# FILED
November 10, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JIMMY ARNOLD ) FOR PUBLICATION ) ) FILED: NOVEMBER 10, 1 997 Petitioner ) ) DAVIDSON COUNTY v. ) ) HON. C. ALLEN HIGH, ) Chancellor and TENNESSEE BOARD OF PA ROLES, ) HON. ELLEN HOBBS LYLE , et al. ) Chancellor ) ) NO. 01-S-01-9610-CH-0 0210 Respondents )

_____________________ ____________

ANTHONY EVANS ) ) ) Petitioner ) ) DAVIDSON COUNTY v. ) ) ) HON. ELLEN HOBBS LYLE , TENNESSEE BOARD OF PA ROLES, ) 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: AFFIRM ED BIRCH, J. AS TO EVANS: AFFIRM ED IN PART, REVERSED IN PART1 Anyaction taken in violation of the Act is void. Tenn. Code

Ann. § 8-44-105 (1993).

2 Petitioners contend that the Board relied on the following “illegal and unconstitutional” factors to deny them parole: seri ousnes s of the offense, risk to re-offend, number of victims, completionof the sexoffender treatment program (Petitioner Arnold only), and continued participation in Alcoholics Anonymous (Petitioner Evans only).

3 Official parole decisions include the decision to grant, deny, revoke, or rescind parole. See Tenn. Code Ann. § 40-28-105(d) (1990). 2

JimmyArnold and Anthony Evans, bothserving 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 Fu rthe r, 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 bythe Bo ard to make parole decisions 3 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 or4 The “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 dec ision 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 th en c irculated among the members of the Board. The Board members reviewed Arnold’s case individually; there is no evi dence that Board members conferred with one another about Arnold’s case.5 Arnold also re ques ted 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 Deanv. 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 in dicate d 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 recommend ati on 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 highrisk 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 lawwrit of certiorari, the decisions of the Board are reviewable to determine whether the Board exceeded its jurisdiction, or acted illegally, fraudu l ently, or arbitrarily.6 The Board concedes tha t 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 wri t. S tate 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 publ ic. 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 takenby 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 for6 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 rega rding a gr ant, denial , revocation, or rescission of parole. Suchfindings 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 docum ent 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 consti tute a “public ballot.” Similarly, subsection(d) does not require Board members to meet, confer, or deliberate on parole decisions. Rather, Board members a re simply required to review the findings and recommendations and adopt, modify, or reject them.7 Further, a review of the p rior 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 OpenMeetings Act the Board’s procedure for making parole decisions. The 1975 version of this statute plainlyrequired the Board to meet in order to make parole decisions:

The board shall meet . . . for a full studyof 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 majorityvote of those present at any meeting shall be sufficient for any action taken by the board. In cases of the granting of parole, the chairmanof the board may designate its members to sit in pane ls of two (2) members, which panels shall have authorityto 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.7 Thus by 1988, the Board wa s a uthorized to make parole

decision s 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 bymajority vote of the entire membership of the board. The chairmanof the board may designate its members to sit in panels of two (2) members . . . to conduct hearings

. . . and m ake 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 Final ly, in 1989, the statute was amended to provide that the three member quorum requirement applied only to “official administ rative 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 elimi nated language that required the9

Board to meet in order to make parol e decisions. Further, these amendments establish that the Board’s practice of submitting the hearing officer’s recommenda tion s in writing to each Board member individuallyis consistent with the legislative intent, for we must assume that the legislature acted with full cognizance of the Open Meetings Act.

The petitioners also relyon the OpenParole 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 hea ring.” Thus, Tenn. Code Ann. § 40-28-502 does not apply to parole decisions.

Insum, because the Board’s en abli ng 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 legisl atur e’s intent to so exempt the Board’s decision-making process fromthe Open Meetings Act. Therefore, the Bo ard’s procedure of separate and independent review of cases b y Board members neither transgresses the intent of the legislature nor offends the statute.8 This factor applies only to Petitioner Arnold.
9 This factor applies only to Petitioner Evans. 10 III

Peti tioner s also contend that the Board relied upon certain “illegal and unconstitutional” factors in d enying 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 ). Th e 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). Contraryto 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 “ano ther ” 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 (7thCir. 1980). Further, the Board is not required to define with exactitude the weight accorded the seriousness of the offens e i n 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.10 In 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.

11 Ina 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 par ole sex offenders; it does not grant such offenders the right to an evaluation. 11

Inour 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. Mor eove r, 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. Beca use th e Board also properly relied upon the seriousness of the offense to deny A rnold paro le, 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. 1112 As stated, Evans contends that the Board acted illegally byrequiring him to continue his participation in an Alcoholics Anonymous (“AA”) treatment program. Specifically, he urges that the AAprogram 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 coe r ced 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 conditionof 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 denythat 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 P rayer,” esse ntially non

denominational, and close with “The Lord’s Prayer”, a Christian prayer.
The Fi rst 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. We isman , 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 (1 984 )). 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 pe rson to go to or to remain awa y fromchurch against his will or force him to profess a belief or disbelief inany rel i gion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance.
Eversonv. Board of Educ. , 330 U.S. 1, 15-16, 67 S. Ct. 504, 511, 91 L. Ed.2d 711 (1947). Whil e th e Supreme Court has wrestled with questions of whether a certain policy or pr actice 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 Constitutionguarantees 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 gener al, 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 typ es of addictions). Id. at 480. Other courts have reached like conclusions. See Warner v. Orange County Dept. of Probation , 827 F. Sup p. 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 justifythe 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 t rial c ourt finds that the treatment programat issue is a religious one a nd that there are no alternative secular treatmen t pr ograms 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.