     IN THE COURT OF APPEALS OF TENNESSEE
          MIDDLE SECTION AT NASHVILLE

                                            FILED
                                               May 8, 1996
FRANK R. DALTON,            )              Cecil W. Crowson
                            )             Appellate Court Clerk
    Plaintiff/Appellant,    )
                            )    Davidson Chancery
                            )    No. 95-876-III
VS.                         )
                            )    Appeal No.
                            )    01-A-01-9601-CH-00029
TENNESSEE BOARD OF PAROLES, )
                            )
    Defendant/Appellee.     )



  APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
                AT NASHVILLE, TENNESSEE

         THE HONORABLE ROBERT S. BRANDT, CHANCELLOR



For the Plaintiff/Appellee:           For the Defendant/Appellant:

Frank R. Dalton, Pro Se               Charles W. Burson
                                      Attorney General and Reporter

                                      Patricia C. Kussmann
                                      Assistant Attorney General




                   VACATED AND REMANDED




                                 WILLIAM C. KOCH, JR., JUDGE
                                OPINION

      This appeal involves a prison inmate’s efforts to be paroled. After the
Tennessee Board of Paroles declined to parole him, the inmate filed a petition for
common-law writ of certiorari in the Chancery Court for Davidson County
seeking review of the board’s decision. The trial court dismissed the petition on
the ground that it failed to state a claim upon which relief could be granted, and
the inmate appealed to this court. We have determined that the board has not
demonstrated that it is entitled to a judgment as a matter of law, and therefore, we
vacate the judgment and remand the case for further proceedings.


                                         I.


      Frank R. Dalton raped his twelve-year-old stepdaughter and threatened her
with harm if she reported it. His crime was discovered nonetheless, and on
January 6, 1988, Mr. Dalton pled guilty to aggravated rape, aggravated sexual
battery, and violation of bond and was sentenced to serve twenty-one years. He
is currently incarcerated at the Carter County Work Camp.


      Mr. Dalton had a parole hearing on February 1, 1995. The hearing officer
recommended against parole because Mr. Dalton had not completed a treatment
program for sex offenders. The parole board concurred with the hearing officer’s
recommended disposition, and Mr. Dalton was informed on February 27, 1995
that he would not be paroled and that his case would be reviewed again in
February 1998. One of the concurring board members included a comment on the
disposition form that Mr. Dalton had threatened his victim if she disclosed his
behavior.


      Mr. Dalton filed a pro se petition for common-law writ of certiorari in the
Chancery Court for Davidson County on March 20, 1995. He asserted that the
board’s decision to deny him parole because he had not completed a treatment
program for sex offenders was inconsistent with the consent decree in Dean v.
McWherter, No. 1-90-0027 (M.D. Tenn. filed Aug. 18, 1994). The board moved

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to dismiss the petition on the ground that it failed to state a claim upon which
relief could be granted and supported its motion with an affidavit of its staff
attorney as well as a copy of its record of the disposition of Mr. Dalton’s case.
The trial court granted the board’s motion and dismissed Mr. Dalton’s petition.


                                         II.


      We turn first to the standard of review. The courts will not interfere with
the parole board’s decisions with regard to the release of inmates if these decisions
are made according to law. Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn.
Crim. App. 1995); Tenn. Code Ann. § 40-28-115(c) (1990). Accordingly, the
scope of review available under a common-law writ of certiorari is very narrow
and is limited to determining whether the board exceeded its jurisdiction or acted
illegally, fraudulently, or arbitrarily. Powell v. Parole Eligibility Review Bd., 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994). While the courts will not use the writ to
inquire into the intrinsic correctness of the board’s decisions, Flowers v.
Traughber, 910 S.W.2d at 470; Powell v. Parole Eligibility Review Bd., 879
S.W.2d at 873, they will use the writ to determine whether the board has met its
obligation to follow the applicable law and its own rules. Wells v. Tennessee Bd.
of Paroles, 909 S.W.2d 826, 829 (Tenn. Ct. App. 1995).


      Tenn. R. Civ. P. 12.02 provides that motions to dismiss for failure to state
a claim upon which relief can be granted should be treated as motions for
summary judgment if matters outside the pleadings are presented to and not
excluded by the trial court. While trial courts have discretion to consider
extraneous documents, Pacific Eastern Corp. v. Gulf Life Holding Co., 902
S.W.2d 946, 952 (Tenn. Ct. App. 1995), they must treat a Tenn. R. Civ. P.
12.02(6) motion as a motion for summary judgment if they do not exclude the
extraneous evidence. Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn. 1973); D.
T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 459-60 (Tenn. Ct. App. 1990).




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      The board supported its motion in this case with extraneous documents
which were not excluded by the trial court. Accordingly, its motion to dismiss
must be treated as a motion for summary judgment. It follows that the board was
entitled to the dismissal of Mr. Dalton’s petition only if the material facts are
undisputed and if it is entitled to a judgment as a matter of law. Tenn. R. Civ. P.
56.03; Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993);
Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). Our task on appeal is limited to
determining whether Tenn. R. Civ. P. 56.03's requirements have been met.
Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v. Sovran
Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). While there are no
material disputes concerning the facts relevant to the disposition of this case, we
have determined that the board has not demonstrated that it is entitled to a
judgment as a matter of law.


                                       III.


      The essence of Mr. Dalton’s claim is that the board acted arbitrarily and
illegally by denying him parole because he had not completed a treatment program
for sex offenders. Even though Tenn. Code Ann. § 41-21-235(b) (1990) provides
that “[s]uccessful participation and completion of such treatment program shall be
a requirement of parole from the correctional institutions by such offenders,” Mr.
Dalton asserts that the board could not apply the statute to him under the terms of
the federal consent decree in Dean v. McWherter.


                                        A.


      Dean v. McWherter involved a class action filed in the United States
District Court for the Middle District of Tennessee on behalf of all convicted sex
offenders in the custody of the Tennessee Department of Correction. The inmates
challenged the constitutionality of Tenn. Code Ann. § 33-6-302 (1984) which
defined sexual offenders as “mentally ill persons” who “should be given continued
care and treatment so long as their release would constitute a threat to them or to
the general public.” They also challenged the constitutionality of Tenn. Code

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Ann. § 41-21-235(b). On February 24, 1992, the United States District Court
entered a memorandum and order rejecting the report and recommendation of the
United States Magistrate Judge and determining that Tenn. Code Ann. § 33-6-302
was constitutional on its face. The district court specifically withheld ruling on
the constitutionality of Tenn. Code Ann. § 41-21-235(b).           See Nichols v.
McWherter, No. 3-88-0614 (M.D.Tenn. filed Feb. 24, 1992).


      Thereafter, on June 3, 1994, the parties stipulated that the sexual abuse
treatment program required in Tenn. Code Ann. § 41-21-235(a) had “not been
fully developed and instituted by the Tennessee Department of Correction.” Their
stipulation also provided:

                   2.    The Tennessee Board of Paroles will not
             apply the provisions of Tenn. Code Ann. § 41-21-
             235(b) until such time that the sex abuse treatment
             program is fully instituted.

                    3.   The provisions of Tenn. Code Ann. § 41-
             21-235(b) will be applied only to those sex offenders
             who are committed to the custody of the Department of
             Correction after the sex abuse treatment program is
             instituted.

                   4.     Each sex offender who comes before the
             Board of Paroles will be judged on his or her own
             merits. The Board will apply the factors set forth in the
             Rules of the Board of Paroles, Chapter 1100-1-1-.06, to
             each sex offender in determining whether to grant or
             deny parole.

The United States District Court entered an order on August 18, 1994, approving
the parties’ stipulation and dismissing the suit “without prejudice to the merits of
any claims should the Tennessee Board of Paroles take any action to deny parole
pursuant to Tenn. Code Ann. § 41-21-235(b).” Dean v. McWherter, No. 1-90-
0027 (M.D. Tenn., filed Aug. 18, 1994).




                                        -5-
                                        B.


      The board does not contest the validity or the applicability of Dean v.
McWherter to this case. Instead, it argues that the stipulations do not prevent it
from recommending that a prisoner complete a treatment program for sex
offenders before being released on parole. It interprets the United States District
Court’s order as permitting the use of the completion of a treatment program as a
prerequisite to parole as long as it does not “mechanically” apply Tenn. Code Ann.
§ 41-21-235(b). We do not agree with the board’s interpretation of the United
States District Court’s order.


      Judgments and orders should be construed using the rules of construction
applied to other written instruments. Livingston v. Livingston, 58 Tenn. App. 271,
281, 429 S.W.2d 452, 456 (1967). Thus, we should construe a judgment in light
of the pleadings and the entire record, Vanatta v. Vanatta, 701 S.W.2d 824, 826-
27 (Tenn. Ct. App. 1985); Fleming v. Kemp, 27 Tenn. App. 150, 154, 178 S.W.2d
397, 399 (1944), and we should endeavor to give all parts of a judgment their full,
reasonable, and consistent effect. Branch v. Branch, 35 Tenn. App. 552, 555-56,
249 S.W.2d 581, 582-83 (1952).


      The plain wording of the stipulations approved by the United States District
Court limits the board’s ability to rely on Tenn. Code Ann. § 41-21-235(b). Under
no circumstances can it use an inmate’s failure to complete a treatment program
for sex offenders as grounds to deny parole until it has fully developed and
instituted the treatment program required by Tenn. Code Ann. § 41-21-235(a).
Even after it institutes this program, it can only apply Tenn. Code Ann. § 41-21-
235(b) to inmates who were incarcerated after the program was instituted. The
board’s parole decisions with regard to inmates to whom Tenn. Code Ann. § 41-
21-235(b) does not apply must be consistent with Tenn. Comp. R. & Regs. 1100-
1-1-.06.




                                       -6-
      The board did not merely “recommend” that Mr. Dalton participate in a
treatment program for sex offenders. Its own records and the affidavit of its staff
attorney show clearly that it declined to parole Mr. Dalton because he had not
completed a treatment program for sex offenders. Thus, the board visited upon
Mr. Dalton the very injustice that the United States District Court addressed in
Dean v. McWherter. Since there is no evidence that the department had fully
implemented the treatment program by February 1995, the board imposed an
impossible condition on Mr. Dalton’s parole, namely the completion of a
treatment program that did not exist.


      The Department of Correction had not instituted the treatment program
required by Tenn. Code Ann. § 41-21-235(a) when Mr. Dalton was incarcerated
in 1988. Thus, Mr. Dalton is not one of the inmates whose parole can be denied
pursuant to Tenn. Code Ann. § 41-21-235(b). The board, therefore, acted
arbitrarily and illegally when it refused to abide by the consent decree in Dean v.
McWherter and declined to parole Mr. Dalton because he had not completed a
treatment program for sex offenders. Accordingly, Mr. Dalton’s petition stated
a cause of action upon which relief under a common-law writ of certiorari could
be granted, and the board has failed to demonstrate that it is entitled to a judgment
of dismissal as a matter of law.


                                         C.


      Our determination that the board acted arbitrarily and illegally by failing to
follow its agreement in Dean v. McWherter does not necessarily end the inquiry.
The board’s reliance on Tenn. Code Ann. § 41-21-235(b) could be considered
harmless error if the board had other adequate, independent grounds for declining
to grant Mr. Dalton parole. These grounds, if they exist, must be among the
grounds listed in Tenn. Comp. R. & Regs. 1100-1-1-.06.


      The preprinted document used by the board to report its action states that
the board declined to parole Mr. Dalton because he had not completed a treatment
program for sex offenders and because he “violated position of trust as father

                                        -7-
figure.” The latter rationale does not fit readily into one of the seventeen factors
listed in Tenn. Comp. R. & Regs. 1100-1-1-.06(1) and does not appear to relate
to either Tenn. Comp. R. & Regs. 1100-1-1-.06(3)(b) or 1100-1-1-.06(3)(e).


       Unspecific findings of fact and conclusions of law hamper a court’s ability
to determined whether an administrative decision rests on the law and the
evidence or whether it is arbitrary and capricious. Levy v. State Bd. of Examiners
for Speech Pathology and Audiology, 553 S.W.2d 909, 912 (Tenn. 1977). We
cannot discern from the record of the board’s decision whether it would have
declined to release Mr. Dalton on parole had it not relied upon Tenn. Code Ann.
§ 41-21-235(b) or whether the board properly limited its review of Mr. Dalton’s
case to the factors listed in Tenn. Comp. R. & Regs. 1100-1-1-.06. Accordingly,
we have determined that the trial court should have remanded the case to the board
with directions to consider whether Mr. Dalton should be paroled using only the
factors listed in Tenn. Comp. R. & Regs. 1100-1-1-.06.


       This case differs factually from Arnold v. Tennessee Board of Paroles, App.
No. 01-A-01-9508-CH-00375 (Tenn. Ct. App. May 8, 1996) in which an inmate
also asserted that the board had improperly relied on Tenn. Code Ann. § 41-21-
235(b) to deny him parole. While Mr. Arnold, like Mr. Dalton, was among the
class of sex offenders covered by the Dean v. McWherter federal consent decree,
the board did not specifically decline to parole him because he had not completed
a treatment program for sex offenders. The board declined to parole Mr. Arnold
because of the “seriousness of [his] offense.”1 The board’s decision with regard
to Mr. Arnold was not illegal or arbitrary because Tenn. Comp. R. & Regs. 1100-
1-1-.06(3)(b) authorizes the denial of parole if the inmate’s release would
“depreciate the seriousness of the offense.” Accordingly, Mr. Arnold’s petition for
writ of certiorari failed to state a claim upon which relief could be granted.




       1
         In the space for comments on the board’s disposition form, someone had written
“continue with after care.” While the meaning of this comment is not readily apparent, Mr.
Arnold asserted that “after care” referred to the treatment program required by Tenn. Code Ann.
§ 41-21-235(a). Even if Mr. Arnold is correct, this fact would be irrelevant since the board’s
sole reason for declining parole was the seriousness of Mr. Arnold’s offense.

                                             -8-
                                       IV.


      We vacate the order dismissing Mr. Dalton’s petition and remand the case
to the trial court for the entry of an order consistent with this opinion remanding
the case to the board for further consideration. We tax the costs of this appeal to
the Tennessee Board of Paroles.




                                              ____________________________
                                              WILLIAM C. KOCH, JR., JUDGE


CONCUR:


________________________________
HENRY F. TODD, P.J., M.S.


________________________________
SAMUEL L. LEWIS, JUDGE




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