Joshua D. Schaffer v. State of Tennessee Board of Probation and Parole

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs April 21, 2011

JOSHUA D. SCHAFFER v. STATE OF TENNESSEE BOARD OF
PROBATION AND PAROLE

Direct Appeal from the Chancery Court for Davidson County
No. 10-827-1 Claudia C. Bonnyman, Chancellor

No. M2010-01805-COA-R3-CV - Filed May 27, 2011

This appeal involves subject matter jurisdiction over a petition for a writ of certiorari. The
petitioner is an inmate in the custody of the Tennessee Department of Correction. The
respondent, the Tennessee Board of Probation and Parole, denied the inmate’s request for
parole. The inmate thereafter filed a petition for a writ of certiorari in the chancery court
challenging the Board’s decision as illegal, arbitrary, and fraudulent. The chancery court
dismissed the case for lack of subject matter jurisdiction because the inmate did not file a
verified, notarized petition within the sixty-day jurisdictional time limit. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Gregory P. Isaacs and Andrea B. Mohr, Knoxville, Tennessee, for the appellant, Joshua D.
Schaffer.

Robert E. Cooper, Jr., Attorney General and Reporter and Kellena Baker, Assistant Attorney
General, Tennessee, for the appellee, State of Tennessee Board of Probation and Parole.

MEMORANDUM OPINION 1

1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
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 The petitioner, Joshua D. Schaffer (“Inmate”), is an inmate in the custody of the
Tennessee Department of Correction (the “Department”).2 Inmate pled guilty to attempted
aggravated child abuse in June 2008 and was sentenced to eleven years in the custody of the
Department. In December 2009, Inmate attended an initial parole hearing before the
respondent, the Tennessee Board of Probation and Parole (the “Board”). The Board
allegedly informed Inmate at the end of the parole hearing that he would not receive parole
and that his next parole hearing would occur in December 2012. In January 2010, however,
Inmate received official notification of the Board’s denial, which set his next parole hearing
for December 2014. Inmate thereafter filed a timely “Request for Appeal Hearing” on
January 8, 2010. The Board denied Inmate’s appeal in a letter dated March 17, 2010.

On May 17, 2010, Inmate filed a petition for writ of certiorari with the Chancery
Court of Davidson County.3 The original petition, however, was not verified or notarized.
The Board accordingly moved to dismiss for lack of subject matter jurisdiction. The Board
argued dismissal was appropriate for failure to comply with the mandates of Tennessee Code
Annotated sections 27-8-104(a) and -106. Inmate responded on July 6, 2010, with a motion
for leave to amend his petition for writ of certiorari. Inmate requested the court permit him
to file a properly verified and notarized amended petition. He asserted, inter alia, his
confinement at the Southeastern Tennessee Regional Correctional Facility in Pikeville,
Tennessee made it difficult for him to execute the requisite oath. The Board rejected this
contention and submitted dismissal was appropriate even if the chancery court permitted
Inmate to file the amended petition because it would not comply with the mandatory sixty-
day jurisdictional time limit set forth in Tennessee Code Annotated section 27-9-102. The
chancery court agreed with the Board and dismissed the petition. Inmate timely appealed.

Inmate presents the following issues for our review:

1. Whether the absence of the appellant’s verified oath on a petition for
writ of certiorari, which was timely filed and complied with all other
statutory requirements, is a curable technical defect; and

1
(...continued)
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
or relied on for any reason in any unrelated case.
2
The following facts, which we accept as true for the purposes of this appeal, are derived from
Inmate’s petition for writ of certiorari.
3
It appears from the record that Inmate was represented by counsel when he filed his original petition
and when he attempted to file his amended petition.

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 2. Whether summary dismissal of a petition for writ of certiorari on the
grounds that the petition was not verified under oath is a violation of
the appellant’s constitutional rights to due process and equal protection
of the laws pursuant to the Fifth and Fourteenth Amendments to the
United States Constitution where the appellant was incarcerated and
unable to verify the petition within the sixty (60) day time limitation set
forth in Tenn. Code Ann. § 27-9-102.

Our review of the issues presented is de novo. See Blair v. Tenn. Bd. of Probation and
Parole, 246 S.W.3d 38, 40 (Tenn. Ct. App. 2007) (citing Nelson v. Wal–Mart Stores, Inc.,
8 S.W.3d 625, 628 (Tenn. 1999)).

“Chapter 9 of Title 27 of the Tennessee Code Annotated provides the procedure by
which an aggrieved party may obtain judicial review of the decision of a board or
commission.” Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608, 608–09 (Tenn. 2010)
(citing Tenn. Code Ann. § 27-9-101 (2000)). Specifically, Tennessee Code Annotated
section 27-9-102 provides that:

Such party shall, within sixty (60) days from the entry of the order or
judgment, file a petition of certiorari in the chancery court of any county in
which any one (1) or more of the petitioners, or any one (1) or more of the
material defendants reside, or have their principal office, stating briefly the
issues involved in the cause, the substance of the order or judgment
complained of, the respects in which the petitioner claims the order or
judgment is erroneous, and praying for an accordant review.

Tenn. Code Ann. § 27-9-102 (2000). “Because Tennessee Code Annotated section 27-9-102
requires the aggrieved party to file ‘a petition of certiorari,’” the party seeking review of a
board’s decision must also comply with Tennessee Code Annotated section 27-8-106 (2000).
Cawood, 330 S.W.3d at 609. That provision sets forth two requirements for a petition for
certiorari: (1) “[t]he petition for certiorari may be sworn to before the clerk of the circuit
court, the judge, any judge of the court of general sessions, or a notary public,” and (2) the
petition “shall state that it is the first application for the writ.” Tenn. Code Ann. § 27-8-106
(2000); accord Cawood, 330 S.W.3d at 609 (citation omitted).

Tennessee Code Annotated section 27-8-104 similarly provides:

(a) The judges of the inferior courts of law have the power, in all civil cases,
to issue writs of certiorari to remove any cause or transcript thereof from any
inferior jurisdiction, on sufficient cause, supported by oath or affirmation.

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Tenn. Code Ann. § 27-8-104(a) (2000) (emphasis added). This language tracks Article 6,
Section 10 of the Tennessee Constitution, which provides as follows:

The Judges or Justices of the Inferior Courts of Law and Equity, shall have
power in all civil cases, to issue writs of certiorari to remove any cause or the
transcript of the record thereof, from any inferior jurisdiction, into such court
of law, on sufficient cause, supported by oath or affirmation.

Tenn. Const. art. 6, § 10 (emphasis added). Each of the above statutory provisions applies
to a petition for writ of certiorari seeking review of a parole board’s decision. See Blair, 246
S.W.3d at 40-41. Neither the trial nor the appellate court obtains jurisdiction over the
petition unless it complies with the verification requirement. Id. at 41 (citations omitted).
And neither the trial nor appellate court acquires jurisdiction over a petition that is untimely
filed. Id. at 40 (citing Wheeler v. City of Memphis, 685 S.W.2d 4, 6 (Tenn. Ct. App. 1984)).

The Board argues this Court and the chancery court are without jurisdiction to hear
Inmate’s grievances because the original petition did not satisfy the verification requirement
of Tennessee Code Annotated section 27-8-106 and Inmate did not move to file his amended
petition within the sixty-day jurisdictional time limit of Tennessee Code Annotated section
27-9-102. We agree. The original petition was not verified or notarized; consequently, it did
not provide the chancery court jurisdiction over the case prior to the expiration of the sixty-
day jurisdictional time limit. And the chancery court did not possess authority under the facts
to permit the late filing of Inmate’s amended petition. See Blair, 246 S.W.3d at 41 (citing
Crane Enamelware Co. v. Smith, 76 S.W.2d 644, 645 (Tenn. 1934)) (addressing an
analogous situation). The chancery court therefore correctly dismissed Inmate’s petition for
lack of subject matter jurisdiction.

Inmate nevertheless argues that dismissal of his petition for failure to file a verified
petition within the sixty-day jurisdictional time limit violated his constitutional rights.
Inmate’s principal contention is that his “counsel was unable to complete the Petition for
Writ of Certiorari and travel to the Southeastern Tennessee Regional Correctional Facility
in order to obtain [Inmate’s] notarized verification prior to the May 17, 2010 deadline,” even
though counsel admittedly agreed to represent Inmate on April 6, 2010. Inmate contends the
Board’s delay in providing counsel with certain records, which were received on May 10,
2010, “left undersigned counsel merely four (4) days within which to review the records,
draft the Petition, and submit the Petition for filing via UPS Overnight mail as the May 17,
2010 deadline fell on a Monday.” Inmate’s counsel was purportedly unable to fulfill this
obligation because he “had numerous court appearances, client meetings, and speaking
engagements which he was required to attend.”

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 According to Inmate, his counsel’s alleged inability to obtain the requisite verification
demonstrates the unfairness and unconstitutionality of statutory law that requires prisoners
to follow complicated procedures pertaining to the filing of a petition for common law writ
of certiorari. Inmate argues the exclusion of the Board from the Tennessee Uniform
Administrative Procedures Act (“TUAPA”), Tennessee Code Annotated section 4-5-101 et
seq., “creates a significant impediment to a prisoner’s right to petition the Government for
a redress of grievances – a fundamental right guaranteed by the First Amendment.” Inmate
states:

The fact that the Board of Probation and Parole is specifically excluded
from the hearing and appeal provision of the TUAPA places prisoners who are
arbitrarily and capriciously denied parole at a significant disadvantage to other
citizens of this state who are aggrieved by a decision of a state agency. The
common law writ of certiorari requirements are disjointed in the Tennessee
Code and substantially more difficult to piece together than the simple appeal
requirements of the TUAPA which are compactly and straightforwardly set
forth in single statutory section. See Tenn. Code. Ann. § 4-5-322.

In order to determine how to seek judicial review of the Board of
Probation and Parole’s denial of parole, one must first determine that the
Board of Probation and Parole is specifically excluded from the TUAPA. Next
one must look to the statutory chapter governing boards and commissions,
which provides that review must be sought by “petition of certiorari,” but
significantly makes no reference to the additional statutory chapter governing
writs of certiorari, nor to Article 6, Section 10 of the Tennessee Constitution.
Tenn. Code Ann. § 27-9-101, et seq. One must then independently determine,
without advice from the Board or direction from Tenn. Code Ann. § 27-9-101,
et seq., the need to refer to yet another statutory section regarding the common
law writ of certiorari - a pleading which has arguably become obscure since
the enactment of the TUAPA in 1979 - in order to be appraised of the
verification and oath requirement. See Tenn. Code Ann. §§ 27-8-104 and 106.

The verification and oath requirements are difficult for an attorney to
locate in the Tennessee Code, let alone an inmate with limited legal research
materials. Further, the verification and oath requirements create an additional
impediment for inmates who have retained counsel to assist them with their
parole appeal. A typical client can easily stop by his attorney’s office to
execute a document and have it notarized. When the client is an inmate,
however, and particularly an inmate housed a significant distance from his
attorney’s office as in the instant case, the attorney must either travel to the

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 correctional facility to obtain his client’s signature in the presence of a notary
public, or mail the documents to the client, for his signature and notarization
and then have the document returned by mail in time for filing. Either of these
options are incredibly time consuming in that correctional facilities are
traditionally located in extremely remote locations, and further in that prison
mail is notoriously slow.

When working within a limited time frame such as the sixty day period
required by Tenn. Code Ann § 27-9-102, the verification and oath
requirements create an undue burden on prisoners seeking review of the
Board’s denial of their parole, particularly in light of this Court’s prior holding
in Blair that the verification and oath requirements are mandatory for subject
matter jurisdiction. See Blair, 246 S.W.3d at 3. This undue burden is
heightened as applied to Mr. Schaffer in the instant case, wherein the
documentation necessary to draft the petition of certiorari was timely requested
from the Board, but was not received in the undersigned counsel’s office until
under a week remained within which to draft the petition, transmit it to the
client for review, verification, and notarization, and transmit the petition to
Nashville for filing.

Inmate concludes that “the Government has the burden of proving that the verification and
oath requirement, as applied to prisoners via the Board of Probation and Parole’s specific
exclusion from the TUAPA in Tenn. Code Ann. § 4-5-106(c), is ‘narrowly tailored’ to serve
a ‘compelling’ government interest.” Although not expressly stated, Inmate’s brief implies
his belief that the Government cannot meet this burden. Inmate does not, however, examine
whether this Court has subject matter jurisdiction to consider his constitutional argument.
As we explained above, this Court is without subject matter jurisdiction to adjudicate his
petition—the only basis for relief filed in the chancery court. We therefore conclude his
constitutional attack is not properly before this Court in light of the case’s procedural posture.

Conclusion

For the foregoing reasons, we affirm the dismissal of Inmate’s petition for writ of
certiorari. Costs of this appeal are taxed to the appellant, Joshua D. Schaffer, and his surety
for which execution may issue if necessary.

_________________________________
DAVID R. FARMER, JUDGE

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