                    IN THE SUPREME COURT OF TENNESSEE

                              AT NASHVILLE



JIMMY ARNOLD                           )     FOR PUBLICATION
                                       )
                                       )     FILED: NOVEMBER 10, 1997
          Petitioner                   )
                                       )     DAVIDSON COUNTY
v.                                     )
                                       )     HON. C. ALLEN HIGH,
                                       )        Chancellor and
TENNESSEE BOARD OF PAROLES,            )     HON. ELLEN HOBBS LYLE,
et al.                                 )        Chancellor
                                       )
                                       )     NO. 01-S-01-9610-CH-00210
          Respondents                  )


_________________________________             FILED
                                              November 10, 1997
ANTHONY EVANS                          )
                                       )      Cecil W. Crowson
                                       )     Appellate Court Clerk
          Petitioner                   )
                                       )     DAVIDSON COUNTY
v.                                     )
                                       )
                                       )     HON. ELLEN HOBBS LYLE,
TENNESSEE BOARD OF PAROLES,            )        Chancellor
et al.                                 )
                                       )
                                       )
          Respondents                  )




For Petitioner Arnold:                 For Respondents:

JIMMY ARNOLD                           JOHN KNOX WALKUP
Pro se                                 Attorney General and Reporter

                                       MICHAEL E. MOORE
                                       Solicitor General

                                       MERRILYN FEIRMAN
                                       Assistant Attorney General
                                       Nashville, TN


For Petitioner Evans:                  For Respondents:

ANTHONY EVANS                          JOHN KNOX WALKUP
Pro se                                 Attorney General and Reporter

                                       MICHAEL E. MOORE
                                       Solicitor General

                                       PATRICIA C. KUSSMAN
                                       Assistant Attorney General
                                       Nashville, TN


                                 OPINION


AS TO ARNOLD:   AFFIRMED                                          BIRCH, J.
AS TO EVANS:    AFFIRMED IN PART, REVERSED IN PART
           Jimmy Arnold and Anthony Evans, both serving sentences in

the Department of Correction, filed individual petitions for the

common law writ of certiorari in the Chancery Court for Davidson

County.   Each petitioner contended that in reviewing his file for

parole the Board of Paroles (Board) failed to hold an open meeting

as required by the Open Meetings Act, Tenn. Code Ann. § 8-44-101 et

seq. (1993)1     Further, each petitioner challenged the substantive

basis for the Board’s decision denying parole.2



           The trial court dismissed each petition for failure to

state a claim upon which relief may be granted, and the Court of

Appeals   affirmed   the   trial   court’s    judgment.   We   granted   the

petitioners’ applications for permission to appeal and consolidated

the cases.



             The petitioners assert that the procedure utilized by the

Board to make parole decisions3 violates the Open Meetings Act.

Under this procedure, each Board member separately and independently

reviews the cases before the Board.          Each case file is circulated,

in turn, to each of the Board members.         A member formulates his or



     1
      Any action taken in violation of the Act is void.         Tenn. Code
Ann. § 8-44-105 (1993).
     2
      Petitioners contend that the Board relied on the following
“illegal and unconstitutional” factors to deny them parole:
seriousness of the offense, risk to re-offend, number of victims,
completion of the sex offender treatment program (Petitioner Arnold
only), and continued participation in Alcoholics Anonymous
(Petitioner Evans only).
     3
      Official parole decisions include the decision to grant, deny,
revoke, or rescind parole.     See Tenn. Code Ann. § 40-28-105(d)
(1990).

                                     2
her decision without conferring with any other member, relying

solely on the record compiled by the hearing officer.



           Because the Board is not required by its enabling statute

to meet in order to consider parole decisions, we conclude that the

above-described procedure utilized by the Board to make parole

decisions is not subject to the Open Meetings Act.   We further find

that the Board properly denied each petitioner parole.   Finally, we

hold that the trial court erred in dismissing Evans’ claim for

injunctive relief as to the Board’s requirement that he continue to

participate in Alcoholics Anonymous.    As to Arnold, we affirm the

judgment of the Court of Appeals.      As to Evans, we affirm the

judgment of the Court of Appeals in part and reverse in part.



                                 I



           The initial step in the parole decision process is a

hearing before a designated member of the Board or a hearing

officer.   A hearing was held in each case under review to determine

whether the petitioner should be released on parole.    As to Arnold,

the hearing officer recommended that parole be denied because of the

seriousness of the offense and so that Arnold could “continue with

aftercare.”4 The hearing officer’s recommendation and Arnold’s file

were then circulated among the members of the Board.       The Board

members reviewed Arnold’s case individually; there is no evidence

that Board members conferred with one another about Arnold’s case.



     4
      The “aftercare” referred to is apparently the sex offender
treatment program.

                                 3
Rather, each member separately reviewed the file and indicated in

writing his or her adoption or modification of the hearing officer’s

recommendation.            All   four   members   who    reviewed   Arnold’s   case

concurred with the recommendation of the hearing officer to deny

parole.5



                  As to Evans, the hearing officer recommended denial of

parole because of the seriousness of his offense, because of his

high       risk    to   re-offend,   and   so   that    Evans   could   continue   to

participate in the alcohol treatment program. The hearing officer’s

recommendation and Evans’ file were then circulated among members of

the Board.          The five members of the Board who reviewed Evans’ case

concurred with the hearing officer’s recommendation to deny parole.

Three members cited additional reasons for denying parole.                         The

Board utilized the same procedure to reach its decision in Evans’

case as it did in Arnold’s case.



                                           II



                  Under the common law writ of certiorari, the decisions of

the Board are reviewable to determine whether the Board exceeded its

jurisdiction, or acted illegally, fraudulently, or arbitrarily.



       5
      Arnold also requested an appeal hearing before the Board,
citing “significant new information” that was not available at the
initial parole hearing. The “new” information was a stipulation in
Dean v. McWherter, 1:90-0027 (M.D. Tenn. filed August 18, 1994).
According to Arnold, the stipulation prohibited the Board from
denying him parole because he had not yet completed the sex offender
treatment program. Arnold also contended that the hearing officer
had engaged in misconduct by failing to obtain a medical evaluation
to determine whether Arnold posed a threat if released. The Board
denied Arnold’s request.

                                           4
Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn.

Ct. App. 1994). However, the correctness of the Board’s decision is

not reviewable under the writ.   State ex rel. McMorrough v. Hunt,

137 Tenn. 243, 192 S.W. 931, 933 (1917).



          Pursuant to the Open Meetings Act, “[t]he policy of this

state [is] that the formation of public policy and decisions is

public business and shall not be conducted in secret.”     Tenn. Code

Ann. § 8-44-101.   Tennessee Code Annotated § 8-44-102(a) requires

that all meetings of any governing body be public.6         The Open

Meetings Act defines a meeting as “the convening of a governing body

of a public body for which a quorum is required in order to make a

decision or to deliberate toward a decision on any matter.”     Tenn.

Code Ann. § 8-44-102(b)(2).



          Yet, the Board’s enabling statute does not require a

meeting in order to deliberate or make parole decisions.    Tennessee

Code Annotated § 40-28-105 (1990) provides in pertinent part:


               (b) The board shall prescribe the
               times and places of its meetings and
               shall schedule hearings at each
               correctional institution or facility
               at such times as may be necessary to
               discharge its duties.      All votes
               taken by the board shall be by public
               ballot or public roll call.        No
               secret ballots or secret roll calls
               shall be permitted.

               . . . .

               (d) A majority of members of the
               board shall constitute a quorum for


     6
      The Board concedes that it is a “governing body” within the
meaning of the statute and thus subject to the Act.

                                 5
                   official   administrative    business.
                   The chairman of the board may
                   designate individual parole board
                   members and appoint hearing officers
                   who shall be authorized to conduct
                   hearings, take testimony and make
                   proposed   findings    of   fact   and
                   recommendations    to     the    board
                   regarding     a    grant,      denial,
                   revocation, or rescission of parole.
                   Such findings and recommendations
                   shall be reduced to writing and
                   reviewed by board members who shall
                   adopt,   modify,    or    reject   the
                   recommendations. No person shall be
                   paroled nor shall the parole of any
                   person   be   denied,    revoked,   or
                   rescinded without the concurrence of
                   three (3) board members. . . .
                   (emphasis added)


We discern nothing in subsections (b) or (d) that requires the Board

to   meet   and    deliberate   prior         to   making   a   parole    decision.

Subsection (b) simply requires that the Board “prescribe” the times

and places of its meetings.          In other words, when the Board does

meet, proper notice of the meeting is required.                 A “public ballot”

denotes a written document such as was used to deny the petitioners

parole; “public roll call” describes a process commonly used at a

public   meeting    where   Board    members       would    indicate     their   vote

verbally.    In our view, the document on which the Board members

indicated their adoption, modification, or rejection of the hearing

officer’s recommendation, is a matter of public record and, as such,

is   sufficient    to   constitute    a       “public   ballot.”         Similarly,

subsection (d) does not require Board members to meet, confer, or

deliberate on parole decisions.               Rather, Board members are simply

required to review the findings and recommendations and adopt,

modify, or reject them.




                                          6
          Further, a review of the prior versions of this statute

confirms that the legislature has eliminated the requirement that

the Board meet and deliberate prior to making a parole decision.   By

eliminating the requirement that the Board meet and deliberate, the

legislature has clearly demonstrated its intent to exempt from the

Open Meetings Act the Board’s procedure for making parole decisions.

The 1975 version of this statute plainly required the Board to meet

in order to make parole decisions:


               The board shall meet . . . for a full
               study of the cases of all prisoners
               eligible for release on parole, and
               for determining when and under what
               conditions and to whom such parole
               may be granted. . . . A majority of
               the board shall constitute a quorum
               for the transaction of all business.


Tenn. Code Ann. § 40-3602 (1975).    In 1979, the statute was amended

to provide that:


               Three (3) members of the board shall
               constitute    a   quorum    for   the
               transaction of official business and,
               except as hereinafter provided, a
               majority vote of those present at any
               meeting shall be sufficient for any
               action taken by the board. In cases
               of the granting of parole, the
               chairman of the board may designate
               its members to sit in panels of two
               (2) members, which panels shall have
               authority to conduct hearings and
               take testimony and to make proposed
               findings of fact and recommendations
               to the full board regarding the
               disposition of a request to grant
               parole. . . . No person shall be
               paroled or discharged from parole nor
               the parole of any person revoked,
               except by a majority vote of the
               entire membership of the board.




                                 7
Tenn. Code Ann. § 40-3602(d) (Supp. 1980)(emphasis added). In 1981,

the legislature further amended the statute and deleted any mention

of a meeting:


                  (d) Three (3) members of the board
                  shall constitute a quorum for the
                  transaction of official business, and
                  no person shall be paroled or
                  discharged from parole, nor the
                  parole of any person revoked, except
                  by majority vote of the entire
                  membership of the board.          The
                  chairman of the board may designate
                  its members to sit in panels of two
                  (2) members . . . to conduct hearings
                  . . . and make proposed findings of
                  fact and recommendations to the full
                  board . . . . Such findings and
                  recommendations shall be reduced to
                  writing and reviewed by the full
                  board which shall adopt or reject the
                  panel’s findings by majority vote.


Tenn. Code Ann. 40-3602(d) (Supp. 1981)(emphasis added).     In 1988,

the statute was amended to include the language of the present

version.      See Public Act of 1988, Ch. 880, § 3 (findings and

recommendations from hearing are to be reviewed by “other board

members” and a decision made upon the “concurrence” of three Board

members).7     Finally, in 1989, the statute was amended to provide

that the three member quorum requirement applied only to “official

administrative business.”     See Public Acts of 1989, Ch. 227, § 8

(emphasis added).



             In amending this statute over the years, the legislature

has, in our view, purposely eliminated language that required the


     7
      Thus by 1988, the Board was authorized to make parole
decisions upon the concurrence of three members--a significantly
different procedure from the 1980 version that required a majority
vote of the members present at the meeting.

                                   8
Board to meet in order to make parole decisions.        Further, these

amendments establish that the Board’s practice of submitting the

hearing officer’s recommendations in writing to each Board member

individually is consistent with the legislative intent, for we must

assume that the legislature acted with full cognizance of the Open

Meetings Act.



             The petitioners also rely on the Open Parole Hearings Act,

Tenn. Code Ann. § 40-28-501 et seq. (1996 Supp.) as support for

their contention that the Board is required to meet and deliberate

prior to making a parole decision.      However, this statute requires

that parole hearings be public.     Tennessee Code Annotated § 40-28-

105(b) explicitly differentiates between meetings and hearings; we

distinguish “parole decision” from “parole hearing.”       Thus, Tenn.

Code Ann. § 40-28-502 does not apply to parole decisions.



             In sum, because the Board’s enabling statute does not

require that parole decisions be made by meeting, the Open Meetings

Act does not apply to the Board’s procedure for making parole

decisions.    The legislative history of the Board’s enabling statute

illustrates the legislature’s intent to so exempt the Board’s

decision-making process from the Open Meetings Act.     Therefore, the

Board’s procedure of separate and independent review of cases by

Board members neither transgresses the intent of the legislature nor

offends the statute.




                                    9
                                      III



               Petitioners   also   contend    that   the   Board   relied   upon

certain “illegal and unconstitutional” factors in denying parole,

specifically, the seriousness of the offense, the risk to re-offend,

the number of victims, completion of the sex offender treatment

program,8 and continued participation in Alcoholics Anonymous.9



               Release on parole is a privilege, not a right. Tenn. Code

Ann. § 40-35-503(b) (Supp. 1996).             The statute expressly requires

the Board to consider the seriousness of the offense and the

inmate’s risk to re-offend.         Tenn. Code Ann.     § 40-35-503(b)(1) and

(2).       Contrary to the petitioners’ contention, consideration of the

seriousness of the offense at both sentencing and parole does not

violate double jeopardy principles because denial of parole does not

constitute “another” punishment, but rather perpetuates a validly

imposed sentence. See Kelly v. United States Parole Comm’n, 26 F.3d

1016, 1020 (10th Cir. 1994); Averhart v. Tutsie, 618 F.2d 479, 483

(7th Cir. 1980).       Further, the Board is not required to define with

exactitude the weight accorded the seriousness of the offense in

denying parole. See Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 2104, 60 L. Ed.2d

668 (1979).       Consideration of the number of victims is logically

related to the seriousness of the offense.




       8
           This factor applies only to Petitioner Arnold.
       9
           This factor applies only to Petitioner Evans.

                                       10
             In our view, consideration of the seriousness of the

offense, the number of victims, and the risk to re-offend is

appropriate to the parole decision.        Consideration of these factors

does not demonstrate that the Board acted illegally, fraudulently,

arbitrarily,     or   in   excess   of    its   jurisdiction.       Moreover,

consideration of such factors does not implicate any constitutional

right under the circumstances.



             As stated, Arnold contends that the Board illegally denied

him parole because he had not completed the sex offender treatment

program.10    We disagree.   It is unclear whether Arnold was committed

to custody prior to the institution of this treatment program. Even

assuming he was committed prior to the establishment of the program,

the Board is still permitted to recommend the program to sex

offenders.      Because    the   Board   also   properly   relied   upon   the

seriousness of the offense to deny Arnold parole, we do not find

that the Board’s recommendation that he continue treatment supports

a claim that the Board acted illegally or arbitrarily or in excess

of its jurisdiction in denying Arnold parole.11




     10
      In Dean v. McWherter, No. 1:90-0027 (M.D. Tenn. filed August
18, 1994), the State agreed that only those sex offenders committed
to custody after the sex offender treatment program was instituted
would be required to complete that program as a precondition for
release on parole. There is no indication in the record that the
State has failed to comply with this stipulation.
     11
      In a related claim, Arnold contends that Tenn. Code Ann. § 40-
28-116(a)(2) entitles him to a psychological evaluation. However,
this statute restricts the Board’s discretion to parole sex
offenders; it does not grant such offenders the right to an
evaluation.

                                     11
          As stated, Evans contends that the Board acted illegally

by requiring him to continue his participation in an Alcoholics

Anonymous (“AA”) treatment program. Specifically, he urges that the

AA program is a religious one and that required participation in it

violates the Establishment Clause of the First Amendment to the

United States Constitution.



          In his verified petition, Evans states:


                    Petitioner asserts that there is
               only one “alcohol program” available
               to him, and he is being coerced to
               participate in that program, as a
               condition of parole . . . .

                    The   “alcohol    program”   is
               administered   by    the   Tennessee
               Department of Correction (TDOC), but
               the requirement [that] he continue
               [to] participate in the program as a
               condition of parole originates with
               the Board of Paroles. . . .

               . . . .

                    The centerpiece of the program,
               as petitioner experiences it, is the
               twelve (12) steps of Alcoholic[s]
               Anonymous (AA) program/effort.

                    The concept of a higher power is
               at the center of the twelve (12)
               steps.

                    The twelve (12) steps explicitly
               deny that recovery from alcoholism is
               possible without reliance on a higher
               power.

                    The emphasis on a higher power
               is also the central theme of the
               third edition of AA’s basic text
               entitled “Alcoholics Anonymous” which
               is used as an all-purpose guide for
               anyone having difficulty in working
               the twelve (12) steps.



                                12
                      Group prayer is common at the
                 meetings attended by petitioner. The
                 meetings open with the “Serenity
                 Prayer,”      essentially       non-
                 denominational, and close with “The
                 Lord’s Prayer”, a Christian prayer.


            The First Amendment to the United States Constitution

guarantees that “government may not coerce anyone to support or

participate in religion or its exercise, or otherwise act in a way

which ‘establishes a [state] religion or religious faith, or tends

to do so.’” Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649,

2655, 120 L. Ed.2d 467 (1992)(quoting Lynch v. Donnelly, 465 U.S.

668, 678, 104 S. Ct. 1355, 1361-62, 79 L. Ed.2d 604 (1984)).               In

Everson v. Board of Educ., the Supreme Court held:


                 [t]he “establishment of religion”
                 clause of the First Amendment means
                 at least this: Neither a state nor
                 the Federal Government can set up a
                 church. Neither can pass laws which
                 aid one religion, aid all religions,
                 or prefer one religion over another.
                 Neither can force nor influence a
                 person to go to or to remain away
                 from church against his will or force
                 him to profess a belief or disbelief
                 in any religion.    No person can be
                 punished    for    entertaining    or
                 professing   religious   beliefs   or
                 disbeliefs, for church attendance or
                 nonattendance.


Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S. Ct. 504, 511, 91

L. Ed.2d 711 (1947).       While the Supreme Court has wrestled with

questions   of   whether   a   certain   policy   or   practice   favors   or

establishes a religion, there is no debate that a government policy

that requires participation in a religious activity violates the

Establishment Clause:



                                    13
                it [is] “beyond dispute” that the
                Constitution guarantees that the
                government may not coerce anyone to
                support or participate in religion or
                its   exercise.      Individuals   may
                disagree in a particular case over
                other issues, such as whether it is
                the state who acted, or whether
                coercion is present, or whether
                religion or something else is the aim
                of the coercion. But in general, a
                coercion-based    claim   indisputably
                raises    an   Establishment    Clause
                question.


Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996) (quoting Lee v.

Weisman, 5 U.S. at 587, 112 S. Ct. at 2655).         In Kerr, the Seventh

Circuit Court of Appeals held that the Establishment Clause was

violated by a requirement that an inmate observe Narcotics Anonymous

(“NA”) meetings (NA and AA utilize the same treatment philosophy for

different types of addictions).        Id. at 480.     Other courts have

reached like conclusions.     See Warner v. Orange County Dept. of

Probation, 827 F. Supp. 261 (S.D.N.Y. 1993); Griffin v. Coughlin,

673 N.E.2d 98 (N.Y. 1996).



           We find that there are sufficient reasons other than the

requirement of continued alcohol treatment to justify the denial of

parole by the Board.    However, in addition to his claim that the

Board illegally denied him parole, Evans also requested prospective

injunctive relief to ensure that future parole decisions do not

consider an inmate’s participation or nonparticipation in the AA

program.   In this regard, Evans has stated a claim upon which relief

may be granted; therefore, the trial court erred in dismissing the

petition as to this claim.




                                  14
            If, on remand, the trial court finds that the treatment

program    at    issue   is   a    religious   one    and   that   there   are   no

alternative secular treatment programs offered, then to require a

prisoner to attend or participate in such a treatment program would

constitute a violation of the Establishment Clause.                   Attending or

failing to attend such religious meetings can not be considered in

a decision whether to grant or deny parole.



            Accordingly, we reverse the judgment of the Court of

Appeals as to Petitioner Evans’ claim for injunctive relief and

remand    this   cause   to   the    trial    court   for   further    proceedings

consistent with this opinion.          The judgment of the Court of Appeals

as to Petitioner Arnold is affirmed in all respects.                  The judgment

of the Court of Appeals as to Petitioner Evans is affirmed in part

and reversed and remanded in part.              That portion of the costs of

this cause as are attributable to Petitioner Arnold are taxed to

Arnold.    That portion of the costs of this cause as are attributable

to Evans are taxed to the respondent.




                                  ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, CJ.
Drowota, Reid, Holder, JJ.




                                         15
