Board of Dental Examiners of Alabama
from Tallapoosa Circuit Court. (CV-14-900001).
Appellant: Davis B. Whittelsey of Whittelsey, Whittelsey,
Poole & Corley, P.C., Opelika.
Appellee: Susan F. Wilhelm, gen. counsel, and deputy atty.
gen., and Donna L. Dixon, deputy atty. gen., Board of Dental
Examiners of Alabama, Hoover.
Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
appeal arises from disciplinary proceedings brought by the
Board of Dental
Examiners of Alabama (" the Board" ) against one of
its licensees, W.A.A. (" the practitioner" ), in
October 2012, asserting that the practitioner had violated
Ala. Code 1975, § 34-9-18(a)(4) (a portion of the
Alabama Dental Practice Act (" ADPA" ), Ala. Code
1975, § 34-9-1 et seq.), " by being a habitual user
of intoxicants or drugs rendering [him] unfit for the
practice of dentistry based upon [his] habit of using
controlled substances" (labeled as Count I) and had
violated Ala. Code 1975, § 34-9-18(a)(13) (another
portion of the ADPA), by prescribing, administering or
dispensing drugs or medications for " person[s] not
under his ... treatment in the regular practice of his ...
profession" (labeled as Count II). After a two-day
hearing, which itself had followed significant ancillary
litigation in both state circuit courts and a federal
district court regarding discovery matters that arose over
the course of the administrative proceedings before the
Board, the Board rendered an order on October
31, 2013, determining that the practitioner was, in fact,
guilty on both counts; that he should pay a $5,000 fine as to
each count and a $25,000 assessment for the cost of the
administrative proceedings; and that his license should be
suspended pending payment of the moneys due and his entrance
into a " monitoring agreement" with a Board
committee on wellness.
ADPA provides that, upon the rendition of " any order of
the [B]oard imposing any of the penalties found in Section
34-9-18," Ala. Code 1975, " any party affected
thereby may bring an action in the circuit courts to set
aside the order on the ground that same is unlawful or
arbitrary." Ala. Code 1975, § 34-9-25. Because the
ADPA is silent on the length of time afforded to seek
judicial review of disciplinary orders rendered by the Board,
this court, in Kyle v. Board of Dental Examiners of
Alabama, 57 Ala.App. 681, 331 So.2d 696 (Civ. App.
1976), cert. denied, 331 So.2d 699 (Ala. 1976), held that, to
timely initiate an action under § 34-9-25, " an
aggrieved party must ... petition [the circuit court] within
a reasonable time." 57 Ala.App. at 684, 331 So.2d at
698. However, upon the enactment of the Alabama
Administrative Procedure Act (" the AAPA" ), Ala.
Code 1975, § 41-22-1 et seq., the reasonable-time
requirement of seeking review under the ADPA was abrogated by
the AAPA's provision of " a period of 30 days within
which to appeal or to institute judicial review" after
" the receipt of the notice of or other service of the
final decision of the agency." Ala. Code 1975, §
41-22-20(d). Although the record does not reflect any filings
with the Board after the rendition of the disciplinary order,
the practitioner has asserted, and the Board does not
dispute, that he filed a notice of appeal with the Board on
Monday, December 2, 2013, the first business day following
the 30th day after his receipt of a copy of the disciplinary
order (which had fallen on a weekend). See Ala. Code 1975,
§ 1-1-4 (pertaining to last day to perform act required
by statute when office is closed pursuant to law).
30 days after filing his notice of appeal (see Ala. Code
1975, § 41-22-20(d)), on January 2, 2014, the
practitioner brought a civil action in the Tallapoosa Circuit
Court seeking judicial review, under § 34-9-25, of the
Board's disciplinary order. That petition challenged
arbitrary, capricious, and outside permissible discretion
" [t]he discussions and actions of the ... Board,"
its wellness committee and the committee's director, its
investigators and prosecutors, and other persons, firms,
associates, and entities involved in the case. On January 31,
2014, the circuit court stayed the effect of the Board's
order, directed the Board to produce a certified copy of its
administrative record in the matter, and set oral arguments
for March 10, 2014. After arguments were presented, the
practitioner filed a memorandum brief in which, among other
things, he contended that the Board's decision as to
Count I, the suspension of his dental license, the imposition
of the $5,000 fine as to Count I, and the assessment of
$25,000 of administrative costs were due to be reversed; that
the circuit court's " review [was] not ... limited
to a scrutinization of the record alone" ; that he was
" entitled to present evidence which [was] not included
in the record to prove the Board's [d]ecision was
unlawful or arbitrary, or that it violates his due process
rights" ; and that he " reserve[d] the right ... to
submit extrinsic evidence to the [circuit court] upon his
acquisition of the same." Although the Board filed a
motion to strike that memorandum brief, the Board did not
controvert the practitioner's argument regarding his
right to submit extrinsic evidence.
April 2014, the practitioner served a notice of deposition
upon the Board seeking to take the deposition of a
representative of the Board pursuant to Rules 30(b)(5) and
30(b)(6), Ala. R. Civ. P.; that notice also sought the
production at that deposition of, among other things, "
[t]he identity of any persons present and/or the nature,
content and procedure of the Board's deliberations on the
charges brought ... against [the practitioner]," "
[t]he identity and content of any documents, recordings,
emails, fax-transmittals, letters, correspondences, and/or
other extraneous evidence which is [not] contained within the
[administrative] record" that " mention, regard
and/or in any manner concern [the practitioner] and/or the
facts, matters and/or charges brought against [him],"
" [a]ny reasons and/or grounds ... [not] described
and/or contained within the Board's" disciplinary
order that " provide a basis for and/or support any
portion(s) of the Order," and " [a]ny executed
and/or nonexecuted drafts of the Board's"
disciplinary order. The Board, in response, filed a motion to
quash or for a protective order, asserting that the discovery
sought was " irrelevant and/or immaterial to the matter
before [the circuit court] and/or [was] protected by the
executive privilege, deliberative process privilege,
attorney-client privilege, and work-product privilege" ;
the Board also asserted that judicial review was confined to
the record and that the practitioner had untimely sought to
inject issues of bias and misconduct. Similarly, the
practitioner sought discovery -- by serving notice of his
intent to serve subpoenas directed to the Board's
presiding officer, the Board's wellness committee and its
director, and the drug-treatment clinic that had provided
services to the practitioner -- of " [a]ny and all
documents, correspondences, e-mails, fax transmittals,
records or writings of any type and in any form of media ...
which evidence, mention and/or refer to any form of
communication concerning, ...