                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 12, 2004

    WILLIAM W. YORK v. TENNESSEE BOARD OF PROBATION
                       AND PAROLE
                       Appeal from the Chancery Court for Davidson County
                          No. 01-3349-I Irvin Kilcrease, Chancellor



                      No. M2003-00822-COA-R3-CV - Filed April 23, 2004


                             OPINION ON PETITION FOR HEARING

       The State of Tennessee has filed a Petition to Rehear in this case asserting that the February
17, 2004 decision of this Court is in conflict with Davis v. Maples, No. M2002-02564-COA-R3-CV,
2003 WL 22002660 (Tenn.Ct.App. Aug. 25, 2003).

        Any conflict between this case and Davis is occasioned by the procedural actions taken by
the state. This Court has repeatedly admonished the state of the perils inherent in employing a
T.R.C.P. rule 12.02(6) motion as a response to a petition for writ of certiorari. See Mark B. Gore
v. Tennessee Department of Corrections, et al., No. M2002-02640-COA-R3-CV (Tenn.Ct.App.
2003) (perm. app. denied Mar. 22, 2004) ________ S.W.3d __________. In this case as in Baldwin
v. Tennessee Board of Pardons and Paroles, 2003 WL 21954199 (Tenn.Ct.App. Aug. 15, 2003)
(perm. app. denied Dec. 22, 2003) __________S.W.3d ___________, the state chose to meet the
petition for certiorari with a T.R.C.P. rule 12.02(6) motion to dismiss.

        In its Petition to Rehear, the state, having prevailed in the trial court on its T.R.C.P. rule
12.02(6) motion, recites the rule in Fairhaven Corp. v. Tennessee Health Facilities Comm’n, 566
S.W.2d 885 (Tenn.Ct.App. 1976), reviewing the proper procedure to be followed upon the grant of
the writ. If, in fact, the state in this case had followed such a procedure, the record made before the
parole board would have been filed in the trial court and review of that record might have disclosed
reasons for a deferral of a parole hearing which on its face appears to be completely arbitrary. The
state asserts in its Petition to Rehear “it is certainly possible that factual circumstances exist meriting
a lengthy parole hearing deferral. These circumstances might include recent and serious threats to
victims or witnesses of the original crime, or a horrendous prison disciplinary record including
serious physical attacks on other inmates and staff. An inmate’s record might be such that it would
not be arbitrary for the board, after considering the evidence before it, to conclude that it is
unreasonable to expect that parole would be granted at a hearing for at least ten years.”
         The state further argues that even if this Court chooses to overrule Davis and hold as a matter
of law “that deferral of a parole hearing for ten years is per se arbitrary, still the only relief afforded
in this case should be to direct the trial court to grant the petition for the writ of certiorari to review
the administrative record. It is possible that a review of administrative record will reveal other
legitimate reasons why the board’s decision should not be disturbed. For example, a review of the
record may reveal that the trial court lacked subject matter jurisdiction because the petition was not
timely filed, or that the petitioner’s next hearing was not, in fact, deferred for ten years. Relief on
the merits cannot be afforded solely on the basis of the allegations of the petition.” The Petition to
Rehear then footnotes Willis v. Tennessee Dep’t of Corrections, 113 S.W.2d 706, 710 (Tenn. 2003)
to the effect that “a court should grant a motion to dismiss only when it appears that the petitioner
can prove no set of facts in support of the claim that would entitle the petitioner to relief.”

        This is indeed an about face for a party whose successful use of a T.R.C.P. rule 12.02(6)
motion has effectively prevented the certification of the parole board record to the trial court for
review.

        The February17, 2004 opinion of this Court does not overrule Davis. The Memorandum
Opinion filed by this Court in Davis pursuant to T.R.C.P. 10 was a case in which the state filed not
a T.R.C.P. rule 12.02(6) motion to dismiss but a motion for summary judgment, together with
affidavits and a statement of undisputed facts to which petitioner did not respond. The state asserted
that petitioner had not sought administrative appeal before filing the petition for writ of certiorari.
This Court held “Consequently, we affirm dismissal of that portion of the petition alleging that the
denial of parole was arrived at in an arbitrary and capricious manner on the ground another remedy
was available, but specifically find that the dismissal is without prejudice to Mr. Davis’ right to
appeal the denial of parole under the board’s procedures.” 2003 WL 22002660 *6 (Tenn.Ct.App.
Aug. 25, 2003).

        The court then addressed the issue of whether or not postponing the next parole hearing for
a period of eleven years was arbitrary and capricious taking into consideration the then ten-day-old
opinion of this Court in Baldwin.

        Said the court:

                Because this allegation was not addressed by the Board or the trial court, we
        have no basis upon which to review the claim or its dismissal as part of the dismissal
        of the entire petition. In view of our recent decision in Baldwin v. Tenn. Bd. of
        Paroles, No. M2002-01428-COA-R3-CV, 2003 WL 21954199 (Tenn.Ct.App. Aug.
        15, 2003), we cannot conclude on the record before us that the action complained of
        was not arbitrary and capricious.

                                              Conclusion

                We affirm dismissal of Mr. Davis’s claim that the Board’s denial of parole
        was arbitrary and capricious without prejudice to his seeking appeal of the denial of
        his parole request through the administrative procedures established by the Board.
       We reverse the dismissal of his claim that the Board’s action in deferring his next
       parole hearing eleven years was arbitrary and capricious.

2003 WL 22002660 *6 (Tenn.Ct.App. Aug. 25, 2003).

        Since both Baldwin and Davis postdated the filing of appeal in this case (April 4, 2003),
neither the state nor the petitioner had the benefit of those decisions before determining how to plead
in the trial court. The state should be given the opportunity to produce and file the record made
before the parole board in order that the trial court may determine whether or not that record reflects
the kind of possible factual data asserted by the state in its Petition to Rehear. If the state chooses
to follow the procedure outlined in Fairhaven Corp. v. Tennessee Health Facilities Comm’n, 566
S.W.2d 885 (Tenn.Ct.App. 1976), it may apply to the trial court to issue the writ of certiorari to the
parole board.

        To this limited extent the Petition to Rehear is granted and the cause is remanded to the trial
court for further proceedings consistent with this opinion.



                                                       ____________________________________
                                                       WILLIAM B. CAIN, JUDGE


                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE


                                                       ____________________________________
                                                       FRANK G. CLEMENT, JR., JUDGE
