# FILED
May 8, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk JIMMY ARNOLD, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9508- CH-00375 VS. ) ) Davidson Chancery ) No. 94-3223-II TENNESSEE BOARDOF PAROLES, ) ET AL., ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE C. ALLEN HI GH, CHANC ELLOR

JIMMY AR NOLD, #130097 Turney Center

- 4B/3 Route 1 Only, Tenness ee 37140-9709 Pro Se/Petiti oner/Appellant CHARLES W. BURSON Attorney Gen eral and Repor ter MICHELLE L. LEHMANN Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

The Chancery

Court of Dav idson County dismissed the appellan t’s Petition for W rit of Certiorari to review the Parole Board’s denial of parole. W e affirm because we find that the petition i n the lower court does not contain any allegations which show

that the Board ac

ted illega lly, ar bitraril y, or in excess of its jurisdi ction.

I.

T he appel lant, in the c ustody of the D epartment of Corre ction, was granted a parole heari ng on July 18, 1994. The heari ng officer recommended to the Board of Paroles that par ole be denied becaus e of the seriousness of the offense for which the appe llant was being held. The form used to record the decision also contained another reason: “continue with aftercare”. This appar ently refers

to a sex offendertreatmentprogram i n which th e appellant was enrolled. The hearing officer’s recommendation was adopted by the Board when each individual memb er init ialed the form. The last member t o approve the decision indi cated his conc urrence o n August 5, 1994.

The appellant req uested an appeal hearin g, whi ch the Board pr ovides if ther e issig nifi cant

new evi denc e that w as not avail ableat t he fi rst hear ing , if th e hearing officer engaged in misconduct, or if the hearing officer committed sig nificant procedural errors. See Tenn. Code Ann. § 40-28-105( d). On September 6, 1994 the Board d enied t he app eal hea ring.

On October 24, 1994 the appellant file d a petition in the ChanceryCourt of Davidson C ounty seeki ng the common law writ of certiorari to review the Board’s action. The petition al leges that t he Board erred in n ot granti ng him an appeal- 3 -

hea ring be cause he had come i nto possession of new information that was not available at the earli er hearing . In addition, the petition contai ns allegati ons thatthe Board acted illeg ally in (1) declining parole because of the seriousnes s of the offense, (2) declining parole because the appellant neede d to con tinue t he aftercare p rogr am, (3) holding a meet ing in v iolation of the Open Meetings Act, Tenn. Code Ann. § 8-44- 102(a), and (4) acti ng in vi olat io n of the contested case provisions of the Uniform Admini strative P rocedu res Act, T enn. Co de Ann. § 4-5-30 1, et seq.

The Board moved to

dismiss the petition on the g round thatit failed to state a claim upon w hich relief could b e granted. Se e Rule 12.0 2(6) , Te nn. R . Civ. Pro. The court granted the moti on.

II.

Under the common law

writ of certiorar i, the actions of the Boar d may be exa mined to determine whether i t exceeded i ts jurisdi ction, or act ed illegal ly , fraudulently or arb itrar ily. See Powell v. Parole Eligibility Review Board , 879 S.W.2d 871 (Tenn. App. 1994); Yokley v. State , 632 S.W .2d 123 (Tenn. App . 1981). The writ has never been empl oyed to rev iew thecorrectness of the judgment rendered by the inferior tribunal. State

ex rel Mc

Morrow v. H

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

With resp ect t o the alleg atio n tha t the Boar d act ed ill egall y i n no t granting the appella nt an ap peal he aring, the new infor mation allege d by the appel lant
was a st ipul atio n ent ered in t he fed eral cas e of Dean v. McWherter , No. 1-90-002 7 (M.D. Tenn.) in which thestate agreed to apply th e provisi ons of Tenn. Code Ann. § 41-21-235(b) only to s ex offenders commited to the cus tody ofthe Department of Correction after the sex abuse treatme nt program authorized by the statute is instituted. The cited codesection requires sex offenders to s uccessfully complete a sexual abuse treat ment program i n order to be el igible for parole. The appell ant- 4 -

arguesthat in lig ht of the stipulation, it was improper for the b oard to use theneed to continue wi th the aftercare pr ogram as a reason for not gr anting him par

ole.
Passing over thequestion of whether the Board has absolu te discreti on in deciding w hat new ev idence wi ll entitle a prisoner to an appeal hearing, we think the appellant’s reliance on this issue i s misplaced. The stipulation also recites that each
sex offendercomin g before the Boar d will be judged on hi s or her ow n merits, and that the Board could continue to recommend that sex offenders receive treatment. We do not think that the n ew evi dence cited by the appellant required the B oard to grant him an a ppeal hearing as a matter of law

.

III.

The appellant als o asserts that the seriousnes s of the o ffe nse cannot be used as a reas on to deny paro le since it has already

been used once to enh ance the initial sentence. As authority for this proposition the app ellant cites Addonizio v. U.S. , 573 F.2d 147 (3rd Cir. 1978). As we read that decision, ho wever, it deals mainlywith the authority of a federal district judge to reduce a sent ence when the parole board refuses par ole on the single ground of the ser iousness of the offense. W hile the court does severely critici ze the practice o f using that g round for denyi ng parole, the court does not go so far as to pronounce the p ractice uncon stitutional. In Tennessee the Boa r d is statutorily authorized to deny parole if release would depreciatethe seriousnes s of the offense . See Tenn. Code Ann . § 40-35-503(b)(2).

We do not think, t herefore, tha t the appellant states a cause of act ion byalleging the Board acted illegally or arbitrarily or i n e xcess of its jurisdic tion by refusing the appe llant parole because of the seri ousness of the offense.

IV.- 5 - The appell ant also argues that the trial court erred in denying his d i s c o v e rym o t i o n . We think the argument reflects a fundamental mis understanding of the proceeding s in the tri al court. The t rial judg e dismissed thecase because the appellantfailed to state a cause of action. Discovery is allowed to help prove the facts stated. The a ppe llan t did not h ave to pro ve anything to avoid the motion to dismiss; he merely had to state suff icient facts.

V.

Fina lly, the appellant argues that the Boa rd violat ed th e Adm inist rative Pro cedures Ac t, Tenn. Code Ann. § 4 -5-101 et seq , and the Open Meet ings Act, Tenn. C ode Ann. § 8-44-101, et seq. The appe llant’s first contention requires very little discussion b ecause the leg islature has specificall y exempted the Board o f Parolesfrom the contested case provi sions of the Admini strative Procedures Act, see Tenn. Code An n. § 4-5-106(c) . Thus, any j udicial rev iew of the cor rectness of the Board’s paro le de term inat ions is pre clud ed, a s opp osed to th e mo re lim ited revi ew , under the Writ of Certiorar i, of the process by whi ch that determinat ion is made.

The Open Meeting s Act presents a more complex question, because byits terms, it applies to all “govern ing bodies” with no exemption for the Board of Paroles. T he appellant has d irected our attention to an opi nion of the Attorney
General indicating that theParole Board comes withi n the definition of a“gover ning bod y” found in Tenn. Code Ann. § 8-44-102(b) (1), and is th us subject to the Open Meetings Act. See Opin ion No 95 -010 , Marc h 3, 1 995 . Tho ugh th e Att orne yGeneral’s Opin ion is not b indi ng on this c ourt , we can find no fault with its reas oning.

We note that the appellan t does not allege that his initial par ole hearing
was not open to the public, but r ather that the Open Meetings Act requir ed that the- 6 -

Board hold an open m eeting t o consider whether to adopt the hearing of ficer’s recommendation . However, Tenn. Code Ann. § 40-28-105(d) provides:

“A majority

of members of the board sha ll constit ute a quorum for official administrative b usiness. Thechairman of the boar d may designate individual parole board mem bers and appoint h earing officers who s hall be authori zed to con duct hearings, take testimony and make proposed findin gs of fact and recommendations to the board re garding a grant, deni al, revocation or res cission of pa r ole. Such findin gs and rec om mendations shall be reduced to w riting and reviewed by board member s whoshall adopt, modi fy or reject the recommendations

. No person shall be paroled nor shall the p arol e of any p erson be denied, revoked or rescinded without t he concurrenceof three (3) board members . . . . Inmates whose parol e has been revoked or rescinded, or

who have been denied parole, or whose g rant of parole has been rescinded, may request an a ppellate review by the board. The board sha ll establish a reasonable t ime limi t for the filing of such a request. If the time limit is not met, the request for an appellate review will be denied. An appellate request will be screened by a board member or designeeand a revi ew wi ll be conducte d if there is new evidence or

information that

was not av

ailable at the time of the heari ng, or

if there are a lleg ations of mi sconduc t by the hearing official that

are substantiated by the record or if the re were significant

procedural errors by

the hearing official. The appellate review

will be conducted from the record of th e first hearing and the appearance of the in mate will not be nece ssary. If a board member decides that an appea rance hearing is nec essa ry, it wil l be scheduled befo re a board member or h eari ng o ffi ce r who did not conduct the hea ring that is the subject of the appeal. A summar y of the appellate hearing will be prepared and theboard will vote after a review of the summary an d the record of the first hearing . The decision after an appellate review will require t he conc urren ce of three (3) bo ard members. Thedecision rendered after an appellate rev iew w ill be final.”

As the e xcerp t fro m the stat ute s hows the initial hearing may be held by
a hearing officer whose recommendation w ill be reduced to wri ting and submi tted to the Board members. The individ ual members may consider the r ecommendation and sign without a meeting. The req uest for an appellate review may be handled i n th e same fashion. Thus, the Board is not r equired to ho ld an open meeting to consider the preliminary recommendat ions of the hearing off icer.- 7 - VI

.

The jud gmen t of t he tr ial cour t isaffi r med. The cause is r emanded to the Chancery

Court of Dav idson County forany furt her proc eedings necessary . Tax the costs on appeal to the appellant.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE