?

Ms Betty R. Brown: Yes.

Now, this is one of the unique situations in which a professional license can be revoked or suspended other than temporarily only by a Court and not by the administrative agency itself.

The only power that the board has is under the statute which the Court here declared unconstitutional, Section 448.18 (7) and this statute allows the board to temporarily suspend the license of a licensee for not more than three months upon a determination that he is engaged in practices which are immoral or unprofessional in nature.

They also have power to extend this for another three months but that's a maximum of their suspension powers.

Well, Dr. Larkin did get his license on the basis of reciprocity, he very promptly went to Milwaukee Wisconsin and he rented offices and he did so under an alias, he used name Glenn Johnson instead of his own name in renting these offices and he began performing abortions.

He performed this every weekend.

He flew in from Detroit to Milwaukee and on Friday, Saturday and Sunday's, he performed abortions and then he returned to the state of Michigan.

It appears that by February of 1973, in other words, about a year-and-half after he started, he himself was coming to Milwaukee and only very infrequent occasions and evidence indicated that he was there once between February of 1973 and the date of this Federal Court activity in the latter of part of 1973.

Chief Justice Warren E. Burger: You say the evidence that the information that the board acquired in its investigatory process, is that it?

Ms Betty R. Brown: Right sir.

The only evidence in this record is in the form of affidavits.

Attached to some of the affidavits are various notices and there is also attached the board's findings of facts, conclusions of law and decision which it arrived at, at the conclusion of its investigative hearing.

And it's in that material which is part of the record attached to affidavits that this material has revealed.

So that he was flying in and performing these abortions over weekends but since February of 1953, his abortion business was being carried on primarily by others with a financial arrangement between a Dr. Larkin and another doctor.

In June of 1973, the board issued and it mailed to Dr. Larkin a notice of investigative hearing.

It was about to perform its duty under Section 448.17 of the statutes to investigate practices inamicable to public health.

It sent this notice Dr. Larkin, told him the subject -- it included the subject of the investigation, it invited Dr. Larkin with or without counsel to attend although the investigation was ex parte in character.

Chief Justice Warren E. Burger: I don't know whether it's relevant here in this ground at issue but as you know often, would it be a violation of a Wisconsin statute of some kind to have a license under one name and carry on to practice of medicine under another name?

Ms Betty R. Brown: Yes sir, it's a violation of the criminal law and it --

Chief Justice Warren E. Burger: Apart from the medical problem?

Ms Betty R. Brown: Right.

There is a statute which makes it a misdemeanor for a medical licensee under certain circumstances to use a name other than the name under which he was licensed.

There are ifs, ands, and buts in the statute but that's the sense of it, and in addition of course that is a practice inamicable to public health because the patient has no idea whom he's dealing with.

It's a sure guarantee against malpractice suits among other things which have become increasingly popular when you don't even know who the individual is who performing services on you.

Chief Justice Warren E. Burger: It may not be of sure guarantee but it might be a big help.

Ms Betty R. Brown: Well, it's a hindrance anyway.

So the board sent out this notice of investigative hearing and upon received of that notice, Dr. Larkin immediately followed -- filed a civil rights action in the Federal District Court.

In this action, he sought initially only injunctive relief.

He sought a temporary restraining order of preliminary injunction and a permanent injunction aimed at stopping the investigative hearing.

The District Court Judge denied the motion for the temporary restraining order and Larkin very promptly, that is six days later filed an unverified amended complaint, an innocent amended complain.

He sought not only injunctive relief but he also sought declaratory relief.

He sought the declaration that the Wisconsin statutes Section 448.17 and 448.18 (7) were unconstitutional and he asked for the convening of a three-judge court.

There was in the interim some more motions and various affidavits filed but the District Court refused to enjoin the investigative hearing and that hearing was held as scheduled on July 12 and 13, 1973.

Chief Justice Warren E. Burger: Was that the same three-judge court?

Have you been before the same three-Judges all the time in this proceeding?

Ms Betty R. Brown: Yes, that is the three-judge court was not formed at the time that I'm referring to right now, they were formed shortly afterwards.

The investigative hearing by the board was allowed to proceed.

It was not until the board sent notice of a contested hearing and those words contested hearing under Wisconsin Law have a great deal of significance because there is a whole array of procedural rights that are attached at that point.

But the board did operating under another statute, not the one giving them a duty to investigate but operating under 448.18 (7), which gives them power, limited power to temporarily suspend the license.

They did send to Dr. Larkin a notice of contested hearing on the subject of whether his license should be temporarily suspended.

That notice is set forth at length in the brief and as you will note, it very carefully sets forth the issues at the proposed contested hearing.

Chief Justice Warren E. Burger: That was in effect in order to show cause functionality?

Ms Betty R. Brown: Well, it really was more than that, it was really bringing, starting up a whole contested proceeding in which the person had a right to be present, to testify, to have counsel, to cross examine witnesses, to a written statement of the issues, to the burden of proof on his opponent, a whole list which I have set forth with statutory reference in one of the footnotes to my brief, but it was a whole complicated procedure in which there was very careful guarding of procedural rights of a licensee.

But at the point where he got this notice of a contested hearing, Dr. Larkin's attorney again went into Court and again sought a temporary restraining order, preliminary injunction, et cetera.

Not of the investigative which was the sole subject of the pleading's in this case but of the proposed contested hearing on whether his license should be revoked.

In getting this material the District Court without any hearing whatsoever did enter a temporary restraining order and did grant the motion for a three-judge court.

So a three-judge court was then convened and the three-judge court held a none evidently hearing on the motion for preliminary injunction.

No evidence whatsoever in any shape or form which went to the question of whether a preliminary injunction should issue.

There also was no evidence whatsoever presented and quite properly so, on the subject of the constitutionality of the presumptively constitutional Wisconsin statutes.

So that the hearing before the three-judge court was oral argument period, without even a pleading based for the relief being sought.

Chief Justice Warren E. Burger: In the affidavits that you've described that were before the board in the investigation stage, was there any denial by Dr. Larkin of his -- of these allegation about practicing -- holding out practice under another name?

Ms Betty R. Brown: No.

Before the board Your Honor there weren't affidavits, there was actual sworn testimony by witnesses before the board.

Chief Justice Warren E. Burger: But did he deny it that --

Ms Betty R. Brown: He was invited to attend and he was also invited to come before the board and to inform it of any explanation or any material he wish to present to the board during their investigative hearing and he declined to do so.

His counsel sat through the entire investigative hearing and his counsel did address the board but Dr. Larkin himself never appeared and never informed the board despite its invitation of any material which would cast doubt upon or reflection upon the sworn testimony and other evidence that the board itself took during its investigation.

But the three-judge court during this argument on preliminary injunction, off the bench, declares the statute unconstitutional and it also enjoins the use of the statute not only against Dr. Larkin but against everybody.

It came down with the decision that -- and here I'm quoting them for the board temporarily to suspend Dr. Larkin's license which of course the board hadn't done, at its own contested hearing on charges evolving from its own investigation would constitute a denial to him of rights to procedural Due Process.

Insofar as the statute authorizes a procedure where in a physician stands to lose his liberty or property, absent the intervention of an independent neutral and detached decision maker, we conclude that it is unconstitutional and enforceable.

So, in response to the motion for preliminary injunction, they did enter a decision declaring the statute unconstitutional, banning all utilization of the statute against everybody and then subsequently they came down with their judgment.

Originally, they did this orally, then they wrote a decision, then they entered a judgment and in all of these they declared the statute unconstitutional and enjoined all utilization.

From the judgment so declaring the appellant's appeal to this Court, this Court noted probable jurisdiction, my brief was submitted, the other side's brief was submitted and the board found itself with this order banning all utilization of the statute so crippling that the interest of the citizens of the state of Wisconsin were being harmed.

So the board did go to the three-judge court and asked for a modification so that the injunction would only protect Dr. Larkin and not prohibit the board from utilizing the statute against everybody.

Chief Justice Warren E. Burger: Was there any claim made in the oral argument before the three judge court that this was a class action?

Ms Betty R. Brown: No, no, no, there is no class action aspect to this at all.

The --

Chief Justice Warren E. Burger: Of course, if the statute were in fact and law, unconstitutionally it would apply to everyone whether it had a class action or not, I assume?

Ms Betty R. Brown: Yes sir, yes sir.

So that we did ask this modification of the judgment in order to make the preliminary injunctions, they should properly have been run only against Dr. Larkin.

Well, the Court then took an opportunity to change its judgment in a more, much more broader way.

They did what we asked.

In other words, allowing the board to proceed against others but they also came up with this fiction about irreparable harm to Dr. Larkin in which there was absolutely no evidence and there was not even an allegation that he would suffer irreparable harm if the preliminary injunction was not granted.

Justice Thurgood Marshall: You mean to suspend the man from practicing medicine for six months is not irreparable harm?

Ms Betty R. Brown: I would submit to you -- well, in the first place, we don't know whether he was going to be suspended at all.

Justice Thurgood Marshall: But he could be?

Ms Betty R. Brown: He could be, right.

But we have in this situation --

Justice Thurgood Marshall: Would that be irreparable harm?

Ms Betty R. Brown: It could be an irreparable harm and some situations but I would submit to you Justice Marshall that we have some unique facts in this case and that is --

Justice Thurgood Marshall: You said there were no facts?

Ms Betty R. Brown: There are some facts -- there are no facts establishing a base for the issuance of a preliminary injunction.

There are facts otherwise and one of the facts is that Dr. Larkin is a resident of the state of Michigan.

He is licensed to practice --

Justice Thurgood Marshall: Was that before the Court?

Ms Betty R. Brown: Yes, Your Honor.

Justice Thurgood Marshall: The three-judge court?

Ms Betty R. Brown: Sure.

Justice Thurgood Marshall: So they did have some facts?

Ms Betty R. Brown: In the form of the proceedings and notices of the board which were attached to affidavits filed with the pleadings and with some other affidavits.

But what I am saying --

Justice Thurgood Marshall: But when you made the statement, there was no evidence you meant there was no oral evidence, there were affidavits?

Ms Betty R. Brown: There were affidavits Your Honor but my point is that they did not relate in any way to whether or not a preliminary injunction could issue in this case.

Justice Thurgood Marshall: If the bar association took away your license to practice law for six months, would you consider that to be irreparable harm?

Ms Betty R. Brown: I certainly would --

Justice Thurgood Marshall: What's the difference to --

Ms Betty R. Brown: -- if the bar association of Wisconsin did and I was practicing in Wisconsin.

If I was a member of the Michigan bar and I flew into Wisconsin once in six months, I don't know that the injury would be so great.

Justice Thurgood Marshall: These are just the facts of this particular case.

Ms Betty R. Brown: Well, the facts are Your Honor that Dr. Larkin had a license to practice medicine in Michigan.

At the time of these hearings, he was not coming to Wisconsin, other than on very infrequent occasions.

His operation in Milwaukee was being run by others with whom he shared the fees.

He was not personally in the day to day business of sitting in an office and having patients come to him for medical service and he was practicing medicine in the state of Michigan where he was physically present on all but very few occasions.

So that under these circumstances Your Honor, I doubt that they could establish have they attempted to do so which they did not do but I doubt that they could have established the type of irreparable harm which this Court has recently talked about in all cases such as Sampson versus Murray.

There is no way I believe that they could have established that but the point is Your Honor, they didn't even try.

Chief Justice Warren E. Burger: I suppose his probability of success would depend upon his denial and refuting the information that was before the medical board.

Could the Court make any evaluation of his probability of success on what it had before it without any denial from him?

Could the three-judge court make any judgment?

Ms Betty R. Brown: The only thing in this of course is another very important point.

The only thing the three-judge court did was to issue the decision, there were no findings of fact, there were no conclusions of law as are required by rule 52.

Now of course, that rule requires finding of facts and conclusions of law but it gives an alternative that is instead of being in that form it can be in the form of the judgment or the decision.

But the decision in this case which of course is in the jurisdictional statement appendix contains no findings of facts or conclusions of law as required by the federal rules of civil procedure.

Justice Thurgood Marshall: The preliminary injunction?

Ms Betty R. Brown: Yes Your Honor. Rule 52 does provide that whether it's a permanent --

Justice Thurgood Marshall: Did you ask for it?

Ms Betty R. Brown: I'm sorry.

Justice Thurgood Marshall: Did you ask for a finding?

Ms Betty R. Brown: I don't think it's a matter of asking, it's a matter of mandatory duty on the Courts Your Honor.

Justice Thurgood Marshall: I mean after they didn't do it, did you raise the point with them or did you just come up here and get us -- did you give them a chance to correct that?

Ms Betty R. Brown: I was not trial counsel Your Honor.

Justice Thurgood Marshall: Alright.

Ms Betty R. Brown: I'm informed that the state, on behalf of the appellants there was a motion for judgment made and it was not.

In fact we had to make the motion for judgment in order to have compliance with the federal rules about entry of judgment to start the appeal time running.

And it was in response to our motion for a judgment that a judgment was finally entered in December.

Before that they just issued their decision and that was it.

Chief Justice Warren E. Burger: Just the TRO?

Ms Betty R. Brown: Well, preliminary injunction.

Chief Justice Warren E. Burger: Preliminary injunction.

Ms Betty R. Brown: Declaring the statute unconstitutional and enjoining all the utilization.

I believe my time is up Your Honor and I thank you for your attention.

Chief Justice Warren E. Burger: Mr. Friebert, at some point will you touch on the Mayo against the Canning Company and tell us what you think that has to do with this case?

Argument of Robert H. Friebert

Mr. Robert H. Friebert: Mayo against the Canning Company?

Chief Justice Warren E. Burger: Yes.

Mr. Robert H. Friebert: Is that in my brief Your Honor?

I'm not sure.

Chief Justice Warren E. Burger: I don't know if it's in your brief but it's in this case.

Relies on this very heavily and so, among other things, while in this Court the celibacy is not binding in the state of Ohio.

There's a statement that it is of the highest importance to a proper review in the granting or refusing of the preliminary injunction.

Every explicit findings of fact --

Mr. Robert H. Friebert: Oh yes.

Chief Justice Warren E. Burger: -- in rule 528 was bound which we're just talking about.

Mr. Robert H. Friebert: Yes I'd be happy to comment on immediately Mr. Chief Justice.

The Court is not required to make explicit findings of fact, if it takes care of that matter within a written opinion and I believe that the Court has taken care of that matter in its written opinion.

The Federal rule civil procedures says it can go either way and that's the way they went, they made a specific finding --

Chief Justice Warren E. Burger: When did they do that?

Mr. Robert H. Friebert: Well, I believe that the three-judge court did make an error in its original statement by not saying that there was irreparable injury.

Although, I think that they were saying that without using the magic words.

They indicated he would lose his license to practice and they also indicated he would have a loss of liberty due to the notoriety of having been a person who lost his license citing appropriate cases from this Court.

So they without using the magic words, they did make the appropriate findings.

When the state went back and asked for an amendment to the judgment so that they could go after other doctors, I filed a counter request that they make the formal finding, the Court did so.

I think that that was their intention all along.

So they have used now the magic words, although I think that their opinion did file along the Court with the Federal rule.

Justice Thurgood Marshall: Which have been, the last one?

Mr. Robert H. Friebert: Yes the last one couple, their opinion --

Justice Thurgood Marshall: Where is that opinion?

Mr. Robert H. Friebert: The opinion is in the jurisdictional statement.

Justice Byron R. White: The December 21, 1973.

Mr. Robert H. Friebert: Yes, yes, I am --

Justice Thurgood Marshall: Do you think that one takes place of finding --

Mr. Robert H. Friebert: I think they make findings that there's nothing extremely different called about the critical facts in this case.

This issue is not as broad as the state would make it.

It is not an attempt to declare entire statutory scheme unconstitutional.

It is an attempt to declare an entire statutory scheme unconstitutional as applied to these very limited factual circumstances.

As such, it would not have the major impact on the APA and we submit that if the Court were to decide against us, it would have a major impact on administrative proceedings because the Court would then be giving its stamp of approval to an anything goes situation because this is about as aggravated, a mixing of function as one can imagine on the facts, and the reason it is so aggravated is because it is not just a question of mixing a functions within the administrative agency, which is the way the state would like to paint the picture, that's not this case.

This case involves the same people, the appellants, the very same people investigating Dr. Larkin by a formal investigation which they characterized in the Trial Court to be akin to a grand jury investigation.

That's what they told the Trial Court what they were doing and since they made the representations that they were like grand jurors engaging in an investigation on two occasions, the Court, the Trial Court, not a three-judge court this was just a single judge, refused a temporary restraining order.

Justice Byron R. White: Mr. Friebert who actually does that investigative work?

Do they have runners do it or outside investigators or do the members of the board themselves do it?

Mr. Robert H. Friebert: In this instance, testimony was taken by the board, brought in by counsel who was a trial counsel in this case, who was also counsel to the board and brought in by an employee but the testimony was taken by these board members themselves and they questioned these people and hence the analogy which they said to a grand jury.

Justice Byron R. White: But what if a right of conclusion than those that so called investigative procedures the board had simply suspended the license?

Mr. Robert H. Friebert: I think that that would have been unconstitutional -- first of all I think would violate Wisconsin practice because there --

Justice Byron R. White: If the board just sits in here for testimony and then decide that's unconstitutional?

Mr. Robert H. Friebert: Yes, I think without giving notice that that's what they are going to do and giving me an opportunity to cross examine or respond, I do.

Justice Byron R. White: Well, that may be so but would be because of external function?

Mr. Robert H. Friebert: Well, it would be in this -- again, in this case because I did not receive notice that that's what they were going to do.

It's caught --

Justice Byron R. White: And if so it wouldn't be the mixing function probably, it would be a procedural due process.

Mr. Robert H. Friebert: Correct, which I consider mixing a function is a procedural due process problem.

Justice William H. Rehnquist: Mr. Friebert, in Arizona where I practiced, I sat on one of the grievance committees and we would have a session of that committee whereby we would hear complaints and hear a complaining witness and simply decide whether there was sufficient basis to go ahead and notify that the lawyer was being complained against and if we decided that there was no sufficient basis we dismiss it.

If we decide there was sufficient basis then we would notify him of charges and hold a full hearing.

Now, do you think that violates the three-judge District Court's opinion here?

Mr. Robert H. Friebert: The same group would then be the trial people?

Justice William H. Rehnquist: Precisely.

Mr. Robert H. Friebert: Yes, I think that that would violate procedural due process.

In Wisconsin, I might add Mr. Justice Rehnquist, there is with respect to revoking or suspending the license to practice law, the charges are brought and the Supreme Court of Wisconsin appoints a judge to separately decide the factual matters and then the matter -- and makes a recommendation.

So there is a splitting of functions within the bar in Wisconsin.

Justice William H. Rehnquist: That was true in Arizona too after the administrative committee got there, went to the board of governors with the Supreme Court but here I take it your medical thing goes eventually under Court.

Mr. Robert H. Friebert: The medical thing goes eventually under the way they are moving in this case to two Courts.

I should state at the conclusion of their investigative hearing, they issued formal findings of fact and conclusions of law and in those findings of fact and conclusions of law they resolved each and every factual question in this case.

That case was then transmitted to the district attorney for further proceedings.

Chief Justice Warren E. Burger: You suppose that was partly because there was no contest after notice?

Mr. Robert H. Friebert: No I don't.

Chief Justice Warren E. Burger: Dr. Larkin undertook to put in no evidence, never denied the charges, if that's correct?

Mr. Robert H. Friebert: Well, Dr. Larkin denies the charges and I --

Chief Justice Warren E. Burger: Did he get a notice?

Mr. Robert H. Friebert: I was present and I made a statement as to the reasons why this board -- why these charges as on the record that they have before it, this is not in the record.

The hearings were not made a part of the record here but I did appear and I did --

Justice Thurgood Marshall: Did Dr. Larkin ever appeared?

Mr. Robert H. Friebert: No, he did not.

Justice Thurgood Marshall: Why not?

Mr. Robert H. Friebert: I didn't -- it was on my advice.

I didn't see any reason for him to appear.

Justice Thurgood Marshall: So then he didn't dispute anything?

Mr. Robert H. Friebert: Oh yes, I appeared on his behalf, he appeared through counsel.

Justice Thurgood Marshall: Were the other witnesses sworn?

Mr. Robert H. Friebert: I'm not sure, I believe so.

Justice Thurgood Marshall: Were you sworn?

Mr. Robert H. Friebert: No.

Justice Thurgood Marshall: Well, how could you make that testimony?

Mr. Robert H. Friebert: Because I made an extensive legal argument --

Justice Thurgood Marshall: Legal?

I'm talking about fact.

Mr. Robert H. Friebert: Oh yes, it's a factual argument and legal argument which appears at footnote 13 of my brief.

And now, I would like to state because I think it is important --

Justice Thurgood Marshall: Did he ever deny any of these facts, that's what it seems justice was asking.

Mr. Robert H. Friebert: Did he by testimony, no.

Justice Thurgood Marshall: Did you deny?

Mr. Robert H. Friebert: I denied that they had sufficient facts.

Justice Thurgood Marshall: Did you deny the facts that they had be improved?

Mr. Robert H. Friebert: Yes, I denied that they have improved that there was personal knowledge of some of the allegations.

Justice Thurgood Marshall: My question is did you deny that they were true?

Mr. Robert H. Friebert: I denied that some of them yes, I denied that the so-called unlicensed physician was unlicensed and I told them that he was a licensed physician at all times in South Korea according to my understanding.

They knew that he was a license physician in Georgia and Wisconsin allows by -- yes it's statutory but they didn't check that fact.

Justice Thurgood Marshall: Did you ever questioned fact that he was operating under the assumed name?

Mr. Robert H. Friebert: I denied that, yes.

I --

Justice Thurgood Marshall: How could you deny it?

Mr. Robert H. Friebert: Just because he signed a list, Dr. Larkin hit the papers in Milwaukee in October of 1971 and everybody knew who he has.

Justice Thurgood Marshall: I'm not rewarded by hitting the paper.

You made a legal argument and that's all you made, am I right or wrong?

Mr. Robert H. Friebert: And I challenge that they did not have all the facts?

Yes.

Justice Thurgood Marshall: But you didn't question the facts?

Mr. Robert H. Friebert: I was not given an opportunity to cross examine witnesses and I had no subpoena powers -- I had no subpoena powers in the hearing.

No.

Justice Byron R. White: Could you have produced Dr. Larkin?

Mr. Robert H. Friebert: Possibly.

That was not in my advice, I saw no purpose in it.

Justice Lewis F. Powell: (Inaudible)

Mr. Robert H. Friebert: I did not want him, yes.

Justice Lewis F. Powell: Mr. Friebert, what do you consider as before this Court as of today?

Mr. Robert H. Friebert: I consider the major issue before this Court as to whether an administrative agency can combine each and every function of investigation of accusatorial and decision making all within the same pursuits.

These are the -- the appellant's had all of these roles and sought to -- they were not restrained when they were investigating, they have never been restrained from charging, it is when they proposed to be judges of their charges that the federal three-judge court or stepped in first the Federal District Court considering singly and then the Federal three-judge court, does not have the sweep of statement of counsel.

This is not -- this malpractice is totally anathema to the APA.

Justice Lewis F. Powell: May I interrupt you a minute.

Mr. Robert H. Friebert: Excuse me.

Justice Lewis F. Powell: You're not quite answering the question I had in mind or perhaps is not clear that two orders that were entered in this case had been discussed the other day, the one on December 21, 1973, the subsequent one of 74, the July 25, I think.

Do you consider both of them to be before us if not, which one?

Mr. Robert H. Friebert: I think they're both here.

I really view the subsequent order as a modification but really more of an explanation of what they had said previously.

They really said that in their opinion but the point was missed, it's been cleared up and that's how I view the subsequent order.

If of course it's only the first order, well then I think a reversal could be done in one sentence to tell them to do what they did subsequently and then were no further along.

Justice Potter Stewart: The problem is if I may say so in the first action of December of 1973, they held this statute unconstitutional.

Now, in July of 1974, they seem at least if one could read the English language to have retreated from that position and simply said that the plaintiff's challenge to the constitutionality the statute has a high likelihood of success.

Now, that certainly is inconsistent and those orders are different things.

Mr. Robert H. Friebert: In fact -- and if the Court views only the first -- judgment is up here, it's automatic, they should not have declared a statute unconstitutional in a preliminary injunction.

Justice William H. Rehnquist: I don't agree with you at all.

Mr. Robert H. Friebert: I think the case law is clear on that.

The finding that they have to make is a high probability of success in a preliminary injunction stage unless they're combining the preliminary injunction with the final judgment which they could have done but did not do.

Justice William H. Rehnquist: I thought that the law was -- it's sufficient to issue a preliminary injunction that you find a high probability of success but surely, if you wanted -- if the Court wants to go further than that and say, this isn't just a high probability of success -- it's a hundred percent thing in our eyes.

I would think that they're perfectly justified that the preliminary -- as of saying this is unconstitutional, an argument won't change our minds on these legal points.

Mr. Robert H. Friebert: Well, this Court said it in Mayo and I don't wish to dispute.

I'm not asking for the overturning of Mayo.

I think that that was an error by the three-judge court which was corrected but it doesn't get us along the road much because they would go back down and they would do what they did and the same basic issues remained.

Justice Potter Stewart: What was the ground for your filing on this document on this September 3rd suggestion of mootness?

Mr. Robert H. Friebert: If that was the issue before the Court, whether they should not have issue -- if the Court felt that's a reason and not a probable jurisdiction and ordered it to oral argument was because they made a finding of unconstitutionality, then that issue is moot because they have subsequently corrected that situation.

Furthermore, if the Court felt that they were in error for not making an explicit finding of irreparable injury, they have now done so.

So that's the reason we're here and those two issues are moot.

The underlying issues are not really mooted except that I think and it's our position that the subtle law of the -- and I believe is a subtle law is that you cannot combine within the same persons all of the functions of accusing, investigating and then proposing to be the judges --

Justice Potter Stewart: Do I understand that you do not think of this amended judgment raises a question as to the predicate of our jurisdictions to review either judgment?

Mr. Robert H. Friebert: It's just that -- it seems like such a waste of time to --

Justice Potter Stewart: Waste of time or not, if we don't have jurisdiction, we don't have jurisdiction whatever maybe it was.

Mr. Robert H. Friebert: Oh, I think we have jurisdiction under either circumstances, an appeal --

Justice Potter Stewart: Even if we're to take the only judgment before us as the amended judgment?

Mr. Robert H. Friebert: Oh yes, I think there --

Justice Potter Stewart: Why?

Mr. Robert H. Friebert: -- Because the statute allows appeals from preliminary injunctions.

Justice William J. Brennan: What statute?

Justice Potter Stewart: Only preliminary injunctions entered on grounds of constitutionality?

Mr. Robert H. Friebert: Yes and there is that injunction as that.

Oh, I'm sorry.

Justice William J. Brennan: The amendment wipes out the finding of unconstitutionality, does it?

But was there any predicate of preliminary injunction on the basis of the finding of unconstitutionality?

Mr. Robert H. Friebert: Mr. Justice Brennan I believe the statute allows an appeal from a preliminary injunction restraining the enforcement of the statute which doesn't show --

Justice William J. Brennan: If founded on a --

Mr. Robert H. Friebert: A constitutional defect.

It certainly does originally.

Justice William J. Brennan: Well, that judgment, that's judgmental?

Mr. Robert H. Friebert: It certainly does, I don't have the statute before me, I believe it an appeal from a preliminary injunction and to this Court is available from a holding of a preliminary injunction restraining the enforcement of a statute of state wide application which is this situation.

Justice William H. Rehnquist: Required to be heard by a three- judge court?

Mr. Robert H. Friebert: Yes, required to be heard a three- judge court which is at stat situation by definition.

And so I think we're here.

Justice William H. Rehnquist: There was no other reason for the three-judge District Courts enjoining of the statute in this case than its serious doubt about its constitutionality, was there?

There was no independent basis for the Court to enjoin?

Mr. Robert H. Friebert: No.

The independent basis awaits further discovery on the first clause of action which is that our assertion and which we would intend to prove if when -- if when we get back if necessary that the board is biased against abortionist.

I would like to clear up some thing which is first of all, Ms. Brown stated that the complaint did not challenge the suspension authority of the board that is just not true.

The complaint, the amended complaint at paragraph 3 challenges the authority of the board under 448.18 to suspend the license and temporarily suspend the license and that paragraph 3 refers back to the paragraph preceding for its reasons and one of the reason stated is without being afforded a trial by jury or by persons other than his accusers.

The complaint -- the amended complaint very clearly raises this issue and that amended complaint was in Court before the board decided to try and take his license away for six months.

So we were in the Court house before that.

Secondly, the charges against Dr. Larkin do not relate to his professional competency and I think that that's very important.

There is no exigent circumstances in this situation.

The charges against him are all for past practices which they alleged occurred in which we deny or assert are not offenses and are protected.

They have to do with some kind of fee splitting which if you read the Wisconsin statute on it, it's comprehensible.

It has to do with the alleged use of a different name which the Wisconsin statute does not prohibit until there is a prior finding by the board that this would work to the detriment, no prior finding was there and it has to do with using an unlicensed physician, physician unlicensed in Wisconsin.

Chief Justice Warren E. Burger: Now, you said this was the denied, by what process or means was this denied?

Mr. Robert H. Friebert: By the board?

Chief Justice Warren E. Burger: No.

Mr. Robert H. Friebert: I'm sorry.

Chief Justice Warren E. Burger: You said that Dr. Larkin, Mr. Larkin whatever he is denied this thing, quoted he denies it.

Mr. Robert H. Friebert: In my appearance on his behalf before the board, which I told them and made these arguments to them and which I think also demonstrates at least that the -- well, I'd rather not state.

I made that those statements as contained in footnote 13 to the board and finally, the use of unlicensed physician, unlicensed in Wisconsin.

There are two, there is a factual defense, one and a -- two factual defenses, one he was licensed in another country and under a prevailing opinion of the Attorney General, a doctor license or unlicensed to Wisconsin who was licensed elsewhere can practice in conjunction with the Wisconsin doctor and secondly, that an unlicensed doctor or person can practice medicine on the state of a medical emergency which is our opinion was created by the very board themselves due to their extensive harassment over a period of two years of persons in Wisconsin who engaged in the practice of abortions despite rulings from the Eastern and Western District of Wisconsin declaring the Wisconsin statute unconstitutional.

Dr. Larkin had to get his own restraining order because of the public threats by these Appellants and the public threats by the Attorney General of Wisconsin and District Attorney that they might not mind the orders of the Federal District Court.

But those points have nothing to do with his professional competency.

So there is no medical emergency in the picture to require such a drastic fast movement and I think that those factors are extremely important towards -- in determining when a due process allows faster activity.

Certainly, one of the factors would be whether there is an urgent situation.

In fact, the suggestion for mootness demonstrates some urgent situations which the board felt they needed relief from and that was in the case of two alcoholics and one narcotic actor -- addict doctor and for them they just want it to suspend their license even though they were a hazard to the community, to the state in general and indicated for them there will be rehabilitation available because they would not see provocation.

For an abortionist in the scene and a situation who may have used or allegedly use the wrong name on occasion or sign to list under wrong name or use the doctor unlicensed to Wisconsin or engaged in a fee splitting which we just dispute and deny, there is no hope for rehabilitation so apparently drug addicts and alcoholics get greater percentage --

Justice Thurgood Marshall: In the statute now, in Wisconsin against signing you alleged name on the list?

Mr. Robert H. Friebert: No.

You can use under Wisconsin common law, I believe you can use any name and you don't have to achieve a formal name change.

Chief Justice Warren E. Burger: We'll resume after lunch.

You may continue Mr. Friebert, you have a few minutes left.

Mr. Robert H. Friebert: Thank you Mr. Chief Justice.

I should like to point out a continuation that there really are no facts in dispute.

In the suggestion of mootness at Page 12, I have reprinted the brief presented by these Appellants to the Trial Court in which they distinguished Larkin and make the flat statement.

The Larkin case was of course on its facts unique and that the board investigated charges and then proposed to hold a contested hearing on those charges and thus we have the total combining of functions, situation.

A situation --

Justice Byron R. White: Did the board recommend to the District Attorney that he files specific certain kinds of charges against the --

Mr. Robert H. Friebert: Yes Mr. Justice White.

Justice Byron R. White: -- and in accordance with the statute they may so called prefer charges with the District Attorney, is that it?

Mr. Robert H. Friebert: Correct Mr. Justice White and they've done that --

Justice Byron R. White: Well, you don't -- I would suppose that's your easiest case to argue and maybe you've got a hard case and no matter what but if -- but it's easier to argue that you put that, isn't it?

Mr. Robert H. Friebert: Well, that they've already done that, yes they had --

Justice Byron R. White: And then if they wanted to proceed to a contested hearing themselves.

Mr. Robert H. Friebert: Well, under the statute they have made findings of facts and conclusions of law prior to the issuance of the preliminary injunction which resolved each and every fact situation, factual matter which they propose to and submitted that to the District Attorney and then, they then propose to hold a hearing to suspend on the very same charges.

They go to the District Attorney because the District Attorney either can commenced criminal charges.

I might add to he's decided not to do that or to revoke.

Revocation proceedings in Wisconsin are judicial proceedings prosecuted by the District Attorney, and even at the end of a revocation proceeding the trial judge does not have to revoke, he can suspend the license.

So the result -- the only punishment that might ever been achieved by -- in this situation might be the proposed suspension by the board.

Chief Justice Warren E. Burger: When you say the District Attorney decided not to prefer charges, is there anything in the record that supports that.

Mr. Robert H. Friebert: No, but it was stated in all argument to the three- judge court but I assume the transfer --

Chief Justice Warren E. Burger: Perhaps the District Attorney like others is just waiting for the outcome of this case?

Mr. Robert H. Friebert: No, --

Chief Justice Warren E. Burger: And we don't agree with you.

Mr. Robert H. Friebert: -- on the criminal case?

Chief Justice Warren E. Burger: We don't know that, this case we arguing today?

Mr. Robert H. Friebert: I think the District Attorney stated that he would only pursue revocation proceedings and they haven't proceeded I might add but that was the position that he had taken.

Now, this does not then imply anything with respect to infringement upon the APA because if the APA had been involved this kind of situation never would have occurred.

Justice Byron R. White: Does the District Attorney taken any action at all either for revocation or on the criminal charge?

Mr. Robert H. Friebert: No he is just -- he's made that public statement, the one I just indicated which was that he would not pursue criminal charges but would only pursue revocation proceedings.

Justice Byron R. White: And is the situation the same?

I know this is outside the record but I'm curious as to Dr. Keenan?

Mr. Robert H. Friebert: No, I don't know of any subsequent activity with respect to Dr. Keenan subsequent to the Supreme Courts decisions on the abortion cases.

I don't know whether he's been investigated or not though there were substantial activity with respect to this board despite restraining orders entered by Judge Doyle in the Western District of Wisconsin and even after restraining orders were entered, this board proposed to take his licensed away because he was administering abortions, which is unprofessional conduct according to 448.18.

Now, the situation as far as this is concerned with this kind of totality of integration of activities there is no way to justify it.

This does not involve economic regulation like the FTC or the SCC.

There is no urgency in this situation because there's no assertion that he is a bad doctor.

Justice William H. Rehnquist: But you said doesn't involve economic regulations.

Certainly, its regulating somebody's way of making a living, isn't it?

Mr. Robert H. Friebert: Yes.

I mean the agency is not dealing with economic regulation in the same manner the FTC does so that a decision or a mingling or some mingling within their area of expertise might be allowable under due process because we are talking about economic regulation.

Justice William H. Rehnquist: But aren't we talked but economic regulation here to?

Mr. Robert H. Friebert: The economics of Dr. Larkin's right to make a living but not in the same sense as the FTC regulates the economy or the charge given to them by Congress and therefore that the due process might allow a certain amount of inter mingling with respect to an agency like that which is not the situation here.

Chief Justice Warren E. Burger: Well, since you mention the Federal trade commission, isn't this some of the alleged conduct found by the board that is he's setting up an office under a false name, something like Miss Brandy?

Mr. Robert H. Friebert: No, that lease and all of those situations are -- it seems to say that Dr. Larkin was not a known person and that he was a fly by night doctors so to speak.

In October of 1971, everybody in the state of Wisconsin knew about Dr. Larkin, he was on the front pages of the paper and everybody knew where his clinic was.

He closed down because he thought he was being threatened with prosecution despite the 6013 decision.

In December of 1971, we commence an action in the Federal Court for restraining order against Mr. McCann the District Attorney and the Attorney General and received a restraining order in December of 1971.

Chief Justice Warren E. Burger: Petition was never denied, he is never denied, the boards determination made on sworn testimony that he opened an office in Milwaukee under a false name.

Mr. Robert H. Friebert: That I don't think that's their charged, their charges is he signed a list under a different name and that is a man signing a list there is no way that people did not know that that was Dr. Larkin's clinic and we talked about him not being available to answer for civil litigation, everybody knows that it was Dr. Larkin's clinic, there is no showing or statement under that at all.

They might add that 448.02 (4) does not prohibit a doctor from practicing in Wisconsin under an assumed name that might add that.

It's only prohibits that in any instance in which the examining board after hearing finds that such practicing under such a changed name operates unfairly computed etcetera.

So, it's only in instances after board action this is -- and that section was added in after because statute use to be flat prohibition and they put that in taking away the flat prohibition.

So it's not illegal in Wisconsin and so they really come under or try to bring him under the catch all engaging in conduct unbecoming a person license to practice or detrimental to the best interest which is another issue in the case which we haven't brought up that which is three-judge court mentioned namely that that's void for vagueness.

Chief Justice Warren E. Burger: The case is submitted.

We'll hear argument --