Richardson v. Tennessee Bd. of Dentistry

Decision Date28 December 1995
Citation913 S.W.2d 446
PartiesHarold RICHARDSON, Petitioner/Appellee, v. TENNESSEE BOARD OF DENTISTRY, Respondent/Appellant.
CourtTennessee Supreme Court

Charles W. Burson, Attorney General & Reporter, Michael E. Moore, Solicitor General, Sue A. Shelton, Assistant Attorney General, Nashville, for Appellant.

Michael M. Castellarin, Moody, Whitfield & Castellarin, Nashville, for Appellee.


WHITE, Justice.

At issue in this appeal by the Board of Dentistry is the validity and constitutionality of a proposed civil penalty against Harold Richardson for practicing dentistry and operating a dental clinic without a license. Also called into question is the authority of the Davidson County Chancery Court to resolve, on judicial review of an administrative order, constitutional issues that were not addressed in the administrative order. For the reasons that follow, we hold that the Chancery Court has jurisdiction to consider constitutional issues not addressed in the administrative proceeding. As a result, the Chancery Court's resolution of those issues in the first Chancery Court proceeding from which Richardson did not appeal, bars consideration of those issues. The judgment of the Court of Appeals is, therefore, reversed, and this matter is remanded to the Board of Dentistry for further proceedings.


In 1989, the General Assembly enacted Tennessee Code Annotated Section 63-1-134 authorizing health related boards to assess civil penalties against unlicensed practitioners in health related professions. The legislation required each board to establish minimum and maximum civil penalties which could be assessed. The Tennessee Board of Dentistry, a state administrative board responsible for licensing, regulating, and disciplining dentistry practitioners in Tennessee under Tennessee Code Annotated Sections 63-5-101, et seq., established a "Schedule of Civil Penalties" which became effective on March 15, 1990. See Rules 0460-14-1-.01, -.02.-.03, Rules of Tennessee Board of Dentistry, Chapter 0460-14-1, "Civil Penalties."

On June 26, 1990, the Board served Richardson with a Notice of Charges and Memorandum of Civil Penalty Assessment charging him with practicing dentistry and with operating a dental clinic without a license in violation of Tennessee Code Annotated Sections 63-5-107 and 63-5-121. 1 The notice alleged that Richardson, who did not hold a license to practice dentistry in Tennessee, had since 1986, owned and operated the Budget Dental Laboratory and the Madison Dental Center in Nashville, Tennessee. The notice charged fifty-seven consecutive violations of owning and operating a dental practice occurring between March 15, 1990 and June 8, 1990 and at least ten acts of practicing dentistry. For ownership of the dental practice for fifty-seven days and for the ten incidents of practicing dentistry without a license, the Board sought to impose the maximum penalty of $38,500. 2 The Board of Dentistry set a contested case hearing for September 21, 1990.

On August 6, 1990, Richardson filed a Petition for Declaratory Order with the Board raising numerous state and federal constitutional challenges. 3 See Tenn.Code Ann. §§ 4-5-223--24 (1991 Repl.). He attacked the constitutionality of Section 63-1-134, the civil penalty assessment statute, on several grounds. 4 Since the statute punished by civil penalty the same acts made criminal by the criminal code, Richardson challenged the authority of the Board, a part of the executive rather than the judicial branch, to hear the case, alleging that the procedure would violate the separation of powers doctrine. He challenged the statute on its face as being violative of due process in its vagueness and its denial of a jury trial since it assessed a fine in excess of $50. He also questioned whether the statute authorized the Board to fine or punish a private citizen who is not and has never been a license holder.

On November 28, 1990, the Board convened a hearing to consider Richardson's Petition for a Declaratory Order. The Secretary of State assigned an Administrative Law Judge to make procedural and evidentiary rulings and to resolve questions of law. The judge ruled that the Board was not authorized to consider the arguments on the constitutionality of the statute or the arguments that the statute as applied was unconstitutional, but was to consider a single issue: whether the statute authorized the assessment of a civil penalty against persons that are required to be, but are not, licensed.

In its Declaratory Order filed on December 28, 1990, the Board answered the question affirmatively. Specifically, the Board held that (1) it was without jurisdiction to consider federal or state constitutional challenges to the statute or its application; (2) the statute applies to persons required to be licensed by the Board to practice dentistry, regardless of whether they are licensed; and (3) in the event the allegations against Richardson were established, civil penalties could be assessed.

Richardson sought judicial review of the Declaratory Order in the Davidson County Chancery Court. His Petition for Review raised the constitutional challenges to the statute and its application and questioned the authority of the Board to assess a civil penalty against an unlicensed citizen. Additionally, the petition attacked the administrative law judge's ruling prohibiting the Board from considering the constitutional issues as arbitrary, capricious, and illegal.

After allowing briefing and oral argument, the chancellor issued an order affirming the Board action. The chancellor defined the issue before the court as "whether the order of the Board is in violation of constitutional provisions, arbitrary, capricious, illegal or in excess of statutory authority." The chancellor found that the statute authorized criminal and civil sanctions and that, in this case, the Board was pursuing a civil rather than a criminal remedy. Therefore, there were no constitutional violations. Additionally, the chancellor found that the Board was authorized to assess a civil penalty against an unlicensed person. Finally, the chancellor found no basis for Richardson's claim that the Board action was arbitrary, capricious, illegal, or in excess of statutory authority.

Richardson sought first an interlocutory appeal. The chancellor denied the motion finding his order to be a final order, not an interlocutory order. Next, Richardson sought an extraordinary appeal which was denied by the Court of Appeals.

After filing his Petition for a Declaratory Order, but prior to the resolution of those issues in the Davidson County Chancery Court, Richardson filed a Motion to Dismiss with the Board restating his constitutional challenges. 5 This motion was still pending when the assistant general counsel for the State of Tennessee served a Request for Admissions. The request sought admissions which would have established that Richardson owned a dental practice and had practiced dentistry without a license at the times alleged in the notice. Shortly thereafter, the state filed a Motion in Limine asking that Richardson be precluded from arguing constitutional issues or from asserting his privilege against self-incrimination. Eventually, the state filed a Motion to Compel Discovery.

In October 1992, a second administrative law judge presided at a conference concerning the pending motions. After considering argument, the administrative law judge denied the Motion to Dismiss and granted both the Motion to Compel Discovery and the Motion in Limine. The judge found that the Board was not exercising concurrent jurisdiction with a criminal court in assessing a civil penalty and that the Board was not authorized to rule on constitutional issues. As to Richardson's privilege against self-incrimination, the judge deemed it inapplicable since the statute of limitations had expired on any possible criminal liability and since the Board was seeking only a civil penalty. 6

Richardson appealed a second time to the Davidson County Chancery Court. In the Petition for Review, Richardson requested the reversal of the administrative law judge's order and a dismissal of the charges against him. The state defended on the basis that Richardson's claims were barred by res judicata or collateral estoppel as a result of the first chancery proceeding and requested a supplementation of the record with the former record which was ultimately granted.

After hearing argument, the chancellor held that the constitutional issues had been determined in the first chancery case and affirmed the order of the administrative law judge in full without discussion of Richardson's self-incrimination claim. This time, Richardson appealed the Chancery Court's judgment to the Court of Appeals pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.

In the Court of Appeals, Richardson raised nine issues including the constitutional challenges to the Board's authority, the self-incrimination issue, the Board's statutory authority to assess a penalty, the Board's refusal to hear argument concerning the proper interpretation of Section 63-1-134, and the supplementation of the record with that from the prior chancery proceeding. The state argued that Richardson was barred from raising the constitutional issues because he had not appealed the prior Chancery Court order.

The appellate court held that the record in the prior chancery proceeding was properly supplemented in support of the state's defense. Nonetheless, the court rejected the defense since it found that the chancery ruling on the constitutional issues was "without appropriate pleading ..., coram non judice and void." The court held that only the portion of the judgment pertaining to the statute's applicability to unlicensed persons was valid. Finally, the court held that Tennessee Code Annotated Section 63-1-134 is unconstitutional to the extent it authorizes any...

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