MR. JUSTICE WHITE delivered the opinion of the Court.
The statutes of the State of Wisconsin forbid the practice of medicine without a license from an Examining Board composed of practicing physicians. The statutes also define and forbid various acts of professional mis-conduct, proscribe fee splitting, and make illegal the practice of medicine under any name other than the name under which a license has issued if the public would be misled, such practice would constitute unfair competition with another physician, or other detriment to the profession would result. To enforce these provisions, the Examining Board is empowered under Wis. Stat. Ann. §§ 448.17 and 448.18 (1974) to warn and reprimand, temporarily to suspend the license, and "to institute criminal action or action to revoke license when it finds probable cause therefor under criminal or revocation statute. . . ."
Appellee, a resident of Michigan and licensed to practice medicine there, obtained a Wisconsin license in August 1971 under a reciprocity agreement between Michigan and Wisconsin governing medical licensing. His practice in Wisconsin consisted of performing abortions
On July 6, 1973, appellee filed his complaint in this action under 42 U. S. C. § 1983 seeking preliminary and permanent injunctive relief and a temporary restraining order preventing the Board from investigating him and from conducting the investigative hearing. The District Court denied the motion for a temporary restraining order.
On July 12, 1973, appellants moved to dismiss the complaint. On the same day, appellee filed an amended complaint in which injunctive relief was sought on the ground that Wis. Stat. Ann. §§ 448.17 and 448.18 were unconstitutional and that appellants' acts with respect to him violated his constitutional rights. The District Court again denied appellee's motion for a temporary restraining order, but did not act upon appellants' motion to dismiss. On July 30, 1973, appellants submitted an amended motion to dismiss.
On September 18, 1973, the Board sent to appellee a notice that a "contested hearing"
The Board complied and did not go forward with the contested hearing. Instead, it noticed and held a final investigative session on October 4, 1973, at which appellee's attorney, but not appellee, appeared.
On November 19, 1973, the three-judge District Court found (with an opinion following on December 21, 1973) that § 448.18 (7) was unconstitutional as a violation of due process guarantees and enjoined the Board from enforcing it. Its holding was:
Judgment was entered on January 31, 1974, by which it was "Ordered and Adjudged that § 448.18 (7), Wis. Stats., is unconstitutional and that the defendants are preliminarily enjoined until further notice from utilizing the provisions of § 448.18 (7), Wis. Stats."
Appellants took an appeal from that decision, and we noted probable jurisdiction on June 10, 1974. Subsequently, on July 25, 1974, the District Court, at the initial suggestion of appellants but joined in by a cross-motion of appellee, modified its judgment so as to withdraw
Appellants correctly assert that the District Court's initial judgment conflicted with this Court's holding in Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940), that a state statute should not be declared unconstitutional by a district court if a preliminary injunction is granted a plaintiff to protect his interests during the ensuing litigation. "The question before [the District Court] was not whether the act was constitutional or unconstitutional . . . but was whether the showing made raised serious questions, under the federal Constitution. . . and disclosed that enforcement of the act, pending final hearing, would inflict irreparable damages upon the complainants." Id., at 316. The January 31, 1974, judgment should not have declared § 448.18 (7) unconstitutional and it erroneously enjoined the Board from utilizing the section against any licensee.
The District Court, however, has subsequently modified its judgment to eliminate the declaration of unconstitutionality
We have also concluded that the amended judgment makes inappropriate extended treatment of appellants' contentions that the District Court failed to make the findings and conclusions required by Fed. Rule Civ. Proc. 52 (a), and failed to include in the order granting the injunction the reasons for its issuance as required by Rule 65 (d).
The District Court framed the constitutional issue, which it addressed as being whether "for the board temporarily to suspend Dr. Larkin's license at its own contested hearing on charges evolving from its own investigation would constitute a denial to him of his rights to procedural due process." 368 F. Supp., at 797.
Concededly, a "fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). This applies to administrative agencies which adjudicate as well as to courts. Gibson v. Berryhill,
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It 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.
Very similar claims have been squarely rejected in prior decisions of this Court. In FTC v. Cement Institute, 333 U.S. 683 (1948), the Federal Trade Commission
The Court rejected the claim, saying:
In specific response to a due process argument, the Court asserted:
This Court has also ruled that a hearing examiner who has recommended findings of fact after rejecting certain evidence as not being probative was not disqualified to preside at further hearings that were required when reviewing courts held that the evidence had been erroneously excluded. NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-237 (1947). The Court of Appeals had decided that the examiner should not again sit because it would be unfair to require the parties to try "issues of fact to those who may have prejudged them . . . ." 151 F.2d 854, 870 (CA8 1945). But this Court unanimously reversed, saying:
More recently we have sustained against due process objection a system in which a Social Security examiner has responsibility for developing the facts and making a decision as to disability claims, and observed that the challenge to this combination of functions "assumes too much and would bring down too many procedures designed,
It is not surprising, therefore, to find that "[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process . . . ." 2 K. Davis, Administrative Law Treatise § 13.02, p. 175 (1958). Similarly, our cases, although they reflect the substance of the problem, offer no support for the bald proposition applied in this case by the District Court that agency members who participate in an investigation are disqualified from adjudicating. The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.
Plainly enough, Murchison has not been understood to stand for the broad rule that the members of an administrative agency may not investigate the facts, institute proceedings, and then make the necessary adjudications. The Court did not purport to question the Cement Institute case, supra, or the Administrative Procedure Act and did not lay down any general principle that a judge before whom an alleged contempt is committed may not bring and preside over the ensuing contempt proceedings. The accepted rule is to the contrary.
Nor is there anything in this case that comes within the strictures of Murchison.
We are of the view, therefore, that the District Court was in error when it entered the restraining order against the Board's contested hearing and when it granted the preliminary injunction based on the untenable view that it would be unconstitutional for the Board to suspend appellee's license "at its own contested hearing on charges evolving from its own investigation . . . ." The contested hearing should have been permitted to proceed.
Nor do we think the situation substantially different because the Board, when it was prevented from going forward with the contested hearing, proceeded to make and issue formal findings of fact and conclusions of law asserting that there was probable cause to believe that
Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge's presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence. Nor has it been thought that a judge is disqualified from presiding over injunction proceedings because he has initially assessed the facts in issuing or denying a temporary restraining order or a preliminary injunction. It is also very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law.
Here, the Board stayed within the accepted bounds of due process. Having investigated, it issued findings and conclusions asserting the commission of certain acts and ultimately concluding that there was probable cause to believe that appellee had violated the statutes.
The risk of bias or prejudgment in this sequence of functions has not been considered to be intolerably high or to raise a sufficiently great possibility that the adjudicators would be so psychologically wedded to their complaints that they would consciously or unconsciously avoid the appearance of having erred or changed position. Indeed, just as there is no logical inconsistency between a finding of probable cause and an acquittal in a criminal proceeding, there is no incompatibility between the agency filing a complaint based on probable cause and a subsequent decision, when all the evidence is in, that there has been no violation of the statute. Here, if the Board now proceeded after an adversary hearing to determine that appellee's license to practice should not be temporarily suspended, it would not implicitly be admitting error in its prior finding of probable cause. Its position most probably would merely reflect the benefit
The initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation. Clearly, if the initial view of the facts based on the evidence derived from nonadversarial processes as a practical or legal matter foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision, a substantial due process question would be raised. But in our view, that is not this case.
That the combination of investigative and adjudicative functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high. Findings of that kind made by judges with special insights into local realities are entitled to respect, but injunctions resting on such factors should be accompanied by at least the minimum findings required by Rules 52 (a) and 65 (d).
"The examining board shall investigate, hear and act upon practices by persons licensed to practice medicine and surgery under s. 488.06, 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." § 448.17.
"A license or certificate of registration may be temporarily suspended by the examining board, without formal proceedings, and its holder placed on probation for a period not to exceed 3 months where he is known or the examining board has good cause to believe that such holder has violated sub. (1). The examining board shall not have authority to suspend a license or certificate of registration, or to place a holder on probation, for more than 2 consecutive 3-month periods. All examining board actions under this subsection shall be subject to review under ch. 227." § 448.18 (7).
Section 448.18 (1) (g) prohibits "engaging in conduct unbecoming a person licensed to practice or detrimental to the best interests of the public." Fee splitting is proscribed by § 448.23 (1). Section 448.02 (4) regulates the use of a name by a physician in his practice other than the name under which he was licensed.
Appellee maintains that he has legal and factual defenses to all charges made against him. Brief for Appellee 28-29, n. 13.
"IT IS ORDERED AND ADJUDGED that the defendants are preliminarily enjoined until further notice from utilizing the provisions of § 448.18 (7), Wis. Stats., against the plaintiff, Duane Larkin, M. D., on the grounds that the plaintiff would suffer irreparable injury if said statute were to be applied against him, and that the plaintiff's challenge to the constitutionality of said statute has a high likelihood of success." Suggestion of Mootness or in the Alternative Motion to Reconsider Appellee's Motion to Dismiss or Affirm 21-22.
Appellants also contend that appellee offered no evidence upon which injunctive relief could be based. This case, however, turns upon questions of law and not upon complicated factual issues, and the District Court has found both that appellee's challenge to § 448.18 (7) has a high likelihood of success on the merits and that appellee would be irreparably injured absent injunctive relief. If the District Court is correct in its constitutional premise that an agency which has investigated possible offenses cannot fairly adjudicate the legal and factual issues involved, then its conclusion that appellee would suffer irreparable injury by having his license temporarily suspended by such an agency is not irrational, and we will not disturb it. Cf. Gibson v. Berryhill, 411 U.S. 564, 577 n. 16 (1973).
Finally, we do not agree with appellants' contention that the District Court should have entirely refrained from deciding the merits of this case and from interfering with the state administrative proceeding. Id., at 575-577.
Under 28 U. S. C. §§ 2281 and 2284, a three-judge district court is required for entering a preliminary or permanent injunction against the enforcement of a state statute on the grounds of the unconstitutionality of the law. That requirement includes preliminary injunctions against enforcement of state statutes based on "a high likelihood of success" of the constitutional challenge to the statutes. See Brown v. Chote, 411 U.S. 452 (1973); Goldstein v. Cox, 396 U.S. 471 (1970); Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940).
"[W]e cannot say that the mere fact that a tribunal has had contact with a particular factual complex in a prior hearing, or indeed has taken a public position on the facts, is enough to place that tribunal under a constitutional inhibition to pass upon the facts in a subsequent hearing. We believe that more is required. Particularly is this so in the instant case where the Board's prior contact with the case resulted from its following the Congressional mandate to investigate and report the probable cause of all civil air accidents." Id., at 358.
See also Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (CA4 1974); Kennecott Copper Corp. v. FTC, 467 F.2d 67, 79-80 (CA10 1972), cert. denied, 416 U.S. 909 (1974); Intercontinental Industries v. American Stock Exchange, 452 F.2d 935 (CA5 1971), cert. denied, 409 U.S. 842 (1972); FTC v. Cinderella Career & Finishing Schools, Inc., 131 U. S. App. D. C. 331, 338, 404 F.2d 1308, 1315 (1968); Skelly Oil Co. v. FPC, 375 F.2d 6, 17-18 (CA10 1967), modified on other grounds sub nom. Permian Basin Area Rate Cases, 390 U.S. 747 (1968); Safeway Stores, Inc. v. FTC, 366 F.2d 795, 801-802 (CA9 1966), cert. denied, 386 U.S. 932 (1967); R. A. Holman & Co. v. SEC, 366 F.2d 446, 452-453 (CA2 1966), cert. denied, 389 U.S. 991 (1967); SEC v. R. A. Holman & Co., 116 U. S. App. D. C. 279, 323 F.2d 284, cert. denied, 375 U.S. 943 (1963).
Those cases in which due process violations have been found are characterized by factors not present in the record before us in this litigation, and we need not pass upon their validity. In American Cyanimid Co. v. FTC, 363 F.2d 757 (CA6 1966), one of the commissioners had previously served actively as counsel for a Senate subcommittee investigating many of the same facts and issues before the Federal Trade Commission for consideration. In Texaco, Inc. v. FTC, 118 U. S. App. D. C. 366, 336 F.2d 754 (1964), vacated on other grounds, 381 U.S. 739 (1965), the court found that a speech made by a commissioner clearly indicated that he had already to some extent reached a decision as to matters pending before that Commission. See also Cinderella Career & Finishing Schools, Inc. v. FTC, 138 U. S. App. D. C. 152, 158-161, 425 F.2d 583, 589-592 (1970). Amos Treat & Co. v. SEC, 113 U. S. App. D. C. 100, 306 F.2d 260 (1962), presented a situation in which one of the members of the Securities and Exchange Commission had previously participated as an employee in the investigation of charges pending before the Commission. In Trans World Airlines v. CAB, 102 U. S. App. D. C. 391, 254 F.2d 90 (1958), a Civil Aeronautics Board member had signed a brief in behalf of one of the parties in the proceedings prior to assuming membership on the Board. See also King v. Caesar Rodney School District, 380 F.Supp. 1112 (Del. 1974).
For state-court decisions dealing with issues similar to those involved in this case, see Koelling v. Board of Trustees, 259 Iowa 1185, 146 N.W.2d 284 (1966); State v. Board of Medical Examiners, 135 Mont. 381, 339 P.2d 981 (1959); Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248 (1954). See also LeBow v. Optometry Examining Board, 52 Wis.2d 569, 575, 191 N.W.2d 47, 50 (1971); Kachian v. Optometry Examining Board, 44 Wis.2d 1, 13, 170 N.W.2d 743, 749 (1969).
"An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply—
"(A) in determining applications for initial licenses;
"(B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or
"(C) to the agency or a member or members of the body comprising the agency."
See also 2 K. Davis, supra, §§ 13.06-13.07.
The question of the constitutionality of combining in one agency both investigative and adjudicative functions in the same proceeding was raised but did not require answering in Gibson v. Berryhill, 411 U. S., at 579 n. 17.