Ness v. State
| Decision Date | 04 May 2022 |
| Docket Number | S-17927 |
| Parties | DOUGLAS G. NESS, D.D.S., Appellant, v. STATE OF ALASKA, BOARD OF DENTAL EXAMINERS, Appellee. |
| Court | Alaska Supreme Court |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3AN-06-08587 CI of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth Judge.
Douglas G. Ness, pro se, National City, California Appellant.
Harriet D. Milks, Senior Assistant Attorney General, and Treg R. Taylor, Attorney General, Juneau, for Appellee.
Before: Winfree, Chief Justice, and Maassen, Borghesan, and Henderson, Justices.
[Carney, Justice, not participating.]
Fourteen years after the Alaska Board of Dental Examiners imposed a five-year period of probation on a dentist, he asked the Board to take him off probationary status. The Board denied his request, and the dentist filed a motion in superior court seeking a ruling that the probationary period was satisfied. The superior court denied the motion on the ground that the dentist had not yet exhausted his administrative remedies. We affirm. But because the Board did not give the dentist timely notice of his right to an administrative hearing, we remand this case to the superior court with instructions that it direct the Board to provide the dentist 30 days in which to request an administrative hearing.
Another dental professional reported Dr. Douglas Ness to the Board of Dental Examiners because of complications from a 2002 dental surgery. In 2006 the Board sanctioned Dr. Ness by imposing a four-month suspension from practice, a $20, 000 fine, a requirement of continuing ethics education, and the probationary term central to this appeal: "probation for a period of five years after the preceding conditions are fulfilled during which time his office records will be subject to a random audit by the board or its designee in each of the probation years."
Dr. Ness appealed the suspension and fine - but not the probationary period or education requirement - to the superior court. In 2008 the superior court reversed the Board's decision to impose the suspension, and the Board appealed to this court. We concluded that the superior court had erred, and we remanded the case to the Board for reconsideration; on reconsideration the Board reinstated the suspension.
Dr. Ness served the suspension, completed the education requirement, and paid the fine. He then moved away from Alaska and has not practiced in the state since. There is nothing in the record to indicate that the Board ever attempted to exercise its right to audit his office records.
Dr. Ness, now practicing in California, at some point learned that he was still publicly listed as being on probation in Alaska, and in January 2020 he wrote the Board asking that it remove the probationary status on his license as having been fully satisfied. Receiving no response, he wrote the Board again in February. An investigator for the Board responded in March, informing Dr. Ness that the Board had considered his request at its quarterly meeting and denied it. The investigator explained, "Based on your inability to comply with the random audit requirement of the license probation, any periods of time you were out of state do[] not count towards the five-year probation." The investigator wrote that Dr. Ness could contact her for "additional assistance" but did not inform him of any administrative appeal rights.
The Board sent Dr. Ness a corrected letter in July which reiterated its decision but this time informed him that he was "entitled to a hearing on the Board's denial of [his] request through the Alaska Office of Administrative Hearings" as long as his request came within 15 days. In the meantime, however, Dr. Ness had filed a motion in superior court entitled "Respondent's Motion to Compel Discharge of Probation Order as Fully Satisfied," using the case number of the 2006 administrative appeal. Citing Alaska Civil Rule 60(b), [1] Dr. Ness argued that the superior court had the power to discharge his probation because the matter arose out of its 2008 order, and that Rule 60(b) granted the court "equitable jurisdiction to address and correct orders." He further argued that he had exhausted all other options because the Board "refused to address the matter in a substantive manner." On the merits, Dr. Ness argued that nothing in the Board's original sanctions order required that he serve his probationary period in Alaska and that a potentially unending probationary period violated his right to due process.
The superior court denied Dr. Ness's motion, holding that Civil Rule 60(b) did not apply because the Administrative Procedure Act (APA) required additional proceedings before he could seek relief from the court. The court explained that the 2008 order in the earlier superior court proceedings was "an affirmation of the Board's decision (emphasis in original), and that Dr. Ness had been placed on probation under the Board's authority, not the court's. The court reasoned that it did not have the "authority to make decisions such as the requirements for satisfying probationary terms for dental licenses" and that "[s]uch decisions are left to the expertise of the agency." The court concluded that superior court was "not the proper venue to seek relief before administrative remedies have been exhausted," reasoning in the alternative that if Rule 60(b) did apply, "12 years [had] passed since the issuing of the order Dr. Ness seeks relief from" and the motion was untimely as a matter of law.
Dr. Ness appeals the superior court's denial of his motion to deem the probationary period fully satisfied.
[2]
Dr. Ness argues that the superior court had the power to set aside his probationary term under Rule 60(b) because the issues he raised were questions of law, not dentistry, and therefore he was not required to exhaust his administrative remedies before appealing to the superior court. But we agree with the Board that the superior court correctly characterized Dr. Ness's action as an administrative appeal. The probation sanction Dr. Ness challenges was imposed by the Board; the 2008 superior court order did not even address it, as the only issues on that appeal were the fine and the suspension. Civil Rule 60(b) does not apply because Dr. Ness is not asking for relief from a court order but rather from the Board's interpretation of its own probation sanction. Principles of administrative review - including the requirement that administrative remedies be exhausted before judicial review is available - therefore apply.[3]
The APA sets out procedures for contesting agency decisions authorizing superior court review of only "final administrative order[s]."[4] Dr. Ness was entitled to a hearing following his receipt of the Board's March 2020...
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