Frank v. State By and Through Wyoming Bd. of Dental Examiners, 97-133

• Decision Date: 25 September 1998
• Docket Number: No. 97-133,97-133
• Citation: 965 P.2d 674
• Parties: Timothy M. FRANK, D.D.S., Appellant (Petitioner/Plaintiff), v. STATE of Wyoming, acting By and Through the WYOMING BOARD OF DENTAL EXAMINERS, Appellee (Respondent/Defendant).
• Court: Wyoming Supreme Court

Page 674

965 P.2d 674

Timothy M. FRANK, D.D.S., Appellant (Petitioner/Plaintiff), v. STATE of Wyoming, acting By and Through the WYOMING BOARD OF DENTAL EXAMINERS, Appellee (Respondent/Defendant).

No. 97-133.

Supreme Court of Wyoming.

Sept. 25, 1998.

Paul K. Knight of Mullikin, Larson & Swift, LLC, Jackson, for Appellant (Petitioner/Plaintiff).

William U. Hill, Attorney General; Michael L. Hubbard, Deputy Attorney General; and John S. Burbridge, Assistant Attorney General, Cheyenne, for Appellee (Respondent/Defendant).

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

TAYLOR, Justice.

Appellant questions the Wyoming Board of Dental Examiners' denial of his request for a license to practice dentistry. Appellant claims the Board of Dental Examiners violated both statute and his constitutional rights by refusing to grant reciprocity and by accepting only one regional clinical examination for licensure in Wyoming. Appellant now challenges the district court's opinion affirming the Board of Dental Examiners' decision and the district court's refusal to allow appellant to supplement the record on appeal. Finding no error, we affirm.

I. ISSUES

Appellant, Dr. Timothy M. Frank (Dr. Frank), presents the following issues for review:

I. Whether the Board's action in denying Dr. Frank's application to practice dentistry was arbitrary and capricious, an abuse of discretion and unsupported by substantial evidence since Dr. Frank met the statutory requirements to practice dentistry in Wyoming and since the Board members failed to follow the legislative directives provided to them in the Wyoming Dental Practices Act?

II. Whether the Board's action in denying a license to Dr. Frank violated his constitutional rights to equal protection, due process and privilege and immunities under the federal and Wyoming Constitutions?

III. Whether the district court erred in denying Dr. Frank's application for presentation of additional evidence since it had the authority to direct the Board to review additional evidence where such evidence is material and there is good cause for failing to have presented at the administrative hearing.

Appellee, the Wyoming Board of Dental Examiners (Board), responds with these issues:

I. Whether the Board's decision to deny Frank's application for licensure by reciprocity is supported by substantial evidence of record.

II. Is the Board's decision arbitrary, capricious, an abuse of discretion or otherwise contrary to the law.

III. Whether the Board violated Frank's constitutional right to due process of law, equal protection or privileges and immunities under the Commerce Clause.

IV. Did the district court err in not allowing Frank to present additional evidence after the filing of the Board's reply brief.

II. FACTS

The parties agree to the relevant facts of this case. On March 31, 1995, Dr. Frank submitted an application requesting licensure by reciprocity to practice dentistry in Wyoming. Dr. Frank later requested licensure based upon his current qualifications. From 1985 to the time of his request for licensure in Wyoming, Dr. Frank held a dental license, in good standing, in the state of Washington and previously in the state of Tennessee. At no time during his career had Dr. Frank been the subject of any disciplinary action or malpractice claims. Dr. Frank had successfully passed the Southern Regional Testing Agency Dental Examination, the Washington State Dental Licensing Examination, and Parts I and II of the National Board of Dental Examinations.

On June 12, 1995, the Board denied Dr. Frank's application because he had not taken the Central Regional Dental Testing Service Examination (CRDTS), the professional clinical examination required for licensure in Wyoming. On August 30, 1995, the Board wrote Dr. Frank explaining why it would not grant reciprocity and informing him the CRDTS is the only test the Board accepts. Dr. Frank requested a hearing on the matter, which was held on January 19, 1996. The Board issued its decision on March 6, 1996, denying Dr. Frank's request for licensure because he had not completed an accepted examination and no reciprocity agreement existed between Washington and Wyoming.

Dr. Frank petitioned the district court to review the Board's decision, claiming the decision was contrary to Wyo. Stat. § 16-3-114(c)(i) and (ii) (1997) and the denial of a license to practice his profession violated his constitutional rights. On March 3, 1997, Dr. Frank filed an application for presentation of additional evidence, seeking supplementation of the record with an "Overview of the CRDTS Dental Examination," his results from the Southern Regional Testing Agency, and an Information Packet from the Washington State Dental Licensing Board for 1986. On March 14, 1997, the district court issued its decision affirming the Board's actions and denying Dr. Frank's application to present additional evidence. This timely appeal followed.

III. STANDARD OF REVIEW

Our standard of review of agency decisions has been set forth as follows:

Wyoming Rules of Appellate Procedure 12 provides for judicial review of agency actions. Rule 12.09(a) limits the extent of review to determination of matters specified in W.S. 16-3-114(c). That statute requires reviewing courts to hold unlawful and set aside agency action, findings and conclusions found to be:

"(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; [or]

* * * * * *

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute."

W.S. 16-3-114(c)(ii). We review the agency decision de novo, according no deference to the district court's decision. * * *

"Our task is to examine the entire record to determine if substantial evidence exists to support the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner if his decision is supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions."

Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo.1993). In reviewing questions of law, however, we do not defer to the agency's decision. If the conclusion of law is in accordance with law, we affirm it; if it is not, we correct it.

Heiss v. City of Casper Planning and Zoning Com'n, 941 P.2d 27, 29 (Wyo.1997). The actions of the agency are presumed to be correct, and it is the appellant's burden to show that the agency did not comply with the law. Butts v. Wyoming State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996).

IV. DISCUSSION

A. STATUTORY CLAIMS

Dr. Frank contends that the Board's refusal to accept regional examinations other than the CRDTS is arbitrary and capricious. Wyo. Stat. § 33-15-108(a) (1997) contains the qualifications for licensure in Wyoming:

(a) Any person of good moral character, who has been graduated and admitted to the degree of doctor of dental surgery, doctor of dental medicine from a college or university accredited by the American Dental Association, or other equivalent degree by any accredited university or college authorized to grant the degree by the laws of the United States or by the laws of any state of the United States or Dominion of Canada, upon deposit of the examination fee set by the board, may make application in writing to the board to be examined by it with reference to his qualifications to practice dentistry. The applicant shall pass a written and practical examination in a manner satisfactory to the board.

(Emphasis added.) The Board found that Dr. Frank had completed the written requirement by passing Parts I and II of the National Board of Dental Examinations, but his failure to complete the CRDTS as a practical examination precluded licensure. Dr. Frank argues that because the statute does not require the Board to designate one regional examination over another, the Board's designation of the CRDTS arbitrarily discriminates against substantially similar examinations.

At the hearing, testimony established that the Board chose the CRDTS examination because it most thoroughly tests competence in dentistry. Dr. Frank presented no contradictory evidence. Neither did he present evidence that the tests he had taken were equivalent to the CRDTS. Given the Board's broad discretion afforded by the legislature to determine the proper written and practical examinations for licensure in Wyoming, we find no abuse of that discretion in requiring an applicant to pass an examination, which in the Board's estimate, best tests the qualifications of the applicant.

Dr. Frank next challenges the Board's refusal to grant a license on the basis of reciprocity. Reciprocity is governed by Wyo. Stat. § 33-15-122 (1997), which provides:

The board may accept by reciprocity, upon payment of a registration fee determined by the board, the license of a dentist who was licensed in another state or territory of the United States if the license requirements of that state or territory were as great or greater than those of Wyoming when that license was granted. Reciprocity may only be granted to dentists from those states which grant reciprocity to dentists licensed in Wyoming.

(Emphasis added.)

Dr. Frank argues that the Board categorically denies reciprocity, despite the statutory grant of such authority, and therefore its actions are an abuse of discretion and an ultra vires limitation of statutory power. Whether the Board denies reciprocity to other candidates is of no event in this case because Dr. Frank did not qualify for reciprocity. It is undisputed that Washington does not grant reciprocity solely on the basis of a Wyoming license. Washington grants reciprocity to Wyoming dentists only if they have completed the Western Regional Dental Testing Service Examination or the CRDTS prior to 1995. Dr. Frank has not completed either of these examinations. Consequently, no abuse of...