IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 4, 2000

WILLIAM P. LIVINGSTON v. STATE OF TENNESSEE

BOARD OF PAROLES

Appeal from the Chancery Court for Davidson County

No. 98-2048-II, Carol L. McCoy, Chancellor

No. M1999-01138-COA-R3-CV - Filed July 5, 2001

Petitioner appeals the trial court’s decision to deny his petition for common law writ of certiorari

challenging a Board of Paroles decision to revoke his parole and the court’s grant of Respondent’s

motion for summary judgment. Petitioner appeals the order on two grounds, (1) his due process

rights were violated by the introduction of inadmissible evidence, and (2) these procedural flaws led

to the hearing officer becoming biased and unable to conduct a fair and impartial hearing. For the

reasons below, we find both claims without merit and affirm the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed and Remanded

PATRICIA J.COTTRELL, J., delivered the opinion of the court, in which BEN H.CANTRELL, P.J.,M.S.,

and WILLIAM C. KOCH, JR., J, joined.

William P. Livingston, Wartburg, Tennessee, Pro Se.

Paul G. Summers, Michael Moore, Pamela S. Lorch, for appellee, State of Tennessee Board of

Paroles.

OPINION

This is an appeal from the trial court’s grant of summary judgment to the Tennessee Board

of Paroles and denial of Mr. Livingston’s petition for common law writ of certiorari based on his

claim that his due process rights were violated during his parole revocation hearing. The facts

underlying this appeal are as follows:

Following a conviction and sentence of 21 years for conspiracy to sell, possession of and

selling narcotics in 1985, Mr. Livingston was paroled on September 1, 1989. As a condition of his

parole, he agreed that he would “not own, possess, or carry any type of deadly weapon (guns, rifles,

knives or any illegal weapons).” 
1Originally, Mr. Livingston objected to the introduction of evidence of the gun on the basis that the search was

illegal, but he do es not take issue with the legality of the se arch or any e vidence the refrom on appeal.

2Tenn. Code Ann. § 40-28-105(d ) allows an inmate whose parole has been revoked to request review by the

Board, and such “a ppellate” re view is limited to e numerated grounds, including “significant procedural errors by the

hearing official.”

3Board of Paroles decisions are reviewable through the commo n law writ of certio rari. Arnold v. Tennessee Bd.

of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997) (citations omitted); Sanders v. Tennessee Bd. of Paroles, 944 S.W.2d

395, 397 (Tenn. Ct. App. 199 6) (citations omitted).

2

In December 1997, pursuant to a warrant issued to search the premises of Mr. Livingston,

a .22 caliber high standard pistol and ammunition were found.1 A parole revocation hearing was

held on February 25, 1998 and Mr. Livingston’s parole was revoked as a result. Because of a

procedural error in the first hearing, the Board granted him a second hearing on July 14, 1998.2 The

hearing officer recommended that Mr. Livingston’s parole be revoked, and the Board voted to revoke

parole. 

I.

Mr. Livingston sought judicial review of the Board’s decision to revoke his parole by filing

a petition for common law writ of certiorari with the Chancery Court of Davidson County. The

record with which we were presented requires discussion of the procedure applicable to cases

initiated by a petition to review a decision of an administrative board or commission, such as the

Board of Paroles.

Anyone who may be aggrieved by any final order or judgment of any board or

commission functioning under the laws of this state may have the order reviewed by

the courts, where not otherwise specifically provided, in the manner provided by this

chapter.

Tenn. Code Ann. § 27-9-101.

As this statute states, the procedure to be used is set out in Tenn. Code Ann. §§ 27-9-101

through -114. Fallin v. Knox County Bd. Of Comm’rs, 656 S.W.2d 338, 341 (Tenn. 1983);

Fairhaven Corp. v. Tennessee Health Facilities Comm., 566 S.W.2d 885, 886 (Tenn. Ct. App. 1976)

(citing Fentress County Beer Bd. v. Cravens, 209 Tenn. 679, 356 S.W.2d 260 (1962); Hoover Motor

Express Co. v. Railroad & Pub. Util. Comm’n, 195 Tenn. 593, 261 S.W.2d 233 (1953)) (the

procedural framework for review under both the common law and statutory writs appears in Ch. 9

of Title 27); see also, Cantrell, Review of Administrative Decisions by Writ of Certiorari in

Tennessee, 4 Mem. St. Univ. L. Rev 19, 19 (1977) (Chapter 9 of Title 27 provides the procedural

framework for review under both the common-law and statutory writs of certiorari but does not

affect the availability of either writ).3
3

Tennessee Code Annotated § 27-9-102 directs the aggrieved person to file a petition for

certiorari in order to seek judicial review. When a petition is filed, the clerk is to give immediate

notice to the board or commission involved. Tenn. Code Ann. § 27-9-107. See also A’La v.

Tennessee Dept. of Correction, 914 S.W.2d 914, 916 (Tenn. Ct. App. 1995) (“[a]fter a petition for

writ of certiorari is filed, the clerk is required by statute to immediately send . . . a notice of the filing

of said petition and a certified copy thereof to all named defendants.”) 

The court may require such notice before granting the writ, or may grant the writ without

notice. Tenn. Code Ann. § 27-9-108. As used in this and related statutes, the “grant” of the writ is

simply an order to the board to send up its record for review. “A writ of certiorari is an order issued

by a superior court to compel an inferior tribunal to send up its record for review.” Pigg v. Casteel,

No. 01A01-9807-CH-0038, 1999 WL 166499 at *2 (Tenn. Ct. App. March 29, 1999) (no Tenn. R.

App. P. 11 application filed).

Immediately, upon the grant of a writ, the board or commission shall cause to be

made, certified and forwarded to such court a complete transcript of the proceedings

in the cause, containing also all of the proof submitted before the board or

commission.

Tenn. Code Ann. § 27-9-109 (emphasis added).

As this statute suggests and as our courts have explained, the writ is the procedural vehicle

used to compel the filing of the record of the lower tribunal, board, or commission whose decision

is being challenged. Thus, granting the writ is not a decision on the merits, but is a method by which

the merits can be reviewed where the petition states claims which fall within the narrow available

scope of judicial review. The purpose of granting the writ is to have the record of the board or other

lower tribunal filed so that a reviewing court can determine whether petitioner is entitled to relief.

Puckett v. Broome, 53 Tenn. App. 663, 667, 385 S.W.2d 762, 764-65 (1964).

The writ of certiorari lies at common law to review and supervise the proceedings of

inferior tribunals . . . and brings up the entire record to determine whether there has

been an excess or absence of jurisdiction, or failure to proceed according to the

essential requirements of the law. 

Clark v. Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn. Ct.

App. 1991) (citations omitted) (emphasis added).

“A petition for writ of certiorari is not leading process, but a statement of fact with a view

to obtain an order for issuance of the writs of certiorari and supersedes.” A’La v. Tennessee Dept.

of Correction, 914 S.W.2d at 916 (citing Kennedy v. Farnsworth, 22 Tenn. 242, 3 Hum. 242 (1842);

5 Tenn. Jur., Certiorari § 33 (1983)). “A common law writ of certiorari provides a vehicle for a

court to remove a case from a lower tribunal to determine whether there has been a failure to proceed

according to the essential requirements of the law.” Clark, 827 S.W.2d at 317 (concurring opinion)
4

In Puckett v. Broome, which involved a petition for a writ of certiorari to the court of appeals to review an

interlocutory action by a circuit judge, this court stated that the first issue it must address was “whether or not this is a

case in which writs of certiorari and supersedeas should be granted.” Because the petition presented a situation where

there was a genuine question whether the lower court “may have exceeded its jurisdiction and powers and therefore acted

illegally,” this court d etermined “that in such a situatio n this court has ju risdiction to entertain the petition for writs of

certiorari and supersede as.” 53 T enn. App . at 671, 38 5 S.W.2d at 766 . 

4

(citing Gallatin Beer Regulation Comm’n. v. Ogle, 185 Tenn. 482, 486, 206 S.W.2d 891, 893

(1948)).

When determining whether to grant the writ and order the filing of the record, the court must

examine the petition in light of the narrow scope of review that is available. “The remedy of

certiorari is not available as of right, but is granted under unusual or extraordinary circumstances.

It is instituted by an application to a court of competent jurisdiction which may or may not authorize

the writ.” Clark, 827 S.W.2d at 316-17. Issuance of the writ is appropriate where grounds exist for

a review of the record below. Id. (since there was no legitimate cause for the writ of certiorari, it was

erroneously granted). See also, Uselton v. Price, 41 Tenn. App. 134, 142, 292 S.W.2d 788, 792

(1956) (circuit judge did not abuse his discretion in issuing a fiat directing the clerk of the court to

issue writs of certiorari and supersedeas on the showing made in the petition; therefore, denial of

motion to dismiss was proper.) 

“Certiorari at common law performed the function of aid to a review and supervision of the

proceedings of inferior boards and tribunals by a superior tribunal, not taking the place of appeal or

writ of error,” and issuance of the writ is for the limited purpose of determining “whether there had

been an absence or excess of jurisdiction, or a failure to proceed according to the essential

requirements of the law.” Puckett v. Broome, 53 Tenn. App. at 667, 385 S.W.2d at 764 (quoting

Conners v. (City of) Knoxville, 136 Tenn. 428, 432, 189 S.W. 870, 871 (1916)).4

The writ of certiorari, even if granted, only brings up for review certain limited issues.

It must be borne in mind that the functions of certiorari are simply to ascertain the

validity of proceedings before a court of justice, either on the charge of their

invalidity, because the essential forms of the law have not been observed, or on that

of the want of jurisdiction in the court entertaining them. The writ has never been

employed to inquire into the correctness of the judgment rendered where the court

had jurisdiction, and was therefore competent. Hence it has been held that the

supervisory jurisdiction of the court on a certiorari must be restricted to an

examination into the external validity of the proceedings had in the lower court. It

cannot be exercised to review the judgment as to its intrinsic correctness, either on

the law or on the facts of the case. The supervisory powers of the court should not

be confounded with its appellant jurisdiction.

Hoover Motor Express Co., 195 Tenn. at 601, 261 S.W.2d at 236 (citations omitted). Accordingly,

the common law writ does not bring up for a determination, any question except the question of
5As in other types of litigation, where the petition fails to state a claim upo n which the co urt can grant re lief,

it is subject to dismissal upon proper motion. Tenn. R. Civ. P. 12.02 (6); Dobb s v. Guen ther, 846 S.W.2d 270, 273

(Tenn. Ct. App. 1 992) (the purpose of a Rule 12 .02(6) motion is to test the legal sufficiency of the complaint or petition).

In the case of a petition for writ of certiorari, a petition which fails to sufficiently allege that an administrative board has

exceeded its jurisdiction or has acted illega lly, arbitrarily, or fraud ulently may be dism issed befor e the board is ordered

to file its record or before the re cord is filed. Powe ll v. Parole Eligibility Review Bd., 879 S.W.2d at 873 (petitioner

alleged facts which, taken as true, merely attack the intrinsic correctness of the board’s decision, a question beyond the

scope of review, and petition is properly dismissed for failure to state a claim).

6

In Boyce, the court held a hearing on whether the writ should be issued and, after the hearing, dismissed the

petition.

5

whether the inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally,

arbitrarily, or fraudulently. Id. at 195 Tenn. at 604, 261 S.W.2d at 238.

The procedural statutes envision an answer by the defendants, even including grounds for

demurrer, after the record has been filed. Tenn. Code Ann. § 27-9-110. Generally, then, review of

the merits of the petitioner’s claim and the defendant board or commission’s defense occurs in the

context of the record of the proceedings below. 

Where, however, the petition itself fails to sufficiently allege administrative action which

would authorize judicial review under the common law writ of certiorari, the petition may be

dismissed prior to the issuance of the writ.5 Boyce v. Williams, 215 Tenn. 704, 711, 389 S.W.2d 272,

276 (1965) (trial court did not abuse its discretion in dismissing the petition for writ of certiorari

because the petitioners had a plain, speedy and adequate remedy, and the statute allowed grant of the

writ only “when, in the judgment of the court, there is no other plain, speedy or adequate remedy.”);6

Buell Grey Motors, Inc. v. Fanburg’s Garage, 202 Tenn. 648, 650, 653, 308 S.W.2d 410, 411, 412

(1957) (trial court properly dismissed a petition for writ of certiorari on the ground that the petition

on its face was insufficient because the petitioner did not set out the facts of his case and relied only

upon general allegations of violation of the certiorari standard); Fite v. Board of Paroles, 925

S.W.2d 543, 545 (Tenn. Ct. App. 1996) (because petitioner did not state any facts that would support

a claim that the Board acted illegally, fraudulently, or arbitrarily or that it exceeded its jurisdiction,

this court was obligated to find he was not entitled to the writ and affirmed trial court’s dismissal

even though on different grounds from trial court); Turner v. Board of Paroles, 993 S.W.2d 78, 81

(Tenn. Ct. App. 1999) (challenge to intrinsic correctness of board’s decision did not state a claim

for which relief is available under the common law writ of certiorari and petition properly

dismissed); but see Jennings v. Traughber, No. 01A01-9509-CH-00390, 1996 WL 93763 at *5

(Tenn. Ct. App. Mar. 6, 1996) (no Tenn. R. App. P. 11 application filed) (dismissal of petition for

writ for failure to state a claim reversed because construing the petition liberally and taking all

allegations of fact therein as true, petition stated a valid claim that Board of Paroles acted arbitrarily

or illegally).

The decision to dismiss a petition for issuance of a writ of certiorari is separate from a

decision to deny relief on the basis of the record. As this court recently explained:
6

[In Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870 (Tenn. 1916)], the

Supreme Court reversed and remanded the case with directions that should have left

no doubt as to the course of action to be pursued by the trial court:

We hold, therefore, that the circuit judge and the Court of Appeals

were in error in holding that certiorari was not awardable, and in not

quashing the proceeding in the board of commissioners as being in

excess of jurisdiction, illegal, and void, if the same shall appeal to be

as [the chief of police] states in his petition.

Reversed, and remanded to the circuit court, with direction that the

writ be issued, so that a judgment may be rendered in accord with

what is herein held.

Id. at 872. The trial court, in Conners on remand, apparently misconstrued the

Supreme Court holding and on the second appeal Chief Justice Grafton Green

repeated and described the procedure that should have occurred on remand. “The

case was remanded to the circuit court, with directions to issue the writ ‘to remove

the proceeding from the inferior board for the purpose of revision, not for a trial de

novo, but for review of the record to be certified from the inferior tribunal, and for

judgment of quashal or affirmance.’” City of Knoxville v. Conners, 139 Tenn. 45, 201

S.W.2d 133 (Tenn. 1918). The continued of viability of the Conners’ rule is attested

in State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998).

Palmer v. South Cent. Correctional Facility Disciplinary Bd., No. M1999-01611-COA-R3-CV,

2000 WL 1134529 at *4 (Tenn. Ct. App. Aug. 9, 2000) (no Tenn. R. App. P. 11 application filed).

II.

In the case before us, the writ was never issued, and the record of the Board’s hearing was

not filed. Mr. Livingston’s petition was met with a motion for summary judgment on behalf of the

Board. Attached to the motion was an affidavit of the custodian of the records of the Board,

certifying the authenticity of various documents, also attached to the affidavit, from the Board’s files

regarding Mr. Livingston. The affidavit does not state that those documents constitute the entire

record of Mr. Livingston’s parole revocation proceeding. Thus, the Board apparently filed portions

of the record of its proceedings but did not file a certified copy of its entire record of the proceeding

being challenged. See Tenn. Code Ann. § 27-9-109(a) (if writ is granted, the board or commission

shall cause to be made, certified and forwarded to the court a complete transcript of the proceedings,

including proof submitted). The Board also provided Mr. Livingston with a statement of undisputed

facts, to which he responded. Both are in the record before us. The statements deal primarily with

the basic procedural facts relating to the Board’s proceedings and are corroborated by the

attachments to the affidavit.
7Obviou sly, after the recor d has bee n filed, use of sum mary judgm ent on the question of whether re lief is

warranted does not raise the same issues with which we are concerned herein.

7

Creating an additional complication regarding the record is the apparent filing by the

petitioner of an audiotape purporting to be a recording of the hearing at issue. Our record includes

the tape in an envelope with a handwritten notation, “cassette tape attachment pltf’s [plaintiff’s]

memo filed 9-3-98.” Mr. Livingston filed a memorandum of law in support of his amended petition

for writ of certiorari on that date. The tape itself has a typed label with the case name and number

on it. The Board’s brief includes a statement that neither the Board nor its counsel had been aware

the tape had been filed until it was mentioned in the court’s opinion. Thus, we can only conclude

that the tape was not certified as an accurate transcription of the hearing at issue or as part of the

Board’s record. The Board has not objected to the inclusion of the tape in the record or its

consideration by the trial court. To the contrary, the Board relies on the tape for some of the

statements in its brief. Mr. Livingston has not and cannot object to the consideration of the tape

since he supplied it.

We are aware that because the writ was not yet granted, the Board was under no compulsion

to file its entire certified record. We are, nonetheless, troubled by a procedure wherein the Board

files what appears to be a portion of its record and relies on that portion in seeking a judgment. The

use of summary judgment in writ of certiorari proceedings is not unknown, even with regard to

judgment on whether to issue the writ.7 See, e.g., Turner v. Tennessee Bd. of Paroles, 993 S.W.2d

at 80; South v. Tennessee Bd. of Paroles, 946 S.W.2d 310, 313 (Tenn. Ct. App. 1996); Perry v.

Campbell, No. M1998-00943-COA-R3-CV, 2001 WL 46988 at *4 (Tenn. Ct. App. Jan. 22, 2001)

(no Tenn. R. App. P. 11 application filed); Blackmon v. Campbell, No. 01A01-9807-CH-00361,

1999 WL 85518 at *1 (Tenn. Ct. App. Feb. 23, 1999) (no Tenn. R. App. P. 11 application filed); but

see Williams v. Tenn. Dept. of Correction, No. 02A01-9503-CV-00046, 1995 WL 575142 at *4

(Tenn. Ct. App. Oct. 2, 1995) (no Tenn. R. App. P. 11 application filed) (summary judgment for

department reversed where petitioner’s sworn petition was treated as an affidavit opposing the

motion for summary judgment and alleged facts supporting his claim of denial of due process, and

department did not provide response sufficient to eliminate issue of material fact).

We note that the dismissal of the petition in Blackmon was in the nature of a dismissal for

failure to state a claim because, as a matter of law, the punishment administered did not trigger due

process requirements and because double jeopardy guarantees do not apply to prison disciplinary

bodies. However, this court quoted the trial court as considering an affidavit filed in support of the

motion for summary judgment which revealed that there was no genuine issue of material fact that

the Board’s actions were unlawful. Our opinion does not reveal the nature of the affidavit. To the

extent it merely sets out the details of the punishment assessed by the disciplinary board, such

information would merely be a procedural fact basic to the finding that due process was not

implicated.

In Perry, the petition was met with a motion for summary judgment, and this court applied

the standard of review for appeals from summary judgment. While we are unaware of the nature of
8

all the supporting materials supplied with the motion, our opinion discloses that each of the Board

members filed an affidavit denying that race played any part in the Board’s consideration, in

response to the petitioner’s conclusory allegations of racial bias. This is the type of information

which will not usually be revealed in the record of the administrative proceedings and is the type of

information which a trial court may allow to be introduced in addition to the record. Hoover Motor

Express., 195 Tenn. at 607; 261 S.W.2d at 239; Brown v. Tennessee Real Estate Comm’n., 494

S.W.2d 506, 510 (Tenn. Ct. App. 1972) (additional evidence introduced before a court reviewing

an action of a board or commission is limited to the question of whether the board acted illegally,

arbitrarily, fraudulently, or beyond its jurisdiction; evidence on the merits of the controversy is

limited to the record).

In South, this court treated the trial court’s grant of a motion to dismiss as a grant of summary

judgment since the trial court considered matters outside the pleadings. 946 S.W.2d at 313. The

opinion’s only reference to such matters is to an affidavit filed by the Board’s staff attorney testifying

as to the legality and regularity of the proceedings below. This court’s decision, however, does not

appear to rest upon that affidavit. Instead, this court determined that petitioner had not presented any

evidence to substantiate his claim to a plea agreement which formed the basis of one of his

arguments. 

In Turner, the trial court granted a motion to dismiss for lack of jurisdiction and a motion for

summary judgment. In support of its motion for summary judgment, the Board offered the affidavit

of the custodian of the Board’s records which “indicated that the conduct of the hearing was

consistent with Mr. Turner’s rights” and the Board’s rules. 993 S.W.2d at 80. The affiant reviewed

the audiotape of the hearing and identified five witnesses who appeared on the petitioner’s behalf,

and stated that letters and other documents submitted by the petitioner at the hearing were placed in

his file. Id. This court observed that the petitioner had offered no evidence to refute the affidavit.

However, this court’s holding was not based upon any issues addressed in the affidavit; instead, we

construed the petitioner’s claims as an attack on the intrinsic correctness of the Board’s decision.

Id. at 81. In essence, this was a determination that the petitioner failed to state a claim upon which

relief could be granted under the common law writ of certiorari, thereby justifying dismissal of the

petition. Id.

Thus, summary judgment has been used to determine whether the writ, an order to file the

record of the proceedings below, should issue. We do not question that there are situations where

such procedure is the most appropriate way to proceed. For example, if the petition raises issues

whose resolution depends on facts not in the administrative record, presentation to the court of those

facts by way of an affidavit in support of a motion for summary judgment, with the opposing party

having the opportunity to properly dispute such information, provides the court with a basis upon

which to determine whether the record must be filed. See, e.g., Perry v. Campbell, 2001 WL 46988,

discussed above.

In other situations, a petition might be subject to dismissal for other reasons, such as the

failure to comply with the time limitations for seeking review of a Board decision. See Turner v.
8On the other han d, an allegatio n that a boar d or com mission has acted illega lly, arbitrarily, or cap riciously

“typically involves a determination of whether the record contains ma terial evidenc e to suppo rt the decision below. See

Hoover v. Metropolitan Bd. of Housin g App eals, 936 S.W.2d at 950, 95 4 (Tenn . Ct. App. 1 996); Hall v. Sh elby Cou nty

Retirement Bd., 922 S.W. 543, 545 (T enn. Ct. Ap p. 1995 ); Davis Group (M.C.), Inc., v . Metrop olitan Go v’t of Nash ville

and Davidso n Coun ty, 912 S.W .2d 178 , 180 (T enn. Ct. App. 1995); and Metropolitan Air Research Testing Auth., Inc.

v. Metrop olitan Go v’t of Nash ville and D avidson County , 842 S.W .2d 611 , 619 (T enn. Ct. App. 1992).” Harless v. C ity

of Kingsport, No. 03 A01-97 07-CH -00289 , 1998 W L 1315 19 at *4 (T enn. Ct. App. Mar. 25, 1998) (no Tenn. R. App.

P. 11 application filed). When faced with a petition making sufficient allegations of a lack of material evidence, it wo uld

be unusual for a court to make a determination that such evidence wa s presented without a review of the record . We

doubt an affidavit with hearsay statements regarding the evidence, such as that offer in Turner, would suffice. See

Palmer v. South Cent. Correctional Facility Disciplinary Bd., 2000 WL 1134529 at *4-5 (dismiss al of petition for writ

of certiorari reversed because, the motion having been granted before the record was filed, no evidence in the record

before the trial court supported the prison disciplinary board’s decision).

9

It is from the statement, response, and the attachments to the affidavit that we are able to glean the basic facts

necessary to describe the proced ural posture of this case. Petitioner does not admit, nor was he asked to admit, the

accurac y of statem ents within docum ents subm itted in supp ort of the M otion for S umm ary Judg ment.

9

Tennessee Bd. of Paroles, 993 S.W.2d at 80. In such situations, if the petition has not stated the facts

relevant to a determination of jurisdiction, the Board could appropriately file an affidavit with

documentation reflecting the date of the Board’s action. Because such filing would constitute

matters outside the pleadings, such a motion would be converted to a motion for summary judgment.

Id.8

However, we have concerns about indiscriminate use of a procedure which involves filing

portions of the administrative record for two reasons. First, there is the danger of confusion between

the issue of whether the writ should be granted to compel filing of the record with the issue of

whether relief should be granted based on the record and the petition. Second, the statutory

procedures established for review of decisions of administrative boards and commissions do not

appear to contemplate filing of only portions of the administrative record. Because no other method

of judicial review is provided for decisions of the Board of Paroles, the common law writ of

certiorari procedure, as the legislature has defined it in Tenn. Code Ann §§ 27-9-101 through -114,

applies. See South v. Tennessee Bd. of Paroles, 946 S.W.2d at 311. 

We are reluctant to state, and specifically do not state, that summary judgment is never

appropriate in a decision to deny issuance of a writ of certiorari to review a decision of an

administrative board or commission. However, caution should be used to insure that such a

procedure does not substitute a ruling on the merits based on a partial record for a ruling on whether

the record must be filed in order to determine the merits. 

In the case before us, we do not find any error in the summary judgment procedure which

would require reversal of the trial court’s decision. Further, because the record includes a statement

of disputed facts and response which indicate no challenge to the procedural facts disclosed in the

attachments to the affidavit,9 and because there has been no challenge to inclusion or consideration

of any of the material submitted outside the record, we will consider those matters as properly

included in the record.
10

III.

Before us for review is the decision of the trial court to deny issuance of the writ of certiorari.

The court’s decision to deny the writ must be analyzed by reference to the restrictions placed upon

a court to review the Board’s decision. Tennessee Code Annotated § 27-8-101 sets forth the

purpose of judicial review by a common law writ of certiorari:

The writ of certiorari may be granted whenever authorized by law, and also in all

cases where an inferior tribunal, board, or officer exercising judicial function has

exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of

the court, there is no other plain, speedy, or adequate remedy.

Courts employ a limited standard of review under the common law writ of certiorari.

Blackmon v. Tennessee Bd. of Paroles, 29 S.W.3d 875, 878 (Tenn. Ct. App. 2000) (citing Yokley v.

State, 632 S.W.2d 123 (Tenn. Ct. App. 1981)). Relief under a writ “may only be granted if the

board has exceeded its jurisdiction, or has otherwise acted unlawfully, arbitrarily or fraudulently.

Id. (citing Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871 (Tenn. Ct. App. 1994)). A court

will not review the intrinsic correctness of the board’s decision; in other words, one may say that “it

is not the correctness of the decision that is subject to judicial review, but the manner in which the

decision is reached.” Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995); see

also, Powell v. Parole Eligibility Review Bd., 879 S.W.2d at 873.

Generally speaking, review of an administrative decision by way of the common law

writ is confined to the question of whether the inferior board or tribunal has exceeded

its jurisdiction or acted illegally, arbitrarily, capriciously, or fraudulently. T.C.A. §

27-8-101 (Supp. 1997); McCallen, 786 S.W.2d at 638; Hoover v. Metropolitan Bd.

of Zoning Appeals, 924 S.W.2d 900, 904 (Tenn. App. 1996); Gallatin Hous. Auth.

v. City Council, City of Gallatin, 868 S.W.2d 278, 279-80 (Tenn. App. 1993). 

*****

If a reviewing court determines that there is no material evidence to support an

administrative decision, it “must conclude that the administrative body acted

illegally.”Hoover v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d at 904-05. An

administrative decision may be found to be illegal, arbitrary or fraudulent in other

circumstances as well; for example, where the standards of due process have not been

met, where a constitutional or statutory provision has been violated, or where some

unlawful procedure has been followed. Id. at 905; Brooks v. Fisher, 705 S.W.2d 135,

136 (Tenn. App. 1985). 

Harless v. City of Kingsport, 1998 WL 131519 at *4-5. As a general proposition, the decision of

an administrative board is considered to be arbitrary if it lacks a rational basis. Mobilcomm of

Tennessee v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d 101, 104 (Tenn. Ct. App. 1993) (citations

omitted).
11

Where a petition for writ of certiorari fails to sufficiently allege one of the grounds upon

which a court may engage in a review of an administrative decision, denial of the writ is appropriate.

The decision whether to grant the writ, thereby compelling the filing of the record, lies within the

sound discretion of the trial court. Boyce v. Williams, 215 Tenn. at 713-714, 389 S.W.2d at 277. 

Denial of the writ is appropriate where the petitioner fails to show any requisites for the issuance of

the writ. Id. at 709. 

IV.

Mr. Livingston’s petition rests on due process claims, and an allegation of denial of due

process is an allegation that the Board acted illegally. Davis v. Campbell, No. 01A01-9712-CH00755, 1998 WL 813533 at *1 (Tenn. Ct. App. Nov. 25, 1998) (no Tenn. R. App. P. 11 application

filed); Maney v. Tennessee Bd. of Paroles, No. 01A01-9710-CV-00562, 1998 WL 755002 at *3

(Tenn. Ct. App. Oct. 30, 1998) (no Tenn. R. App. P. 11 application filed); Williams v. Tenn. Dept.

of Correction, 1995 WL 575142 at *2. Specifically, he asserts that his due process rights were

violated due to the introduction of evidence including a confidential informant statement, unsigned

indictments and a newspaper article about himself. He claims that the information contained in these

pieces of evidence were inadmissible and biased the hearing officer, thereby depriving Mr.

Livingston of a fair and impartial hearing.

It is well settled that according to both the United States Supreme Court and the Tennessee

Supreme Court, parole revocation hearings are meant to be informal, and the due process rights to

which a parolee is entitled are limited. Morrissey v. Brewer, 408 U.S. 471, 480, 489 (1972); State

v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). 

[R]evocation of parole is not part of a criminal prosecution and thus the full panoply

of rights due a defendant in such a proceeding does not apply to parole revocations.

Parole arises after the end of the criminal prosecution, including imposition of

sentence . . . Revocation deprives an individual, not of absolute liberty to which

every citizen is entitled, but only of the conditional liberty properly dependent on

observance of special parole restrictions.

*****

We emphasize there is no thought to equate . . . parole revocation to a criminal

prosecution in any sense. It is a narrow inquiry; the process should be flexible

enough to consider evidence including letters, affidavits, and other material that

would not be admissible in an adversary criminal trial.

Morrissey v. Brewer, 408 U.S. at 480, 489.

Parolees facing revocation of their parole are, however, entitled to certain minimal due

process rights. These include:

(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to

the [probationer or] parolee of evidence against him; (c) opportunity to be heard in
10Because the adm inistrative record was not filed, the actual affidavit is not in the record before us.

12

person and to present witnesses and documentary evidence; (d) the right to confront

and cross examine adverse witnesses (unless a hearing officer specifically finds good

cause for not allowing confrontation); (e) a “neutral and detached” hearing body such

as a traditional parole board, members of which need not be judicial officers or

lawyers; and (f) a written statement by the fact finders as to the evidence relied on

and reasons for revoking parole. 

State v. Wade, 863 S.W.2d at 408 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973);

Morrissey v. Brewer, 408 U.S. at 489).

The statutes and administrative rules governing the Tennessee parole board grant wide

latitude and discretion in the admission and review of evidence. For example, Tennessee Code

Annotated § 40-28-106(f) states in pertinent part, “[n]otwithstanding other provisions of law to the

contrary and unless prohibited by federal law in a specific instance, the board shall be granted access

to any record or information, public or otherwise, which it deems necessary to carry out its duties.”

Also, the administrative rules of the Tennessee Board of Paroles state “[a]ll parole revocation

hearings shall be conducted in a manner as informal as is consistent with due process, and the

technical rules of evidence shall not apply to such hearings.” Tenn. Comp. R. and Regs. ch. 1100-1-

1-.13(9)(i).

Mr. Livingston’s first claim on appeal is that the hearing officer improperly admitted a

confidential affidavit into evidence.10 He states in his petition that “the parole officer had brought

a sworn affidavit from a ‘protestor’ that feared for their life, if the Petitioner was released.” Mr.

Livingston claims that his due process rights were violated by admission of this affidavit and that

he had a right to confront and question adverse witnesses. With regard to the right to confront

witnesses, this court has stated:

These minimum standards reflect a preference for permitting paroleesto confront and

cross-examine their accusers; however, they also permit the Board’s hearing officers

to dispense with confrontation and cross-examination for good cause. However, the

State even concedes that parolees must be given “an opportunity to cross-examine

adverse witnesses unless the hearing officer specifically finds good cause for not

allowing confrontation.” Thus, when good cause exists, hearing officers in parole

revocation hearings may permit the introduction of letters and affidavits that, by their

very nature, have not been tested by confrontation and cross-examination. See

Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604; Sanders v. Tennessee Bd.

of Paroles, 944 S.W.2d at 397. The issue that remains to be decided concerns what

must be proven to demonstrate good cause for denying a parolee the opportunity to

confront and cross-examine adversary witnesses. 

Good cause is not a precise standard, and there is no bright-line rule for determining

whether good cause exists. The inquiry is factually driven and may, in large measure,
13

depend on the nature and purpose of the evidence sought to be introduced. Thus, for

example, persons who desire to express an opinion either favoring or opposing the

revocation of parole based on the parolee’s character, the nature of the parolee’s

underlying conviction, the parolee’s institutional conduct, or the parolee’s reputation

in the community need not be subjected to confrontation and cross-examination

because their statements are simply personal opinions. The Board receives these

sorts of letters and communications every day, and it would add little to the integrity

of the hearing process to require persons desiring to give opinions of this sort to

appear in person at the revocation hearing to offer them.

Testimony establishing the grounds for revoking a parole should be treated more

rigorously because it provides the basis for depriving the parolee of his or her liberty.

Rather than being merely statements of personal opinion, this testimony is being

offered to prove the truth of the matters contained in it. Accordingly, the

requirements for its admission must contain reasonable safeguards to ensure that the

testimony is truthful and accurate.

Miller v. Tennessee Bd. of Paroles, No. 01A01-9806-CH-00293, 1999 WL 43263 at *5 (Tenn. Ct.

App. Feb. 1, 1999) (no Tenn. R. App. P. 11 application filed). This court concluded that when

presented with hearsay evidence to prove a parole violation, hearing officers must satisfy

themselves either that the evidence is inherently reliable or that it has already been subjected to

adversarial questioning and must make the “good cause” determination using applicable standards.

As the Miller opinion suggests, other types of materials, not introduced to prove the parole violation,

are not subject to such requirements, and good cause may be more easily found.

The evidence Mr. Livingston objects to is characterized by him as a “confidential affidavit.”

In his brief he states that, “the testimony of the witness failed to support or disprove the rule

violation,” referring to the confidential affidavit. In its brief, the Board merely relies on Mr.

Livingston’s petition, which characterized the affidavit as “from a ‘protestor’ that feared their life.”

The petition clarifies the situation a little. Although Mr. Livingston objected to use of a confidential

informant’s affidavit used to secure the search warrant which resulted in finding the gun and

ammunition in his apartment and presented arguments why the affidavit was not a sufficient basis

for the issuance of the warrant, that affidavit is not the one to which he objects on appeal. The search

warrant issues arose the first hearing. In another section of his petition, Mr. Livingston states:

In the second hearing, denominated an “appeal,” it was apparent that the hearing

officer was merely searching for a reason to justify the original violation. The

Petitioner was told there were protestors (Hayes and the parole officer who issued the

violation warrant); and that the parole officer had brought a sworn affidavit from a

“protestor” that feared their life, if the Petitioner was released. 

This was a clear and blatant attempt to illegally hold the Petitioner. This was a

“violation” hearing, (which was supposed to concern a gun) not a parole hearing.

Neither the Petitioner’s parole officer nor the detective could “protest” him, if it had

been a parole hearing. And, the statement provided by the parole officer along with
11Mr. Livingston attac hed a cop y of a newspa per article to h is petition. We assume it was the article he

complain s about.

14

a newspaper article he just happened to bring with violated Petitioner’s constitutional

rights.

The person who signed the statement is a police informant, with a lengthy arrest

record, who cut a deal with the State. 

Thus, although Mr. Livingston apparently believes the two affidavits originated from the

same person, it is the second, wherein the affiant apparently indicated a preference for revocation

of Mr. Livingston’s parole, that is the subject of the issue before us. The amended petition makes

the nature of the document clear:

Hearing officer Francis Lloyd, prior to hearing evidence in the appeal, emphatically

stated that no new evidence would be heard. Only that evidence, originally

presented, would be introduced at the appeal hearing. Yet, in the face of this

instruction, the appeal officer allowed new testimony in the way of a “notarized,

confidential affidavit” from a “secret” witness. The brunt of that testimony

concerned allegations of unsubstantiated threats made by or on behalf of the

plaintiff against this, still unknown protester. A protester who did not submit

testimony at the original revocation hearing. (Emphasis added.)

These statements establish that the hearsay evidence or statement he complains about was

not related to the issue of whether he had violated his parole. Rather, it falls within the type of

communication the Board receives regularly from persons expressing opinions about the action the

Board is considering. 

In that context, threats or a finding the witness would be “exposed to significant risk of harm”

constitute good cause reasons for not requiring confrontation. Morrissey v. Brewer, 408 U.S. at 486-

87. Based upon these authorities and the statement in Mr. Livingston’s petition regarding the

affiant’s fear for his life, the trial court found no due process violation. We agree. Because Mr.

Livingston does not deny that the witness feared for his or her life if forced to testify in person, we

find no merit in this claim.

Next, Mr. Livingston alleged that a newspaper article contained in the file of the State

violated his due process rights.11 With regard to this issue, the trial court stated, “this Court has

reviewed the audio record of the . . . revocation hearing and finds that this article was not accepted

as evidence or made a part of the record at the hearing. The hearing officer specifically stated that

he had not read the article in question, nor would he read it.” The mere presence of the article

without it being accepted into evidence or considered by the decisionmaker renders Mr. Livingston’s

claim moot. We find that Mr. Livingston’s due process rights were not implicated whether the

article was considered by the hearing officer or not. The Board is allowed wide discretion, not

subject to the rules of evidence, to consider evidence, information, or documentation that it considers
12Additiona lly, there is no evidence in the record before us that the unsigned indictments were even considered

by the hearing officer. They appear to be includ ed in the hea ring officer’s statement that he would no t consider ce rtain

items in the file.

13At the first hearing, there was testimony in the record from Dallas Hopson stating that he owned the gun and

had taken it to Mr. Livingston to see if Mr. Livingston would loan him some money on it. He further stated he left the

gun at Mr. Liv ingston’s apartment, witho ut his knowledge, after being told Mr. L ivingston ’s parole g uidelines w ould

not allow him to own a firearm. At the second hearing, Mr. Livingston admitted to having handled the gun when it was

broug ht to him but testified h e returned it and told H opson th at he cou ld not paw n it becau se he wa s on paro le. 

15

helpful in carrying out its functions. Therefore, we find Mr. Livingston’s allegations in this regard

to not constitute an allegation that the Board’s decision was unlawful, arbitrary or fraudulent.

The Board asserts that issue of the unsigned indictments was raised for the first time on

appeal. The trial court did not address them, and there is no evidence they were raised below other

than Mr. Livingston mentioning them in his Amended Petition in support of his “biased hearing

officer” claim. Mr. Livingston did not argue in the court below that the introduction of the unsigned

affidavits was in error, but instead argues that their introduction “worked to taint his [the hearing

officer’s] objectivity in deciding this issue, and was thus, an arbitrary and capricious denial of due

process.” Therefore, because Mr. Livingston raises the issue of the introduction of such evidence

for the first time on appeal, we will not consider the claim.12 This court can only consider such

matters as were brought to the attention of the trial court and acted upon or permitted by the trial

court. Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn. Ct. App. 1978) (citations omitted). 

Petitioner has failed to allege facts to support a claim that the Board violated his due process

rights by admitting certain evidence or otherwise acted without jurisdiction, arbitrarily, or

unlawfully. Because the trial court’s review of the Board’s decision would be limited to a

determination of those questions, denial of the writ on the basis of these allegations is affirmed. 

We note that Mr. Livingston admits in his petition that his possession of a gun would be a

violation of his parole conditions. Evidence was presented at the revocation hearing that a gun and

ammunition were found in his bedroom closet. Thus, the Board clearly had a rational basis for its

determination that he had violated his parole. See Maney v. Tennessee Bd. of Paroles, 1998 WL

755002 at *4; (citing Mobilcomm of Tennessee v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d at

104). 

Mr. Livingston had earlier argued that there were problems with the search warrant that led

to the discovery of the gun and ammunition, but has dropped those arguments on appeal. He still

maintains, however, that the gun was not his and that the Board should have credited the testimony

of a witness who claimed ownership of the gun.13 These assertions are basically challenges to how

the Board weighed the evidence before it and, therefore, attack the intrinsic correctness of the

Board’s decision. As explained earlier, courts are not authorized to inquire into the correctness of

an administrative decision by writ of certiorari. Robinson v. Truaghber, 13 S.W.3d 361, 364-65

(Tenn. Ct. App. 2000). Additionally, a court reviewing an administrative board’s decision is not
16

permitted to weigh the evidence presented to the board. Gallatin Hous. Auth. v. City Council, City

of Gallatin, 868 S.W.2d at 280; Hoover v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d at 904

(citations omitted). Moreover, the reviewing court “should refrain from substituting its judgment

for the broad discretionary authority of the ... governmental body.” McCallen v. City of Memphis,

786 S.W.2d 633, 642 (Tenn. 1990).

V.

Next, Mr. Livingston asserts that the hearing officer was biased. Due process, including the

protections afforded parolees facing revocation of their parole, requires a neutral and detached

decision maker. See Jones v. Greene, 946 S.W.2d 817, 825 (Tenn. Ct. App. 1996) (citations

omitted) (due process guarantees a party to an administrative hearing to a fair and impartial tribunal).

In the case before us, however, Mr. Livingston does not allege that the hearing officer was biased

against him because of matters outside of and unrelated to the revocation proceeding. He alleges,

instead, that the hearing officer’s bias was created by the introduction of inadmissible and prejudicial

information, the statement and article discussed above. In his amended petition, Mr. Livingston

states, “Mr. Lloyd, who may very well have intended to conduct a proper hearing, was, nevertheless,

not fair or impartial due to the entry in the record of invalid, inappropriate and prejudicial evidence.

Copies of newspaper article, unsigned indictments and improper testimony, allowed by the appeal

officer, worked to taint his objectivity in deciding this issue, and was thus, an arbitrary and

capricious denial of due process.”

There is no evidence in the record to support these conclusory allegations by Mr. Livingston

that the hearing officer was biased against him or was improperly led to his decision by bias. It is

well settled that conclusory allegations will not support a denial of a motion for summary judgment.

Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Conclusory allegations of illegality or

arbitrariness, or of bias or other due process violation, are similarly not sufficient to avoid dismissal

of a petition for writ of certiorari. Davis v. Campbell, No. 02A01-9611-CV-00268, 1997 WL

777079 at *4 (Tenn. Ct. App. Dec. 18, 1997) (no Tenn. R. App. P. 11 application filed).

Furthermore, a party seeking to overcome the well-established presumption that administrative

decision makers will discharge their duties with honesty and integrity has a difficult burden. Cooper

v. Williamson County Bd. of Educ., 803 S.W.2d 200, 203 (Tenn. 1990). The averments by Mr.

Livingston do not create an issue justifying court review of the Board’s decision.

Further, the fact that Mr. Livingston argues that the hearing officer became biased by the

evidence considered at the hearing defeats his claim. Generally, the terms “bias” and “prejudice”

refer to a state of mind or attitude that works to predispose a judge for or against a party. Alley v.

State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). Further,

Not every bias, partiality, or prejudice merits recusal. To disqualify, prejudice must

be of a personal character, directed at the litigant, “must stem from an extrajudicial

source and result in an opinion on the merits on some basis other than what the judge

learned from . . . participation in the case.” 

***
17

If the bias is based upon actual observance of witnesses and evidence given during

the trial, the judge’s prejudice does not disqualify the judge. . . . However, if the

bias is so pervasive that it is sufficient to deny the litigant a fair trial, it need not be

extrajudicial.

Id. (citations omitted.). See also Spain v. Connolly, 606 S.W.2d 540, 544 (Tenn. Ct. App. 1980).

Therefore, Mr. Livingston has not alleged any basis for an inquiry into whether the hearing

officer was biased. The denial of a writ in order to undertake such an inquiry was correct.

We have held that the evidence Mr. Livingston claims biased the hearing officer could have

been properly considered by him. Additionally, there was a rational basis for the revocation

decision, based upon other proof, and there is absolutely no basis presented for any assumption that

the decision was the result of any bias on the part of the hearing officer.

VI.

For the reasons set forth herein, we affirm the dismissal of Mr. Livingston’s petition for

common law writ of certiorari. Costs of this appeal are taxed to Mr. Livingston for which execution

may issue if necessary. This cause is remanded to the trial court for any further actions necessary

consistent with this opinion.

____________________________________

PATRICIA J. COTTRELL, JUDGE