Butler v. Tenn. Bd. of Nursing
| Decision Date | 25 October 2016 |
| Docket Number | No. M2016-00113-COA-R3-CV,M2016-00113-COA-R3-CV |
| Parties | JACK WAYNE BUTLER v. TENNESSEE BOARD OF NURSING |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Davidson County
Ellen H. Lyle, Chancellor
An applicant for a nursing license filed a petition for a writ of certiorari regarding the decision of the Tennessee Board of Nursing to deny his license. The trial court ruled: (1) that the applicant was not entitled to a contested case prior to the denial of his initial nursing license; (2) that the Tennessee Board of Nursing correctly found that the applicant's license could be denied due to his "fraud or deceit" in his efforts to procure his license; and (3) that the Tennessee Board of Nursing could not rely on an expunged conviction to establish the statutory ground of "guilty of a crime." Both parties appeal. Discerning no error, we affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. Gary Blackburn and Raymond Throckmorton, Nashville, Tennessee, for the appellant, Jack Wayne Butler.
Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor General; Sue A. Sheldon, Senior Counsel, for the appellee, Tennessee Board of Nursing.
OPINIONIn December of 2013, Petitioner/Appellant Jack Wayne Butler ("Appellant") applied for licensure as a registered professional nurse by examination to the Defendant/Appellee Tennessee Board of Nursing ("the Board"). In his application, Appellant asserted that he had obtained his baccalaureate degree in nursing in the same month. The application for licensure contained the following question: "Have you ever been convicted of or plead guilty to a misdemeanor or felony other than a minor traffic violation?" If the answer to the above question was in the affirmative, the applicant was required to submit certified copies of the warrants, judgments, and/or convictions, evidence of completion of all requirements, as well as a letter "that describes the circumstances that resulted in arrest and conviction." Appellant indicated in his application that he had been convicted of a misdemeanor or felony.
Although the record is not clear as to whether it was attached to his initial application, at some point, Appellant sent the Board a letter in an effort to explain his criminal conviction. In the letter, Appellant stated that he pleaded nolo contendere to a misdemeanor charge in Oklahoma in 1994. In the letter, among other things, Appellant alleged that he was arrested because a woman in his past: (1) coaxed her thirteen year old daughter into accusing Appellant of kissing her; and (2) coaxed the daughter's friend into claiming that she witnessed the incident. Allegedly, in exchange, the woman promised to give the girls "all the drugs, alcohol, money, and boys" that they wanted. As discussed in detail infra, the letter contained additional allegations, including an assault against him, two extortion plots, and the death of Appellant's mother. According to Appellant's letter, as a result of this series of events, he pleaded nolo contendere to the charge of "outraging the public decency." Appellant also submitted to the Board a certified copy of a "Court Minute" from Cleveland County, Oklahoma. The Court Minute showed that Appellant pleaded nolo contendere to the reduced charge of outraging public decency and received a one-year suspended sentence. According to the administrative record, Appellant informed the Application Review Committee ("ARC"), an arm of the Board charged with reviewing applications, that he could not obtain any other records regarding his conviction.
On January 16, 2014, the Board sent a letter to Appellant informing him that he was required to appear personally before the ARC and bring certified copies of, inter alia, citations and judgments. Appellant's appearance before the ARC occurred as scheduled on January 30, 2014; Appellant appeared personally and was not represented by counsel at that time. On or around January 22, 2014, a Board member was able to obtain additional documents regarding Appellant's charge and conviction in Oklahoma. The documents indicated that Appellant had been arrested in December 1994 and was initially charged with two counts of a serious felony. As previously discussed, however, Appellant eventually pleaded nolo contendere to one misdemeanor charge of outraging public decency.
On January 31, 2014, the ARC sent a letter to Appellant informing him that it would recommend denial of his application to the Board at a later meeting based upon the statutory grounds of: (1) guilty of a crime; and (2) guilty of fraud or deceit in attempting to procure a license. See Tenn. Code Ann. § 63-7-115(a)(1) ().
Thereafter, Appellant obtained counsel and requested that he be permitted an opportunity to present additional evidence from individuals involved in Appellant's arrest and plea in Oklahoma. Appellant's counsel indicated that he was confident that he would be able to obtain the necessary evidence by the Board's meeting in April 2014. On February 7, 2014, Appellant's counsel sent an additional letter to the Board indicating his efforts to obtain additional evidence and noting that he and his client were pursuing the option of expunging the conviction in Oklahoma. On March 6, 2014, Appellant's counsel sent another letter to the Board indicating Appellant's desire to withdraw his application for licensure as a registered nurse.
On March 17, 2014, the ARC again sent Appellant a letter informing him of its decision to recommend denial of his licensure application. The letter indicated that the decision would be made by the Board at its May 15, 2014 meeting and that both Appellant and his counsel were free to attend. The letter did not specifically mention Appellant's request to obtain additional proof or his request to withdraw his application. As such, on March 26, 2014, Appellant's counsel again wrote the Board to request withdrawal of Appellant's application. On April 4, 2014, the Board responded by letter that it did not believe that it was required to allow Appellant to withdraw his application, as the application had already become public record.
On April 14, 2014, Appellant filed an application in Davidson County Chancery Court for emergency judicial review of the ARC's refusal of his request to withdraw his application and to enjoin the Board from considering his application. On August 15, 2014, Appellant's application for emergency review was dismissed based upon Appellant's failure to exhaust his administrative remedies.
In the meantime, the ARC sent Appellant a letter on August 6, 2014, regarding Appellant's request for additional information regarding the ARC's finding of fraud or deceit. According to the ARC, as discussed in detail, infra, it based its findings largely on Appellant's letter detailing the bizarre series of events upon which Appellant placed the blame for his criminal conviction, which the Board found deceitful.
Appellant again appeared before the Board, this time represented by counsel, on August 21, 2014. At that time, the Board agreed to defer consideration of Appellant's application until its December 4, 2014 meeting. On December 4, 2014, the Board finally considered Appellant's application. Appellant and his counsel appeared and presented an Order of Expungement filed on December 4, 2014, by the Cleveland County, Oklahoma district court. Both Appellant and his counsel were allowed to address the Board. Nevertheless, at the conclusion of the meeting, the Board voted to affirm the ARC's recommendation and deny Appellant's application. The decision was confirmed in writing by letter dated December 8, 2014. The letter specifically stated that the denial of Appellant's license was based upon the Board's finding that Appellant had been foundguilty of a crime and that he had committed fraud or deceit in the procurement of his license.
Thereafter, Appellant filed a Petition for Common Law Writ of Certiorari or, in the Alternative, Petition for Judicial Review of Administrative Decision under the Uniform Administrative Procedures Act ("UAPA"). Because no contested case was conducted, the trial court reviewed the Board decision denying Appellant's application for licensure pursuant to the common law writ of certiorari. Appellant challenged the Board's decision on the grounds that: (1) due process required that he be provided a contested case hearing prior to denying his application; and (2) denial of the license was erroneous because it was based on an expunged criminal conviction. On February 2, 2015, the trial court granted the writ of certiorari and ordered the administrative record be transmitted to the clerk. The administrative record was duly filed on May 12, 2015.
On November 17, 2015, the trial court entered a memorandum and order affirming the Board's denial of licensure and dismissing Appellant's petition. The trial court first concluded that a contested case was not required for the Board to deny Appellant's request for initial licensure. Further, the trial court found that Appellant received the necessary process required to satisfy both substantive and procedural due process because he had the opportunity to, and did, appear before both the ARC and the Board on at least three separate occasions. Next, the trial court found that, under Miller v. Tennessee Board of Nursing, 256 S.W.3d 225 (Tenn. Ct. App. 2007), the expunction removed evidence that Appellant was "guilty of a crime"; the trial court therefore ruled that the Board's denial of Appellant's application based on this ground was arbitrary, capricious, and illegal.1 The trial court, however, concluded that the Board could consider Appellant's letter sent in connection...
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