Opinion No.

The Honorable David Bisbee State Senator 14068 Pyramid Drive Rogers, AR 72758-0116

Dear Senator Bisbee:

You have presented the following questions for my opinion:

Does the authority of one board to define its scope of practice protect that board's licensee from penalties imposed by any other boards on the ground of practicing without a license? Specifically, can the Arkansas State Board of Chiropractic Examiners penalize a licensee of the Arkansas State Board of Physical Therapy for practicing chiropractic without a license when the Arkansas State Board of Physical Therapy has certified that the particular procedure at issue falls within the scope of practice of physical therapy?

RESPONSE

I must decline to provide an answer to these questions in light of this office's long-standing policy against the issuance of opinions on questions that are the subject of pending litigation. It has come to my attention that the issues raised by your questions have also been raised in the context of currently pending litigation. See Board of Chiropractic Examiners, In the Matter of Michael Teston, P.T., No. 193-05-21-02. In that case, the Board of Chiropractic Examiners found an individual to be in violation, and is in the process of drafting the written order reflecting this finding. Accordingly, the time for appeal of that order has not yet lapsed. It is my understanding that the individual in question intends to appeal the Board's order. The matter is thus still pending.

My policy of declining to address issues that are the subject of litigation is based primarily upon the separation of powers doctrine. Any opinion issued by my office would constitute executive comment on matters that are properly before the judicial branch. Any answer to these questions must be provided in a judicial forum. Accordingly, I must not address these issues at this time.

Sincerely,

J. LEON JOHNSON Attorney General