                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


STEVEN COBB,                               )
                                           )                                     FILED
             Petitioner/Appellant,         ) Lake Circuit No. 96-7580
                                           )                                April 1, 1998
VS.                                        ) Appeal No. 02A01-9707-CV-00144
                                           )                            Cecil Crowson, Jr.
JOSEPH VINSON, Chairman                    )                             Appellate C ourt Clerk
LCRCF Disciplinary Board, et al,           )
                                           )
             Respondents/Appellees.        )


             APPEAL FROM THE CIRCUIT COURT OF LAKE COUNTY
                       AT TIPTONVILLE, TENNESSEE
                THE HONORABLE R. LEE MOORE, JR., JUDGE




STEVEN COBB, pro se
Henning, Tennessee




JOHN KNOX WALKUP
Attorney General and Reporter
SOHNIA W. HONG
Assistant Attorney General
Attorneys for Appellee




REVERSED AND REMANDED




                                                                 ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.

      Stephen Cobb (“petitioner”) filed a pro se Petition for Writ of Certiorari in the Circuit
Court of Lake County against Joseph Vinson, Chairman of the Lake County Regional

Correctional Facility disciplinary board (“LCRCF”); Billy Compton, warden of LCRCF; and

Donal Campbell (“commissioner”), commissioner of the Tennessee Department of

Correction (collectively “respondents”) seeking court review of actions taken by the prison

disciplinary board, prison warden, and department commissioner. Due process violations

resulting therefrom were also alleged. The trial court granted respondents’ motion for

dismissal for improper venue and petitioner has appealed. On appeal, a single issue was

presented for our review: whether the trial court erred in granting respondents’ motion to

dismiss for improper venue. For reasons state hereinafter, we reverse the judgment of the

trial court and remand.



       Essentially, the basic facts of this case are not in dispute. Petitioner is an inmate

in the custody of the Tennessee Department of Correction (“TDOC”) and is currently

confined at West Tennessee High Security Facility. At all times relevant to his Petition for

Writ of Certiorari, however, petitioner was a resident of LCRCF. On September 17, 1996,

a LCRCF official charged petitioner with threatening an employee. The disciplinary board

conducted a hearing on September 27, 1996, and found petitioner guilty of threatening an

employee. As a result of the conviction, the disciplinary board imposed a punishment of

ten days punitive segregation and recommended immediate transfer to another institution.

The decision of the disciplinary board was affirmed by Warden Billy Compton and

subsequently by the commissioner of the Department of Correction, Donal Campbell.

Petitioner contends that he was denied due process in connection with the making of the

charge against him and the ensuing disciplinary hearing.            Specifically, petitioner

characterizes his complaint as follows: (1) the disciplinary board hearing was conducted

without petitioner present; (2) the petitioner was denied the right to call witnesses and no

reason for denial was recorded; (3) the petitioner was denied the right to confront and

cross-examine his accuser; (4) the petitioner was denied the right to testify on his own

behalf; and (5) the disciplinary board did not complete the disciplinary board hearing

summary in accordance with TDOC regulations and did not conduct the hearing in the

manner set forth in TDOC regulations.



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       Petitioner sought a Writ of Certiorari. There are two types of certiorari which exist

in Tennessee--the common law writ provided for in T.C.A. § 27-8-101 (Supp. 1997) and

the statutory writ provided in T.C.A. § 27-8-102 (Supp. 1997). Petitioner seeks both a

common law writ and a statutory writ under the aforementioned statutes.



       Respondents contend that T.C.A. § 27-9-102 and the cases interpreting it mandate

that petitions for writs of certiorari be filed in the county where the official situs of the

agency being sued is located. T.C.A. § 27-9-102 provides:

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

Specifically, respondents argue that under the above statute and the cases interpreting it,

a petition for review of a state prison’s disciplinary board decision can only be filed in the

principal office of the state agency. Here, the state agency is the TDOC principally located

in Davidson County, Tennessee. Therefore, respondents contend that petitioner’s action

could only have been filed in the courts of Davidson County. We disagree.



       The single issue before us is whether the Lake County Circuit Court provided the

appropriate venue for petitioner’s petition for writ of certiorari. In its final order in this case,

the trial court stated: “It appears that under the circumstances, Lake County is not the

proper venue, but without statutory authority to transfer this case, the Court has no

alternative but to grant defendant’s Motion to Dismiss based on improper venue.”



       It is imperative to note that this court has decided a case strikingly similar to the

case before us. In Williams v. Tennessee Department of Correction, No. 02A01-9503-CV-

00046, 1995 WL 575142, at *2 (Tenn. Ct. App. Oct. 2, 1995), petitioner filed a pro se

petition for writ of certiorari in the Circuit Court of Lauderdale County against the

Tennessee Department of Correction seeking court review of actions taken by a prison

disciplinary board, prison warden, and department commissioner. Id. at *1. Petitioner


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alleged due process violations. The trial court granted summary judgment for lack of

subject matter jurisdiction. This court reversed stating that “all jurisdictional requirements

are met for the filing of the petition for certiorari in the courts of Lauderdale County.” Id.

at 3.



        Tracking the reasoning in Williams, we note that under the common law writ of

certiorari, T.C.A. § 27-8-101, judicial review is appropriate when a tribunal, officer, or board

(1) has exceeded the jurisdiction conferred upon the officer or entity, or (2) is acting illegally

and no other “plain, speedy, or adequate remedy” exists. T.C.A. § 27-8-101 (Supp. 1997).



        Like Williams, in the case under submission petitioner complains that the

commissioner, warden, and disciplinary board violated his due process rights by exceeding

their jurisdiction and acting illegally. These allegations are reviewable under the common

law writ of certiorari. Although petitioner has alleged no facts that if true would illustrate

that Correction personnel exceeded their jurisdiction, he has, however, asserted facts that

if true would show “illegal” acts as that term is used in section 27-8-101. We have held that

the common law writ of certiorari is available to correct the “essential illegality” of a denial

of a procedural right guaranteed by the federal and state constitutions. State v. Womack,

591 S.W.2d 437, 442 (Tenn. Ct. App. 1979).



        Furthermore, petitioner in the instant case has no other “plain, speedy, or adequate

remedy.” Petitioner may choose to appeal the disciplinary board’s decision to the warden

and thereafter to the commissioner of TDOC, but the decision of the commissioner is “final”

as noted in Williams. Williams v. Tennessee Dept. of Correction, No. 02A01-9503-CV-

00046, 1995 WL 575142, at *2; TDOC Uniform Disciplinary Procedures VI.E. (Nov. 15,

1993). Neither the Tennessee Code nor the Uniform Disciplinary Procedures provide for

judicial review of the disciplinary board’s actions. We confirm what this court stated in

Williams: “We hold that the trial court has jurisdiction under T.C.A. § 27-8-101 to hear

petitioner’s claims regarding the illegality of acts taken by the disciplinary board.” In the

case before us, we conclude that the Lake County Circuit Court, like that of the Lauderdale



                                                4
Circuit Court in Williams, has jurisdiction under T.C.A. § 27-8-101 to hear petitioner’s

claims regarding the illegality of the actions taken by the disciplinary board.



       Secondly, the statutory writ of certiorari petitioned for by petitioner is available in five

situations: “(1) On suggestion of diminution; (2) Where no appeal is given; (3) As a

substitute for appeal; (4) Instead of audita querela; or (5) Instead of writ of error.” T.C.A.

§ 27-8-102 (Supp. 1997). The only possible circumstance that these facts fall under is

number two--”where no appeal is given.” If the statutory writ lies, review under the writ is

de novo and may be used to correct errors of fact and law committed by the inferior

tribunal. Boyce v. Williams, 389 S.W.2d 272, 276 (Tenn. 1965). Under this writ, the

reviewing court may conduct a trial on the merits. Roberts v. Brown, 310 S.W.2d 197, 207-

208 (Tenn. Ct. App. 1958).



       In Williams, we quoted from Judge Cantrell’s article in 4 Mem. St. U. L. Rev. at 27-

28 as summarizing the case law and succinctly describing the requirements that must be

met before issuance of a statutory writ of certiorari is appropriate:

              In summary, in the absence of a specific statute expressly
              granting the writ, the statutory writ of certiorari is available only
              if the following requirements are met: (1) the order of the
              administrative body of which review is sought is one for which
              no judicial review is provided; (2) the function performed by the
              lower tribunal is essentially judicial in nature; (3) the order for
              which review is sought finally determines the rights of the
              petitioner.

In the case before us, as in Williams, all three of these requirements have been met. The

Tennessee Code and the Uniform Disciplinary Procedure provided no method of judicial

review, other than certiorari. The disciplinary board, in hearing the charge that the

petitioner violated a disciplinary rule and in deciding punishment, was acting in a judicial

nature, as were the warden and commissioner, in reviewing the board’s decision. Finally,

the decision of the board, as affirmed by the warden and commissioner, is final. Once

again, we confirm what was stated in Williams: “In our opinion, the trial court has

jurisdiction under T.C.A. § 27-8-102 to hear petitioner’s claims regarding the illegality of

acts taken by the disciplinary board.” In the case before us, we conclude that the Lake

County Circuit Court, like that of the Lauderdale Circuit Court in Williams, has jurisdiction

                                                5
under T.C.A. § 27-8-102 to hear petitioner’s claims regarding the illegality of the actions

taken by the disciplinary board.



       Like Williams, implicit in our decision that the Lake County Circuit Court has subject

matter jurisdiction is the conclusion that Davidson County courts do not have exclusive

jurisdiction over certiorari review of prison disciplinary actions. T.C.A. §§ 27-9-101 to 27-9-

114 (1980 and Supp. 1997) lays out the framework for review under both the statutory and

common law writs of certiorari.     As mentioned supra, T.C.A. § 27-9-102 provides that

“[s]uch party shall, within sixty (60) days from the entry of the order or judgment, file a

petition of certiorari in the chancery court of any county in which any one or more of the

petitioners, or any one or more of the material defendants reside, or have their principal

office, . . .” This court notes that the appellate courts of this state have, in the past, made

broad, “blanket” statements to the effect that “only the courts of Davidson County have the

necessary subject matter jurisdiction to review the actions of a state agency.” See e.g.,

Norton v. Everhart, 895 S.W.2d 317, 320 (Tenn. 1995). The authority cited for this

statement is taken from the Tennessee Supreme Court’s decision in Tennessee Real

Estate Commission v. Potts, 428 S.W.2d 794 (Tenn. 1968). As stated in Williams, “these

restatements of the principle set forth in Potts are overbroad, in our opinion.” Williams v.

Tennessee Dept. of Correction, No. 02A01-9503-CV-00046, 1995 WL 575142, at *2. In

interpreting § 27-9-102, the Potts court stated that the section

              merely fixes permissible venue for review of Boards and
              Commissions. It does not have the effect of giving the trial
              court of any county wherein the party affected may have
              residence subject matter jurisdiction over the review of a Board
              or Commission exclusively located elsewhere. That section
              merely specifies the courts where the writ might be sought if
              other jurisdictional requirements are met.

Potts, 428 S.W.2d at 796-97 (emphasis added).


       In Williams, this court stated:

              In the case before us, petitioner seeks review of actions taken
              by the prison disciplinary board, the prison warden, and the
              commissioner of the Department of Correction. Petitioner is
              not seeking review of a decision of a state board “exclusively
              located elsewhere.” The situs of the disciplinary board
              involved herein is at WTHSF (West Tennessee High Security
              Facility), in Lauderdale County. Furthermore, the petitioner is

                                              6
              an inmate at the same institution. The warden and members
              of the disciplinary board, employees of the prison, have their
              principal office in Lauderdale County, and likely have their
              residences there as well. The incident from which the charge
              against the petitioner stems occurred in Lauderdale County as
              did the disciplinary board’s hearing on the matter and the
              warden’s affirmance of the board’s decision. Only the
              commissioner of the Department of Correction is located in
              Davidson County. In our opinion, all jurisdictional requirements
              are met for the filing of the petition for certiorari in the courts of
              Lauderdale County.


       Like Williams, in the case before us, petitioner seeks review of action taken by the

prison disciplinary board, the prison warden, and the commissioner of the TDOC.

Petitioner is not seeking review of a decision “exclusively located elsewhere.” The

disciplinary board of the LCRCF is located in Lake County. At the time of the events

incident to this cause, petitioner was an inmate at LCRCF. The warden and members of

the disciplinary board have their principal office in Lake County and likely have their

personal residences there as well. The incident from which petitioner was charged

occurred in Lake County. The disciplinary board’s hearing on the matter and the warden’s

affirmance of the board’s decision all took place in Lake County. The only tie to Davidson

County is the commissioner of the TDOC who further affirmed the decision of the

disciplinary board and warden.



       It is our opinion that all the jurisdictional requirements have been met for the filing

of the petition for certiorari in the courts of Lake County.



       Accordingly, the judgment of the trial court dismissing petitioners claim for improper

venue is reversed. This case is remanded to the Circuit Court of Lake County, which is

respectfully directed to issue both the statutory and common law writs of certiorari, and for

such other proceedings as are necessary and consistent with this opinion. Costs of this

appeal are assessed against respondents, for which execution may issue if necessary.




                                                                    HIGHERS, J.



                                                7
CONCUR:




FARMER, J.




LILLARD, J.




              8
