Arnold v. Tennessee Bd. of Paroles

• Decision Date: 10 November 1997
• Citation: 956 S.W.2d 478
• Parties: Jimmy ARNOLD, Petitioner, v. TENNESSEE BOARD OF PAROLES, et al. Respondents. Anthony EVANS, Petitioner, v. TENNESSEE BOARD OF PAROLES, et al., Respondents.
• Court: Tennessee Supreme Court

Page 478

956 S.W.2d 478

Jimmy ARNOLD, Petitioner, v. TENNESSEE BOARD OF PAROLES, et al. Respondents.

Anthony EVANS, Petitioner, v. TENNESSEE BOARD OF PAROLES, et al., Respondents.

Supreme Court of Tennessee,

at Nashville.

Nov. 10, 1997.

Jimmy Arnold, Pro se.

Anthony Evans, Pro se.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Merrilyn Feirman, Assistant Attorney General, Patricia C. Kussman, Asst. Attorney General, Nashville, for Respondents.

OPINION

BIRCH, Justice.

Jimmy Arnold and Anthony Evans, both serving sentences in the Department of Correction, filed individual petitions for the common law writ of certiorari in the Chancery Court for Davidson County. Each petitioner contended that in reviewing his file for parole the Board of Paroles (Board) failed to hold an open meeting as required by the Open Meetings Act, Tenn.Code Ann. § 8-44-101 et seq. (1993) ¹ Further, each petitioner challenged the substantive basis for the Board's decision denying parole. ²

The trial court dismissed each petition for failure to state a claim upon which relief may be granted, and the Court of Appeals affirmed the trial court's judgment. We granted the petitioners' applications for permission to appeal and consolidated the cases.

The petitioners assert that the procedure utilized by the Board to make parole decisions ³ violates the Open Meetings Act. Under this procedure, each Board member separately and independently reviews the cases before the Board. Each case file is circulated, in turn, to each of the Board members. A member formulates his or her decision without conferring with any other member, relying solely on the record compiled by the hearing officer.

Because the Board is not required by its enabling statute to meet in order to consider parole decisions, we conclude that the above-described procedure utilized by the Board to make parole decisions is not subject to the Open Meetings Act. We further find that the Board properly denied each petitioner parole. Finally, we hold that the trial court erred in dismissing Evans' claim for injunctive relief as to the Board's requirement that he continue to participate in Alcoholics Anonymous. As to Arnold, we affirm the judgment of the Court of Appeals. As to Evans, we affirm the judgment of the Court of Appeals in part and reverse in part.

I

The initial step in the parole decision process is a hearing before a designated member of the Board or a hearing officer. A hearing was held in each case under review to determine whether the petitioner should be released on parole. As to Arnold, the hearing officer recommended that parole be denied because of the seriousness of the offense and so that Arnold could "continue with aftercare." ⁴ The hearing officer's recommendation and Arnold's file were then circulated among the members of the Board. The Board members reviewed Arnold's case individually; there is no evidence that Board members conferred with one another about Arnold's case. Rather, each member separately reviewed the file and indicated in writing his or her adoption or modification of the hearing officer's recommendation. All four members who reviewed Arnold's case concurred with the recommendation of the hearing officer to deny parole. ⁵

As to Evans, the hearing officer recommended denial of parole because of the seriousness of his offense, because of his high risk to re-offend, and so that Evans could continue to participate in the alcohol treatment program. The hearing officer's recommendation and Evans' file were then circulated among members of the Board. The five members of the Board who reviewed Evans' case concurred with the hearing officer's recommendation to deny parole. Three members cited additional reasons for denying parole. The Board utilized the same procedure to reach its decision in Evans' case as it did in Arnold's case.

II

Under the common law writ of certiorari, the decisions of the Board are reviewable to determine whether the Board exceeded its jurisdiction, or acted illegally, fraudulently, or arbitrarily. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.Ct.App.1994). However, the correctness of the Board's decision is not reviewable under the writ. State ex rel. McMorrough v. Hunt, 137 Tenn. 243, 192 S.W. 931, 933 (1917).

Pursuant to the Open Meetings Act, "[t]he policy of this state [is] that the formation of public policy and decisions is public business and shall not be conducted in secret." Tenn.Code Ann. § 8-44-101. Tennessee Code Annotated § 8-44-102(a) requires that all meetings of any governing body be public. ⁶ The Open Meetings Act defines a meeting as "the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter." Tenn.Code Ann. § 8-44-102(b)(2).

Yet, the Board's enabling statute does not require a meeting in order to deliberate or make parole decisions. Tennessee Code Annotated § 40-28-105 (1990) provides in pertinent part (b) The board shall prescribe the times and places of its meetings and shall schedule hearings at each correctional institution or facility at such times as may be necessary to discharge its duties. All votes taken by the board shall be by public ballot or public roll call. No secret ballots or secret roll calls shall be permitted.

....

(d) A majority of members of the board shall constitute a quorum for official administrative business. The chairman of the board may designate individual parole board members and appoint hearing officers who shall be authorized to conduct hearings, take testimony and make proposed findings of fact and recommendations to the board regarding a grant, denial, revocation, or rescission of parole. Such findings and recommendations shall be reduced to writing and reviewed by board members who shall adopt, modify, or reject the recommendations. No person shall be paroled nor shall the parole of any person be denied, revoked, or rescinded without the concurrence of three (3) board members .... (emphasis added)

We discern nothing in subsections (b) or (d) that requires the Board to meet and deliberate prior to making a parole decision. Subsection (b) simply requires that the Board "prescribe" the times and places of its meetings. In other words, when the Board does meet, proper notice of the meeting is required. A "public ballot" denotes a written document such as was used to deny the petitioners parole; "public roll call" describes a process commonly used at a public meeting where Board members would indicate their vote verbally. In our view, the document on which the Board members indicated their adoption, modification, or rejection of the hearing officer's recommendation, is a matter of public record and, as such, is sufficient to constitute a "public ballot." Similarly, subsection (d) does not require Board members to meet, confer, or deliberate on parole decisions. Rather, Board members are simply required to review the findings and recommendations and adopt, modify, or reject them.

Further, a review of the prior versions of this statute confirms that the legislature has eliminated the requirement that the Board meet and deliberate prior to making a parole decision. By eliminating the requirement that the Board meet and deliberate, the legislature has clearly demonstrated its intent to exempt from the Open Meetings Act the Board's procedure for making parole decisions. The 1975 version of this statute plainly required the Board to meet in order to make parole decisions:

The board shall meet ... for a full study of the cases of all prisoners eligible for release on parole, and for determining when and under what conditions and to whom such parole may be granted.... A majority of the board shall constitute a quorum for the transaction of all business.

Tenn.Code Ann. § 40-3602 (1975). In 1979, the statute was amended to provide that:

Three (3) members of the board shall constitute a quorum for the transaction of official business and, except as hereinafter provided, a majority vote of those present at any meeting shall be sufficient for any action taken by the board. In cases of the granting of parole, the chairman of the board may designate its members to sit in panels of two (2) members, which panels shall have authority to conduct hearings and take testimony and to make proposed findings of fact and recommendations to the full board regarding the disposition of a request to grant parole.... No person shall be paroled or discharged from parole nor the parole of any person revoked, except by a majority vote of the entire membership of the board.

Tenn.Code Ann. § 40-3602(d) (Supp.1980)(emphasis added). In 1981, the legislature further amended the statute and deleted any mention of a meeting:

(d) Three (3) members of the board shall constitute a quorum for the transaction of official business, and no person shall be paroled or discharged from parole, nor the parole of any person revoked, except by majority vote of the entire membership of the board. The chairman of the board may designate its members to sit in panels of two (2) members ... to conduct hearings ... and make proposed findings of fact and recommendations to the full board.... Such findings and recommendations shall be reduced to writing and reviewed by the full board which shall adopt or reject the panel's findings by majority vote.

Tenn.Code Ann. 40-3602(d) (Supp.1981)(emphasis added). In 1988, the statute was amended to include the language of the present version. See Public Act of 1988, Ch. 880, § 3 (findings and recommendations from hearing are to be reviewed by "other board members" and a decision made upon the "concurrence" of three Board members). ⁷ Finally, in 1989, the statute was amended to provide that the three member quorum requirement applied only to "official administrative business." See Public Acts of 1989, Ch. 227, § 8 (emphasis...