FILED

November 10, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JIMMY ARNOLD ) FOR PUBLICATION

 )

) FILED: NOVEMBER 10, 1997

Petitioner ) 

) DAVIDSON COUNTY

v. ) 

) HON. C. ALLEN HIGH, 

) Chancellor and

TENNESSEE BOARD OF PAROLES, ) HON. ELLEN HOBBS LYLE,

et al. ) Chancellor 

)

) NO. 01-S-01-9610-CH-00210

 Respondents )

_________________________________

ANTHONY EVANS )

 )

)

Petitioner ) 

) DAVIDSON COUNTY

v. ) 

)

) HON. ELLEN HOBBS LYLE,

TENNESSEE BOARD OF PAROLES, ) Chancellor 

et al. )

)

)

 Respondents )

For Petitioner Arnold: For Respondents:

JIMMY ARNOLD JOHN KNOX WALKUP

Pro se Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

MERRILYN FEIRMAN

Assistant Attorney General

Nashville, TN

For Petitioner Evans: For Respondents:

ANTHONY EVANS JOHN KNOX WALKUP

Pro se Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

 

PATRICIA C. KUSSMAN

Assistant Attorney General

Nashville, TN

OPINION

AS TO ARNOLD: AFFIRMED BIRCH, J.

AS TO EVANS: AFFIRMED IN PART, REVERSED IN PART
1Any action taken in violation of the Act is void. Tenn. Code

Ann. § 8-44-105 (1993).

2Petitioners contend that the Board relied on the following

“illegal and unconstitutional” factors to deny them parole:

seriousness of the offense, risk to re-offend, number of victims,

completion of the sex offender treatment program (Petitioner Arnold

only), and continued participation in Alcoholics Anonymous

(Petitioner Evans only).

3Official parole decisions include the decision to grant, deny,

revoke, or rescind parole. See Tenn. Code Ann. § 40-28-105(d)

(1990).

2

Jimmy Arnold and Anthony Evans, both serving sentences in

the Department of Correction, filed individual petitions for the

common law writ of certiorari in the Chancery Court for Davidson

County. Each petitioner contended that in reviewing his file for

parole the Board of Paroles (Board) failed to hold an open meeting

as required by the Open Meetings Act, Tenn. Code Ann. § 8-44-101 et

seq. (1993)1 Further, each petitioner challenged the substantive

basis for the Board’s decision denying parole.2

The trial court dismissed each petition for failure to

state a claim upon which relief may be granted, and the Court of

Appeals affirmed the trial court’s judgment. We granted the

petitioners’ applications for permission to appeal and consolidated

the cases. 

The petitioners assert that the procedure utilized by the

Board to make parole decisions3 violates the Open Meetings Act.

Under this procedure, each Board member separately and independently

reviews the cases before the Board. Each case file is circulated,

in turn, to each of the Board members. A member formulates his or
4The “aftercare” referred to is apparently the sex offender

treatment program.

3

her decision without conferring with any other member, relying

solely on the record compiled by the hearing officer.

Because the Board is not required by its enabling statute

to meet in order to consider parole decisions, we conclude that the

above-described procedure utilized by the Board to make parole

decisions is not subject to the Open Meetings Act. We further find

that the Board properly denied each petitioner parole. Finally, we

hold that the trial court erred in dismissing Evans’ claim for

injunctive relief as to the Board’s requirement that he continue to

participate in Alcoholics Anonymous. As to Arnold, we affirm the

judgment of the Court of Appeals. As to Evans, we affirm the

judgment of the Court of Appeals in part and reverse in part.

I

The initial step in the parole decision process is a

hearing before a designated member of the Board or a hearing

officer. A hearing was held in each case under review to determine

whether the petitioner should be released on parole. As to Arnold,

the hearing officer recommended that parole be denied because of the

seriousness of the offense and so that Arnold could “continue with

aftercare.”4 The hearing officer’s recommendation and Arnold’s file

were then circulated among the members of the Board. The Board

members reviewed Arnold’s case individually; there is no evidence

that Board members conferred with one another about Arnold’s case.
5Arnold also requested an appeal hearing before the Board,

citing “significant new information” that was not available at the

initial parole hearing. The “new” information was a stipulation in

Dean v. McWherter, 1:90-0027 (M.D. Tenn. filed August 18, 1994).

According to Arnold, the stipulation prohibited the Board from

denying him parole because he had not yet completed the sex offender

treatment program. Arnold also contended that the hearing officer

had engaged in misconduct by failing to obtain a medical evaluation

to determine whether Arnold posed a threat if released. The Board

denied Arnold’s request. 

4

Rather, each member separately reviewed the file and indicated in

writing his or her adoption or modification of the hearing officer’s

recommendation. All four members who reviewed Arnold’s case

concurred with the recommendation of the hearing officer to deny

parole.5

As to Evans, the hearing officer recommended denial of

parole because of the seriousness of his offense, because of his

high risk to re-offend, and so that Evans could continue to

participate in the alcohol treatment program. The hearing officer’s

recommendation and Evans’ file were then circulated among members of

the Board. The five members of the Board who reviewed Evans’ case

concurred with the hearing officer’s recommendation to deny parole.

Three members cited additional reasons for denying parole. The

Board utilized the same procedure to reach its decision in Evans’

case as it did in Arnold’s case.

II

Under the common law writ of certiorari, the decisions of

the Board are reviewable to determine whether the Board exceeded its

jurisdiction, or acted illegally, fraudulently, or arbitrarily. 
6The Board concedes that it is a “governing body” within the

meaning of the statute and thus subject to the Act.

5

Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.

Ct. App. 1994). However, the correctness of the Board’s decision is

not reviewable under the writ. State ex rel. McMorrough v. Hunt,

137 Tenn. 243, 192 S.W. 931, 933 (1917).

Pursuant to the Open Meetings Act, “[t]he policy of this

state [is] that the formation of public policy and decisions is

public business and shall not be conducted in secret.” Tenn. Code

Ann. § 8-44-101. Tennessee Code Annotated § 8-44-102(a) requires

that all meetings of any governing body be public.6 The Open

Meetings Act defines a meeting as “the convening of a governing body

of a public body for which a quorum is required in order to make a

decision or to deliberate toward a decision on any matter.” Tenn.

Code Ann. § 8-44-102(b)(2). 

Yet, the Board’s enabling statute does not require a

meeting in order to deliberate or make parole decisions. Tennessee

Code Annotated § 40-28-105 (1990) provides in pertinent part:

(b) The board shall prescribe the

times and places of its meetings and

shall schedule hearings at each

correctional institution or facility

at such times as may be necessary to

discharge its duties. All votes

taken by the board shall be by public

ballot or public roll call. No

secret ballots or secret roll calls

shall be permitted.

. . . .

(d) A majority of members of the

board shall constitute a quorum for
6

official administrative business.

The chairman of the board may

designate individual parole board

members and appoint hearing officers

who shall be authorized to conduct

hearings, take testimony and make

proposed findings of fact and

recommendations to the board

regarding a grant, denial,

revocation, or rescission of parole.

Such findings and recommendations

shall be reduced to writing and

reviewed by board members who shall

adopt, modify, or reject the

recommendations. No person shall be

paroled nor shall the parole of any

person be denied, revoked, or

rescinded without the concurrence of

three (3) board members. . . .

(emphasis added)

We discern nothing in subsections (b) or (d) that requires the Board

to meet and deliberate prior to making a parole decision.

Subsection (b) simply requires that the Board “prescribe” the times

and places of its meetings. In other words, when the Board does

meet, proper notice of the meeting is required. A “public ballot”

denotes a written document such as was used to deny the petitioners

parole; “public roll call” describes a process commonly used at a

public meeting where Board members would indicate their vote

verbally. In our view, the document on which the Board members

indicated their adoption, modification, or rejection of the hearing

officer’s recommendation, is a matter of public record and, as such,

is sufficient to constitute a “public ballot.” Similarly,

subsection (d) does not require Board members to meet, confer, or

deliberate on parole decisions. Rather, Board members are simply

required to review the findings and recommendations and adopt,

modify, or reject them.
7

Further, a review of the prior versions of this statute

confirms that the legislature has eliminated the requirement that

the Board meet and deliberate prior to making a parole decision. By

eliminating the requirement that the Board meet and deliberate, the

legislature has clearly demonstrated its intent to exempt from the

Open Meetings Act the Board’s procedure for making parole decisions.

The 1975 version of this statute plainly required the Board to meet

in order to make parole decisions:

The board shall meet . . . for a full

study of the cases of all prisoners

eligible for release on parole, and

for determining when and under what

conditions and to whom such parole

may be granted. . . . A majority of

the board shall constitute a quorum

for the transaction of all business.

Tenn. Code Ann. § 40-3602 (1975). In 1979, the statute was amended

to provide that:

Three (3) members of the board shall

constitute a quorum for the

transaction of official business and,

except as hereinafter provided, a

majority vote of those present at any

meeting shall be sufficient for any

action taken by the board. In cases

of the granting of parole, the

chairman of the board may designate

its members to sit in panels of two

(2) members, which panels shall have

authority to conduct hearings and

take testimony and to make proposed

findings of fact and recommendations

to the full board regarding the

disposition of a request to grant

parole. . . . No person shall be

paroled or discharged from parole nor

the parole of any person revoked,

except by a majority vote of the

entire membership of the board.
7Thus by 1988, the Board was authorized to make parole

decisions upon the concurrence of three members--a significantly

different procedure from the 1980 version that required a majority

vote of the members present at the meeting.

8

Tenn. Code Ann. § 40-3602(d) (Supp. 1980)(emphasis added). In 1981,

the legislature further amended the statute and deleted any mention

of a meeting:

(d) Three (3) members of the board

shall constitute a quorum for the

transaction of official business, and

no person shall be paroled or

discharged from parole, nor the

parole of any person revoked, except

by majority vote of the entire

membership of the board. The

chairman of the board may designate

its members to sit in panels of two

(2) members . . . to conduct hearings

. . . and make proposed findings of

fact and recommendations to the full

board . . . . Such findings and

recommendations shall be reduced to

writing and reviewed by the full

board which shall adopt or reject the

panel’s findings by majority vote.

Tenn. Code Ann. 40-3602(d) (Supp. 1981)(emphasis added). In 1988,

the statute was amended to include the language of the present

version. See Public Act of 1988, Ch. 880, § 3 (findings and

recommendations from hearing are to be reviewed by “other board

members” and a decision made upon the “concurrence” of three Board

members).7 Finally, in 1989, the statute was amended to provide

that the three member quorum requirement applied only to “official

administrative business.” See Public Acts of 1989, Ch. 227, § 8

(emphasis added).

In amending this statute over the years, the legislature

has, in our view, purposely eliminated language that required the
9

Board to meet in order to make parole decisions. Further, these

amendments establish that the Board’s practice of submitting the

hearing officer’s recommendations in writing to each Board member

individually is consistent with the legislative intent, for we must

assume that the legislature acted with full cognizance of the Open

Meetings Act.

The petitioners also rely on the Open Parole Hearings Act,

Tenn. Code Ann. § 40-28-501 et seq. (1996 Supp.) as support for

their contention that the Board is required to meet and deliberate

prior to making a parole decision. However, this statute requires

that parole hearings be public. Tennessee Code Annotated § 40-28-

105(b) explicitly differentiates between meetings and hearings; we

distinguish “parole decision” from “parole hearing.” Thus, Tenn.

Code Ann. § 40-28-502 does not apply to parole decisions.

In sum, because the Board’s enabling statute does not

require that parole decisions be made by meeting, the Open Meetings

Act does not apply to the Board’s procedure for making parole

decisions. The legislative history of the Board’s enabling statute

illustrates the legislature’s intent to so exempt the Board’s

decision-making process from the Open Meetings Act. Therefore, the

Board’s procedure of separate and independent review of cases by

Board members neither transgresses the intent of the legislature nor

offends the statute. 
8This factor applies only to Petitioner Arnold.

9This factor applies only to Petitioner Evans.

10

III

Petitioners also contend that the Board relied upon

certain “illegal and unconstitutional” factors in denying parole,

specifically, the seriousness of the offense, the risk to re-offend,

the number of victims, completion of the sex offender treatment

program,8 and continued participation in Alcoholics Anonymous.9 

Release on parole is a privilege, not a right. Tenn. Code

Ann. § 40-35-503(b) (Supp. 1996). The statute expressly requires

the Board to consider the seriousness of the offense and the

inmate’s risk to re-offend. Tenn. Code Ann. § 40-35-503(b)(1) and

(2). Contrary to the petitioners’ contention, consideration of the

seriousness of the offense at both sentencing and parole does not

violate double jeopardy principles because denial of parole does not

constitute “another” punishment, but rather perpetuates a validly

imposed sentence. See Kelly v. United States Parole Comm’n, 26 F.3d

1016, 1020 (10th Cir. 1994); Averhart v. Tutsie, 618 F.2d 479, 483

(7th Cir. 1980). Further, the Board is not required to define with

exactitude the weight accorded the seriousness of the offense in

denying parole. See Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 2104, 60 L. Ed.2d

668 (1979). Consideration of the number of victims is logically

related to the seriousness of the offense. 
10In Dean v. McWherter, No. 1:90-0027 (M.D. Tenn. filed August

18, 1994), the State agreed that only those sex offenders committed

to custody after the sex offender treatment program was instituted

would be required to complete that program as a precondition for

release on parole. There is no indication in the record that the

State has failed to comply with this stipulation.

11In a related claim, Arnold contends that Tenn. Code Ann. § 40-

28-116(a)(2) entitles him to a psychological evaluation. However,

this statute restricts the Board’s discretion to parole sex

offenders; it does not grant such offenders the right to an

evaluation.

11

In our view, consideration of the seriousness of the

offense, the number of victims, and the risk to re-offend is

appropriate to the parole decision. Consideration of these factors

does not demonstrate that the Board acted illegally, fraudulently,

arbitrarily, or in excess of its jurisdiction. Moreover,

consideration of such factors does not implicate any constitutional

right under the circumstances.

As stated, Arnold contends that the Board illegally denied

him parole because he had not completed the sex offender treatment

program.10 We disagree. It is unclear whether Arnold was committed

to custody prior to the institution of this treatment program. Even

assuming he was committed prior to the establishment of the program,

the Board is still permitted to recommend the program to sex

offenders. Because the Board also properly relied upon the

seriousness of the offense to deny Arnold parole, we do not find

that the Board’s recommendation that he continue treatment supports

a claim that the Board acted illegally or arbitrarily or in excess

of its jurisdiction in denying Arnold parole.11
12

As stated, Evans contends that the Board acted illegally

by requiring him to continue his participation in an Alcoholics

Anonymous (“AA”) treatment program. Specifically, he urges that the

AA program is a religious one and that required participation in it

violates the Establishment Clause of the First Amendment to the

United States Constitution. 

In his verified petition, Evans states:

Petitioner asserts that there is

only one “alcohol program” available

to him, and he is being coerced to

participate in that program, as a

condition of parole . . . .

The “alcohol program” is

administered by the Tennessee

Department of Correction (TDOC), but

the requirement [that] he continue

[to] participate in the program as a

condition of parole originates with

the Board of Paroles. . . .

. . . .

The centerpiece of the program,

as petitioner experiences it, is the

twelve (12) steps of Alcoholic[s]

Anonymous (AA) program/effort.

The concept of a higher power is

at the center of the twelve (12)

steps.

The twelve (12) steps explicitly

deny that recovery from alcoholism is

possible without reliance on a higher

power.

The emphasis on a higher power

is also the central theme of the

third edition of AA’s basic text

entitled “Alcoholics Anonymous” which

is used as an all-purpose guide for

anyone having difficulty in working

the twelve (12) steps.
13

Group prayer is common at the

meetings attended by petitioner. The

meetings open with the “Serenity

Prayer,” essentially nondenominational, and close with “The

Lord’s Prayer”, a Christian prayer.

The First Amendment to the United States Constitution

guarantees that “government may not coerce anyone to support or

participate in religion or its exercise, or otherwise act in a way

which ‘establishes a [state] religion or religious faith, or tends

to do so.’” Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649,

2655, 120 L. Ed.2d 467 (1992)(quoting Lynch v. Donnelly, 465 U.S.

668, 678, 104 S. Ct. 1355, 1361-62, 79 L. Ed.2d 604 (1984)). In

Everson v. Board of Educ., the Supreme Court held:

[t]he “establishment of religion”

clause of the First Amendment means

at least this: Neither a state nor

the Federal Government can set up a

church. Neither can pass laws which

aid one religion, aid all religions,

or prefer one religion over another.

Neither can force nor influence a

person to go to or to remain away

from church against his will or force

him to profess a belief or disbelief

in any religion. No person can be

punished for entertaining or

professing religious beliefs or

disbeliefs, for church attendance or

nonattendance.

Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S. Ct. 504, 511, 91

L. Ed.2d 711 (1947). While the Supreme Court has wrestled with

questions of whether a certain policy or practice favors or

establishes a religion, there is no debate that a government policy

that requires participation in a religious activity violates the

Establishment Clause:
14

it [is] “beyond dispute” that the

Constitution guarantees that the

government may not coerce anyone to

support or participate in religion or

its exercise. Individuals may

disagree in a particular case over

other issues, such as whether it is

the state who acted, or whether

coercion is present, or whether

religion or something else is the aim

of the coercion. But in general, a

coercion-based claim indisputably

raises an Establishment Clause

question.

Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996) (quoting Lee v.

Weisman, 5 U.S. at 587, 112 S. Ct. at 2655). In Kerr, the Seventh

Circuit Court of Appeals held that the Establishment Clause was

violated by a requirement that an inmate observe Narcotics Anonymous

(“NA”) meetings (NA and AA utilize the same treatment philosophy for

different types of addictions). Id. at 480. Other courts have

reached like conclusions. See Warner v. Orange County Dept. of

Probation, 827 F. Supp. 261 (S.D.N.Y. 1993); Griffin v. Coughlin,

673 N.E.2d 98 (N.Y. 1996).

We find that there are sufficient reasons other than the

requirement of continued alcohol treatment to justify the denial of

parole by the Board. However, in addition to his claim that the

Board illegally denied him parole, Evans also requested prospective

injunctive relief to ensure that future parole decisions do not

consider an inmate’s participation or nonparticipation in the AA

program. In this regard, Evans has stated a claim upon which relief

may be granted; therefore, the trial court erred in dismissing the

petition as to this claim.
15

If, on remand, the trial court finds that the treatment

program at issue is a religious one and that there are no

alternative secular treatment programs offered, then to require a

prisoner to attend or participate in such a treatment program would

constitute a violation of the Establishment Clause. Attending or

failing to attend such religious meetings can not be considered in

a decision whether to grant or deny parole. 

Accordingly, we reverse the judgment of the Court of

Appeals as to Petitioner Evans’ claim for injunctive relief and

remand this cause to the trial court for further proceedings

consistent with this opinion. The judgment of the Court of Appeals

as to Petitioner Arnold is affirmed in all respects. The judgment

of the Court of Appeals as to Petitioner Evans is affirmed in part

and reversed and remanded in part. That portion of the costs of

this cause as are attributable to Petitioner Arnold are taxed to

Arnold. That portion of the costs of this cause as are attributable

to Evans are taxed to the respondent.

 

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, CJ.

Drowota, Reid, Holder, JJ.