IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

HAROLD RICHARDSON, ) FOR PUBLICATION ) Petitioner/Appellee, ) Filed: Decem ber 28. 1995 ) vs. ) Davidson Chancery ) TENNESSEE BOARD OF ) Hon. C. Allen H igh, Chancellor DENTISTRY, ) ) No. 01S01-9502- CH-00027 Respondent/Appella

nt. )

For Appellant : For Appellee : Charles W. Bur

son Michael M. Caste llarin Attorney General & Reporter Moody, Whitf ield & 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 BOAR D OF DENTISTRY2 At issue in this appea

l by the Board of

Dentistry is the

validity and constitutionality

of a proposed civil pe

nalty against H

arold Richardson for practicing dent

istry and opera

ting a dental clinic w

ithout a license. A

lso 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 adm

inistrative order.

For the reasons that follow, we hold that the Chancery Court has jurisdiction to consider constitutional issues no

t addressed in the adm

inistrative procee

ding. As a result, the Chancery Court's resolution of those issues in the first Chancery Court proceeding fr

om which Richa

rdson did not appeal, b ars consideration of those issues. The judgment of the Court of Appeals is, therefore, reversed, and this matter is remanded to the Board of Dentistry f or further proceedings.

I

In 1989, the Gener

al Assembly

enacted Tennesse

e Code Annotated Section 6 3-1-134 authorizing he alth related boards

to assess civil penalties against unl

icensed practitione

rs in health relate

d professions. The legislation require

d each board to estab

lish minimum

and maximu

m civil penalties which cou ld be assessed. The Tenn essee Board of Dentist ry, a state administr

ative board responsib

le for licensing, r

egulating, and disciplining dentistry

practitioners in T

ennessee under Te

nnessee Code Annotated Sections 63-5-101, et seq. , established a "Sc hedule of Civil Penalties" which beca me effective on March 15, 199 0. See Rules 0460-14- 1-.01, -.02. - .03, Rules of Te nnessee Board of D

entistry, Cha

pter 0460-14- 1, "Civil Penalties."1 63-5-107. License requirement. -- (a) It is unlawful for any person to pra ctice 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 here after 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 employ ees by their employer, or whe re dental services are bei ng pr ovi ded by an off ici al a genc y of t he s tat e gov ernm ent , or any s ubd ivi sio n, a ny nonprofit orga

nization, hospital or

any health m

aintenance org

anization, it is unlaw

ful:

. . . (2) For a n ow ner o f an a cti ve d ent al p ract ice to b e ot her t han a den tis t du ly licensed to practice in this state. Tenn. Code Ann. § 63-5-121(2) (1990 Repl.).

2 The maximum penalty

for owning the de

ntal practice wa

s $500 per day . The maximum pen alt y for prac tic ing w ith out lic ens e was $1, 000 per d ay. 3 On June 26, 1990, the Board served Richardson with a Notice of Charges and Mem

orandum of Civil

Penalty Asses sment charging h im with practicing den

tistry and with o

perating a dental cl

inic without a licen se in violation of Tenne ssee Code Annotate d Sections 63-5-107 an

d 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 Ma dison Dental Center i n Nashville, Tennesse e. The notice charge

d fifty-seven c

onsecutive violations o

f owning and operating a dental pr

actice occurring between March 15, 1990 and June 8, 1990 and at least ten a

cts of practicing de

ntistry. For ow

nership of the dental practice f

or fifty-seve

n days and for the

ten incidents of pra

cticing dentistry withou

t a license, the Board sought to impose the maximu

m penalty of $38,5 00. 2 The Board of De ntistry set a con

tested case heari

ng for September 21,

1990.

On August 6, 1990, Richardson filed a Petition for Declaratory Order with the Board raising numerous state and federal constitutional3 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, ea ch 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 th

e minimum and maximum ci vil penalties whic

h may be asse

ssed under this section. In assessing civil penalties, the following factors may be considered: (1) Whether the a

mount imposed will be

a substantial eco

nomic 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 r esult of noncompliance; and (5) The interest of the public. (c) (1) Civil penalties assessed pursua

nt to this section sha

ll become final thirty (30) days after the da te a final order of assessment is served. (2) If the violator fails to pay an assessment when it bec omes final, the division may apply to the appropriate court for a judgment and seek execution of such judgment. (3) Jur isd ict ion for reco very o f su ch p enal tie s sh all be i n th e cha ncer y 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 tre asu ry. Tenn. Code Ann. § 63-1-134 (1990 Repl.) 4 challenges. 3 See

Tenn. Code Ann. §§ 4-5-22 3 – -24 (1991 Repl.) . He attacked the constit

utionality of Se

ction 63-1-134, the c

ivil penalty assessment stat

ute, on several gr

ounds. 4 Since the statute pu nished by civil penalty the sam

e acts made cr

iminal by the

criminal code , Richardson challenged the author

ity of the Board, a part of the exe cutive rather than the judicial branch,

to hear the case,

alleging that the proc

edure 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 f

ine in excess of $50. He also questioned w hether the statute authorized t

he Board to fine or p

unish a private citiz

en who is not and has never been a li cense holder.5 On November 28, 1990, the Board convened a hearing to consider Richardson 's Petition for a D eclaratory O

rder. The Sec

retary of State assigned an A

dministrative L

aw Judge to make

procedural and evidentiary rul

ings and to resolve ques

tions of law. The

judge ruled that the Board was not author

ized to consider the a

rguments on the c

onstitutionality of the statute or the arguments that the statute as applied was unconstitutional, but w

as 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, licen sed.

In its Declaratory Order filed on December 28, 1990, the Board answered the quest

ion affirmati

vely. Specif

ically, the Board held that (1) it was without jurisdiction to consider federal or state constitutional challenges to the sta

tute or its applicati

on; (2) the statute a

pplies to persons required to be lice

nsed by the Board

to practice dentist

ry, regardle ss of whether they a

re licensed; and (3)

in the event the alle

gations against Richardson were establ ished, civil penalt ies could be assess ed.

Richardson sought jud

icial review of t

he Declaratory

Order in the Davidson County

Chancery Cour

t. His Petition fo

r Review raised t

he 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 ill egal.5 On October 7, 1992, Richardson amended his Motion to Dismiss based on State ex rel.

Town of South Cartha

ge 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 br

iefing and oral argu

ment, the cha

ncellor issued an order aff

irming the Boar

d action. The cha

ncellor defined the

issue before the court a

s "whether the orde

r of the Board is in vi

olation of constitutional provisio

ns, arbitrary , capricious, ill egal or in excess of statutory authority." The chancellor found that the statute authorized criminal and c

ivil 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 author ized to assess a civil penalt y agains t an unl icense d perso n. Final ly, the chancellor foun

d no basis for Richar

dson's claim tha

t the Board action was arbi trary, ca pricio us, ill egal, o r in exc ess of s tatuto ry autho rity.

Richardson sought fir

st an interlocutory

appeal. The cha

ncellor 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 P

etition for a Decl

aratory Orde

r, but prior to the resolution of tho se issues in the Davi dson County Chancery Court , Richardson filed a M

otion to Dismiss w

ith the Board resta

ting his constitutional challe

nges. 5 This motion wa

s still pending when the

assistant general counsel for t he State of Tennessee ser ved a Request for Admissio ns. The request sought a

dmissions which w

ould have established t

hat6 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 of

fense as June 8, 199

0. The time for fili

ng criminal charges for the conduct listed in the Board's notice expired on June 9, 1991, more than a year befo re the state serv

ed its Request for A

dmissions. 7 Richardson owned a dental practice a nd had practiced dent

istry without a license at the tim

es alleged in the notic

e. Shortly the

reafter, the st

ate filed a Motion in Limine

asking that Richards on be precluded from arguingconstitutional issues or from asserting his privilege against selfincrimi nation . Eventu ally, th e state filed a Motion to Compe l Disco very.

In October 1992, a second administrative law judge presided at a conference conc

erning the pending m

otions. After con sidering argume nt, the administra

tive law judge den

ied the Motion to Dism

iss and granted both the Motion to Compe

l Discovery an

d the Motion in Lim

ine. The judge found that the Board w

as not exercising con

current jurisdic

tion with a criminal cour

t in assessing a civil p

enalty and that t

he Board was not authorized to rule on

constitutional issues.As to Richardson's privilege against self-incr

imination, the judge deemed it inapplicable since the statute of limitations ha

d expired on any po ssible crimina l liability and sin

ce the Board wa s seeki ng onl y a civil penalt y. 6

Richardson appeale

d a second time t

o the Davidson County Chancery Cour

t. In the Petition f

or Review, Rich

ardson requested the reversal of the ad

ministrative la

w 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 colla teral estoppel as a

result of the8

first chancery proceeding and requested a supplementation of the record with the former record which was ultimately granted.

After hearing ar

gument, the cha

ncellor held that the constitutional issues ha

d been determi

ned in the first chan

cery case and affirmed the

order of the adm

inistrative law j udge 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 issuesincluding the constitutional challenges to the Board's authority, the selfincrimination is sue, the Board's s tatutory authori

ty to assess a pen

alty, the Board's refusal t

o hear argume

nt concerning the prop

er interpretation

of Section 63-1-134, a

nd the supplementa

tion of the record w

ith that from the prior chancery proceeding. The state argued that Richardson was barred from raising th

e constitutional issues

because he had not ap

pealed the prior Chancery Court order.

The appellate court held that the record in the prior chancery proceeding was prop erly supplemented in supp ort of the state's defen se. Nonetheless, the court rejected the defense since it found that the chancery ruling on the cons titutional issu es was "without appro priate pleading . . . , coram non judi

ce and void." The c

ourt held that only

the portion of the judgment pertaining to the statute's applicability to unlicensed persons was valid. Finally , the court held tha t Tennessee Code A

nnotated Section 63-1

-7 Richardson arg ues that the state m

ay not rely

on its res judicata

or collateral es

toppel defense because the issue was not affirmatively raised in this appe al. 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 Appea

ls' disposition. Fu

rther, it was arg

ued at both the chancery

and appellate le

vels. 9 134 is unconstitutional to the extent it authoriz es any board to a

ssess a civil penalty for ac

ts otherwise decla

red to be crimi

nal offenses. Th

erefore, the court reversed and

vacated the Board' s actions, preter mitted all other

issues, and dismissed the charg es.

II

In the appeal befor

e us, the state ra

ises two issues: 1. whether the Bo ard of Dentistry 's proposed assessment of c

ivil penalties for c

onduct also declared to be a cr

iminal offense

is an unconstitutional exercise of administrative authority; and 2. whether the Davidson County Chancery Court is authorized under the Uniform Administrative Procedures Act t

o resolve constitutiona

l 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 r

esolution of this case ripens it for a dete

rmination on the m

erits, we addre ss the self-incrim ination issue as well.

A.

In addressing the appr

opriateness of the C

hancery Court' s first order disposing of Ric

hardson's constitution

al challenges, w

e consider first to what extent an adm

inistrative body i

n a contested case ha

s the authority to resolve constitutional questions. The general rule is that an10

administrative agency may not determ ine constitutional issues. An agency is not authorized to co

nsider or question the constitutionality of a legislative act; nor may

it declare unconstit

utional the statutes w

hich it was create

d to administer or enforce. This recognition of the limited authority of agencies to resolve consti tutional issues has been widely recognized

. See e.g. , Downen v. Warner , 481 F.2d 642, 643 (9 th Cir. 1973)(reso

lving claim based on constitutional

right is inappropriat

e for an admini strative 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 Ci r. 1990)(agency

without power to adjudica

te constitutional issue s); Key Haven v. Board of Trustees of the Internal Im

pr'mt. Tru st 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)(constitutionalit

y of zoning ordina

nce 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 B d. of Equalization , 587 P.2d 204, 218 (Wyo. 1978)(

agency does not de

termine faci

al constitutionality

of statute or constitutional ity of its application ). See also 73 C.J.S., "P ublic Administrative

Law and Procedu

re," § 65 at 536; 1 Am

. Jur.2d, "Administrati

ve 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 separat ion of powers. See State ex rel. T own of South Carthage v. B arrett , 840 S.W.2d 895, 897 (Tenn. 1992). The powers11

of government,

divided into the legisla

tive, executive,

and judicial branc

hes, are separate and divisible. The legislative branch has the authority to make, alter, and repea

l the law; the exec

utive branch adm

inisters and enforc

es the law; and the judicial b ranch has the autho rity to interpret and app ly the law. State v. Bracke

tt , 869 S.W.2d 936, 939 (Tenn. Cr im. App.), perm . to appeal denied , (Tenn.1993) ; Tenn. Const. Art. II, §§ 1, 2. Since the United States Supreme Court

decision in Marbury v. Ma dison , 1 Cranch (5 U. S.) 137 (1803), it has been the sole obligation of the judiciary to interpret the law and determine the consti tutionality of action s taken by the other two branches of government. Tennessee Small School Sys. v. McWherte r , 851 S.W.2d 139, 148 (Tenn. 1993). The Tennessee Constitution forbids an encroachment by one department up on the powers or funct ions of another. Tenn. Const. Ar

t. II, § 2; State v. Bracke

tt , 869 S.W.2d at 939. Thus, a legislative action ve sting executive branc h agencies with the authority to determine the

constitutionality

of statutes would viol

ate 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 doctrin

e of separation of p

owers is fundam

ental to our form of government, it is no t absolute. State v. Bracke tt , 869 S.W.2d at 939. It does not requi

re that adminis

trative agencies never

consider the constitutionality

of an administr

ative action. A c

areful exami

nation of the cases in Tennessee

and in other states de

monstrates that

an absolute mandate agains

t administrativ

e resolution of consti

tutional issues is overbroad. Most sta

tes, including Tenn

essee, have rec

ognized that,12

although the general rule is that agencie s do not have the authori ty 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 m ust presume sta

tute is valid until a judicial determ

ination to the contrar

y); Johnson v. Elkin , 263 N.W. 2d 1 23, 126 (N.D. 1978)(

general rule is tha

t agencies have no au

thority to rule up

on constitutional ity of their operating s tatutes).

For example,

in a proceeding befo

re the Tennessee

Civil Service Comm

ission, the Comm

ission, without obje

ction, heard andresolved the issue of whether a party could assert a privilege against selfincrimination before th e Commission. England v. Civil Service Commission o

f Metro Gov't of N

ashville & Davidson C

ounty , 617 S.W.2d 135 (Tenn. App. ), cert . denied , (Tenn.1981). The Comm ission's authority was not challenged a

nd its determina

tion that the privilege

was not available was upheld on appeal

. Id . at 140. Converse ly, in Goodwin v. Metropolitan Board of Health , the Court of Appe als stated: "a non-j udicial board has no power or authority to make constitutional rulings." Goodwin v. Metropolitan Board of Health , 656 S.W.2d 383, 387 (Tenn. Ap p.), perm . to appeal denied , (Tenn. 1983).13 A series of cases

have spawned confus

ion on the applicable Tennessee rule. See Watts v. Burkhart , 854 F.2d 839 (6th Ci r. 1988)(case implying that

courts, not agencie s, must determ ine constitutional issue s in Tennessee); L.L. Bean, Inc. v. Bracey , 817 S.W.2d 292 (Tenn. 1991)(administr

ative agencies have

the authority to c

onsider the constitutionality

of a statute); Crawford v. Tennessee Consolidated Retirement System , 732 S.W.2d 293, 297 (Tenn. Ap p.), perm . to appeal denied , (Tenn. 1987)(" only a court m ay pronounce a de

claratory j udgment on the subject of the

constitutionality

of a law . . . . "). This unfortuna te confusion has arisen primarily because our courts h

ave seldom differentiated be

tween the various ki

nds of constitutional iss

ues 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 i s unrealistically simplistic and unw

orkable to state a general r

ule that administ

rative bodies either

have or do not have the authority to c

onsider constitutional

questions. Courts m

ust delineate in a principled manner between those issues that are within the purview of an administrative

body with lim

ited authority a

nd those that are sole

ly within the jurisdiction of the judicial branch. The former include procedural constitutional issues th

at may ar ise in the context of a

contested case. T

he latter involves constitutional challenges to the statutes creating the agency and defining its s ubject matter and authorit y.

Our examination of Tennessee case law discloses that three types of constitutio nal issues arise in contested administrat ive hearings. The first are tho se that challenge the facial constitutiona

lity of a statute14

authorizing an agenc

y to act or a rul

e adopted pursuant to a

statute. The second challenges the actions of an agen cy in applying a rule or statu te. The third challenge s the constitutionality of the procedures e

mployed by

the agency. Onc

e the difference s in the issues are not ed, the seemi

ngly inconsistent app roaches disappear.

Tennessee courts generally hold that administrative agencies and boards are not au

thorized to rule on f

acial constitutional

challenges to statutes or rules. Goodwin v. Metropo litan Bd. of Heal

th , 656 S.W.2d 383 (Tenn. App.), perm . to appeal denied , (Tenn. 1983)(c onstitutionality of Board of Health r

egulations). Court

s, moreover,

have entertained th

ese constitutional challenges in cases in which the issues were not addressed at the agency level. See , e.g. , Plasti-Line, I nc. v. Tennessee

Human Rights Comm'n, et al. , 746 S.W.2d 691 (Tenn. 1988)(adm inistrative action pe

nding when declaratory

judgment file

d but no suggestion that ag ency should resolve issue); Pharr v. Nashvi lle, C., & St. L. Ry. , 208 S.W.2d 101 3, 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 t he issue before submitt ing the matter to judicial review. See L.L. Bean, Inc. v. Bracey , 817 S.W.2d 292 (Tenn. 1991)(cha

llenge 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)(a pplicability of s

tatute and agency

rule to plaintiffs' retirement rights). Courts have also implicitly recognized an15

agency's authority to resolve constitutional questions involving procedural matters. See England v. Civil Se rvice 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 ag

ency can resol

ve constitutional issues r

aised in a contested case proceeding depe nds on the nature of the constitutional issue. The applicable rules may be summa rized as follows: (1) Facial Constitutiona lity of a Statut

e The facial constitutionality of a statute may not be determ ined by an administrative tribu nal in an administrativ e proceeding. An administrative

agency is a cr

eation of the legisla

ture. While it m

ay have judicial characteristics and may be required to perform quasi-judicial functions, an agenc y is not part of the judici al branch of government. Plasti-Line, I

nc. v. Huma

n Rights Comm

'n, et al. , 746 S.W.2d 691 , 694 (Tenn. 1988). As a result, the legi slature may not confer upon an age

ncy the power to determine the cons titutionality of a sta tute. Hoover Motor Exp. Co., Inc. v. Railroad & Public Utilities Comm'n , 261 S.W.2d 233 , 238 (Tenn. 1953); Pharr v. Nashvi lle, C., & St. L. Ry. , 208 S.W.2d 101 3, 1017 (Tenn. 1948). N

or may an a

gency assum

e that power. T

hat power rests with the judiciary. Tennessee Small School Sys. v. McWherte r , 851 S.W.2d 139, 148 (Tenn. 1993 ). To vest an age ncy with the aut

hority to determ

ine the constitutionality

of the legislation em

powering the agency

to act would violate the doctrine

of the separation of

powers. Tenn. Const. Art. II , §§ 1 & 2. Therefore , we reiterate that an administ

rative agency,

board,8 An agency rule is, in essence, an application of the statutes whic h govern the agency. An unconstitutional ru

le is an unconstituti

onal application o

f an otherwise c

onstitutional statute. 16 commission o

r administrati

ve law judge acti

ng in a contested case

hearing has no authority to resolve facial challenges to the constitutionality of a statute.

(2) Unconstitutional App lications of a Statu

te or Rule When the focus of an aggrieved party 's claim is an "as applied" challenge to the cons

titutionality of a

statute or any c

hallenge to the constitutionality of an agency rule, 8 the agency m ay initially

rule on the challenge. The p

olicy behind this ge

neral rule is to all

ow the agency t

he 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 m

ay modify

its rule to compo

rt 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 t

he provision of the Ad

ministrative P

rocedures Act. Tenn. Code Ann. § 4-5-223 ( 1991 Repl.). The refore, an adm

inistrative body i

n a contested case proceeding may resolve questions of the unconstitutional application of a stat

ute to the specific c

ircumstances of the case or the constitutional ity of a rule that the agenc y has adopted.

(3) Constitutional Challenges to Agency Procedure17 Similarly, an agency m

ay address a claim that an agency's procedure is constit

utionally defici

ent. In contested case proceedings, administrative

law judges, boar

ds, and comm

issions 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 rec ord after a fair proceedin g.

Our courts have long recognized the wisdom of allowing a trial court to correct e

rrors in the conduct o

f a trial before s

ubmitting the case for appellate review. To require administrative tribunals to ignore procedural issues and delay c

orrection until jud

icial review in the

chancery cour

t would diminish the effectiveness of administrative proceedings and cause a considerable waste o f effort on the part of th e parties and the trib unal. Therefore, w

e conclude that an ag

ency has the aut

hority in a conte sted case proceeding to conside

r procedural consti

tutional issues and conf

orm its procedures to cons titutional requi rements.

To summar

ize, administ

rative agencies ha

ve no authority to determine the

facial constitutiona

lity of a statute . They are a uthorized, however, to deter

mine the constitu

tionality of the a

pplication of statute s or rules and of the proc

edures employ

ed. The agency

resolution of those issues is subject to j udicial review in t he chancery c

ourt. Tenn. Code

Ann. § 4-5-322 (1995 Supp.).

B18 Next, we mu st consider whether the Davidson County Chancery Court was authorized to resolve constitutional issues which were raised but not resolve

d in a contested case

proceeding.

Tennessee's Administrati ve Procedure Act provid es two methods for obta

ining judicial dete

rmination of co

nstitutional issues. F

irst, any person aggrieved by a final decision in a contested case before an administrative

tribunal is entitled t

o judicial review

in the Davidson County Chancery Cour

t. Tenn. Code A

nn. § 4-5-322(a)(1) (1991 Repl. & 1995 Supp. amend. eff. 7-1-95). Preliminary , procedural, a nd intermediate rulings may

be reviewed im

mediately if the review of a

final ruling would not provide an adeq uate remedy. Id . The Chancery Court review is w

ithout a jury and is c

onfined to the recor

d, unless procedura

l irregularities no

t shown in the record a

re alleged. Te

nn. Code Ann. § 4-5 -322(g)(1991 Repl. & 1995 Supp.). In that situation, the Chan cery Court may take proof. Id

. After review, the Chancery Court may affirm or remand for further proceedings. If t

he administrat

ive findings, infer

ences, conclusions,

or decisions (1) violate

constitutional or stat

utory provisions; (

2) exceed the agency's statu

tory authority ; (3) were m ade "upon unlawful pr

ocedure;" or (4) are arbitra

ry, capricio

us, or an abuse of discretion, and prej udice the party, the Cha

ncery Court m

ay reverse or

modify the d

ecision. Tenn. C

ode Ann. § 4-5-322(h)(19 91 Repl. & 1995 Supp .).

The Administrative Procedures Act also allows an "affected person" to petition the Davidson County Chancery Court for a declaratory judgment rega

rding the legal validi

ty of a state,

rule, or agency

order in19

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 declar

atory order in t

he agency, the

agency has ref

used to issue a declarator

y order, and th

e statute, rule,

or order, or its a

pplication interferes with, impairs, or threatens to interfere with or im pair the person's rights, the Chancery Court may enter declaratory judgment. Id . The Chancery Court may declare a statute or r ule invalid only if it "violates constitutional provisions, exceeds the statutory authority of the agency, was adopted without com

pliance with the ru

lemaking proce

dures . . . or otherwise violates state or federal law." Id . at § -224(c).

The declaratory

judgment and j udicial review pr ovisions do not require that constit

utional issues be raised at the agency level. In fact,

both Section 4-5-224 (declaratory judgments) and Section 4-5-322 (judicial review) direct t

he trial court to det

ermine wheth

er the agency' s action or decision violated a constitutional provision or exceeded the agency's statutory author

ity. Impl icit in the declara

tory judgm

ent procedure avai

lable 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 c

onfine review to the

record, but allow

the court to take proof in circum

stances in which the

irregularities ar

e not shown on the record. Tenn. Code Ann. § 4-5-223( g)(1991 Supp. & 1995 S upp.). The statutes clearly

contemplate th

at, in a number

of circumstan

ces,20

constitutional issues m

ay be raised an

d addressed for the f

irst time in chancery cour

t.

To better illustrate t he appropriate rules and procedures, we addres s each o f the th ree types of cons tituti onal is sues se parate ly:

(1) Facial Unconstitut

ionality of a Sta

tute Since an administrative agency has no authority under Tennessee law to

consider the constitu

tionality of a sta

tute, the agency

must refuse to address f

acial constitutional

challenges raised i

n contested case proceedings. Hea

ring challenges to iss

ues which the agenc

y cannot resolve may unduly

prolong and compli

cate administr

ative proceedings. We see no good reason to require that parties raise facial constitutional challenges before agencies w

hich lack the power

to resolve the issue.

The law should not require one to p erform useless and futile acts. See e.g. Watts v. Burkhart , 854 F.2d 839, 848 (6 th 1988); Key Haven v.Board of Trustee s of Internal Impr

ovm't Trust F

und , 427 So. 2d 153, 157 ( Fla. 1982); Duncan v. Missouri Bd. for A

rchitects , 744 S.W.2d 524 (Mo. App. 1988); Johnson v. Elkin , 263 N.W.2d 1 23, 127 (N.D. 19 78); Mobil Oil Corp. v. City of Rocky River , 309 N.E.2d 900 (Ohio 1974).

If a party in a

contested case proc

eeding petitions an age

ncy 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 rev

iew of the resolve

d issues and of those iss

ues that the agency refused or was without authority to consider. In either circumstance,21

the party m

ay challenge the

constitutionality

of a statute regar

dless of whether it was raised at t he agency level.

(2) Unconstitutional App lication of a Statut

e or Rule A party's cha

llenge to the applica

tion of a statute or th

e constitutionality

of an agency ru

le may init

ially be consider

ed and determined by the agency. This com ports with the principles of judicial economy and

allows correctio

n of errors at the i

nitial hearing level

.
Notwithstanding these important polic y considerations , the legislature specifically authorizes the chancery court to reverse or modify the agency deci sion if the party 's rights have been p rejudiced by a

violation of constitutional or st

atutory provisions . Tenn. Code An n. § 4-5- 322(h)(1)(1991 Repl . & 1995 Supp.). T his supports a conclusio

n that the issues need not be raised during the ag ency proceeding. In addit ion, practical considerations convince us that the failure to raise a constitutional challenge during an agency proceeding should not preclude the chancery court's considerat

ion. First, agenc

ies employ d

iverse procedures

with varying degrees of formality. An adm inistrative judge or hearing officer may, wi th the agreeme

nt of the parties, c

onduct all or part of

the hearing by telephone, televis

ion, or other elec

tronic means. Tenn. Code Ann. § 4-5- 312 (1991 Repl.). T

he party charg

ed may or m

ay not be repre sented by counsel. In som

e instances, the f

act that an agency

has exceeded its authority may not be apparent un til the agency has issu ed its final order. See Pharr v. Nashvi lle C. an d St. L. Ry. , 208 S.W.2d 101 3 (Tenn. 1948)(order requir

ing railroad to m

ove tracks violates separation of22

powers). To pro

hibit a party fr

om raising consti

tutional issues in the chancery cour

t which were not a

ddressed at the agen

cy level could pr

event an aggrieved party from having a full and fair judicial hearing on an alleged clear violation of a c onstitutional right.

Secondly, adm

inistrative agencie s may be ill -equipped to rule on constitutional issues . Although agency personnel have consid

erable expertise on the subj ect matter w hich the legislature

has delegated to the agency, board

members and other agency fact-finders ar

e less likely to ha

ve training in constitution

al law sufficient

to enable an appropr

iate resolution of the issues.

Finally, the importance of correctly resolving constitutional issues suggests that constitutional issues should rarely be for

eclosed by procedural technica lities. Veach v. State, 491 S.W.2d 81, 83 (Tenn. 197 3). Certainly, issues of cons titutionality shou ld not first surface o n 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 agen

cy decision under

the Administra

tive Procedure A

ct and appeals from final judgments of trial courts under Rule 3, Tennessee Rules of Appellate Procedure requires a more flexible app roach in the former.

Based on the plain language of the Administrative Procedures Act and the policy

and practical prin

ciples discussed above , we hold that the failure to contest t

he constitutionality

of a statute as appli

ed or the constitutionality

of an agency ru

le does not prevent a party from raising23

those issues upon judic

ial review. Ho

wever, we note

that in most insta

nces, a party ma

y save considera

ble time and expe

nse by raising the

issue through a declaratory

order proceeding or

other appropriate p

leading.

(3) Constitutional Challenges to Agency Procedure Constitutional challe

nges to agency pr

ocedure may

include issues such as the righ

t to counsel, the pri

vilege against self-

incrimination, and the right to pro cedural due process. See England v. Civil Service Commission , 617 S.W.2d 135 (Tenn. App. ), cert. denied , (Tenn.1981) (privilege against self-incrimin ation). Objec

tion at the agency

level will allow incorrect p

rocedures to be elim

inated thereby saving time and e xpense for the parties. Nonetheless, the l egislature clear

ly intended to all

ow procedural irregu

larities in conteste

d case hearings to be

addressed for the first time on j udicial review. Tenn. Code Ann. § 4-5-322(h)(3)(199 1 Repl. & 1995 Repl.). Review at the chancery court level ensures that constitutional issues are addressed by law-trained judges with the legal knowledge to resol ve the issues.

In summati

on, although an agenc

y has no authority

to determine the

constitutionality

of a statute, an a

gency may

rule on constitutional challe

nges to the applicatio

n of a statute, to a rule, and to procedures used in a

contested case proc

eeding. Neverthe

less, the failure

to raise these constitu

tional issues before

the agency wil

l not preclude a par

ty in a contested case from raising the issue for the first time upon judicial review.24 Parties to conteste

d case proceedings m

ay challenge the constitutionality

of a statute or a ru

le, either faci

ally or as applie

d, by seeking a declarat

ory order from

the agency pursu

ant to Tennessee Co

de Annotated Section 4 -5-223. If the age ncy refuses to r

ule on the issue, as i

t must if the chal

lenge is to the facia

l constitutionality

of a statute, then t

he party may

petition the chancer

y court for a de

claratory j udgment pursuant t o Section 4-5-224. If the agency issues a declaratory order, an aggrieved party may

seek judicial re

view of the order i

n the Davidson County Chancery Cour

t pursuant to Section 4 -5-322. A final j udgment of the chancery cour

t may be app

ealed to the Tennes see Court of Appea ls. 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. C

ode Ann. § 4-5-322 ( 1991 Repl. & 1995 Supp.). During chancery court review of a final agency order, parties may raise constitutional

challenges to statute s or rules, challe nges to the application of statut

es or rules, and ch

allenges to agency

procedures, regardless of whether the issue was raised at the agency level. The chancery court may t

ake further eviden

ce or may order the agency

to take the proof required in appropr

iate cases. Te

nn. Code Ann. § 4-5 -322(e), (g)(199 1 Repl. & 1995 Supp.) . Once again, pa rties may appeal to the Court of Appeals from

the final order of

the chancery c

ourt. Tenn. Code

Ann. § 4-5- 323 (1991 Repl.).

C25 Having defined the scope of an agency 's limited autho rity to resolve constitutiona

l issues and of the cha

ncery court's

broad powers to consider those issues e

ither in a petition fo

r declaratory

order or upon judicial review, we must now app ly those principles to the facts in this case

. In doing so, we conclude that both the Davidson County Chancery Court and the Board of De

ntistry's fac

t-finding tribunals c

onformed to the principles delin eated above.

Richardson petitione

d the Board for a de

claratory ord

er on August 6, 1990, appr oximately six weeks before the scheduled hearing date. He raised broad constitutional challenges to the facial validity of Tennessee Code Annotated Sec

tion 63-1-134 and agenc

y rule 0460-14-1. 04. The gravamen of his

constitutional issues w

as the agency' s lack of authority to act. Since Richa

rdson was charged w

ith conduct that was m

ade criminal b

y statute, he contend

ed that an agency

determination of his "guilt" would violate the principle s of separation of pow er and due process.In addition, Richardson challenged whether the statute or rule applied to him, an unlicensed citizen.

The Board refuse

d to address the consti

tutional issues finding that it was not authorized to resolve them. It did issue a declaratory order, however, stating t

hat Section 63-1-134 a

pplied to persons who sh ould be licensed as well a

s those who are lice

nsed and that civil pen

alties could be assessed against Ric

hardson if the allega

tions were proven.Richardson petitioned for judi

cial review in the

Chancery Cour

t once again raising h

is9 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 p

rocess.

10 We are aware of the holding in Goodwin v. Metropo litan Board of He

alth , 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 he

ar 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 r eview under Section 4-5- 322 of the Administrative Procedures Act which specifically gives a c hancery court the authority to consider constitutional challenges to agency action. 26 constitutional challe

nges 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 p

etition including those constitutional issues no

t resolved by the agency. The chancellor's act

ions were proper. T

he administrat

ive agency wa

s not authorized to dec

lare the challenged statute u

nconstitutional. If

the chancellor wa

s prohibited from determining the

constitutionality

of the statute as the

Court of Appeals he

ld, the party chall

enging the statute wo

uld have no available forum in which to raise the issue. 10

The parties in this case briefed and argued the constitutional issues. The chanc

ellor stated the issu

e as "whether the order of the Board is in violation of constitu

tional provisions, ar

bitrary, ca

pricious, illegal or

in excess of statutory authority." In the Memorandum a nd Order entered January 3, 1992,

the chancellor foun

d that: The statute authori

zes the Board of Dentistry to as sess a civil penalty against a person who should be, but i s not, licensed by the Bo ard.27 The State is pursui

ng only civil rem

edies 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 Boa rd's or der is n ot arbi trary, capricious, illegal or in excess of statutory author ity.

Implicit in the chancellor's order is the holding that the matters before the Board w

ere civil and not cr

iminal in nature

and, therefore,

the Board was not acti

ng in violation of any

constitutional provisio

ns 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 wh

ether that chancer

y court order w

as a final one, and, if so, whether certain

determinations

now form the ba

sis for a res judicata or collateral estoppe l defense.

The term "res judicata" is defined as a "[r]ule that a final judgment rende

red by a court of

competent jur

isdiction on the me

rits is concl usiv e as to the ri ghts of the parti es and their privi es, an d, as t o them,

cons titu tes an absol ute ba r to a s ubse quen t acti on in volv ing t he same claim, demand or cause

of action . . . .[T]o be applica ble, it requires id

entity of cause of action, or

person and parties to

action, and of quali

ty in persons for or against whom

claim is m

ade." Black's L

aw Dictionary

1172 (5th ed. 1979)(citations om

itted). We hav

e recently disc

ussed the doctrine an

d its related counterpa

rt, collateral e stoppel, as follows :
The doctrine of re s judicata bars a second suit between the sam

e parties or their privies on the same cause of action with respect to all issues which were or co

uld have been litigate

d in the11 As noted in the quota tion 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 sa

me cause of acti

on that was deter

mined in the first a

ction. Collateral estoppel prevents identical parties from relitigating in a different action issues determined in a previous suit. Massengil v. Scot t , 738 S.W.2d 629, 631 (Tenn. 1987) In this case, collateral estoppel bars the relitig ation of issues det

ermined in the pre

vious chancery suit between these identical parties. However , res judicata is often used to mean "a matter adjudged; a thing judicially acte d upon or decided." Black's Law Dictionary

1174 (5th ed. 1979) . It is in this ge neral sense that

the term is used in th

is opinion. 28

former suit. Collateral estoppel operates to bar a second suit between the same parti es and their privies on a differ

ent cause of action only as to issues which were

actually litiga

ted 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 estoppe

l apply only if

the prior judgm

ent concludes the rig

hts of the parties on the merits

. A. L. Kornm an Co. v. Metropol

itan Gov't of Nashvi lle & Dav idson County, 391 S.W.2d 633, 636 (Tenn. 1965). One defending on the basis o

f res judicata or

collateral estoppe

l must demonstrate that 1) the judgment in the prior case was final and concluded the rights of the par

ty against whom

the defense is asse

rted, and 2) both cases involve the s ame parties, the same cause of actio n, or identical issu es. Scales v. Scales , 564 S.W.2d 667, 670 (Tenn. Ap p. 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. Metro

politan Gov't of Na

shville & Davidson Cou

nty , 38312 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 S.W.2d 28, 31 (Tenn. 1964). An order denying a m otion for summary judgment, fo

r example, is

not a final judgm

ent because the enti

re suit remains for dispositio n. 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 )(quo ting from In Re Estate of McCord , 661 S.W.2d 890 , 891 (Tenn. App. 1983)). Likewise, the denial of a motion to dismiss does n ot end a lawsuit or con stitute a final judg ment. Id

.
The chancellor's January 3, 1992, Memorandum and Or der was the final judgm

ent in the initial cha

ncery procee

dings. It conclusive

ly 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 j udicial review in t he Chancery C

ourt, the Chancery Cour

t's Memorandum

and Order was a final order subje ct to appeal under Secti

on 4-5-323. The j udicial review of the agency dec

ision was not a continuation of the agency proceeding, but was an original judicial review

proceeding under Se

ction 4-5-323 subjec

t to review by t

he appellate courts. 12

Richardson made various efforts to appeal the Chancery Court judgment but fa

iled to comply

with the appellate

procedure specifi

ed in Section 4-5-323. T

hat section provides:30 (a) An aggrieved

party may

obtain a review of

any final judgmen

t of the chancery

court under this chapter by appe

al to the court of app

eals of Tennessee. (b) The record c

ertified to the cha

ncery court an

d the record in the ch

ancery court s

hall 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 procedur

e on appeal shall be go

verned by the Tennessee Rules o f Appellate Procedure. Tenn. Code Ann. § 4-5-323 (1991 Repl. ). Richardson did no t comply wi

th any of those requirements, and, therefore, the Chancery Court's Memorandum and Order is a final adju dication of the case

.

The parties and the issues in the second Chancery Court proceeding, with o

ne single exception,

were identical t

o those in the first proceeding. The single nonidentical issue was raised in Richardson's amendment to his Motion to Dismiss which was filed several m onths after the original Chance

ry Court judgm

ent. That am

endment contest

ed the Board's authority to act under Article VI, Section 4 of the Tennessee Constitution and under t

he principles enuncia

ted in State ex el. v. T

own of South Carthage v. B arrett , 840 S.W.2d 895 (Tenn. 1990). T

he administrative

law judge denied t

he motion and gra

nted the state's Mot

ion to Compel and Motion in Limine based on the agency's position that it was seeking only civil pe nalties.

Richardson filed a Petition for Review in the Chancery Court raising the same constitutional issues he had raised in the first chancery proceeding, and add

itionally, the c

onstitutional challeng

e based on Town of13 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 a gency level are not part of the contested case procedures. In fact, when an af fected 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 declara tory order was a final agency decision in a contested case proceeding. 31 South Carthage . He also challe nged the ruling on the st

ate's Motion toCompel asserting that it deprived him of his privilege against selfincrimination.

The state argues that the "new" Town of South Car thage challenge to the age ncy's authority is not "new" at all. We agree. Richardson has conte

nded from the out

set that the Board ha

s no authority to interpret or enfor

ce criminal st

atutes. In its fina

l order in the first proceeding, the Chancery Court held that the Board of Dentistry was seeking only civil , and not crimi nal remedies,

a procedure clea

rly within its authority. Th

e fact that Richar

dson has identified ano

ther argument to support his constitutional challenge does not alter the fact that the issue was resolved in the firs

t chancery pro

ceeding. Betwe

en these parties,

the resolution is fin al.

In the Memora

ndum and Order

issued in the second sui

t, the chancellor wrote: In an earlier interlocutory 13 proceeding in

this same m

atter, Docket N

o. 91-636-II, the petitioner sought rel

ief from a de

claratory ord

er of the Board which held that he could be assessed these "civil penalti

es." In that appea

l, the petitioner made

the same argum

ents he has made in this appeal; basica

lly that the statu

te he is charged with violat

ing are crimin

al statutes and he32 is entitled to Fifth Amendment Constitutional protection and the Board lacks Constitutional authority to conduc

t this hearing and enf

orce the statute. By Memorandum and Order enter ed January 3, 1992 in that matter, this Court concluded that this was not a crimina l prosecution and it has not yet c

hanged its mind.

The chancellor's first Memorandum and Order was a f inal order. The parties were iden tical, the issues, sav e one, were the same. Richardson failed t

o perfect an appea

l from the chan

cellor's Mem

orandum and Order. The

judgment is fi

nal. The Court of

Appeals erred in h

olding that the constitutional

challenges to agenc

y authority w

ere coram non judice. With t

he exception of one is sue, we are bar red from consi

deration of the constitutional issue s.

III

The single constituti

onal issue presented in the secondchancery proceeding was whether Richardson's privilege against selfincrimination would be violated if he was compelled to answer incriminating R

equests for Adm

ission. The Board' s order refused to recognize the privi

lege in the contested

case proceeding be

cause the statute of limitations had expired on any potential criminal violations. The order recited that if the

criminal viola

tions remained viable, the decisio n might have been differe

nt. The Chancer

y Court's Ord

er affirmin

g the Board action did not address the sel

f-incriminat

ion issue. The Cour

t of Appeals' opinion dismissing the charges deemed a discussion of the issue "unnecessary." Because this m

atter will be rem

anded for further proceedings in which the privilege may again be asserted, we will address the issue.33 The Fifth Am

endment to the U

nited States Constitu

tion and Article I, Section 9 of the Tennessee Constitution of the State of Tennessee guarantee that those

accused of crim

es may not be

compelled to te stify or give evidence agains

t themselves. U. S. Const. a mend. V; Te

nn. Const. Art. I § 9. The scope of

the privilege is com

prehensive; Application of Gau lt , 387 U.S. 1, 47 (19 67), its availabili ty is not dependent

upon the type of proceeding in which the protection is invoke d but on the nature of th

e testimo ny.

The privilege prote cts any disclosures which a witness might reasonably

believe would be use

d in a criminal prosecution or whic h could lead to other eviden ce that might be so used. Murphy v. Wa terfront Commission , 378 U.S. 52, 9 4 (1964); State ex rel. Shriver v. Leech , 612 S.W.2d 454, 459 (Tenn.), cert . denied , 454 U.S. 836 (19 81). "The privile ge can be claime

d in any proceedi

ng, civil or crim

inal, administ

rative or judicial, investigatory or adjudicatory." Murphy v. Wa terfront Comm

ission , 378 U.S. 52, 94 (1 964); 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 privil ege is available in a

civil suit, it does not protect witnesses in circumstances in which the answer may subject them only to civil li abilities. Zollicoffer v. Turney , 14 Tenn. (1 Yer.) 297, 300- 301 (1834); Cook v. Corn , 1 Tenn. (1 Ove rt.) 340, 341 (1808)

Hence, the privilege is not available to Richardson. The Notice of Charges alleges that Richardson's violations as occurred between March34

15, 1990 and June 8, 1990 . The violations al leged are of provisi

ons of the chapter establishing and regulating the Division of Health Related Board and are Class B m

isdemeanors. Tenn. Code Ann. §§ 63-1-123(a), 63- 5- 128(a)(1990 Repl. &

1995 Supp.). The statute of limit ations for the prosecution of m

isdemeanors is twelve months.Tenn. Code Ann. § 40-2- 102 (1990 Repl.)

If reasonable grou

nds existed to believe that compelling Richardson's testim

ony would lead to a

criminal prose

cution, Richardson could assert the priv

ilege against self-

incrimination in

the administra

tive proceeding. How

ever, since any

criminal prose

cution on these charges is barred by the st

atute of limita

tions, the privilege

against self-incr

imination may not be successfully asserted to avoid responding to the discovery reques ts or ot herwis e in the procee dings before t he Boar d of Den tistry.

Conclusion An administrative agency has no authority to resolve facial challenges to the con stitutionality of a statute. An age ncy may rule on the constitutionality of its own rules and procedures and the applicability of a statute to a particu

lar case. The C

hancery Court,

on judicial review

or in a declaratory judgment action, may consider constitutional issues arising as the result of a conte sted case proceedi ng even though the issues were not raised in the agency or, if rai sed, were not addressed

.

Here, the Chanc

ery Court did not err by address ing Richardson's consti

tutional challenges t

o the agency's a

uthority in its35

Memorandum

and Order in the fi

rst chancery p

roceeding. Since

Richardson failed to perfect

an appeal of that de

cision to the Court of Appeals, the chancellor's ruli

ngs are final. Ric

hardson is precluded b

y the doctrine of collateral estoppe

l from relitig ating those issues. W e, therefore,

do not address the me

rits of the constituti

onal challenges. A

s to the only rem

aining issue, we hold that while the privilege against self-incr

imination is viabl

e in administrative

proceedings, the c

ircumstances of this case ma ke it inapplicable and unav

ailable to Richards on on the present char ges.

The judgment

of the Court of Appe

als is reversed. The case is remanded to the agency for furth er proceedings cons istent with this o pinion.

__________________________________ _ Penny J. White, Justice

CONCUR: Anderson, C.J. Drowota, Reid,

Birch, J.J.