William P. Livingston v. State of Tennessee, Board of Paroles ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 4, 2000
WILLIAM P. LIVINGSTON v. STATE OF TENNESSEE
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
Petitioner appeals the trial court’s decision to deny his petition for common law writ of certiorari
challenging a Board of Paroles decision to revoke his parole and the court’s grant of Respondent’s
motion for summary judgment. Petitioner appeals the order on 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
PATRICIA J.COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM C. KOCH , JR., J, joined.
William P. Livingston, Wartburg, Tennessee, Pro Se.
Paul G. Summers, Michael Moore, Pamela S. Lorch, for appellee, State of Tennessee Board of
Paroles.
OPINION
This is an appeal from the trial court’s grant of summary judgment to the Tennessee Board
of Paroles and denial of Mr. Livingston’s petition for common law writ of certiorari based on his
claim that his due process rights were violated during his parole revocation hearing. The facts
underlying this appeal are as follows:
Following a conviction and sentence 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, possess, or carry any type of deadly weapon (guns, rifles,
knives or any illegal weapons).”
In December 1997, pursuant to a warrant issued to search the premises of Mr. Livingston,
a .22 caliber high standard pistol and ammunition were found.1 A parole revocation hearing was
held on February 25, 1998 and Mr. Livingston’s parole was revoked as a result. Because of a
procedural error in the first hearing, the Board granted him a second hearing on July 14, 1998.2 The
hearing officer recommended that 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 certiorari with the Chancery 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 decision of an administrative board or commission, such as the
Board of Paroles.
Anyone who may be aggrieved by any final 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 states, the procedure 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
procedural framework for review under both the common law and statutory writs appears in Ch. 9
of Title 27); see also, Cantrell, Review of Administrative Decisions by Writ of Certiorari in
Tennessee, 4 Mem. St. Univ. L. Rev 19, 19 (1977) (Chapter 9 of Title 27 provides the procedural
framework for review under both the common-law and statutory writs of certiorari but does not
affect the availability of either writ).3
1
Originally, Mr. Livingston objected to the introduction of evidence of the gun on the basis that the 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 ncluding “significant procedural errors by the
hearing official.”
3
Board of Paroles decisions are reviewable through the commo n law writ of certio rari. Arnold v. Tennessee Bd.
of Paroles, 956 S.W.2d 478, 480 (Tenn. 1997) (citations omitted); Sanders v. Tennessee Bd. of Paroles, 944 S.W.2d
395, 397 (Tenn. Ct. App. 199 6) (citations omitted).
2
Tennessee Code Annotated § 27-9-102 directs the aggrieved person to file a petition for
certiorari in order to seek judicial review. When a petition is filed, the clerk is to give immediate
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 certiorari is 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 defendants.”)
The court may require such notice before granting the writ, or may grant 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 the board 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. 01A01-9807-CH-0038, 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 board or 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 board or
commission.
Tenn. Code Ann. § 27-9-109 (emphasis added).
As this statute suggests and as our courts have explained, the writ is the procedural vehicle
used to compel the filing of the record of the lower tribunal, board, or commission 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 be reviewed where the petition states claims which fall within the narrow available
scope of judicial review. The purpose of granting the writ is to have the record of the board or other
lower tribunal filed so that a reviewing court can determine whether petitioner is entitled 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 record to determine whether there has
been an excess or absence of jurisdiction, or failure to proceed according to the
essential requirements of the law.
Clark v. Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn. Ct.
App. 1991) (citations omitted) (emphasis added).
“A petition for writ of certiorari is not leading process, but a statement of fact with a view
to obtain an order for issuance of the writs of certiorari and supersedes.” A’La v. Tennessee Dept.
of Correction, 914 S.W.2d at 916 (citing Kennedy v. Farnsworth, 22 Tenn. 242, 3 Hum. 242 (1842);
5 Tenn. 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
according to the essential requirements of the law.” Clark, 827 S.W.2d at 317 (concurring opinion)
3
(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, the court must
examine the petition in light of the narrow scope of review that is available. “The remedy of
certiorari is not available as of right, but is granted under unusual or extraordinary circumstances.
It is instituted by an application to a court of competent jurisdiction which may or may not authorize
the writ.” Clark, 827 S.W.2d at 316-17. Issuance of the writ is appropriate where grounds exist for
a review of the record below. Id. (since there was no legitimate cause 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 discretion in issuing a fiat directing the clerk of the court to
issue writs of certiorari 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
been an absence or excess of jurisdiction, or a failure to proceed according to the essential
requirements of the law.” Puckett v. Broome, 53 Tenn. App. at 667, 385 S.W.2d at 764 (quoting
Conners v. (City of) Knoxville, 136 Tenn. 428, 432, 189 S.W. 870, 871 (1916)).4
The writ of certiorari, even if granted, only brings up for review certain limited issues.
It must be borne in mind that the functions of certiorari are simply to ascertain the
validity of proceedings before a court of justice, either on the charge of their
invalidity, because the essential forms of the law have not been observed, or on that
of the want of jurisdiction in the court entertaining them. The writ has never been
employed to inquire into the correctness of the judgment rendered where the court
had jurisdiction, and was therefore competent. Hence it has been held that the
supervisory jurisdiction of the 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 court should not
be confounded with its appellant jurisdiction.
Hoover Motor Express Co., 195 Tenn. at 601, 261 S.W.2d at 236 (citations omitted). Accordingly,
the common law writ does not bring up for a determination, any question except the question of
4
In Puckett v. Broome, which involved a petition for a writ of certiorari to the court of appeals to review an
interlocutory action by a circuit judge, this court stated 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 situation where
there was a genuine question whether the lower court “may have exceeded its jurisdiction and powers and therefore acted
illegally,” this court d etermined “that in such a situatio n this court has ju risdiction to entertain the petition for writs of
certiorari and supersede as.” 53 T enn. App . at 671, 38 5 S.W .2d at 766 .
4
whether the inferior board or tribunal (1) has exceeded its jurisdiction, or (2) has acted illegally,
arbitrarily, or fraudulently. Id. at 195 Tenn. at 604, 261 S.W.2d at 238.
The procedural statutes envision an answer by the defendants, even 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 defense occurs in the
context of the record of the proceedings below.
Where, however, the petition itself fails to sufficiently allege administrative action which
would authorize judicial review under the common law writ of certiorari, the petition may be
dismissed prior to the issuance of the writ.5 Boyce v. Williams, 215 Tenn. 704, 711, 389 S.W.2d 272,
276 (1965) (trial court did not abuse its discretion 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 properly dismissed a petition for writ of certiorari on the ground that the petition
on its face was insufficient because the petitioner did not set out the facts of his case and relied only
upon general allegations of violation of the certiorari 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 claim that the Board acted illegally, fraudulently, or arbitrarily or that it exceeded its jurisdiction,
this court was obligated to find he was not entitled to the writ and affirmed trial court’s dismissal
even though on different grounds from trial court); Turner v. Board of Paroles, 993 S.W.2d 78, 81
(Tenn. Ct. App. 1999) (challenge to intrinsic correctness of board’s decision did not state a claim
for which relief is available under the common law writ of certiorari and petition properly
dismissed); but see Jennings v. Traughber, 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 for failure to state a claim reversed because construing the petition liberally and taking all
allegations of fact therein as true, petition stated a valid claim that Board of Paroles acted arbitrarily
or illegally).
The decision to dismiss a petition for issuance of a writ of certiorari is separate from a
decision to deny relief on the basis of the record. As this court recently explained:
5
As in other types of litigation, where the petition fails to state a claim upo n which the co urt can grant re lief,
it is subject to dismissal upon proper motion. Tenn. R. Civ. P. 12.02 (6); Dobb s v. Guen ther, 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 legal sufficiency of the complaint or petition).
In the case of a petition for writ of certiorari, a petition which fails to sufficiently allege that an administrative board has
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. Parole Eligibility Review Bd., 879 S.W.2d at 873 (petitioner
alleged facts 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 dismissed for failure to state a claim).
6
In Boyce, the court held a hearing on whether the writ should be issued and, after the hearing, dismissed the
petition.
5
[In Conners v. City of Knoxville, 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 course of action to be pursued by the trial court:
We hold, therefore, that the circuit judge and the Court of Appeals
were in error in holding that certiorari was not awardable, and in not
quashing the proceeding in the board of commissioners as being in
excess of jurisdiction, illegal, and void, if the same 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 issued, so that a judgment may be rendered in accord with
what is herein held.
Id. at 872. The trial court, in Conners on remand, apparently misconstrued the
Supreme Court holding and on the second appeal 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 from 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’ rule is 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-CV,
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
not filed. Mr. Livingston’s petition was met with a motion for summary judgment on behalf of the
Board. Attached to the motion was an 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
regarding Mr. Livingston. The affidavit does not state that those documents constitute the entire
record of Mr. Livingston’s parole revocation proceeding. Thus, the Board apparently filed portions
of the record of its proceedings but 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
shall cause to be made, certified and forwarded to the court a complete transcript of the proceedings,
including proof submitted). The Board also provided Mr. Livingston with a statement of undisputed
facts, to which he responded. Both are in the record before us. The statements deal primarily with
the basic procedural facts relating to the Board’s proceedings and are corroborated by the
attachments to the affidavit.
6
Creating 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 record includes
the tape in an envelope with a handwritten notation, “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 certified as an accurate transcription of the hearing at issue or as part of the
Board’s record. The Board has not objected to the inclusion of the tape in the record or its
consideration by the trial court. To the contrary, the Board relies on the tape for some of the
statements in its brief. Mr. Livingston has not and cannot object to the consideration of the tape
since he supplied it.
We are aware that because the writ was not yet granted, the Board was under no compulsion
to file its entire certified record. We are, nonetheless, troubled by a procedure wherein the Board
files what appears to be a portion of its record and relies on that portion in seeking a judgment. The
use of summary judgment in writ of certiorari proceedings is not unknown, even with regard 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. Ct. App. 1996); Perry v.
Campbell, No. M1998-00943-COA-R3-CV, 2001 WL 46988 at *4 (Tenn. Ct. App. Jan. 22, 2001)
(no Tenn. R. App. P. 11 application filed); Blackmon v. Campbell, No. 01A01-9807-CH-00361,
1999 WL 85518 at *1 (Tenn. Ct. App. Feb. 23, 1999) (no Tenn. R. App. P. 11 application filed); but
see Williams v. Tenn. 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 application filed) (summary judgment for
department reversed where petitioner’s sworn petition was treated as an affidavit opposing 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 because, as a matter of law, the punishment administered did not trigger due
process requirements and because double jeopardy guarantees do not apply to prison disciplinary
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 genuine issue of material fact that
the Board’s actions were unlawful. Our opinion does not reveal the nature of the affidavit. To the
extent it merely sets out the details of the punishment assessed by the disciplinary board, such
information would merely be a procedural fact basic to the finding 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 of
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 with which we are concerned herein.
7
all the supporting materials supplied with the motion, our opinion discloses that each of the Board
members filed an affidavit denying that race played any part in the Board’s consideration, in
response to the petitioner’s conclusory allegations of racial bias. This is the type of information
which will not usually be revealed in the record of the administrative proceedings 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; 261 S.W.2d at 239; Brown v. Tennessee Real Estate Comm’n., 494
S.W.2d 506, 510 (Tenn. Ct. App. 1972) (additional evidence introduced before a court reviewing
an action of a board or commission is limited to the question of whether the board acted illegally,
arbitrarily, fraudulently, or beyond its jurisdiction; evidence on the merits of the controversy is
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 regularity of the proceedings below. This court’s decision, however, does not
appear to rest upon that affidavit. Instead, this court determined that petitioner had not presented any
evidence to substantiate his claim to a plea agreement which formed the basis of one of his
arguments.
In Turner, the trial court granted a motion to dismiss for lack of jurisdiction and a motion for
summary judgment. In support of its motion for summary judgment, the Board offered the affidavit
of the custodian 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,
and stated that letters and other documents submitted by the petitioner at the hearing were placed in
his file. Id. This court observed that the petitioner had offered no evidence to refute the affidavit.
However, this court’s holding was not based upon any issues addressed in the affidavit; instead, we
construed the petitioner’s claims as an attack on the intrinsic correctness of the Board’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 issue. We do not question that there are situations where
such procedure is the most appropriate way to proceed. For example, if the petition raises issues
whose resolution depends on facts not in the administrative record, presentation to the court of those
facts by way of an affidavit in support of a motion for summary judgment, with the opposing party
having the opportunity to properly dispute 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 subject to dismissal for other reasons, such as the
failure to comply with the time limitations for seeking review of a Board decision. See Turner v.
8
Tennessee Bd. of Paroles, 993 S.W.2d at 80. In such situations, if the petition has not stated the facts
relevant to a determination of jurisdiction, the Board could appropriately file an affidavit with
documentation reflecting the date of the Board’s action. Because such filing would constitute
matters outside the pleadings, such a motion would be converted to a motion for summary judgment.
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 be granted to compel filing of the record with the issue of
whether relief should be granted based on the record and the petition. Second, the statutory
procedures established for review of decisions of administrative boards and commissions do not
appear to contemplate filing of only portions of the administrative record. Because no other method
of judicial review is provided for decisions of the Board of Paroles, the common law writ of
certiorari procedure, as the 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 reluctant to state, and specifically do not state, that summary judgment is never
appropriate in a decision to deny issuance of a writ of certiorari to review a decision of an
administrative board or commission. However, caution should be used to insure that such a
procedure does not substitute a ruling on the merits 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 procedure which
would require reversal of the trial court’s decision. Further, because the record includes a statement
of disputed facts and response 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 material submitted outside the record, we will consider those matters as properly
included in the record.
8
On the other han d, an allegatio n that a boar d or com mission has acted illega lly, arbitrarily, or cap riciously
“typically involves a determination of whether the record contains ma terial evidenc e to suppo rt the decision below. See
Hoover v. Metropolitan 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 Testing 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 sufficient allegations of a lack of material evidence, it wo uld
be unusual for a court to make a determination that such evidence wa s presented without a review of the record . We
doubt an affidavit with hearsay statements regarding the evidence, such as that offer in Turner, would suffice. See
Palmer v. South C ent. Correctional Facility Disciplinary Bd., 2000 WL 1134529 at *4-5 (dismiss al of petition for writ
of certiorari reversed because, the motion having been granted before the record was filed, 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 affidavit that we are able to glean the basic facts
necessary to describe the proced ural posture of this case. Petitioner does not admit, nor was he asked to admit, 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
III.
Before us for review is the decision of the trial court to deny issuance of the writ of certiorari.
The court’s decision to deny the writ must be analyzed by reference to the restrictions placed upon
a court to review the Board’s decision. Tennessee Code Annotated § 27-8-101 sets forth the
purpose of judicial review by a common law writ of certiorari:
The writ of certiorari may be granted whenever authorized 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 under the common law writ 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 granted if the
board has exceeded its jurisdiction, or has otherwise acted unlawfully, arbitrarily or fraudulently.
Id. (citing Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871 (Tenn. Ct. App. 1994)). A court
will not review the intrinsic correctness of the board’s decision; in other words, one may say that “it
is not the correctness 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. App. 1995); see
also, Powell v. Parole Eligibility Review Bd., 879 S.W.2d at 873.
Generally speaking, review of an administrative decision by way of the common law
writ is confined to the question of whether the inferior board or tribunal has exceeded
its jurisdiction or acted illegally, arbitrarily, capriciously, 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
administrative decision, it “must conclude that the administrative body acted
illegally.” Hoover v. Metropolitan Bd. of Zoning Appeals, 924 S.W.2d at 904-05. An
administrative 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 provision has been violated, 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 Kingsport, 1998 WL 131519 at *4-5. As a general proposition, the decision of
an administrative board is considered to be arbitrary if it lacks a rational basis. Mobilcomm of
Tennessee v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d 101, 104 (Tenn. Ct. App. 1993) (citations
omitted).
10
Where a petition for writ of certiorari fails to sufficiently allege one of the grounds upon
which a court may engage 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, 389 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 due process claims, and an allegation of denial of due
process is 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. Dept.
of Correction, 1995 WL 575142 at *2. Specifically, he asserts that his due process rights were
violated due 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 United States Supreme Court and the Tennessee
Supreme Court, parole revocation hearings are meant to be informal, and the due process rights to
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]evocation of parole is not part of a criminal prosecution and thus the full panoply
of rights due a defendant in such a proceeding does not apply to parole revocations.
Parole arises after the end of the criminal prosecution, including imposition of
sentence . . . Revocation deprives an individual, not of absolute liberty to which
every citizen is entitled, but only of the conditional liberty properly dependent on
observance of special parole restrictions.
*****
We emphasize there is no thought to equate . . . parole revocation to a criminal
prosecution in any sense. It is a narrow inquiry; the process should be flexible
enough to consider evidence including letters, affidavits, and other material that
would not be admissible in an adversary criminal trial.
Morrissey v. Brewer, 408 U.S. at 480, 489.
Parolees facing revocation of their parole are, however, 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 evidence against him; (c) opportunity to be heard in
11
person and to present witnesses and documentary evidence; (d) the right to confront
and cross examine adverse witnesses (unless a hearing officer 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 by the fact finders as to the evidence relied on
and reasons for revoking parole.
State v. Wade, 863 S.W.2d at 408 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973);
Morrissey v. Brewer, 408 U.S. at 489).
The statutes and administrative rules governing the Tennessee parole board grant wide
latitude and discretion in the admission and review of evidence. For example, Tennessee Code
Annotated § 40-28-106(f) states in pertinent part, “[n]otwithstanding other provisions of law to the
contrary and unless prohibited by federal law in a specific instance, the board shall be granted access
to any record or information, public or otherwise, which it deems necessary to carry out its duties.”
Also, the administrative 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 evidence shall not apply to such hearings.” Tenn. Comp. R. and Regs. ch. 1100-1-
1-.13(9)(i).
Mr. Livingston’s first claim on appeal is that the hearing officer improperly admitted a
confidential affidavit into evidence.10 He states in his petition that “the parole officer had brought
a sworn affidavit from a ‘protestor’ that feared for their life, if the Petitioner was released.” Mr.
Livingston 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 parolees to confront 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
State even concedes that parolees must be given “an opportunity to cross-examine
adverse witnesses unless the hearing officer specifically finds good cause for not
allowing confrontation.” Thus, when good cause exists, hearing officers in parole
revocation hearings 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. Tennessee Bd.
of Paroles, 944 S.W.2d at 397. The issue that remains to be decided concerns what
must be proven to demonstrate good cause for denying a parolee the opportunity to
confront and cross-examine adversary witnesses.
Good cause is not a precise standard, and there is no bright-line rule for determining
whether good cause exists. The inquiry is factually driven and may, in large measure,
10
Because the adm inistrative record was not filed, the actual affidavit is not in the record before us.
12
depend on the nature and purpose of the evidence sought to be introduced. Thus, for
example, persons who desire to express an opinion either favoring or opposing the
revocation of parole based on the parolee’s character, the nature of the parolee’s
underlying conviction, the parolee’s institutional conduct, or the parolee’s reputation
in the community need not be subjected to confrontation and cross-examination
because their statements are simply personal opinions. The Board receives these
sorts of letters and communications every day, and it would add little to the integrity
of the hearing process to require persons desiring to give opinions of this sort to
appear in person at the revocation hearing to offer them.
Testimony establishing the grounds for revoking a parole should be treated more
rigorously because it provides the basis for depriving the parolee of his or her liberty.
Rather than being merely statements of personal opinion, this testimony is being
offered to prove the truth of the matters contained in it. Accordingly, the
requirements for its admission must contain reasonable safeguards to ensure that the
testimony is truthful and accurate.
Miller v. Tennessee Bd. of Paroles, No. 01A01-9806-CH-00293, 1999 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 violation, hearing officers must satisfy
themselves either that the evidence is inherently reliable or that it has already been subjected to
adversarial questioning and must make the “good cause” determination using applicable standards.
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, “the testimony of the witness failed to support or disprove the rule
violation,” referring 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 a little. Although Mr. Livingston objected to use of a confidential
informant’s affidavit used to secure the search warrant which resulted in finding the gun and
ammunition in his apartment and presented arguments why the affidavit was not a sufficient basis
for the issuance of the warrant, that affidavit is not the one to which he objects on appeal. The search
warrant issues arose the first hearing. In another section of his petition, Mr. Livingston states:
In the second hearing, denominated an “appeal,” it was apparent that the hearing
officer was merely 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 warrant); and that the parole officer had brought a sworn affidavit from a
“protestor” that feared their life, if the Petitioner was released.
This was a clear and blatant attempt to illegally hold the Petitioner. This was a
“violation” hearing, (which was supposed to concern a gun) not a parole hearing.
Neither the Petitioner’s parole officer nor the detective could “protest” him, if it had
been a parole hearing. And, the statement provided by the parole officer along with
13
a newspaper article he just happened to bring with violated Petitioner’s constitutional
rights.
The person who signed the statement is a police informant, with a lengthy arrest
record, who cut a deal with the State.
Thus, although Mr. Livingston apparently believes the two affidavits originated from the
same person, it is the second, wherein the affiant apparently indicated a preference for revocation
of Mr. Livingston’s parole, that is the subject of the issue before us. The amended petition makes
the nature of the document clear:
Hearing officer Francis Lloyd, prior to hearing evidence in the appeal, emphatically
stated that no new evidence would be heard. Only that evidence, originally
presented, would be introduced at the appeal hearing. Yet, in the face of this
instruction, the appeal officer allowed new testimony in the way of a “notarized,
confidential affidavit” from a “secret” witness. The brunt of that testimony
concerned allegations of unsubstantiated threats made by or on behalf of the
plaintiff against this, still unknown protester. A protester who did not submit
testimony at the original revocation hearing. (Emphasis added.)
These statements establish that the hearsay evidence or statement he complains about was
not related to the issue of whether he had violated his parole. Rather, it falls within the type of
communication the Board receives regularly from persons expressing opinions about the action the
Board is considering.
In that context, threats or a finding the witness would be “exposed to significant risk of harm”
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 feared for his or her life if forced to testify in person, we
find no merit in this claim.
Next, Mr. Livingston alleged that a newspaper article contained in the file of the State
violated his due process rights.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 hearing officer specifically stated that
he had not read the article in question, nor would he read it.” The mere presence of the article
without it being accepted into evidence 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 officer or not. The Board is allowed wide discretion, not
subject to the rules of evidence, to consider evidence, information, or documentation that it considers
11
Mr. Livingston attac hed a cop y of a newspa per article to h is petition. We assume it was the article he
complain s about.
14
helpful in carrying out its functions. Therefore, we find Mr. Livingston’s allegations in this regard
to not constitute an allegation that the Board’s decision was unlawful, arbitrary or fraudulent.
The Board asserts that issue of the unsigned indictments was raised for the first time on
appeal. The trial court did not address them, and there is no evidence they were raised below other
than Mr. Livingston 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 taint his [the hearing
officer’s] objectivity in deciding this issue, and was thus, an arbitrary and capricious denial of due
process.” Therefore, because Mr. Livingston raises the issue of the introduction of such evidence
for the first time on appeal, we will not consider the claim.12 This court 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 acted without jurisdiction, arbitrarily, or
unlawfully. 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 conditions. Evidence was presented at the revocation hearing that a gun and
ammunition were found 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
755002 at *4; (citing Mobilcomm of Tennessee v. Tennessee Pub. Serv. Comm’n, 876 S.W.2d at
104).
Mr. Livingston had earlier argued that there were problems with the search warrant that led
to the discovery of the gun and ammunition, but has dropped those arguments on appeal. He 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, attack the intrinsic correctness of the
Board’s decision. As explained earlier, courts are not authorized to inquire into the correctness of
an administrative decision by writ of certiorari. Robinson v. Truaghber, 13 S.W.3d 361, 364-65
(Tenn. Ct. App. 2000). Additionally, a court reviewing an administrative board’s decision is not
12
Additiona lly, there is no evidence in the record before us that the unsigned indictments were even considered
by the hearing officer. They appear to be includ ed in the hea ring officer’s statement that he would no t consider ce rtain
items in the file.
13
At the first hearing, there was testimony in the record from Dallas Hopson stating that he owned the gun and
had taken it to Mr. Livingston to see if Mr. Livingston would loan him some money on it. He further stated he left 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 to own a firearm. At the second hearing, Mr. Livingston admitted to having handled the 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
permitted to weigh the evidence presented to the board. Gallatin Hous. Auth. v. City Council, City
of Gallatin, 868 S.W.2d at 280; Hoover v. Metropolitan Bd. of Zoning Appeals, 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 facing revocation of their parole, requires a neutral and detached
decision maker. See Jones v. Greene, 946 S.W.2d 817, 825 (Tenn. Ct. App. 1996) (citations
omitted) (due process guarantees a party to an administrative hearing to a fair and impartial tribunal).
In the case before us, however, Mr. Livingston does not allege that the hearing officer was biased
against him because of matters outside of and unrelated to the revocation proceeding. He alleges,
instead, that the hearing officer’s bias was created by the introduction of inadmissible and prejudicial
information, the statement and article discussed above. In his amended petition, Mr. Livingston
states, “Mr. Lloyd, who may very well have intended to conduct a proper hearing, was, nevertheless,
not fair 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 thus, 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
well settled that conclusory allegations will not support a denial of a motion for summary judgment.
Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Conclusory allegations of illegality or
arbitrariness, or of bias or other due process violation, are similarly not sufficient to avoid dismissal
of a petition for writ of certiorari. Davis v. Campbell, No. 02A01-9611-CV-00268, 1997 WL
777079 at *4 (Tenn. Ct. App. Dec. 18, 1997) (no Tenn. R. App. P. 11 application filed).
Furthermore, a party seeking to overcome the well-established presumption that administrative
decision makers will discharge their duties with honesty and integrity has a difficult burden. Cooper
v. Williamson County Bd. of Educ., 803 S.W.2d 200, 203 (Tenn. 1990). The averments by Mr.
Livingston do not create an issue justifying court review of the Board’s decision.
Further, the fact that Mr. Livingston argues that the hearing officer became biased by the
evidence considered at the hearing defeats his claim. Generally, the terms “bias” and “prejudice”
refer to a state of mind or attitude that works to predispose a judge for or against a party. Alley v.
State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). Further,
Not every bias, partiality, or prejudice merits recusal. To disqualify, prejudice 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.”
***
16
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 litigant a fair trial, it need not be
extrajudicial.
Id. (citations omitted.). See 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 biased. The denial of a writ in order to undertake such an inquiry was correct.
We have held that the evidence Mr. Livingston claims biased the hearing officer could have
been properly considered by him. Additionally, there was a rational basis for 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 officer.
VI.
For the reasons set forth herein, we affirm the dismissal of Mr. Livingston’s petition for
common law writ of certiorari. Costs 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
17