### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Brie

fs April 4, 2000
WILLIAM P. LIVINGSTON v. STATE OF T ENNESSEE 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

Petiti one r appeals the trial court’s decision to deny his petition for common law writ of certiorari challenginga Board of Paroles decision to revoke his parole

and the court’s grant of Respondent’s motion for summary judgment. Petitioner appeals the order o n 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

P ATRICIA J.C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM C. K OCH , J R ., J, joined. William P. Livingston, Wartburg, Tennessee, Pro Se.
Paul G. Summers, Michae l M oore, Pam ela S. Lorch, for appellee, State of Tennessee Board of Paroles.
OPINION
This is an appeal from thetrial court’s grant of summary judgment to the Tennessee B oard of Paroles and denial of Mr. Livingston’s petition for com m on law writ of cer

tiorari based on h

is claim that his due proce

ss rights were v

io lat ed during his par

ole revocation he

aring. The fac

ts underlying

this appeal are a

s follows: Following a con viction and s entence 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, p

ossess, or carry

any ty pe of deadly

weapon (guns, r

ifles, knives or any illegal weapons).”1 Originally, Mr. Livin gston objected to the introduct ion of evidence of

the gun on the bas

is that t he 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.

2 Tenn. 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 § 40-28-105(d ) allows an inmate whose parole has been revoked to request review by the Board, and such “a ppellate” re view is limited to e numerated grounds, i n cluding “signifi cant procedural errors by the hearing official.”

3 Board of Paroles decisions are reviewable through the commo n law writ of certio rari. Arnold v. Tenne ssee Bd. of Paroles , 956 S.W.2d 478, 480 (Tenn. 1997) (citations omitted); Sanders v. Tennessee Bd. of Parol es , 944 S.W.2d 395, 397 (Tenn. Ct. App. 199 6) (citations omitted).
2 In D ecembe r 1997, pursuant to a warrant issued to search the premises of Mr. Livingston,
a .22 cali ber high stan dard pistol and ammunition were found. 1 A parole revocation hearing was held on February 25, 1998 and Mr. Livingston’s pa role was revoked as a result. Beca u se of a proceduralerror in

the first hearing, the Board granted him a second hearing on July 14, 1998. 2 The hearing officer recom

m ended th at 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 certi

orari with the Ch

ancery 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 deci

sion of an administr

ativ e board or commission, such as the Board of Parole

s. Anyone who may be aggrieved by anyfinal 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 stat es, the proced ure 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 proceduralframework for review under both the common law and statutory writs appears in Ch. 9 of Title 27); see also , Cantrell, Review of Administr ative Decisions by

Writ of Certiorar

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

for review unde

r both the common-l

aw and statutory

writs of certiora

ri but does n

o t affect the availability of either writ). 33

TennesseeCode Annotated § 27-9-102 directs the aggrieved person to file a p etit ion for certiorari in order to seek judi cial review. When

a petition is filed,

the clerk is to gi

ve immedia

t e 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 certiorariis 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 defenda nts.”)
The court may r

equire such notic

e before gra

nting the writ, or

may gran

t 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 theboard 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. 01A01-98

07-CH-00

38, 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 boardor 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 boa rd or commission. Tenn. Code Ann. § 27-9-109 (emphasis added).
As this statute suggests and as our courts have explained, the writ is the proc edural vehicle usedto compel the filing of the record of the lower tribuna

l, board, or commis sion 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 bereviewed where the petition states claims which fall w ithin the narrow a

vailable scope of judicial revie

w. The purpose

of granting the

writ is to have the record of the board or other lower tribunal filedso that a reviewin g court can det

ermine whether p

etitioner is entitle

d 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 recordto determine whether there has been an excess or absence of jurisdiction, or failure to proceed accordi ng to th e essential requirements of the law.
Clark v. Metropolitan Go

v’t of Nashville and

Davidson County, 827 S.W.2d 3 12, 316 (Tenn. Ct. App. 1991) (citations omitted) (emphasis added). “A petition for wr

it of certiorari is not leading process, but a statement of fact with a view to obtain an order for issuance of the w ri ts of certiorari and supersedes.” A’La v. Tennessee Dept. of Correction , 914 S.W. 2d at 916 (ci ting Kennedy v. Farnsw orth , 22 Tenn. 242, 3 Hum. 242 (1842); 5 Te nn . 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 accordingto the essential requirements of the law.” Clark , 827 S.W.2d at 317 (concurring opinion)4 In Pucke tt v . Broome , which involve d a pe tition f

or a writ of c

ertiorari to the court of

appeals to revi

ew an interlocut

ory action by a circuit j udge, this court stat ed 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 situat ion where there was a genuine question whether the lower court “may have exceeded it

s juris diction and powers and theref

ore acted illegally,” this court d etermined “that in such a situatio n this court has ju risdiction to entert ain the petiti on for wri

ts 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, th

e court must examine the petition in ligh t of the narrow sc

ope of review tha

t is availa

ble. “The r emedy of certiorari is not available a s of right,but is granted under unusual or extraor

dinary cir cumstances. It is instituted by an application to a court of competent jurisdiction which may or may not author

ize the writ.” Clark , 827 S.W.2d at 316-17. Issuance of the writ is appropr

iatewhere grounds exist for
a review of the record

below. Id . (since there w

as no legitimate c

ause 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 disc

retion in issuing a fiat directing t

he clerk of the c

ourt to issue writs of cer

tiorar i 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 beenan absence or excess of jurisdiction, or a f ailure to proceed according to the essential requirements

of the law.” Puckett v. Broome , 53 Tenn. App. at 667, 385 S.W.2dat 764 (quoting Conners v. (City o

f) Knoxville , 136 Tenn. 428, 432, 189 S.W. 870, 871 (1916)). 4
The writ of certi

orari, even if g

ranted, only

brings up for re

view certain limit

ed issues.
It must be bo rne in mind th at the functions of certiorari are simply to ascertain the validity of proceedings be fore a cou rt of justice, eith er on the charg

e of their inv ali dit y, because the essential forms of the law have not been observed, or on that of the want of jurisdi

ction in the court e

ntertaining them. The writ has never been
e mployed to inquire into the correctness of the judgment rendered where the court had jur isdiction, and was therefore competent. Hence it has been held that the supervisory

jurisdiction of th e 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 c ourt should not be confounded with its appellant jurisdiction.

Hoover Motor Express Co. , 195 Tenn. at 601, 261 S.W .2d at 2 36 ( cit ati ons omi tte d). Acco rdi ngly, the common law writ does not br ing up for a dete

rmination, any

question except the

questio n o f5 As in other ty pes of lit igation, where the peti

tion fail s to state a claim upo n which the co urt can grant re lief, it is subj ect to di smissal upon proper mot

ion. Tenn.

R. Civ. P. 12.02 ( 6); Dobb s v. Guen th er , 846 S.W.2d 270, 273 (Tenn. Ct. App. 1 992) (the purpose of a Rule 12 .02(6) m otion is to test the leg al suf

ficie ncy of the complaint or petition). In the case of a petiti

on for writ of

certiorari , a petiti

on which fail

s to suff icientl y allege t hat an adminis

trative board h

as 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. P arole Eli gi bili ty Rev iew Bd ., 879 S.W.2d at 873 (petiti oner allegedfacts 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 dismis sed for failure to stat e a claim).

6 In Boyce , the court h

eld a hearing on wh

ether the wri

t should be is sued and, after the hearing, dismissed the petition. 5 whether the inf eri or b oard or t rib una l (1 ) has exc eede d it s ju ris dic tio n, o r (2 ) has act ed i lle gall y, arbitrarily, or fraudulently. Id . at 195 Tenn. at 604, 261 S.W.2d at 238.
The procedural statutes envision an answer by the defendants, ev en 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 def

ense occurs in the context of the record of the proceedings below. Where, however, the petition i tself fails to sufficiently allege administrative action which would authorize judicial review under the common law wri t of ce rtiorari, the petition may be dismissed prior to the issuan ce of the writ. 5 Boyce v. Williams , 215 Tenn. 704, 711, 389 S.W.2d 272, 276 (1965) (trial co

urt did not abuse its discre tion 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 prop

erly dismisse

d a petition for wr

it of certiorari on theground that the petition
on its face was insufficient because the petitioner did not set out the facts o

f his case and re

lied only up on general all

egations of viola

tion of the certior

ari 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 cla im t hat the Boar d act ed i lle gall y, fraudulently, or arbitrarily or tha tit exceeded its jurisdiction, this court was obl igated to find he was not entitled to the writ and affirmed trial court’s dismissal
eventhough on different grounds from trial court); Turner v. Board of Paroles , 993 S.W.2d 78, 81 (Tenn. Ct. App. 1999) (cha lle nge to in

trinsic correct

ness of board’s d

ecision did not state

a claim for which re lief is available under the common la

w writ of certior

ari and petition pr

operly dismissed); but see Jennings v. Traug hber , 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 f orfailure to state a

claim reversed

because constr

uing the petition l

iberally a nd taking all allegations of fact therein as true, petition stated a va lid claim that Boa

rd of Paroles act

ed arbitrarily or illegally).
The decision to dismiss a petition for issuance of a writ of cer ti orari is separa

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

[In Conners v. City of Knox ville , 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 co

urse of action to b

e pursued by

the trial court:
We hold, therefore, that

th e circuit judge

and the Court of Ap

peals
werein error in holding that certiorari was not awardable, and in not qu ashi ng the proceeding

in the board of co

mmissioners as bein

g in
excess of jurisdiction, ille gal, and void, if the sam

e 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 issue d, so that a judgme nt may be re

ndered in accor

d with what is herein held.
Id. at 872. The trial cour t, in Conners on remand, apparently misconstrued the Supreme Court holding and on the s econd appe al 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 f ro m 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’ruleis 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-C V, 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 notfiled. Mr. Livingston’s petition was met with a motion for summary judgment on behalf of the Board. Attached to the motion was a n 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
r egardingMr. Livingston. The affidavit does not state that those documents constitute the entir e record of Mr. Livingston’s parole revocation proceeding. Thus, the Board apparently filed por tions of the record of its

proceedings bu

t 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 shallcause to be made

, certified and f

orwarded to the c

ourt a complete transcript of the

proceedings, including proof submitted). The Board also p

rovided Mr. Li

vingston with

a statement of

undisputed facts, to which he respon

ded. Both

are in the record before us. The statements deal pr

imarily with the basic procedural facts relating to the Board’s proceedings a nd are cor

rob orated by the attachments to the

affidavit.7 Obviou 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 wit h which we are concerned herein.

7 Creati ng 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 r ecord includes the tape in an envelope with a handwritten no tation, “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 c

ertified as an a

ccurate transc

ription of the hea

ring at i s sue or as part of the Board’ s record. The Bo ard has not objec

ted to the inclusion

of the tape in the r

ecord or its considerationby the trial court. To the contrary, the Board relies on the tape for some of the statementsin its brief. Mr. Livingston has not and cannot object to the consideration of the tap e since he supplied i

t.
We are aware that because the writ was not yet g ranted, the Board

was under no compulsion to file its entire certified record. We are, noneth eless, troubled by a procedure wherein the Boar d files what appears to bea portion of its record and relies on that portion in seeking a judgment. The
useof summary jud gm e nt in writ of certio rari proceedin

gs is not unknown, e

ven with regar

d 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. C t. App. 1996); Perry v. Campbell , No. M1998-00943-C OA-R3-CV, 2001 WL

46988 at *4 (Tenn.

Ct. App. Jan. 22, 2001) (no Tenn. R. App. P. 11 a pplication filed) ; Blackmon v . Cam pbell , No. 01A01-9807-CH-00361, 1999 WL 85518 at *1 (Tenn. Ct. App. Feb. 23, 1999) (no Tenn. R. App. P. 1 1 application file d); but
see Williams v. Te

nn. 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 applic ation f

iled) (summary judgment for department

reversed where petitioner’s sworn petition was treated as an affidavit op posin g 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 be

cause, as a

matter of law, thepunishment administered did not trigger due processrequirements and because double jeopardy gua rantees do not apply to prison d isciplinar y 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 g enuine issue of material fact that the Board’s action

s were unlawful.

Our opinion does not reveal the nature of the affidavit. To the extentit merely se

ts out the de tails of the punishment assessed by the disciplinary board, such information would merely be a procedural fact basic to the fin ding 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 of8

all the supporting materials supplied with the motion, our opinion discloses that each of the Board members filed an affidavit d enying tha

t race play

ed any par

t in the Board’s c

onsideration, in response to the petitioner’ s c onclusory a ll egations of racial bias. This is the type of information which will not usually be revealed in the record of the administrative proceeding s 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; 26 1 S.W.2d at 239; Brown v. Tennessee Real Estate Comm’n ., 494 S.W.2d 506, 510 (Tenn. Ct. A pp. 1972 ) (additional evidence introduced before a court reviewing
an action of a board

or commission is limite

d to the question of

whe the r th e bo ard a cte d il lega lly, arbi tra ril y, fraudulently, or beyond its jurisdiction; evide nce on t he merits of the co ntroversy i

s 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 regu larity of the p roceedings below. This court’s decision, however, does not appear to rest upon that affidav

it. Instead, th

is court determined that petitioner had not presented any evidenceto substantiate his claim to a plea agreement which formed the basis of one of hi s arguments.
In Turner , the trial court g ranted a motion to d

ismiss for lack of jurisdiction and a motion for summary judgment. In support of its motion for summary

judgment, the Bo

ard offered the

affidavit of the custodi an 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, andstated that letters and other documents submitted by the petitioner at the hearing were placed in his file. Id. This court observed that thepetitioner had offered no evidence to re

fute the affida

vit. However, this court’s holding was not based upon any issues addressed in the affidavit; instead, we construedthe petitioner’s claims as an attack on the intrinsic correctness of t he Bo ard’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 issu e. We do not question that there are situations where such procedureis the mos t appropriate way to proceed. For example, if the petition raises issues whose resolution depends on facts not in the administrativerecord, prese ntation to the cour

t of those facts by way of an affida

vit in support of a motion for summary judgment, with the opposing party having the opportunity

to properly

dis pute 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 su

bject to dismissa

l for other

reasons, such as the failure to comply with the time limitations for seeking review of a Board de cision. See Turner v.8 On the other han d, an allegatio n that a boar d or com mis sion h as acted illega lly, arbitrarily, or cap riciously

“typically involves a determinati on of whether

the record contains ma terial evidenc e to suppo rt the decision below. See Hoover v. Metropol

itan 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 Tes ting 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 suf ficient allegat

ions of a lack of mat

erialevidence, it wo uld be unusual for a court to make a determination tha t such ev idence wa s presented without a review of the record . We d oubt an affidavit wit

h hearsay statements regarding t he evidence, such as that offer i n Turner , wou ld suffice. Se e Palmer v. South C ent. Correcti onal Facili

ty Disci plinary Bd. , 2000 WL 1134529 at *4-5 (dismiss al of petition for writ of certiorari reversed beca use, the motion having been granted before the record was fil ed, 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 aff idavit that we are able to glean t he basic facts necessary to describe the proced ural posture of this case. P etiti oner does not

admit, nor was

he asked to admi

t, 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 thefacts relevant to a determination of jurisdiction, the Board could appr opriately f

ile an affidavit w

ith documentation reflecting t he date of the Board’s ac tion. Because su

ch filing would c

onstitute matters outside the pleadings, such a motionwould be converted to a motion for summary judg

ment. 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 b e granted to compel filing of the record with the issue of whether relief should be g

rante d based on the record and the petition. Second, the statutory procedures established for rev i ew of decisions of administrative boards and commissions do not appear to contemplate filing of only portions of the administrative

record. Beca

useno other method of judicial review i

s provided for de

cisio ns of the Board of Paroles, the common law writ of certiorari procedure, as t

he 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 relucta

nt to st ate, and specifically do not state, that summary judg ment is never appropriate

in a decision to deny issuance of a writ of certiorari to review a decision of an adminis trative board or commission. However, caution should be used to insure that such a proceduredoes not substitute a ruling on the mer

its 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 proce dure which would require reversal of

the trial court’s decision. Further, because the record includes a statement of disputedfacts and respon se 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 ma

terial submitted ou

tside the record

, we will consider

those matters as p roperly included in the record.10 III.
Before us for review is the decision of the trial court to deny issuance of the writ of certio

rari. The court’s decision to deny the writ must be analyzed by reference to the restrictions placed upon
a court to review the B oard’s decision. Tennessee Code Annotated § 27-8-101 sets forth the purpose of judicia

l review by a commo

n law writ of cer

tiorari:
The writ o f certiorari may be gra nted whenever a

uthorized 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 un derthe common law wri t 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 gran ted if the boardhas exceeded it

s jurisdiction, or ha

s otherwis e a cted unlawfully, arbitrarily or fraudulently. Id

. (citing Powell v. Parole Eligibility Review Bd. , 879 S.W.2d 871 (Tenn. Ct. App. 1994)). Acourt will not review the intr

insic correctne

ss of the board’s decision; in other words, one may say that “it is notthe correctnes s 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. A pp. 1995); se e also, Powell v. Parole Eligibility Review Bd. , 879 S.W.2d at 873. Generally speaking, review of

an administrative decisionby way of the common law writ is confined to the question of whether theinferior board or tribunal has exceeded its jurisdiction or ac ted ill egal ly, a rbi tra ril y, cap ric iou sly, 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 ad ministrative deci sio n, i t “m ust con clu de t hat the adm ini str ati ve b ody a cte d illegally.” Hoover v. Metropolitan Bd. of Zo ning Appeals , 924 S.W.2d at 904-05. An administ r ative 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 pr

ovision has been vi

olated, 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 K

ingspor t , 1998 WL 131519 at *4-5. As a general proposition, the decision of
an administrative boa

rd is considered t

o be arbitrary

if it lacks a ratio

nal b asis. 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 e

ngage 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, 3 89 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 d ue proces s claims, and an allegation of denial of due processis an allegation that the Board acted illegally. Davis v. Campbell , No. 01A01-9712- CH

00755, 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. De pt. of Correction , 1995 WL 575142 at * 2. Specifically, h e asserts that his d

ue process r

i ghts were violateddue 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 UnitedStates Supreme Court and the Tennessee Supreme Court, parole revocation hearings are meant to be in formal, and the du

e process rights t

o 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]evocationof parole is not part of a criminal prosecution and thus the full panoply of rights due a defe

ndant in such a proceedi

ng does not apply to

parole revoca

tions. Parole arises after the end of the criminal prosecution, including imposition of sentence. . . Revocation deprives an individual, not of a bso lute liberty to which every citizen is entitled, but onl y o f the conditional liberty properly dependent on observance of s

pecial parole r

estrictions. ***** W e emph asize there is no thought to equate . . . parole revocation to a criminal prosecution in any sense. It is a narro w inquiry; the proc ess should be flexi

ble enough to consider evidence including letters, affidavits, and other material tha t would not be admissib

le in an adversar

y criminal trial. Morrissey v. Brewer , 408 U.S. at 480, 489.
Parolees facing revocation of their parole are, how ever, 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 evide

nce against him;

(c) opportunity

to be heard in10 Because 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 andcross examine adverse witnesses (unless a hearingofficer 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 bythe fact finders as to the evidence relied on and reasons for revoking parole.
State v. Wade , 863 S.W. 2d at 408 (q uoting Gagnon v. Scarpel li , 411 U.S. 778, 786 (1973); Morrissey v. Brewer , 408 U.S. at 489).
T he statutes and administrative rules governing the Tennessee parole board gra nt wide latitude and discretion in the admission and review of evidence. For e xam ple, Tennessee Code Annotated§ 40-28-106(f) s tates in pertinent

part, “[n]otwithstanding other provisions of law to the contrary and unless prohibited by

federal law in a

specific instanc

e, the board shal

l be granted ac

cess to any record or information, public or otherwise, which it deems necessar y to carry out its duties.” Also , the admini strative 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 evidenc e shall not apply

to such hearings.” Tenn. Comp. R. and Regs. ch. 1100-1- 1-.13(9)(i).
Mr. Livingsto

n’ s first claim on appeal is that the hearing officer improperly admitted a confidential af

fidavit into

evidence. 10 He states in his petition that“the parole officer had brought
a sworn affidavit f

rom a ‘protestor’ that feared for their life, if the

Petiti oner was releas ed.” Mr. Livingst on 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 pa rolees to con front 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 Stateeven concedes t

hat parolees mus t be given “an opportunity to cross-examine adverse witnesses unless t

he he aring officer specifically finds good c ause for not allowing confrontation.” Thus, when good cause exists, hea rin g officers in pa

role revocationhearings 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. T ennessee Bd. of Paroles , 944 S.W.2d at 397. The issue thatremains to be decided concerns what must be proven to demonstrate good cause for denying a parolee the oppo

rtunity to confront and cross-examine adversary witnesses.
Goodcause is not a pre

cise standard, a

nd there is

no bright-line rule for determining whether good cause exists. The inquiry is factually driven and may , in large measure,13

dependon the nature and

purpose of the evidence sought to be introduced. Thus, for example, persons who desire to expre ss an opinion either favoring or opposing the revocationof parole based o n the parolee’s character, the nature of the parolee’s underlying

conviction, the pa

rolee’s institution

al conduct,or the parolee’s reputation in the community

need not be subjec

ted to confrontat

io n and c ross-examination because their statements a

re simply pe

rsonal opinions. Th

e Board recei

ves these sorts of letters and

communications every

day, and it w

ould add little to the

integrity of the hearing pr

ocess to require

persons desiring

to give opinions of

this sort to appear in perso

n at the revocati

on hearing to of

fer them.
Tes timonyestablishing the grounds for revoking a parole should be treated more rigorously

because it provides the basis for depriving the parolee of

his or h er l ibe rty. Rather than being me

rel y statements of personal opinion, this testimony is being offered to prove the truth of the matters contained in it. Ac cordingly, the requirements

for its admission must contain reasonable safeguardsto ensure that the testimony is truthful and accurate.
Miller v. Tennessee Bd. of Paroles , No. 01A0 1-9806-CH -00293, 19

99 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 v iolation, hearing o fficers must satisfy themselves either that the ev idence is inhere

ntly reliabl

e or that it has alr

eady been

subjected to adversarialquestioning and m ust make the “good cause”

determination usin

g applicable sta

ndards. 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, “t he te stimony of the

witness failed to s

upport or disprove

the rule viol ation,” refe rring 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 alittle. Although Mr. Livingston objected to use of a confidential informant’s affidavit used to secure the search warrant which resulted in finding the gun a nd ammunition in his apartment andpresented arg uments why the aff

idavit was not a suf

ficient basis for the issuance of thewarrant, that af fidavit is not the one

to which he objects on appeal. The search warrant issues a

rose the first hea

ring. In ano

ther section of hi

s petition, Mr. L

ivingston states:
In the second hearing, denominated an “appeal,” it was apparent that the hearing off icer was mer ely 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 warran

t); and that the pa

roleofficer had bro

ught a sworn aff

idavit from a “protestor” that feared their life, if the Petitioner was released. This was a c lear and blatant att empt to illegally hold the Petitioner. This wasa “violation” heari ng, (which wa s supposed to concern a gu n) not a paro le hearing. Neither the Petitioner’s parole officer nor the detective could “protest” h

im, if it had beena parole hearing. And, the statement provided by the parole officer along

with11 Mr. Livingston attac hed a cop y of a newspa per article to h is petiti on. 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 signe

d the statement is a

police informant,

with a lengthy

arrest record, who cut a deal with the State. Thus, although Mr. L

ivingston appar

ently belie

ves t he t wo affidavits originated from the
sameperson, it is the second , wherein the affiant apparently indicated a pref erence for revocation of Mr. Livingston’s parole, that is the subject of the issue beforeus. The amended petition makes the nature of the document clear: Hearing officer

Francis Lloyd, p rior to hearing

evidence in the a

ppeal, emphatica

lly statedthat no new eviden ce would be hear

d. Only that evidence , originally presented, wou ld be int roduced at the a ppeal hearing . Yet, in the face of this instruction, the appeal officer allowed new testimon y in the wa

y of a “notarized, confidential affi da vit” from a “secret” witness. The brunt of that test imony concerned allegatio

ns of u nsubsta ntiated threats m ade by or on behalf of the plaintiff against this, still unknown pro t ester. A protester who di d not submit testimony at the original revocation hearing. (Emphasis added.)
The se statements establish that the hearsay evidence or statement he complains about was notrelated to the issu

e of whe ther he had violated his parole. Rather, it falls within the type of communication the Board receives regularly fr om persons expressing opinions about the actionthe Board is considering.
In that context, threa

ts or a finding the

witness would

be “exposed to sig

nificant risk of ha

rm” 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 fear

ed for his or her l

ife if forced to testify in person, we find no merit in this c

laim. Next, Mr. Livingston alleged that a newspaper article contained in t he file of the State violatedhi s due process r ights. 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 hea ring officer

specifically stated that he had not read the articl e in question , nor would he rea d it.” The mere pr

esence of the a

rticle withoutit being accep

ted intoevidence 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 office r or not. T he Board is allowed wide discretion, not subject to the rules of evidence, to consider evi d ence, information, or documentation that it considers12 Additiona lly, there is no evidence in the record before us t

hat the unsi

gned indictments

were even considere

d by the hearing of

ficer. They appear

to be includ ed in the hea ring officer’s statement that he would no t consider ce rtain items in t

he file.

13 At the first

hearing, there was t

estimony in the record fr om Dallas Hopson stating that he owned the gun and had ta ken it to Mr . Li

vingst on t o see i f Mr.

Living ston wo uld

loa n hi m some money on it. He fur

ther st ated he le

ft the gun at Mr. Liv ingston’s apartm ent, witho ut his knowledge, after being told Mr. L ivingston ’s parole g uidelines w ould not allow him t

o own a fi rea rm. At the second hearing, Mr. Livi ngston admitted to having handled t he 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 carryin

g out its functions. Therefore, we find Mr. Livingston’s allegations in this regard to not constitute an

allegation that

the Board’s dec

ision was unlawful

, arbitrary or fraudulent.
The Board asserts that issue of the un sign ed indictments was raised for the first time on appeal. The trial court di

d not address them, and thereis no evidence they were raised below other than Mr. Li vings ton 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 tai nt hi s [the hearing officer’s] objectivity in deciding this issue, and was thus, an arbitrary and capricious denialof due process.” Therefore, because Mr. Livingston raises the issue of the introduction of such evidence for the first time on ap

peal, we will not c

onsider the claim. 12 This co urt 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 ac ted without jurisdiction, arbitrarily, or unl awfu lly. 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 cond itions. Evidence was presented at the revocation hearing that a gun and ammunition werefound 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 7 55002 at *4; (cit ing Mobilcomm of Tennessee v. Tennessee Pub. Serv. Comm’n , 876 S.W.2d a t 104).
Mr. Livingston had earlier argued that there were problems with the search warrant that

led to the discovery

of the gun and am

munition, but has dro

pped those argu

ments on appeal. H

e 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, a ttack the intrinsic correctness of the Board’s decision. As explained earlier, courts are not authorized to inquire into the correct

ness of
an administrative decision by writ of certiorari. Robi nson v. Truaghber , 13 S.W.3d 361, 364-65 (Tenn. Ct. App. 2000). Additionally, a court reviewing an ad mi nistrative board’s decision is not16

permittedto weigh the evidence presented to the board. Gallatin Hous. Auth. v. City Council, City of Gallatin , 868 S.W.2d at 280; Hoover v. Metrop olitan Bd. of Zoning App

eals , 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 facin g revocation of their parole, requires a neutral and detached decision maker. Se e Jones v. Greene , 946 S.W.2d 817, 825 (Tenn. Ct. App. 1996) (citations omitted) (due process guarantees a party to an administrative hea ring to a fair and impartial tribunal). In the case before

us, however, Mr

. L ivingston does not allege that the hearing officer was biased against him because of matters outside of and unrelated

to the revocation

proceeding. H

e alleges, instead, that the hearing officer’s bias was created by the introduction of inadmissible and prejudicial information, the statement and article discussed a bo ve. In his amended petition, Mr. Livingston states, “Mr. Lloyd, who may very well have

intended to conduct a proper hearing, was,

nevertheless, notfair 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 thu s, 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 wellsettled that

conclusory allegations will not support a denial of a motion for summa

ry judgmen

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

or of bias or other dueprocess violation, are similarly not sufficient to avoid dismissal of a petition for writ of certiorari. Davis v. Campbell , No. 02A0 1-9611-CV

-00268, 19

97 WL 7770 79 at *4 (Tenn. Ct. App. Dec. 18, 1997) (no Tenn. R. App. P. 11 application filed). Furthermore, a party see king to overcome

the well-establis

hed presumption tha

t adminis tra tive decision makers will discha rge their duties with honesty and integrity has a diffic ult burden. Cooper
v. Williamson C ounty Bd. of Educ. , 803 S.W.2d 200, 203 (Tenn. 1990). The averments by Mr. Livingston do not create an issue justifying cour t review of the Board’s decision.
F urthe r, the fact that Mr. Livingston argues that the hearing off icer became biased by the evidenceconsidered at the hearing defe

ats h i s claim. Generally, the terms “bias” and “prejudice” refer to a sta te o f mi nd o r at tit ude tha t wo rks to p redi spo se a j udge for or ag ain st a part y. Alley v. State , 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). Further,
Not every bias, partiality,

or prejudice mer

its recusal. To dis

qualify, pr

ejudice 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 li

tigant a fair tr

ial, it need not be extrajudicial.
Id. (citations omitted.). S ee 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 bia

sed. The denial of

a writ in order to u

ndertake such a

n inquiry wa

s correct.
We have held

that the evidence Mr. Livingston claims biased the hearing officer could have beenproperly c

onsidered by

him. Additionally

, there was a ra

tional basis f

or 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 of ficer.
VI.
For the reasons set forth herein, we affirm the dismissa

l of Mr. Livingston’s petition for
common law writ of

certiorari. Cost

s 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