Board Disqualification to Decide Medicine License Suspension Hearing

In Withrow v. Larkin (1975) 421 U.S. 35, the Wisconsin medical examiner conducted a preliminary investigation, hearing testimony concerning a Dr. Larkin. The medical examiner then sent the doctor a notice of a hearing at which it would be determined whether his license to practice medicine should be suspended. Larkin sought relief from the federal district court, contending the board's action deprived him of a fair hearing. The district court found that the board was disqualified to decide his case. The United States Supreme Court reversed, finding that the board was not disqualified from conducting the hearing or making the decision on his license. While "a biased decisionmaker is constitutionally unacceptable," the crucial issue for the court was as follows: "The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication . . . must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." (Withrow, supra, 421 U.S. at p. 47 [95 S. Ct. at 1464].) After analyzing the combination of investigative, charging and adjudicatory functions carried out by the board, the court held: "The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing." (Withrow, supra, 421 U.S. at p. 55 [95 S. Ct. at p. 1468].) Withrow stands for the proposition that advance knowledge of adjudicative facts that are in dispute, as well as participation in the charging function, does not disqualify the members of an adjudicatory body from adjudicating a dispute; nor does the combination of such functions disqualify them from: (1) determining that further investigation is warranted; (2) issuing the order to appear; (3) making the ultimate decision after hearing on the merits. The teaching of Withrow is that there must be more, a commitment to a result (albeit, perhaps, even a tentative commitment), before the process will be found violative of due process.