Richardson v. Tennessee Bd. of Dentistry
Annotate this Case IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
HAROLD RICHARDSON, ) FOR PUBLICATION
)
Petitioner/Appellee, ) Filed: December 28. 1995
)
vs. ) Davidson Chancery
)
TENNESSEE BOARD OF ) Hon. C. Allen High, Chancellor
DENTISTRY, )
) No. 01S01-9502-CH-00027
Respondent/Appellant. )
For Appellant: For Appellee:
Charles W. Burson Michael M. Castellarin
Attorney General & Reporter Moody, Whitfield &
Castellarin
Michael E. Moore Nashville, TN
Solicitor General
Sue A. Shelton
Assistant Attorney General
Nashville, TN
OPINION
JUDGMENT OF COURT OF APPEALS WHITE, J.
REVERSED & CASE REMANDED
TO TENNESSEE BOARD OF DENTISTRY
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.
I
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."
2
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
1
63-5-107. License requirement. -- (a) It is unlawful for any person to practice
dentistry, a specialty in dentistry or dental hygiene in this state, except those who are now
licensed or certified as such pursuant to law and those who may hereafter be licensed or
certified and registered pursuant to this chapter. Tenn. Code Ann. § 63-5-107(a) (1995
Supp.)
63-5-121. Dental practice to be owned by dentist. -- Except where dental services are
regularly made available to employees by their employer, or where dental services are
being provided by an official agency of the state government, or any subdivision, any
nonprofit organization, hospital or any health maintenance organization, it is unlawful:
...
(2) For an owner of an active dental practice to be other than a dentist duly
licensed to practice in this state. Tenn. Code Ann. § 63-5-121(2) (1990 Repl.).
2
The maximum penalty for owning the dental practice was $500 per day. The maximum
penalty for practicing without license was $1,000 per day.
3
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.
3
Richardson also filed a Motion to Dismiss which was answered, but not ruled upon at
this juncture.
4
63-1-134. Penalty for violation of statute, rule or order. -- Recovery. -- (a) With
respect to any person required to be licensed, permitted or authorized by any board,
commission or agency attached to the division of health related boards, each respective
board, commission or agency may assess a civil penalty against such person in an
amount not to exceed one thousand dollars ($1,000) for each separate violation of a
statute, rule or order pertaining to such board, commission or agency. Each day of
continued violation constitutes a separate violation.
(b) Each board, commission or agency shall by rule establish a schedule
designating the minimum and maximum civil penalties which may be assessed under this
section. In assessing civil penalties, the following factors may be considered:
(1) Whether the amount imposed will be a substantial economic deterrent
to the violator;
(2) The circumstances leading to the violation;
(3) The severity of the violation and the risk of harm to the public;
(4) The economic benefits gained by the violator as a result of
noncompliance; and
(5) The interest of the public.
(c) (1) Civil penalties assessed pursuant to this section shall become final
thirty (30) days after the date a final order of assessment is served.
(2) If the violator fails to pay an assessment when it becomes final, the
division may apply to the appropriate court for a judgment and seek execution of such
judgment.
(3) Jurisdiction for recovery of such penalties shall be in the chancery
court of Davidson County, or the chancery court of the county in which all or part of the
violations occurred.
(d) All sums recovered pursuant to this section shall be paid into the state
treasury.
Tenn. Code Ann. § 63-1-134 (1990 Repl.)
4
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.
5
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
5
On October 7, 1992, Richardson amended his Motion to Dismiss based on State ex rel.
Town of South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1992). He argued that the
Board lacked the constitutional qualifications set forth in Article VI, Section 4 and,
therefore, could not interpret or enforce the criminal law.
6
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
6
Violation of the licensing statutes is a Class B misdemeanor. Tenn Code Ann. §§ 63-1-
123 & 63-5-128(a)(1990 Repl. & 1995 Supp.). Misdemeanors are subject to a twelve
month statute of limitations. Tenn Code Ann. § 40-2-102 (1990 Repl.). The Notice of
Charges set the date of the last offense as June 8, 1990. The time for filing criminal
charges for the conduct listed in the Board's notice expired on June 9, 1991, more than a
year before the state served its Request for Admissions.
7
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-
8
134 is unconstitutional to the extent it authorizes any board to assess a civil
penalty for acts otherwise declared to be criminal offenses. Therefore, the
court reversed and vacated the Board's actions, pretermitted all other issues,
and dismissed the charges.
II
In the appeal before us, the state raises two issues:
1. whether the Board of Dentistry's proposed
assessment of civil penalties for conduct also
declared to be a criminal offense is an
unconstitutional exercise of administrative
authority; and
2. whether the Davidson County Chancery Court
is authorized under the Uniform Administrative
Procedures Act to resolve constitutional issues
not addressed in the administrative order under
review.7
Our conclusion on the second issue is dispositive of this case and removes
the necessity of addressing the first issue. Since the resolution of this case
ripens it for a determination on the merits, we address the self-incrimination
issue as well.
A.
In addressing the appropriateness of the Chancery Court's first
order disposing of Richardson's constitutional challenges, we consider first
to what extent an administrative body in a contested case has the authority
to resolve constitutional questions. The general rule is that an
7
Richardson argues that the state may not rely on its res judicata or collateral estoppel
defense because the issue was not affirmatively raised in this appeal. We disagree.
Although the words res judicata or collateral estoppel are not used in the statement of the
issues, it is implicit in the Court of Appeals' disposition. Further, it was argued at both
the chancery and appellate levels.
9
administrative agency may not determine constitutional issues. An agency
is not authorized to consider or question the constitutionality of a legislative
act; nor may it declare unconstitutional the statutes which it was created to
administer or enforce. This recognition of the limited authority of agencies
to resolve constitutional issues has been widely recognized. See e.g.,
Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)(resolving claim based on constitutional right is inappropriate for an administrative board); Alleghany Corp. v. Pomeroy,698 F. Supp. 809
, 813-14 (D.C.N.D. 1990), rev'd on other grounds,898 F.2d 1314
(8th Cir. 1990)(agency without power to adjudicate constitutional issues); Key Haven v. Board of Trustees of the Internal Impr'mt. Trust Fund,427 So. 2d 153
(Fla. 1982)(forum for consideration of constitutional question was in court upon judicial review); Mobil Oil Corp. v. City of Rocky River, 309 N.E.2d 900 (Ohio 1974)(constitutionality of zoning ordinance is matter for the court); Dow Jones & Co. v. State ex rel. Oklahoma Tax Comm'n,787 P.2d 843
(Okla. 1990)(commissioner properly refused to address constitutional issues); Belco Petroleum Corp. v. State Bd. of Equalization,587 P.2d 204
, 218
(Wyo. 1978)(agency does not determine facial constitutionality of statute or
constitutionality of its application). See also 73 C.J.S., "Public
Administrative Law and Procedure," § 65 at 536; 1 Am. Jur.2d,
"Administrative Law," § 185 at 989-90.
These limits on the authority of administrative agencies to
resolve constitutional questions are based upon the fundamental
constitutional principle of separation of powers. See State ex rel. Town of
South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn. 1992). The powers
10
of government, divided into the legislative, executive, and judicial branches,
are separate and divisible. The legislative branch has the authority to make,
alter, and repeal the law; the executive branch administers and enforces the
law; and the judicial branch has the authority to interpret and apply the law.
State v. Brackett, 869 S.W.2d 936, 939 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.1993) ; Tenn. Const. Art. II, §§ 1, 2. Since the United States Supreme Court decision in Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), it has been the sole obligation of the judiciary to interpret the law and determine the constitutionality of actions taken by the other two branches of government. Tennessee Small School Sys. v. McWherter,851 S.W.2d 139
, 148 (Tenn. 1993). The Tennessee Constitution forbids an encroachment by one department upon the powers or functions of another. Tenn. Const. Art. II, § 2; State v. Brackett, 869 S.W.2d at 939. Thus, a legislative action vesting executive branch agencies with the authority to determine the constitutionality of statutes would violate the separation of powers doctrine. See Williams v. Carr,404 S.W.2d 522
(Tenn. 1966); LaFever v. Ware,365 S.W.2d 44
, 47 (Tenn. 1963); Peay v. Nolan,7 S.W.2d 815
, 816 (Tenn. 1928).
While the doctrine of separation of powers is fundamental to
our form of government, it is not absolute. State v. Brackett, 869 S.W.2d at
939. It does not require that administrative agencies never consider the
constitutionality of an administrative action. A careful examination of the
cases in Tennessee and in other states demonstrates that an absolute
mandate against administrative resolution of constitutional issues is
overbroad. Most states, including Tennessee, have recognized that,
11
although the general rule is that agencies do not have the authority to decide
constitutional issues, agencies must consider and apply constitutional
principles in determining procedures and rendering decisions in contested
cases. See e.g. Flint River Mills v. Henry, 216 S.E.2d 895, 896-97 (Ga. 1975)(officer of board is powerless to declare a statute unconstitutional); City of Joplin v. Industrial Comm'n of Missouri,329 S.W.2d 687
, 689 (Mo. 1959)(en banc) (administrative agencies have no authority to consider constitutionality of legislation); First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 585 (N.D. 1984)(agency must presume statute is valid until a judicial determination to the contrary); Johnson v. Elkin, 263 N.W.2d 123, 126 (N.D. 1978)(general rule is that agencies have no authority to rule upon constitutionality of their operating statutes). For example, in a proceeding before the Tennessee Civil Service Commission, the Commission, without objection, heard and resolved the issue of whether a party could assert a privilege against self- incrimination before the Commission. England v. Civil Service Commission of Metro Gov't of Nashville & Davidson County,617 S.W.2d 135
(Tenn. App. ), cert. denied, (Tenn.1981). The Commission's authority was not challenged and its determination that the privilege was not available was upheld on appeal. Id. at 140. Conversely, in Goodwin v. Metropolitan Board of Health, the Court of Appeals stated: "a non-judicial board has no power or authority to make constitutional rulings." Goodwin v. Metropolitan Board of Health,656 S.W.2d 383
, 387 (Tenn. App.), perm. to
appeal denied, (Tenn. 1983).
12
A series of cases have spawned confusion on the applicable
Tennessee rule. See Watts v. Burkhart, 854 F.2d 839(6th Cir. 1988)(case implying that courts, not agencies, must determine constitutional issues in Tennessee); L.L. Bean, Inc. v. Bracey,817 S.W.2d 292
(Tenn. 1991)(administrative agencies have the authority to consider the constitutionality of a statute); Crawford v. Tennessee Consolidated Retirement System,732 S.W.2d 293
, 297 (Tenn. App.), perm. to appeal
denied, (Tenn. 1987)("only a court may pronounce a declaratory judgment
on the subject of the constitutionality of a law . . . ."). This unfortunate
confusion has arisen primarily because our courts have seldom
differentiated between the various kinds of constitutional issues that may be
raised in administrative proceedings. Given the array of complex
constitutional issues that surround agency law and the procedural
requirements of due process, it is unrealistically simplistic and unworkable
to state a general rule that administrative bodies either have or do not have
the authority to consider constitutional questions. Courts must delineate in
a principled manner between those issues that are within the purview of an
administrative body with limited authority and those that are solely within
the jurisdiction of the judicial branch. The former include procedural
constitutional issues that may arise in the context of a contested case. The
latter involves constitutional challenges to the statutes creating the agency
and defining its subject matter and authority.
Our examination of Tennessee case law discloses that three
types of constitutional issues arise in contested administrative hearings.
The first are those that challenge the facial constitutionality of a statute
13
authorizing an agency to act or a rule adopted pursuant to a statute. The
second challenges the actions of an agency in applying a rule or statute.
The third challenges the constitutionality of the procedures employed by the
agency. Once the differences in the issues are noted, the seemingly
inconsistent approaches disappear.
Tennessee courts generally hold that administrative agencies
and boards are not authorized to rule on facial constitutional challenges to
statutes or rules. Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383(Tenn. App.), perm. to appeal denied, (Tenn. 1983)(constitutionality of Board of Health regulations). Courts, moreover, have entertained these constitutional challenges in cases in which the issues were not addressed at the agency level. See, e.g., Plasti-Line, Inc. v. Tennessee Human Rights Comm'n, et al.,746 S.W.2d 691
(Tenn. 1988)(administrative action pending when declaratory judgment filed but no suggestion that agency should resolve issue); Pharr v. Nashville, C., & St. L. Ry.,208 S.W.2d 1013
, 1017 (Tenn. 1948); see also Watts v. Burkhart,854 F.2d 839
(6th Cir. 1988).
In cases in which a party challenges the application of a statute
in a given situation, the Tennessee courts have acknowledged the agency's
authority to resolve the issue before submitting the matter to judicial review.
See L.L. Bean, Inc. v. Bracey, 817 S.W.2d 292(Tenn. 1991)(challenge to applicability of sales tax to catalog sales); Crawford v. Tennessee Consolidated Retirement System,732 S.W.2d 292
(Tenn. App.), perm. to
appeal denied, (Tenn. 1987)(applicability of statute and agency rule to
plaintiffs' retirement rights). Courts have also implicitly recognized an
14
agency's authority to resolve constitutional questions involving procedural
matters. See England v. Civil Service Comm'n of Metro Gov't of Nashville
& Davidson County, 617 S.W.2d 135 (Tenn. App.), cert. denied, (Tenn.
1981) (privilege against self-incrimination).
Thus, we conclude that whether an agency can resolve
constitutional issues raised in a contested case proceeding depends on the
nature of the constitutional issue. The applicable rules may be summarized
as follows:
(1) Facial Constitutionality of a Statute
The facial constitutionality of a statute may not be determined
by an administrative tribunal in an administrative proceeding. An
administrative agency is a creation of the legislature. While it may have
judicial characteristics and may be required to perform quasi-judicial
functions, an agency is not part of the judicial branch of government.
Plasti-Line, Inc. v. Human Rights Comm'n, et al., 746 S.W.2d 691, 694 (Tenn. 1988). As a result, the legislature may not confer upon an agency the power to determine the constitutionality of a statute. Hoover Motor Exp. Co., Inc. v. Railroad & Public Utilities Comm'n,261 S.W.2d 233
, 238 (Tenn. 1953); Pharr v. Nashville, C., & St. L. Ry.,208 S.W.2d 1013
, 1017 (Tenn. 1948). Nor may an agency assume that power. That power rests with the judiciary. Tennessee Small School Sys. v. McWherter,851 S.W.2d 139
, 148 (Tenn. 1993). To vest an agency with the authority to determine
the constitutionality of the legislation empowering the agency to act would
violate the doctrine of the separation of powers. Tenn. Const. Art. II, §§ 1
& 2. Therefore, we reiterate that an administrative agency, board,
15
commission or administrative law judge acting in a contested case hearing
has no authority to resolve facial challenges to the constitutionality of a
statute.
(2) Unconstitutional Applications of a Statute or Rule
When the focus of an aggrieved party's claim is an "as applied"
challenge to the constitutionality of a statute or any challenge to the
constitutionality of an agency rule,8 the agency may initially rule on the
challenge. The policy behind this general rule is to allow the agency the
opportunity to correct any error it has made in drafting an unconstitutional
rule or in enforcing a constitutional mandate in an unconstitutional manner.
Upon discovery, an agency may modify its rule to comport with
constitutional requirements. L.L. Bean, Inc. v. Bracey, 817 S.W.2d 292(Tenn. 1991); Crawford v. Tennessee Consolidated Retirement System,732 S.W.2d 292
(Tenn. App.), perm. to appeal denied, (Tenn. 1987). This rule
comports with the provision of the Administrative Procedures Act. Tenn.
Code Ann. § 4-5-223 (1991 Repl.). Therefore, an administrative body in a
contested case proceeding may resolve questions of the unconstitutional
application of a statute to the specific circumstances of the case or the
constitutionality of a rule that the agency has adopted.
(3) Constitutional Challenges to Agency Procedure
8
An agency rule is, in essence, an application of the statutes which govern the agency. An
unconstitutional rule is an unconstitutional application of an otherwise constitutional
statute.
16
Similarly, an agency may address a claim that an agency's
procedure is constitutionally deficient. In contested case proceedings,
administrative law judges, boards, and commissions are bound by the
procedural due process requirements imposed by the Tennessee and United
States constitutions. Full consideration of constitutional procedural issues
by the agency will assure that the responsible agency has a full opportunity
to reach a considered decision on a complete record after a fair proceeding.
Our courts have long recognized the wisdom of allowing a trial
court to correct errors in the conduct of a trial before submitting the case for
appellate review. To require administrative tribunals to ignore procedural
issues and delay correction until judicial review in the chancery court would
diminish the effectiveness of administrative proceedings and cause a
considerable waste of effort on the part of the parties and the tribunal.
Therefore, we conclude that an agency has the authority in a contested case
proceeding to consider procedural constitutional issues and conform its
procedures to constitutional requirements.
To summarize, administrative agencies have no authority to
determine the facial constitutionality of a statute. They are authorized,
however, to determine the constitutionality of the application of statutes or
rules and of the procedures employed. The agency resolution of those
issues is subject to judicial review in the chancery court. Tenn. Code Ann.
§ 4-5-322 (1995 Supp.).
B
17
Next, we must consider whether the Davidson County
Chancery Court was authorized to resolve constitutional issues which were
raised but not resolved in a contested case proceeding.
Tennessee's Administrative Procedure Act provides two
methods for obtaining judicial determination of constitutional issues. First,
any person aggrieved by a final decision in a contested case before an
administrative tribunal is entitled to judicial review in the Davidson County
Chancery Court. Tenn. Code Ann. § 4-5-322(a)(1)(1991 Repl. & 1995
Supp. amend. eff. 7-1-95). Preliminary, procedural, and intermediate
rulings may be reviewed immediately if the review of a final ruling would
not provide an adequate remedy. Id. The Chancery Court review is without
a jury and is confined to the record, unless procedural irregularities not
shown in the record are alleged. Tenn. Code Ann. § 4-5-322(g)(1991 Repl.
& 1995 Supp.). In that situation, the Chancery Court may take proof. Id.
After review, the Chancery Court may affirm or remand for further
proceedings. If the administrative findings, inferences, conclusions, or
decisions (1) violate constitutional or statutory provisions; (2) exceed the
agency's statutory authority; (3) were made "upon unlawful procedure;" or
(4) are arbitrary, capricious, or an abuse of discretion, and prejudice the
party, the Chancery Court may reverse or modify the decision. Tenn. Code
Ann. § 4-5-322(h)(1991 Repl. & 1995 Supp.).
The Administrative Procedures Act also allows an "affected
person" to petition the Davidson County Chancery Court for a declaratory
judgment regarding the legal validity of a state, rule, or agency order in
18
limited circumstances. A declaratory judgment may be sought if the agency
has, upon petition by an affected person, refused to issue a declaratory
order. Tenn. Code Ann. §§ 4-5-223 & -224 (1991 Repl.). If the person has
first sought a declaratory order in the agency, the agency has refused to
issue a declaratory order, and the statute, rule, or order, or its application
interferes with, impairs, or threatens to interfere with or impair the person's
rights, the Chancery Court may enter declaratory judgment. Id. The
Chancery Court may declare a statute or rule invalid only if it "violates
constitutional provisions, exceeds the statutory authority of the agency, was
adopted without compliance with the rulemaking procedures . . . or
otherwise violates state or federal law." Id. at § -224(c).
The declaratory judgment and judicial review provisions do not
require that constitutional issues be raised at the agency level. In fact, both
Section 4-5-224 (declaratory judgments) and Section 4-5-322 (judicial
review) direct the trial court to determine whether the agency's action or
decision violated a constitutional provision or exceeded the agency's
statutory authority. Implicit in the declaratory judgment procedure available
when an agency refuses to issue a declaratory order is the recognition that
some constitutional issues would be considered initially by the Chancery
Court. Tenn. Code Ann. §§ 4-5-223(a)(2) – -224 (1991 Repl.). The judicial
review provisions confine review to the record, but allow the court to take
proof in circumstances in which the irregularities are not shown on the
record. Tenn. Code Ann. § 4-5-223(g)(1991 Supp. & 1995 Supp.). The
statutes clearly contemplate that, in a number of circumstances,
19
constitutional issues may be raised and addressed for the first time in
chancery court.
To better illustrate the appropriate rules and procedures, we
address each of the three types of constitutional issues separately:
(1) Facial Unconstitutionality of a Statute
Since an administrative agency has no authority under
Tennessee law to consider the constitutionality of a statute, the agency must
refuse to address facial constitutional challenges raised in contested case
proceedings. Hearing challenges to issues which the agency cannot resolve
may unduly prolong and complicate administrative proceedings. We see no
good reason to require that parties raise facial constitutional challenges
before agencies which lack the power to resolve the issue. The law should
not require one to perform useless and futile acts. See e.g. Watts v.
Burkhart, 854 F.2d 839, 848 (6th 1988); Key Haven v. Board of Trustees of Internal Improvm't Trust Fund,427 So. 2d 153
, 157 (Fla. 1982); Duncan v. Missouri Bd. for Architects,744 S.W.2d 524
(Mo. App. 1988); Johnson v. Elkin,263 N.W.2d 123
, 127 (N.D. 1978); Mobil Oil Corp. v. City of Rocky River,309 N.E.2d 900
(Ohio 1974).
If a party in a contested case proceeding petitions an agency for
a declaratory order, the agency should determine those issues which are
within the scope of its authority or refuse to issue an order. The party may
seek judicial review of the resolved issues and of those issues that the
agency refused or was without authority to consider. In either circumstance,
20
the party may challenge the constitutionality of a statute regardless of
whether it was raised at the agency level.
(2) Unconstitutional Application of a Statute or Rule
A party's challenge to the application of a statute or the
constitutionality of an agency rule may initially be considered and
determined by the agency. This comports with the principles of judicial
economy and allows correction of errors at the initial hearing level.
Notwithstanding these important policy considerations, the
legislature specifically authorizes the chancery court to reverse or modify
the agency decision if the party's rights have been prejudiced by a violation
of constitutional or statutory provisions. Tenn. Code Ann. § 4-5-
322(h)(1)(1991 Repl. & 1995 Supp.). This supports a conclusion that the
issues need not be raised during the agency proceeding. In addition,
practical considerations convince us that the failure to raise a constitutional
challenge during an agency proceeding should not preclude the chancery
court's consideration. First, agencies employ diverse procedures with
varying degrees of formality. An administrative judge or hearing officer
may, with the agreement of the parties, conduct all or part of the hearing by
telephone, television, or other electronic means. Tenn. Code Ann. § 4-5-
312 (1991 Repl.). The party charged may or may not be represented by
counsel. In some instances, the fact that an agency has exceeded its
authority may not be apparent until the agency has issued its final order.
See Pharr v. Nashville C. and St. L. Ry., 208 S.W.2d 1013 (Tenn.
1948)(order requiring railroad to move tracks violates separation of
21
powers). To prohibit a party from raising constitutional issues in the
chancery court which were not addressed at the agency level could prevent
an aggrieved party from having a full and fair judicial hearing on an alleged
clear violation of a constitutional right.
Secondly, administrative agencies may be ill-equipped to rule
on constitutional issues. Although agency personnel have considerable
expertise on the subject matter which the legislature has delegated to the
agency, board members and other agency fact-finders are less likely to have
training in constitutional law sufficient to enable an appropriate resolution
of the issues.
Finally, the importance of correctly resolving constitutional
issues suggests that constitutional issues should rarely be foreclosed by
procedural technicalities. Veach v. State, 491 S.W.2d 81, 83 (Tenn. 1973). Certainly, issues of constitutionality should not first surface on appeal, see Lawrence v. Stanford,655 S.W.2d 927
, 929 (Tenn. 1968), but the
significant procedural and substantive differences between chancery court
review of an agency decision under the Administrative Procedure Act and
appeals from final judgments of trial courts under Rule 3, Tennessee Rules
of Appellate Procedure requires a more flexible approach in the former.
Based on the plain language of the Administrative Procedures
Act and the policy and practical principles discussed above, we hold that the
failure to contest the constitutionality of a statute as applied or the
constitutionality of an agency rule does not prevent a party from raising
22
those issues upon judicial review. However, we note that in most instances,
a party may save considerable time and expense by raising the issue through
a declaratory order proceeding or other appropriate pleading.
(3) Constitutional Challenges to Agency Procedure
Constitutional challenges to agency procedure may include
issues such as the right to counsel, the privilege against self-incrimination,
and the right to procedural due process. See England v. Civil Service
Commission, 617 S.W.2d 135 (Tenn. App. ), cert. denied, (Tenn.1981)
(privilege against self-incrimination). Objection at the agency level will
allow incorrect procedures to be eliminated thereby saving time and expense
for the parties. Nonetheless, the legislature clearly intended to allow
procedural irregularities in contested case hearings to be addressed for the
first time on judicial review. Tenn. Code Ann. § 4-5-322(h)(3)(1991 Repl.
& 1995 Repl.). Review at the chancery court level ensures that
constitutional issues are addressed by law-trained judges with the legal
knowledge to resolve the issues.
In summation, although an agency has no authority to
determine the constitutionality of a statute, an agency may rule on
constitutional challenges to the application of a statute, to a rule, and to
procedures used in a contested case proceeding. Nevertheless, the failure to
raise these constitutional issues before the agency will not preclude a party
in a contested case from raising the issue for the first time upon judicial
review.
23
Parties to contested case proceedings may challenge the
constitutionality of a statute or a rule, either facially or as applied, by
seeking a declaratory order from the agency pursuant to Tennessee Code
Annotated Section 4-5-223. If the agency refuses to rule on the issue, as it
must if the challenge is to the facial constitutionality of a statute, then the
party may petition the chancery court for a declaratory judgment pursuant to
Section 4-5-224. If the agency issues a declaratory order, an aggrieved
party may seek judicial review of the order in the Davidson County
Chancery Court pursuant to Section 4-5-322. A final judgment of the
chancery court may be appealed to the Tennessee Court of Appeals. Tenn.
Code Ann. § 4-5-323 (1991 Repl.).
Parties may also raise constitutional issues through the judicial
review of a final agency order or, when appropriate, through the review of
an interlocutory order. Tenn. Code Ann. § 4-5-322 (1991 Repl. & 1995
Supp.). During chancery court review of a final agency order, parties may
raise constitutional challenges to statutes or rules, challenges to the
application of statutes or rules, and challenges to agency procedures,
regardless of whether the issue was raised at the agency level. The chancery
court may take further evidence or may order the agency to take the proof
required in appropriate cases. Tenn. Code Ann. § 4-5-322(e), (g)(1991
Repl. & 1995 Supp.). Once again, parties may appeal to the Court of
Appeals from the final order of the chancery court. Tenn. Code Ann. § 4-5-
323 (1991 Repl.).
C
24
Having defined the scope of an agency's limited authority to
resolve constitutional issues and of the chancery court's broad powers to
consider those issues either in a petition for declaratory order or upon
judicial review, we must now apply those principles to the facts in this case.
In doing so, we conclude that both the Davidson County Chancery Court
and the Board of Dentistry's fact-finding tribunals conformed to the
principles delineated above.
Richardson petitioned the Board for a declaratory order on
August 6, 1990, approximately six weeks before the scheduled hearing date.
He raised broad constitutional challenges to the facial validity of Tennessee
Code Annotated Section 63-1-134 and agency rule 0460-14-1.04. The
gravamen of his constitutional issues was the agency's lack of authority to
act. Since Richardson was charged with conduct that was made criminal by
statute, he contended that an agency determination of his "guilt" would
violate the principles of separation of power and due process. In addition,
Richardson challenged whether the statute or rule applied to him, an
unlicensed citizen.
The Board refused to address the constitutional issues finding
that it was not authorized to resolve them. It did issue a declaratory order,
however, stating that Section 63-1-134 applied to persons who should be
licensed as well as those who are licensed and that civil penalties could be
assessed against Richardson if the allegations were proven. Richardson
petitioned for judicial review in the Chancery Court once again raising his
25
constitutional challenges to the agency's authority and to the application of
the statute and rule to unlicensed persons.9
In the first case before it on judicial review, the Chancery Court
addressed all of the issues raised in the petition including those
constitutional issues not resolved by the agency. The chancellor's actions
were proper. The administrative agency was not authorized to declare the
challenged statute unconstitutional. If the chancellor was prohibited from
determining the constitutionality of the statute as the Court of Appeals held,
the party challenging the statute would have no available forum in which to
raise the issue.10
The parties in this case briefed and argued the constitutional
issues. The chancellor stated the issue as "whether the order of the Board is
in violation of constitutional provisions, arbitrary, capricious, illegal or in
excess of statutory authority." In the Memorandum and Order entered
January 3, 1992, the chancellor found that:
The statute authorizes the Board of
Dentistry to assess a civil penalty against a person
who should be, but is not, licensed by the Board.
9
Richardson contended that Section 63-1-134 was unconstitutional on its face.
Specifically, he alleged a violation of Article I, Section 8, Article II, Section 1, and
Article VI, Section 14 of the Tennessee Constitution, due process under the 5th and 14th
Amendments to the U.S. Constitution and the right to trial by jury under the 6th
Amendment. In addition, he argued that Sections 63-1-134, 63-5-107 and 121 were void
for vagueness and consequently, violative of due process.
10
We are aware of the holding in Goodwin v. Metropolitan Board of Health, 656 S.W.2d 383, 387 (Tenn. App.), perm. to appeal denied, (Tenn. 1983), in which the Court of
Appeals held that a chancery court could not hear an action for declaratory judgment
simultaneously with one brought as a petition for writ of certiorari. Goodwin does not
apply in this instance, however, because petitioner was seeking review under Section 4-5-
322 of the Administrative Procedures Act which specifically gives a chancery court the
authority to consider constitutional challenges to agency action.
26
The State is pursuing only civil remedies at this
time, so the Court finds no constitutional
violations. Since the statute authorizes the Board
to assess a civil penalty against an unlicensed
person, the Board's order is not arbitrary,
capricious, illegal or in excess of statutory
authority.
Implicit in the chancellor's order is the holding that the matters
before the Board were civil and not criminal in nature and, therefore, the
Board was not acting in violation of any constitutional provisions or
exceeding its statutory authority. The nature of this appeal does not require
us to determine whether those findings were correct. Rather, we are
concerned with whether that chancery court order was a final one, and, if so,
whether certain determinations now form the basis for a res judicata or
collateral estoppel defense.
The term "res judicata" is defined as a "[r]ule that a final
judgment rendered by a court of competent jurisdiction on the merits is
conclusive as to the rights of the parties and their privies, and, as to them,
constitutes an absolute bar to a subsequent action involving the same claim,
demand or cause of action . . . . [T]o be applicable, it requires identity of
cause of action, or person and parties to action, and of quality in persons for
or against whom claim is made." Black's Law Dictionary 1172 (5th ed.
1979)(citations omitted). We have recently discussed the doctrine and its
related counterpart, collateral estoppel, as follows:
The doctrine of res judicata bars a second suit
between the same parties or their privies on the
same cause of action with respect to all issues
which were or could have been litigated in the
27
former suit. Collateral estoppel operates to bar a
second suit between the same parties and their
privies on a different cause of action only as to
issues which were actually litigated and
determined in the former suit.
Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)(quoting from Massengil v. Scott,738 S.W.2d 629
, 631 (Tenn. 1987)). Res judicata and collateral estoppel apply only if the prior judgment concludes the rights of the parties on the merits. A. L. Kornman Co. v. Metropolitan Gov't of Nashville & Davidson County,391 S.W.2d 633
, 636 (Tenn. 1965). One defending on the basis of res judicata or collateral estoppel must demonstrate that 1) the judgment in the prior case was final and concluded the rights of the party against whom the defense is asserted, and 2) both cases involve the same parties, the same cause of action, or identical issues. Scales v. Scales,564 S.W.2d 667
, 670 (Tenn. App. 1977), cert. denied,
(Tenn. 1978). Both of these conditions are met in this case.11
Most cases interpreting what is meant by the term "final
judgment" arise in the context of a Rule 3 appeal. Tenn. R. App. P. 3. In
Tennessee, a judgment is final "when it decides and disposes of the whole
merits of the case leaving nothing for the further judgment of the court."
Saunders v. Metropolitan Gov't of Nashville & Davidson County, 383
11
As noted in the quotation from Massengil, the doctrines of res judicata and collateral
estoppel are very similar. Res judicata bars litigation if a second suit involves the same
parties and the same cause of action that was determined in the first action. Collateral
estoppel prevents identical parties from relitigating in a different action issues
determined in a previous suit. Massengil v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987) In
this case, collateral estoppel bars the relitigation of issues determined in the previous
chancery suit between these identical parties. However, res judicata is often used to
mean "a matter adjudged; a thing judicially acted upon or decided." Black's Law
Dictionary 1174 (5th ed. 1979). It is in this general sense that the term is used in this
opinion.
28 S.W.2d 28, 31 (Tenn. 1964). An order denying a motion for summary
judgment, for example, is not a final judgment because the entire suit
remains for disposition. C.O. Christian & Sons Co., Inc. v. Nashville P.S.
Hotel, Ltd. & Condel Const'n Co., Inc., 765 S.W.2d 754, 756 (Tenn. App.
1988), perm. to appeal denied, (Tenn. 1989)(quoting from In Re Estate of
McCord, 661 S.W.2d 890, 891 (Tenn. App. 1983)). Likewise, the denial of
a motion to dismiss does not end a lawsuit or constitute a final judgment.
Id.
The chancellor's January 3, 1992, Memorandum and Order was
the final judgment in the initial chancery proceedings. It conclusively
determined all issues before the Chancery Court on their merits and left
nothing for further judgment of that court. Just as the agency's declaratory
order was a final order subject to judicial review in the Chancery Court, the
Chancery Court's Memorandum and Order was a final order subject to
appeal under Section 4-5-323. The judicial review of the agency decision
was not a continuation of the agency proceeding, but was an original
judicial review proceeding under Section 4-5-323 subject to review by the
appellate courts.12
Richardson made various efforts to appeal the Chancery Court
judgment but failed to comply with the appellate procedure specified in
Section 4-5-323. That section provides:
12
We agree that the wording of the order was infelicitous in that it finds no
constitutional violations "at this time." However, those words are mere surplusage and
in no way affect the finality of the Chancery Court's decision on the claims the parties had
brought before it.
29
(a) An aggrieved party may obtain a review of any
final judgment of the chancery court under this
chapter by appeal to the court of appeals of
Tennessee.
(b) The record certified to the chancery court and
the record in the chancery court shall constitute
the record in an appeal. Evidence taken in court
pursuant to § 4-5-322(g) shall become a part of the
record.
(c) The procedure on appeal shall be governed by
the Tennessee Rules of Appellate Procedure.
Tenn. Code Ann. § 4-5-323 (1991 Repl.). Richardson did not comply with
any of those requirements, and, therefore, the Chancery Court's
Memorandum and Order is a final adjudication of the case.
The parties and the issues in the second Chancery Court
proceeding, with one single exception, were identical to those in the first
proceeding. The single nonidentical issue was raised in Richardson's
amendment to his Motion to Dismiss which was filed several months after
the original Chancery Court judgment. That amendment contested the
Board's authority to act under Article VI, Section 4 of the Tennessee
Constitution and under the principles enunciated in State ex el. v. Town of
South Carthage v. Barrett, 840 S.W.2d 895 (Tenn. 1990). The
administrative law judge denied the motion and granted the state's Motion to
Compel and Motion in Limine based on the agency's position that it was
seeking only civil penalties.
Richardson filed a Petition for Review in the Chancery Court
raising the same constitutional issues he had raised in the first chancery
proceeding, and additionally, the constitutional challenge based on Town of
30
South Carthage. He also challenged the ruling on the state's Motion to
Compel asserting that it deprived him of his privilege against self-
incrimination.
The state argues that the "new" Town of South Carthage
challenge to the agency's authority is not "new" at all. We agree.
Richardson has contended from the outset that the Board has no authority to
interpret or enforce criminal statutes. In its final order in the first
proceeding, the Chancery Court held that the Board of Dentistry was
seeking only civil, and not criminal remedies, a procedure clearly within its
authority. The fact that Richardson has identified another argument to
support his constitutional challenge does not alter the fact that the issue was
resolved in the first chancery proceeding. Between these parties, the
resolution is final.
In the Memorandum and Order issued in the second suit, the
chancellor wrote:
In an earlier interlocutory13 proceeding in
this same matter, Docket No. 91-636-II, the
petitioner sought relief from a declaratory order of
the Board which held that he could be assessed
these "civil penalties." In that appeal, the
petitioner made the same arguments he has made
in this appeal; basically that the statute he is
charged with violating are criminal statutes and he
13
The trial court erred in referring to the first review as an interlocutory proceeding. The
statutes allowing a petition for a declaratory order at the agency level are not part of the
contested case procedures. In fact, when an affected person (not party) petitions an
agency for a declaratory order "as to the validity or applicability of a statute, rule or order
within the primary jurisdiction of the agency, the agency must convene a contested case
hearing pursuant to the provisions of [the] chapter." Tenn. Code Ann. § 4-5-223(a)(1)
(1991 Supp.). The agency's declaratory order was a final agency decision in a contested
case proceeding.
31
is entitled to Fifth Amendment Constitutional
protection and the Board lacks Constitutional
authority to conduct this hearing and enforce the
statute. By Memorandum and Order entered
January 3, 1992 in that matter, this Court
concluded that this was not a criminal prosecution
and it has not yet changed its mind.
The chancellor's first Memorandum and Order was a final
order. The parties were identical, the issues, save one, were the same.
Richardson failed to perfect an appeal from the chancellor's Memorandum
and Order. The judgment is final. The Court of Appeals erred in holding
that the constitutional challenges to agency authority were coram non
judice. With the exception of one issue, we are barred from consideration of
the constitutional issues.
III
The single constitutional issue presented in the second
chancery proceeding was whether Richardson's privilege against self-
incrimination would be violated if he was compelled to answer
incriminating Requests for Admission. The Board's order refused to
recognize the privilege in the contested case proceeding because the statute
of limitations had expired on any potential criminal violations. The order
recited that if the criminal violations remained viable, the decision might
have been different. The Chancery Court's Order affirming the Board action
did not address the self-incrimination issue. The Court of Appeals' opinion
dismissing the charges deemed a discussion of the issue "unnecessary."
Because this matter will be remanded for further proceedings in which the
privilege may again be asserted, we will address the issue.
32
The Fifth Amendment to the United States Constitution and
Article I, Section 9 of the Tennessee Constitution of the State of Tennessee
guarantee that those accused of crimes may not be compelled to testify or
give evidence against themselves. U. S. Const. amend. V; Tenn. Const. Art.
I § 9. The scope of the privilege is comprehensive; Application of Gault,
387 U.S. 1, 47 (1967), its availability is not dependent upon the type of
proceeding in which the protection is invoked but on the nature of the
testimony.
The privilege protects any disclosures which a witness might
reasonably believe would be used in a criminal prosecution or which could
lead to other evidence that might be so used. Murphy v. Waterfront
Commission, 378 U.S. 52, 94 (1964); State ex rel. Shriver v. Leech,612 S.W.2d 454
, 459 (Tenn.), cert. denied,454 U.S. 836
(1981). "The privilege can be claimed in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." Murphy v. Waterfront Commission,378 U.S. 52
, 94 (1964); See In re Helvenston,658 S.W.2d 99
, 102 (Tenn.
App.), perm. to appeal denied, (Tenn. 1983); State ex rel. Shriver v. Leech,
612 S.W.2d at 459. Although the privilege is available in a civil suit, it
does not protect witnesses in circumstances in which the answer may
subject them only to civil liabilities. Zollicoffer v. Turney, 14 Tenn. (1
Yer.) 297, 300-301 (1834); Cook v. Corn, 1 Tenn. (1 Overt.) 340, 341
(1808)
Hence, the privilege is not available to Richardson. The Notice
of Charges alleges that Richardson's violations as occurred between March
33
15, 1990 and June 8, 1990. The violations alleged are of provisions of the
chapter establishing and regulating the Division of Health Related Board
and are Class B misdemeanors. Tenn. Code Ann. §§ 63-1-123(a), 63-5-
128(a)(1990 Repl. & 1995 Supp.). The statute of limitations for the
prosecution of misdemeanors is twelve months. Tenn. Code Ann. § 40-2-
102 (1990 Repl.)
If reasonable grounds existed to believe that compelling
Richardson's testimony would lead to a criminal prosecution, Richardson
could assert the privilege against self-incrimination in the administrative
proceeding. However, since any criminal prosecution on these charges is
barred by the statute of limitations, the privilege against self-incrimination
may not be successfully asserted to avoid responding to the discovery
requests or otherwise in the proceedings before the Board of Dentistry.
Conclusion
An administrative agency has no authority to resolve facial
challenges to the constitutionality of a statute. An agency may rule on the
constitutionality of its own rules and procedures and the applicability of a
statute to a particular case. The Chancery Court, on judicial review or in a
declaratory judgment action, may consider constitutional issues arising as
the result of a contested case proceeding even though the issues were not
raised in the agency or, if raised, were not addressed.
Here, the Chancery Court did not err by addressing
Richardson's constitutional challenges to the agency's authority in its
34
Memorandum and Order in the first chancery proceeding. Since Richardson
failed to perfect an appeal of that decision to the Court of Appeals, the
chancellor's rulings are final. Richardson is precluded by the doctrine of
collateral estoppel from relitigating those issues. We, therefore, do not
address the merits of the constitutional challenges. As to the only remaining
issue, we hold that while the privilege against self-incrimination is viable in
administrative proceedings, the circumstances of this case make it
inapplicable and unavailable to Richardson on the present charges.
The judgment of the Court of Appeals is reversed. The case is
remanded to the agency for further proceedings consistent with this opinion.
___________________________________
Penny J. White, Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Birch, J.J.
35
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