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 

O P I N I O N

JUDGMENT OF COURT OF APPEALS WHITE, J.

REVERSED & CASE REMANDED

TO TENNESSEE BOARD OF DENTISTRY
2

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." 
 

163-5-107. 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.).

 

2The maximum penalty for owning the dental practice was $500 per day. The maximum 

 penalty for practicing without license was $1,000 per day.

3

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
 

3Richardson also filed a Motion to Dismiss which was answered, but not ruled upon at

this juncture.

 

463-1-134. 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

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. 
5

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.
 

5On 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

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 
 

6Violation 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

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 selfincrimination. 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
8

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 selfincrimination 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-
 

7Richardson 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

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
10

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
11

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,
12

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 selfincrimination 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). 
13

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
14

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
15

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,
 

8An 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

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
17

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
18

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
19

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,
20

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,
21

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
22

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
23

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.
24

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
25

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
 

9Richardson 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.

 

10We 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

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. 
27

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
 

11As 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

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
 

12We 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

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: 
30

(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
 

13The 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

South Carthage. He also challenged the ruling on the state's Motion to

Compel asserting that it deprived him of his privilege against selfincrimination. 

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
32

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 selfincrimination 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.
33

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
34

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
35

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.