### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

ugust 2, 2001
BILLY R. SADLER v. TENNESSEE BOARD OF PROBATION AND PAROLE
Appeal from the Chancery Court for Davidson County No. 00-457-III Ellen Hobbs Lyle, Chancellor

No. M2001-02341-COA-R3-CV - Filed November 8, 2001

A prisoner who was denied parole filed a Petition for Writ of Certiorari, challen ging, o n constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the petition. We affir

m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R

. and W ILLI

AM B. C AIN , JJ., joined. Billy Sadler, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor Gener al; Kim berly J. Dean, Deputy Attorney Ge neral, for the appellee, State of Tennessee.

OPINION

I. Billy Sadler, an inm ate at the Northwest Correctional Complex, was convicted of second degree murder in 1977, and sentenced to life imprisonment. He went before the Board of Paroles
o n December 9, 199 9. A majority of the Board vote

d to deny him pa

role on the grou

nds that to release him at that time would d epre ciate the seriousness of his crime, and that it would have a subst antially

adverse effect on institutional discipline. His next hearing was scheduled for De cembe r of 2001.

Mr. Sadler then filed a pro se Pet ition for W

r it of Certiorari a

ccompanied by

a Motion to Proceed in Forma Pauperis. In his petition, he asked the court for three far-rea chi ng rulings-2-

involving the parole statutes, any of which, if granted, might invalidate the Parole Board’s decision in his case (though it would not necessarily lead to his release).

The prisoner asked the court to d eclar e Tenn. Code. Ann. § 40-28-115 unconstitutional because it allegedly

violates the sepa

ration of powers ; to find that the app licatio n of a number of different statutes to his case amounts to a violation of the prohibition against ex post facto laws; and to hold that the rules of the Board of Pardons and Paroles (a body which was a bolished in 1979) are the only rules that the current Parole Board should be allowed to follow in his case.

Mr. Sadler subsequently filed several mot ion s. O ne w as a M oti on f or D isc ove ry, to compel the Paro le Board to prep are a written tr

anscript of his pa

role hearing.

The trial court de

nied th e motion, because the court is not authorized to grant discovery before the petitioner

makes a proper discovery request to opposing

counsel pursuant

to the Rules of

Civil Procedure. T

he court noted in
a later Memorandum and Order that petitions for writ of certiorari usually proc eedon the record, and that typically, discovery

is not permitted.

Mr. Sadler also

filed a Motion to Amend his Complaint and aMotion for Defau lt Judgment. The Motion to Amend was granted. In his Motion for Default Judgment, Mr. Sadler complained that the Statehad not responded to his petition. However, the court noted in a Memorandum and Order filed on May 9, 2000, that the petitioner had not filed the affidavit required by Tenn. Code. Ann. § 41-21-801 when inmates file in forma pauperis, and therefore that

the State had never been served.

After Mr. Sadler was informed of this omission, he filed the require d affidavit. The State subsequently

filed a timely

motion for an extens

ion of time in which t

o respond to his petition. Mr. Sadler also filed a second

Motion toAmend. The trial court filed a Memorandum and Order on the pending motions on June 28, 2000. The court denied Mr. Sad ler’s Mo tion for Default Jud gment, gavethe State

until July 14, 2000 to file a response to Mr. Sadler’s petition, and denied Mr. Sadler’s secondMotion to Amen d, be cause he failed to attach a copy

of his proposed ame

ndment to his motion.

On July 14, 2000, the State filed a Mo tion to Dismiss and/or

for Summary

Judgment. Shortly thereafter, Mr. Sadler

filed another Mot

ion for Default Judg

ment. On September 8, 2000, the trial court filed its final Memorandum and Order in this case. The court denied Mr. Sadler’s Motion for Default Judgment, and granted the State’s Motion to Dismiss. This appeal followed.

II. S EPARATION OF P OWERS
Mr. Sadler’s first argument on appeal is that Tenn. Code. Ann. § 40-28-115(c), which deals withthe jurisdiction of the Parole Board, is unconstitutional because it viol a tes the separation of powers manda ted by the U. S. and Tennessee Constitutions. The sta

tute in question simpl

y reads, “[t]he action of the boar

d in releasing pr

isoners shall

be deemed a judicial function and shall not be reviewable if done according to law.”-3-

Of course, the United

States Constitution is not relevant to our inquiry, because it does not govern the relationships b

etween the dif

ferent branches of Ten

nessee govern

ment. However, A

rticle II, § 1 of the Tennessee Constitution does divide the state’s government into “three distinct departments: the legislative, executive, and jud

icial,” while

Article II, § 2

declares that “No person
or persons belongi

ng to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”

We believe, ho wever, that exercisin g a judicial function is not the same as being the recipient of a delegated po

wer that proper

ly belongs

to the judicial branch. The exercise of a judicial function implies the use of judgment or discretion to apply the law to a set of facts. It al so m ay im ply a n orderly pr ocess for assemb

ling those facts , and the creatio n of some kind of record of tha

t process and its results.

There are many boards and agencies of the executive branch, as well a s subdivisions of sta

te government,

that exercise judicial functions, including the Civil Service Commission, numerous boards of professional licensure, beer boards, and local zoning boards. Likewise, when the legislature tries impeachments under Article V, § 4, it may be said to be exercising a judicial function.

We note t hat th e Arti cle III, § 6 gives the gov ernor the “powe

r to grant repr

ieves and pardon

s, after convicti on, except i n cases of impeachment” and that a portion of that power has been delegated to the Board of Paroles. Thus, when the B oard determines whether or not a prisoner should be paroled, it is exercising one of the powers that properly belongs to the executive branch.

While it is unclear to

us why the

legislature found it necessary to state that the action of the Board in releasing prisoners shallbe deemed a judicial function, the effect of Tenn. Code. Ann. § 40-28- 115(c) is to limit (but not totally eliminate) the role the judiciary may assume in reviewing parole decisions. The st

at ute prevents the courts from substituting their own judgment for that of the Parole Board. However, under their constitutional power to issue writs of cer

tiorari, the cour

ts may consider alleg

ations that the Boa

rd did not reach a decision in a lawful manner. See Artic le VI, § 10, Powell v. Parole Eli gibility Review Boa

rd , 879 S.W.2d 871 (Tenn. Ct. App.1994).

III. E X P OST F ACTO A RGUMENTS
Mr. Sadler argues that Tenn. Code. Ann. §§ 40-35-501(h), 40-35-503(b), and 40-28-105(d)
are illegal ex post fac

to laws as they

relate to him,

because they were all enacted after the date he was sentenced. However, in order fo r a penal statute to run afoul of the Ex Post Facto Clause, two elementsmust be present. “ First, the law must apply re trospectively

to events occurr

ing before its enactment. Second, the law must disadvantage the offender affected by it.” Kaylor v. Bradley , 912 S.W.2d 728, 732 (Tenn. Ct. App.1995). While there is no dispute that the present versions of the above statutes were enacted after the date of Mr. Sadler’s conviction, he has not demonstratedthat he has been disadvantaged by the application of these statutes to his parole he aring, to the exte nt necessary to state an ex post facto claim.-4- A . T ENN . C ODE . A NN . § 40-35-501

Tenn. Code. Ann. § 40-35-501 is a section of the Criminal Sentencing Reform Act of 1989 that deal s wi th r ele ase e lig ibi lit y. Tenn. Code. Ann. § 40-35-501(h) apparently requires all prisoners sentenced to life to serve at

least twenty-five years of the

ir sentences before

being released on parole, regardless

of any sente

nce credits

earned or any plan instituted to reduce prison ove

rcrowdin g. We say “appa rently” be cause a part of the statute refers to defendants sentenced to life for first degree murder, while another part simply refers to “a defenda nt sentenced to imprisonment for life.”

Mr. Sadler contends that his parole eligibility date should not be governed by Tenn. Code Ann. § 40-35-501, because that statute was enacted after his conviction and sentencing. He argues that he is entitled t

o have his parole

eligibility

date calculate

d in accordance with the law in effect at the time he was sentenced. See Tenn. Code Ann. § 40-35-117.

The petitioner may well be correct. However, there is nothing in the recor d, or in Mr. Sadler’s arguments, to ind icate how his rele

aseeligibility date wascalculated (inc luding what statu

te it was based

upon), or what the correct date would have been if the calculations had been based upon the law in effect in 1977. Further, it is the Department of Correction that calculates r

elease eligibi

lity dates for inmates, not the Board of Paroles. Therefore, Mr. Sadler has ne ither stated fac

ts that would entitle him to relief, nor name

d a defendant wit

h the power to res

pond to his claim. Fi

nally, it also appears that this claim has become moot, since his eligibility for release is no longer in question.

B . T ENN . C ODE A NN . § 40-35-503( B )

Tenn. Code Ann. § 40-35-503 is likewise incorporated into the Criminal Sentencing Reform Act of 1989. I

t reads in pertine

nt part, (b) Release

on parole is a privilege and not a right, and no inmate convicted shall be grante

d parole if the boa

rd finds that: (1) There is a substantial risk that the defendant will no t confor m to the conditions of the r

elease progr

am; (2) The release fr

om custody at

the time would

depreciate the seriousness of the crime of which the defendant stands convicted or promote disrespect for the law; (3) The release

from custody

at the time would ha

ve a substantially

adverse effect on institutional discipline; or (4) . . . .

Mr. Sadler argues

that rather than

making a parole

decision based on

the 1989 st

atute, th e Board should have made use of a prior rule of the Board of Paroles (since repeale d) which provided, (1) The board

operates under the presumption that each resident who is eligible for parole is a worthy can

didate, and thus the

Board presumes

that he will

be released on parole when he is first eligible.-5-

However, that argument was foreclosed by this cour t in the case of Kaylor v. Bradley , 912 S.W.2d 728 (Tenn. Ct. App.1995). In that case, we ruled that the regulation was invalid even before it was rep ealed, bec ause it created a presumption that was inconsistent with the Parole Board’s statutory obligation to determine parole on an individualized case-by -case basis.
Further, we note that the language deeming parole to be a pri

vilege and not a

right was first incorporated

into the Tennesse

e Code in 1961. [Act

s 1961, ch.

93, § 11]. Moreover numerous cases before and after that da

te have affirme

d that a prisoner h

as no absolute

right to be released on parole,
even if he has an unblemished disciplinary conduct record, and has served the minimum term for his off ense. Robinson v. Traughber , 13 S.W.3d 361 (Tenn. Ct. App. 1999); State ex re l. Wade v

. Norvell , 443 S.W.2d 839 (Tenn. Crim. App. 1969); Graham v. State , 304 S.W.2d 622 (Tenn. 1957); Oliver v. State , 87 S.W.2d 566 (Tenn. 1935).

C . T ENN . C ODE A NN . § 40-28-105

In 1979, the Board of

Pardons and Paroles was abolished, and replaced by the seven member Board of Paroles. Tenn. Code Ann. § 40- 28- 101 , et seq . se ts o ut t he p owe rs a nd d uti es o f th is b ody,
as well as the procedures the Board is required to follow to determine whether or not

an inmate should be granted parole.

Mr. Sadler argues in a general way that the procedures

applicable to the abolished Board of Pardons and Paroles are the o nes that the Board of Paroles should have followed in his case. He particularly

objects to the requirement in 40-28-1 05(d)( 4) that four board members concur before parole is granted to inmates convicted of ce rtain offenses,

including second degree murder. Under prior law, the concurrence

of only three board members was required before such inmates could be paroled.
However, in order to state a n ex post facto claim in a case inv olving change

s in parole regulations,

the inmate must show more than a slight possibility of

a more favorabl

e outcome under prior regul ations. See Wilson v. State , 980 S.W.2d 196 (Tenn. Ct. App. 1998); Californi a Department of Corre

ctions v. Morales, 514 U.S. 499 (1995).

In this case, the only

four members of th

e Parole Board t

o cast a vote on Mr. Sadler’s parole voted not to release

him, thus renderin

g it mathematica

lly impossible

for him to obtain

the required number of votes from the seven-member Board. However, the appellant has not sugg ested an y reason why any one of the non-voting members might

have reached a different conclusion, let alone all three of them. Thus he has not demonstrated that he was disadvantaged to the extent necessary to state an ex post facto violation.-6- IV. F RIVOLOUS A PPEAL
Tenn. Code. Ann. § 27 -1-1 22 gives this cour t the authority

to assess damage

s for appeals which it deems to be frivolous. A frivolous appea l is one that presents no justiciable question, and which is so devoid of merit o n its face, that the

re is no reasonable possibility that it can succeed. See Black’s Law Dictionary (4 th ed. 1961).

Possible sanctions for frivolous appeals incl ude courtcosts, interest on any judgment assessed, and expenses incurred by the appellee as a result of the a ppeal.
Tenn. Code. Ann. § 4 1-21-816 makes it p ossible for th

e Commissioner of Corr

ection to imp ose sti ll f urt her s anct ion s. T hat sta tut e rea ds i n it s en tir ety:

(a) The commissioner s hall forfeit an in

mate's good c onduct sentence reduction credi

ts in the amount spec

ified by subd

ivision (b) on: (1) Receipt by the

department of a certified

copy of a final order of a state or federal court

that dismisses as fr

ivolous or malicious

a claim or lawsuit filed by an inmate while the inmate was in the custody of the department; and (2) A determina tion that the departme nt has, on one (1) o

r more occasions , received a certified copy of a final order of a state or f

ederal court dismissing as frivolous o r malicious a claim or lawsuit filed previously by the inmate while the inmate was in the c

ustody of the

department. (b) On receipt of a f

inal ord er described by subdivision (a)(1), the commissioner shall

forfeit: (1) Six ty (6 0) d ays of an inmate's accrued good conduct sentence reduction credits if the departmen

t h as previo usly received one (1) final order described by subdivision (a)(2); ( 2 ) One hundred twenty (120) day s of an inmate's accrued good conduct sentence reduction credits if the department has prev iou sly received two (2) final orders described by subdivision (a)(2); or (3) One hu nd red eighty (180) day s of an inmate's accrued good conduct sentence reduction credits if the d epartmenthas previously received three (3) final orders described by subdivision (a)(2). (c) The commissioner may no t restore good conduct sentence reduction credits forfeited under this section for any reason.

While the present case refers to valid constitutional principles, the appellant’s arguments are devoid of merit, for the c

onnections betwe

en those principles and the acts of

which he complains are tenuous at best. While there is no doubt that Mr. Sa

d ler feels strong

ly about the a

ction the parole board took in his case, strong feelings are no substitute for valid legal arguments.-7-

It thus appears to us that there are sufficient groun ds to find th

is to be a frivolous

appeal. However, in light

of the fact that the State has not argued that Mr. Sadler’s appeal was frivolous, we decline at this time to so find.

V.

The order of the trial court is affirmed. Remand this cause to the Chancery Court of Davidson Count for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant, Billy Sadler.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.