IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
JIMMY ARNOLD ) FOR PUBLICATION
)
) FILED: NOVEMBER 10, 1997
Petitioner )
) DAVIDSON COUNTY
v. )
) HON. C. ALLEN HIGH,
) Chancellor and
TENNESSEE BOARD OF PAROLES, ) HON. ELLEN HOBBS LYLE,
et al. ) Chancellor
)
) NO. 01-S-01-9610-CH-00210
Respondents )
_________________________________ FILED
November 10, 1997
ANTHONY EVANS )
) Cecil W. Crowson
) Appellate Court Clerk
Petitioner )
) DAVIDSON COUNTY
v. )
)
) HON. ELLEN HOBBS LYLE,
TENNESSEE BOARD OF PAROLES, ) Chancellor
et al. )
)
)
Respondents )
For Petitioner Arnold: For Respondents:
JIMMY ARNOLD JOHN KNOX WALKUP
Pro se Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
MERRILYN FEIRMAN
Assistant Attorney General
Nashville, TN
For Petitioner Evans: For Respondents:
ANTHONY EVANS JOHN KNOX WALKUP
Pro se Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
PATRICIA C. KUSSMAN
Assistant Attorney General
Nashville, TN
OPINION
AS TO ARNOLD: AFFIRMED BIRCH, J.
AS TO EVANS: AFFIRMED IN PART, REVERSED IN PART
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 decisions3 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
1
Any action taken in violation of the Act is void. Tenn. Code
Ann. § 8-44-105 (1993).
2
Petitioners contend that the Board relied on the following
“illegal and unconstitutional” factors to deny them parole:
seriousness of the offense, risk to re-offend, number of victims,
completion of the sex offender treatment program (Petitioner Arnold
only), and continued participation in Alcoholics Anonymous
(Petitioner Evans only).
3
Official parole decisions include the decision to grant, deny,
revoke, or rescind parole. See Tenn. Code Ann. § 40-28-105(d)
(1990).
2
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.
4
The “aftercare” referred to is apparently the sex offender
treatment program.
3
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.
5
Arnold also requested an appeal hearing before the Board,
citing “significant new information” that was not available at the
initial parole hearing. The “new” information was a stipulation in
Dean v. McWherter, 1:90-0027 (M.D. Tenn. filed August 18, 1994).
According to Arnold, the stipulation prohibited the Board from
denying him parole because he had not yet completed the sex offender
treatment program. Arnold also contended that the hearing officer
had engaged in misconduct by failing to obtain a medical evaluation
to determine whether Arnold posed a threat if released. The Board
denied Arnold’s request.
4
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
6
The Board concedes that it is a “governing body” within the
meaning of the statute and thus subject to the Act.
5
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.
6
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.
7
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 added).
In amending this statute over the years, the legislature
has, in our view, purposely eliminated language that required the
7
Thus by 1988, the Board was authorized to make parole
decisions upon the concurrence of three members--a significantly
different procedure from the 1980 version that required a majority
vote of the members present at the meeting.
8
Board to meet in order to make parole decisions. Further, these
amendments establish that the Board’s practice of submitting the
hearing officer’s recommendations in writing to each Board member
individually is consistent with the legislative intent, for we must
assume that the legislature acted with full cognizance of the Open
Meetings Act.
The petitioners also rely on the Open Parole Hearings Act,
Tenn. Code Ann. § 40-28-501 et seq. (1996 Supp.) as support for
their contention that the Board is required to meet and deliberate
prior to making a parole decision. However, this statute requires
that parole hearings be public. Tennessee Code Annotated § 40-28-
105(b) explicitly differentiates between meetings and hearings; we
distinguish “parole decision” from “parole hearing.” Thus, Tenn.
Code Ann. § 40-28-502 does not apply to parole decisions.
In sum, because the Board’s enabling statute does not
require that parole decisions be made by meeting, the Open Meetings
Act does not apply to the Board’s procedure for making parole
decisions. The legislative history of the Board’s enabling statute
illustrates the legislature’s intent to so exempt the Board’s
decision-making process from the Open Meetings Act. Therefore, the
Board’s procedure of separate and independent review of cases by
Board members neither transgresses the intent of the legislature nor
offends the statute.
9
III
Petitioners also contend that the Board relied upon
certain “illegal and unconstitutional” factors in denying parole,
specifically, the seriousness of the offense, the risk to re-offend,
the number of victims, completion of the sex offender treatment
program,8 and continued participation in Alcoholics Anonymous.9
Release on parole is a privilege, not a right. Tenn. Code
Ann. § 40-35-503(b) (Supp. 1996). The statute expressly requires
the Board to consider the seriousness of the offense and the
inmate’s risk to re-offend. Tenn. Code Ann. § 40-35-503(b)(1) and
(2). Contrary to the petitioners’ contention, consideration of the
seriousness of the offense at both sentencing and parole does not
violate double jeopardy principles because denial of parole does not
constitute “another” punishment, but rather perpetuates a validly
imposed sentence. See Kelly v. United States Parole Comm’n, 26 F.3d
1016, 1020 (10th Cir. 1994); Averhart v. Tutsie, 618 F.2d 479, 483
(7th Cir. 1980). Further, the Board is not required to define with
exactitude the weight accorded the seriousness of the offense in
denying parole. See Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 2104, 60 L. Ed.2d
668 (1979). Consideration of the number of victims is logically
related to the seriousness of the offense.
8
This factor applies only to Petitioner Arnold.
9
This factor applies only to Petitioner Evans.
10
In our view, consideration of the seriousness of the
offense, the number of victims, and the risk to re-offend is
appropriate to the parole decision. Consideration of these factors
does not demonstrate that the Board acted illegally, fraudulently,
arbitrarily, or in excess of its jurisdiction. Moreover,
consideration of such factors does not implicate any constitutional
right under the circumstances.
As stated, Arnold contends that the Board illegally denied
him parole because he had not completed the sex offender treatment
program.10 We disagree. It is unclear whether Arnold was committed
to custody prior to the institution of this treatment program. Even
assuming he was committed prior to the establishment of the program,
the Board is still permitted to recommend the program to sex
offenders. Because the Board also properly relied upon the
seriousness of the offense to deny Arnold parole, we do not find
that the Board’s recommendation that he continue treatment supports
a claim that the Board acted illegally or arbitrarily or in excess
of its jurisdiction in denying Arnold parole.11
10
In Dean v. McWherter, No. 1:90-0027 (M.D. Tenn. filed August
18, 1994), the State agreed that only those sex offenders committed
to custody after the sex offender treatment program was instituted
would be required to complete that program as a precondition for
release on parole. There is no indication in the record that the
State has failed to comply with this stipulation.
11
In a related claim, Arnold contends that Tenn. Code Ann. § 40-
28-116(a)(2) entitles him to a psychological evaluation. However,
this statute restricts the Board’s discretion to parole sex
offenders; it does not grant such offenders the right to an
evaluation.
11
As stated, Evans contends that the Board acted illegally
by requiring him to continue his participation in an Alcoholics
Anonymous (“AA”) treatment program. Specifically, he urges that the
AA program is a religious one and that required participation in it
violates the Establishment Clause of the First Amendment to the
United States Constitution.
In his verified petition, Evans states:
Petitioner asserts that there is
only one “alcohol program” available
to him, and he is being coerced to
participate in that program, as a
condition of parole . . . .
The “alcohol program” is
administered by the Tennessee
Department of Correction (TDOC), but
the requirement [that] he continue
[to] participate in the program as a
condition of parole originates with
the Board of Paroles. . . .
. . . .
The centerpiece of the program,
as petitioner experiences it, is the
twelve (12) steps of Alcoholic[s]
Anonymous (AA) program/effort.
The concept of a higher power is
at the center of the twelve (12)
steps.
The twelve (12) steps explicitly
deny that recovery from alcoholism is
possible without reliance on a higher
power.
The emphasis on a higher power
is also the central theme of the
third edition of AA’s basic text
entitled “Alcoholics Anonymous” which
is used as an all-purpose guide for
anyone having difficulty in working
the twelve (12) steps.
12
Group prayer is common at the
meetings attended by petitioner. The
meetings open with the “Serenity
Prayer,” essentially non-
denominational, and close with “The
Lord’s Prayer”, a Christian prayer.
The First Amendment to the United States Constitution
guarantees that “government may not coerce anyone to support or
participate in religion or its exercise, or otherwise act in a way
which ‘establishes a [state] religion or religious faith, or tends
to do so.’” Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649,
2655, 120 L. Ed.2d 467 (1992)(quoting Lynch v. Donnelly, 465 U.S.
668, 678, 104 S. Ct. 1355, 1361-62, 79 L. Ed.2d 604 (1984)). In
Everson v. Board of Educ., the Supreme Court held:
[t]he “establishment of religion”
clause of the First Amendment means
at least this: Neither a state nor
the Federal Government can set up a
church. Neither can pass laws which
aid one religion, aid all religions,
or prefer one religion over another.
Neither can force nor influence a
person to go to or to remain away
from church against his will or force
him to profess a belief or disbelief
in any religion. No person can be
punished for entertaining or
professing religious beliefs or
disbeliefs, for church attendance or
nonattendance.
Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S. Ct. 504, 511, 91
L. Ed.2d 711 (1947). While the Supreme Court has wrestled with
questions of whether a certain policy or practice favors or
establishes a religion, there is no debate that a government policy
that requires participation in a religious activity violates the
Establishment Clause:
13
it [is] “beyond dispute” that the
Constitution guarantees that the
government may not coerce anyone to
support or participate in religion or
its exercise. Individuals may
disagree in a particular case over
other issues, such as whether it is
the state who acted, or whether
coercion is present, or whether
religion or something else is the aim
of the coercion. But in general, a
coercion-based claim indisputably
raises an Establishment Clause
question.
Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996) (quoting Lee v.
Weisman, 5 U.S. at 587, 112 S. Ct. at 2655). In Kerr, the Seventh
Circuit Court of Appeals held that the Establishment Clause was
violated by a requirement that an inmate observe Narcotics Anonymous
(“NA”) meetings (NA and AA utilize the same treatment philosophy for
different types of addictions). Id. at 480. Other courts have
reached like conclusions. See Warner v. Orange County Dept. of
Probation, 827 F. Supp. 261 (S.D.N.Y. 1993); Griffin v. Coughlin,
673 N.E.2d 98 (N.Y. 1996).
We find that there are sufficient reasons other than the
requirement of continued alcohol treatment to justify the denial of
parole by the Board. However, in addition to his claim that the
Board illegally denied him parole, Evans also requested prospective
injunctive relief to ensure that future parole decisions do not
consider an inmate’s participation or nonparticipation in the AA
program. In this regard, Evans has stated a claim upon which relief
may be granted; therefore, the trial court erred in dismissing the
petition as to this claim.
14
If, on remand, the trial court finds that the treatment
program at issue is a religious one and that there are no
alternative secular treatment programs offered, then to require a
prisoner to attend or participate in such a treatment program would
constitute a violation of the Establishment Clause. Attending or
failing to attend such religious meetings can not be considered in
a decision whether to grant or deny parole.
Accordingly, we reverse the judgment of the Court of
Appeals as to Petitioner Evans’ claim for injunctive relief and
remand this cause to the trial court for further proceedings
consistent with this opinion. The judgment of the Court of Appeals
as to Petitioner Arnold is affirmed in all respects. The judgment
of the Court of Appeals as to Petitioner Evans is affirmed in part
and reversed and remanded in part. That portion of the costs of
this cause as are attributable to Petitioner Arnold are taxed to
Arnold. That portion of the costs of this cause as are attributable
to Evans are taxed to the respondent.
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, CJ.
Drowota, Reid, Holder, JJ.
15