                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs August 2, 2001

        BILLY R. SADLER v. TENNESSEE BOARD OF PROBATION
                            AND PAROLE

                    Appeal from the Chancery Court for Davidson County
                      No. 00-457-III   Ellen Hobbs Lyle, Chancellor



                   No. M2001-02341-COA-R3-CV - Filed November 8, 2001


A prisoner who was denied parole filed a Petition for Writ of Certiorari, challenging, on
constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the
petition. We affirm.

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

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Billy Sadler, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kimberly J.
Dean, Deputy Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                                 I.

        Billy Sadler, an inmate at the Northwest Correctional Complex, was convicted of second
degree murder in 1977, and sentenced to life imprisonment. He went before the Board of Paroles
on December 9, 1999. A majority of the Board voted to deny him parole on the grounds that to
release him at that time would depreciate the seriousness of his crime, and that it would have a
substantially adverse effect on institutional discipline. His next hearing was scheduled for December
of 2001.

       Mr. Sadler then filed a pro se Petition for Writ of Certiorari accompanied by a Motion to
Proceed in Forma Pauperis. In his petition, he asked the court for three far-reaching rulings
involving the parole statutes, any of which, if granted, might invalidate the Parole Board’s decision
in his case (though it would not necessarily lead to his release).

        The prisoner asked the court to declare Tenn. Code. Ann. § 40-28-115 unconstitutional
because it allegedly violates the separation of powers; to find that the application of a number of
different statutes to his case amounts to a violation of the prohibition against ex post facto laws; and
to hold that the rules of the Board of Pardons and Paroles (a body which was abolished in 1979) are
the only rules that the current Parole Board should be allowed to follow in his case.

        Mr. Sadler subsequently filed several motions. One was a Motion for Discovery, to compel
the Parole Board to prepare a written transcript of his parole hearing. The trial court denied the
motion, because the court is not authorized to grant discovery before the petitioner makes a proper
discovery request to opposing counsel pursuant to the Rules of Civil Procedure. The court noted in
a later Memorandum and Order that petitions for writ of certiorari usually proceed on the record, and
that typically, discovery is not permitted.

        Mr. Sadler also filed a Motion to Amend his Complaint and a Motion for Default Judgment.
The Motion to Amend was granted. In his Motion for Default Judgment, Mr. Sadler complained that
the State had not responded to his petition. However, the court noted in a Memorandum and Order
filed on May 9, 2000, that the petitioner had not filed the affidavit required by Tenn. Code. Ann. §
41-21-801 when inmates file in forma pauperis, and therefore that the State had never been served.

        After Mr. Sadler was informed of this omission, he filed the required affidavit. The State
subsequently filed a timely motion for an extension of time in which to respond to his petition. Mr.
Sadler also filed a second Motion to Amend. The trial court filed a Memorandum and Order on the
pending motions on June 28, 2000. The court denied Mr. Sadler’s Motion for Default Judgment,
gave the State until July 14, 2000 to file a response to Mr. Sadler’s petition, and denied Mr. Sadler’s
second Motion to Amend, because he failed to attach a copy of his proposed amendment to his
motion.

        On July 14, 2000, the State filed a Motion to Dismiss and/or for Summary Judgment. Shortly
thereafter, Mr. Sadler filed another Motion for Default Judgment. On September 8, 2000, the trial
court filed its final Memorandum and Order in this case. The court denied Mr. Sadler’s Motion for
Default Judgment, and granted the State’s Motion to Dismiss. This appeal followed.

                                    II. SEPARATION OF POWERS

        Mr. Sadler’s first argument on appeal is that Tenn. Code. Ann. § 40-28-115(c), which deals
with the jurisdiction of the Parole Board, is unconstitutional because it violates the separation of
powers mandated by the U.S. and Tennessee Constitutions. The statute in question simply reads,
“[t]he action of the board in releasing prisoners shall be deemed a judicial function and shall not be
reviewable if done according to law.”



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        Of course, the United States Constitution is not relevant to our inquiry, because it does not
govern the relationships between the different branches of Tennessee government. However, Article
II, § 1 of the Tennessee Constitution does divide the state’s government into “three distinct
departments: the legislative, executive, and judicial,” while Article II, § 2 declares that “No person
or persons belonging to one of these departments shall exercise any of the powers properly belonging
to either of the others, except in the cases herein directed or permitted.”

        We believe, however, that exercising a judicial function is not the same as being the recipient
of a delegated power that properly belongs to the judicial branch. The exercise of a judicial function
implies the use of judgment or discretion to apply the law to a set of facts. It also may imply an
orderly process for assembling those facts, and the creation of some kind of record of that process
and its results.

        There are many boards and agencies of the executive branch, as well as subdivisions of state
government, that exercise judicial functions, including the Civil Service Commission, numerous
boards of professional licensure, beer boards, and local zoning boards. Likewise, when the
legislature tries impeachments under Article V, § 4, it may be said to be exercising a judicial
function.

        We note that the Article III, § 6 gives the governor the “power to grant reprieves and pardons,
after conviction, except in cases of impeachment” and that a portion of that power has been
delegated to the Board of Paroles. Thus, when the Board determines whether or not a prisoner
should be paroled, it is exercising one of the powers that properly belongs to the executive branch.

       While it is unclear to us why the legislature found it necessary to state that the action of the
Board in releasing prisoners shall be deemed a judicial function, the effect of Tenn. Code. Ann. §
40-28-115(c) is to limit (but not totally eliminate) the role the judiciary may assume in reviewing
parole decisions. The statute prevents the courts from substituting their own judgment for that of
the Parole Board. However, under their constitutional power to issue writs of certiorari, the courts
may consider allegations that the Board did not reach a decision in a lawful manner. See Article VI,
§ 10, Powell v. Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. Ct. App.1994).

                                 III. EX POST FACTO ARGUMENTS

         Mr. Sadler argues that Tenn. Code. Ann. §§ 40-35-501(h), 40-35-503(b), and 40-28-105(d)
are illegal ex post facto laws as they relate to him, because they were all enacted after the date he was
sentenced. However, in order for a penal statute to run afoul of the Ex Post Facto Clause, two
elements must be present. “First, the law must apply retrospectively to events occurring before its
enactment. Second, the law must disadvantage the offender affected by it.” Kaylor v. Bradley, 912
S.W.2d 728, 732 (Tenn. Ct. App.1995). While there is no dispute that the present versions of the
above statutes were enacted after the date of Mr. Sadler’s conviction, he has not demonstrated that
he has been disadvantaged by the application of these statutes to his parole hearing, to the extent
necessary to state an ex post facto claim.


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                                 A.   TENN. CODE. ANN . § 40-35-501

        Tenn. Code. Ann. § 40-35-501 is a section of the Criminal Sentencing Reform Act of 1989
that deals with release eligibility. Tenn. Code. Ann. § 40-35-501(h) apparently requires all prisoners
sentenced to life to serve at least twenty-five years of their sentences before being released on parole,
regardless of any sentence credits earned or any plan instituted to reduce prison overcrowding. We
say “apparently” because a part of the statute refers to defendants sentenced to life for first degree
murder, while another part simply refers to “a defendant sentenced to imprisonment for life.”

         Mr. Sadler contends that his parole eligibility date should not be governed by Tenn. Code
Ann. § 40-35-501, because that statute was enacted after his conviction and sentencing. He argues
that he is entitled to have his parole eligibility date calculated in accordance with the law in effect
at the time he was sentenced. See Tenn. Code Ann. § 40-35-117.

         The petitioner may well be correct. However, there is nothing in the record, or in Mr.
Sadler’s arguments, to indicate how his release eligibility date was calculated (including what statute
it was based upon), or what the correct date would have been if the calculations had been based upon
the law in effect in 1977. Further, it is the Department of Correction that calculates release eligibility
dates for inmates, not the Board of Paroles. Therefore, Mr. Sadler has neither stated facts that would
entitle him to relief, nor named a defendant with the power to respond to his claim. Finally, it also
appears that this claim has become moot, since his eligibility for release is no longer in question.

                                B.   TENN. CODE ANN . § 40-35-503(B)

       Tenn. Code Ann. § 40-35-503 is likewise incorporated into the Criminal Sentencing Reform
Act of 1989. It reads in pertinent part,

                (b) Release on parole is a privilege and not a right, and no inmate convicted
        shall be granted parole if the board finds that:
                (1) There is a substantial risk that the defendant will not conform to the
        conditions of the release program;
                (2) The release from custody at the time would depreciate the seriousness of
        the crime of which the defendant stands convicted or promote disrespect for the law;
                (3) The release from custody at the time would have a substantially adverse
        effect on institutional discipline; or
                (4) . . . .

       Mr. Sadler argues that rather than making a parole decision based on the 1989 statute, the
Board should have made use of a prior rule of the Board of Paroles (since repealed) which provided,

        (1) The board operates under the presumption that each resident who is eligible for
        parole is a worthy candidate, and thus the Board presumes that he will be released on
        parole when he is first eligible.


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        However, that argument was foreclosed by this court in the case of Kaylor v. Bradley, 912
S.W.2d 728 (Tenn. Ct. App.1995). In that case, we ruled that the regulation was invalid even before
it was repealed, because it created a presumption that was inconsistent with the Parole Board’s
statutory obligation to determine parole on an individualized case-by-case basis.

        Further, we note that the language deeming parole to be a privilege and not a right was first
incorporated into the Tennessee Code in 1961. [Acts 1961, ch. 93, § 11]. Moreover numerous cases
before and after that date have affirmed that a prisoner has no absolute right to be released on parole,
even if he has an unblemished disciplinary conduct record, and has served the minimum term for his
offense. Robinson v. Traughber, 13 S.W.3d 361 (Tenn. Ct. App. 1999); State ex rel. Wade v.
Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969); Graham v. State, 304 S.W.2d 622 (Tenn. 1957);
Oliver v. State, 87 S.W.2d 566 (Tenn. 1935).

                                 C.   TENN. CODE ANN . § 40-28-105

       In 1979, the Board of Pardons and Paroles was abolished, and replaced by the seven member
Board of Paroles. Tenn. Code Ann. § 40-28-101, et seq. sets out the powers and duties of this body,
as well as the procedures the Board is required to follow to determine whether or not an inmate
should be granted parole.

        Mr. Sadler argues in a general way that the procedures applicable to the abolished Board of
Pardons and Paroles are the ones that the Board of Paroles should have followed in his case. He
particularly objects to the requirement in 40-28-105(d)(4) that four board members concur before
parole is granted to inmates convicted of certain offenses, including second degree murder. Under
prior law, the concurrence of only three board members was required before such inmates could be
paroled.

        However, in order to state an ex post facto claim in a case involving changes in parole
regulations, the inmate must show more than a slight possibility of a more favorable outcome under
prior regulations. See Wilson v. State, 980 S.W.2d 196 (Tenn. Ct. App. 1998); California
Department of Corrections v. Morales, 514 U.S. 499 (1995).

         In this case, the only four members of the Parole Board to cast a vote on Mr. Sadler’s parole
voted not to release him, thus rendering it mathematically impossible for him to obtain the required
number of votes from the seven-member Board. However, the appellant has not suggested any
reason why any one of the non-voting members might have reached a different conclusion, let alone
all three of them. Thus he has not demonstrated that he was disadvantaged to the extent necessary
to state an ex post facto violation.




                                                  -5-
                                      IV. FRIVOLOUS APPEAL

       Tenn. Code. Ann. § 27-1-122 gives this court the authority to assess damages for appeals
which it deems to be frivolous. A frivolous appeal is one that presents no justiciable question, and
which is so devoid of merit on its face, that there is no reasonable possibility that it can succeed. See
Black’s Law Dictionary (4th ed. 1961).

       Possible sanctions for frivolous appeals include court costs, interest on any judgment
assessed, and expenses incurred by the appellee as a result of the appeal.

       Tenn. Code. Ann. § 41-21-816 makes it possible for the Commissioner of Correction to
impose still further sanctions. That statute reads in its entirety:

                (a) The commissioner shall forfeit an inmate's good conduct sentence
        reduction credits in the amount specified by subdivision (b) on:
                (1) Receipt by the department of a certified copy of a final order of a state or
        federal court that dismisses as frivolous or malicious a claim or lawsuit filed by an
        inmate while the inmate was in the custody of the department; and
                (2) A determination that the department has, on one (1) or more occasions,
        received a certified copy of a final order of a state or federal court dismissing as
        frivolous or malicious a claim or lawsuit filed previously by the inmate while the
        inmate was in the custody of the department.
                (b) On receipt of a final order described by subdivision (a)(1), the
        commissioner shall forfeit:
                (1) Sixty (60) days of an inmate's accrued good conduct sentence reduction
        credits if the department has previously received one (1) final order described by
        subdivision (a)(2);
                (2) One hundred twenty (120) days of an inmate's accrued good conduct
        sentence reduction credits if the department has previously received two (2) final
        orders described by subdivision (a)(2); or
                (3) One hundred eighty (180) days of an inmate's accrued good conduct
        sentence reduction credits if the department has previously received three (3) final
        orders described by subdivision (a)(2).
                (c) The commissioner may not restore good conduct sentence reduction
        credits forfeited under this section for any reason.

       While the present case refers to valid constitutional principles, the appellant’s arguments are
devoid of merit, for the connections between those principles and the acts of which he complains are
tenuous at best. While there is no doubt that Mr. Sadler feels strongly about the action the parole
board took in his case, strong feelings are no substitute for valid legal arguments.




                                                  -6-
       It thus appears to us that there are sufficient grounds to find this to be a frivolous appeal.
However, in light of the fact that the State has not argued that Mr. Sadler’s appeal was frivolous, we
decline at this time to so find.

                                                 V.

       The order of the trial court is affirmed. Remand this cause to the Chancery Court of
Davidson Count for further proceedings consistent with this opinion. Tax the costs on appeal to the
appellant, Billy Sadler.




                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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