                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs December 14, 2000

    PEGGY BOLES v. TENNESSEE DEPARTMENT OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                     No. 99-3088-I Irvin H. Kilcrease, Jr., Chancellor



                      No. M2000-00893-COA-R3-CV - Filed July 26, 2001


The wife of an incarcerated person brought an action seeking to have a policy of the Department of
Correction declared invalid. The policy involved a visitor’s responsibility to control children while
visiting an inmate in a state prison. 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

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

Peggy Boles, Pro Se.

Paul G. Summers, Attorney General, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant
Attorney General, for the appellee, Tennessee Department of Correction.

                                              OPINION

         The appellant, Ms. Boles, whose husband is incarcerated, brought a petition for declaratory
judgment pursuant to Tenn. Code Ann. § 4-5-225 challenging a policy of the Department of
Correction regarding control of the behavior of children while visiting incarcerated persons in state
prisons. Among other things, the subject policy provided that visitation may be terminated if visitors
fail to control their children while visiting.

        The trial court dismissed Ms. Boles’s petition for failure to state a claim because (1) Ms.
Boles lacks standing since she did not allege that her visitation rights were terminated for her failure
to control her children, (2) Ms. Boles may not bring this action on behalf of others since she is not
a licensed attorney, 1 (3) there is no constitutional right to unfettered visitation with prisoners, and
(4) the Department is not required to promulgate its policies regarding the operation of prisons under
the Administrative Procedures Act. Ms. Boles appeals from the dismissal of her petition.

                                                             I.

       Mrs. Boles asked the court to set aside Tennessee Department of Correction Policy #507.01,
which provides:

         Visitors are responsible for controlling their children. Children are not allowed to
         run or play in the main visiting area or on the yard. Disciplining children is strictly
         up to the VISITOR and not the inmate.

        Policy # 507.01(VI.)(F)(2) provides that visitation may be terminated for “Visitors who fail
to control their children.”

         Ms. Boles visits her incarcerated husband regularly. In her opposition to the motion to
dismiss, she explained that she routinely brought her grandson to visit his grandfather on weekly
visits, but “these visits had to be severely curtailed” because of Policy #507.01. On appeal, she
asserts that the policies are unrealistic in their expectations of the behavior of three-year old children.
In particular, she alleges that the policy “directly affects the Appellant’s privilege to visit with her
husband by restricting the normal movements and actions of their 3-year- old grandson.”2 Ms. Boles
does not allege that her visitation rights have been terminated or that any particular visit has been
terminated.

       Ms. Boles brought her action pursuant to Tenn. Code Ann § 4-5-225, which provides in
pertinent part:

         (a) The legal validity or applicability of a statute, rule or order of an agency to
         specified circumstances may be determined in a suit for a declaratory judgment in the
         chancery court of Davidson County, unless otherwise specifically provided by statute,
         if the court finds that the statute, rule or order, or its threatened application, interferes
         with or impairs, or threatens to interfere with or impair, the legal rights or privileges
         of the complainant. The agency shall be made a party to the suit.



         1
          In the trial court, Ms. Boles asked that visitation of all persons whose visitation had been terminated for failure
to control their children be reinstated. She did not specifically allege that any particular person’s visitation had been
terminated. She also generally objected to the policy on behalf of others subject to its restrictions. On appeal, Ms. Boles
does not attempt to assert rights or seek re lief on behalf of other persons.

         2
          In the trial court, Ms. Bo les argued tha t the requirem ent that the visitor b e responsib le for discipline of a
visiting child interfered with the grandparents’ right to share parenting responsibilities. She does not rely on that
argument o n appea l.

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       A prerequisite to such an action is the filing with the agency a request for a declaratory order,
Tenn. Code Ann. § 4-5-225(b), and such requests may only be filed by “an affected person,” Tenn.
Code Ann. § 4-5-223(a). Thus, under the Administrative Procedures Act, a court may issue a
declaratory judgment if an “affected person” seeks that relief and if the rule or order, or its
application, interferes with, impairs, or threatens to interfere with the person’s rights. Richardson
v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 456 (Tenn. 1995).

        Standing is a prerequisite to an action for declaratory judgment, including a petition filed
pursuant to the Administrative Procedures Act. Tennessee Med. Ass’n v. Corker, No. 01A01-9410-
CH00494, 1995 WL 228681 at *1 (Tenn. Ct. App. April 19, 1995) (no Tenn. R. App. P. 11
application filed). “Standing is a limitation upon judicial power. The standing requirement imposes
a duty to allege a ‘particularized injury concretely and demonstrably flowing from the action of the
defendants which will be redressed by the remedy sought.’” Id. (citations omitted). In addition,

        a declaratory judgment action cannot be used by a court to decide a theoretical
        question, render an advisory opinion which may help a party in another transaction,
        or “allay fears as to what may occur in the future.” Thus, in order to maintain an
        action for a declaratory judgment a justiciable controversy must exist. For a
        controversy to be justiciable, a real question rather than a theoretical one must be
        presented and a legally protectable interest must be at stake.

State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (citations omitted).

       Finally, a court’s authority to set aside an administrative rule or order is limited by the
following provision of Tenn. Code Ann. § 4-5-225(c):

        In passing on the legal validity of a rule or order, the court shall declare the rule or
        order invalid only if it finds that it violates constitutional provisions, exceeds the
        statutory authority of the agency, was adopted without compliance with the
        rulemaking procedures provided for in this chapter or otherwise violates state or
        federal law.

        The trial court determined that Ms. Boles lacked standing to bring this action because she did
not allege that her rights or privileges had been interfered with or impaired by the policy. We agree,
because Ms. Boles has not alleged that her visitation rights have been terminated. As we interpret
Ms. Boles’s claims on appeal, she asserts that her visitation is affected or curtailed because she must
control the behavior of her three-year old grandson when she brings him to visit his grandfather or
face the possibility that her visitation will be terminated or suspended. We conclude that such a
allegation does not allege impairment of a legally protectable interest. We further conclude that the




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court properly dismissed her petition to have the policy set aside, or invalidated, because her claims
do not amount to an allegation of a violation of a constitutional provision, or a state or federal law.3

        Prison officials are responsible for the safety and security of inmates, employees and visitors
of their institutions. They have a great deal of discretion in establishing policies and rules which
further the penological purposes of safety and security. It is well established that visitation of
prisoners is subject to regulation. Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995). Persons who
seek to enter a prison in order to visit an inmate do not have unfettered rights to such visitation. Id..
Where visitors’ interests may be affected by prison limitations on visits, courts have generally
“‘[struck] the balance in favor of institutional security,’ and accorded great weight to the
‘professional expertise of corrections officials.’” Id. (citations omitted).

                  Prisons are dangerous and filled with law-breaking because that is
                  where the criminals are. Even the most secure prisons are dangerous
                  places for inmates, employees, and visitors. . . .

                  [B]ecause of the need for prison security, visitors do not have the
                  same right of unimpeded access to prisoners, without government
                  scrutiny, that they would have to persons in society outside prison. .
                  . . [T]he government’s power to intrude depends on the fact that the
                  person insists on access.

Id. at 630, 632.

        Similarly, an inmate’s family member has no constitutional right to contact visitation,
including no First Amendment right of association. Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th
Cir. 1997). We find no authority to support invalidating a policy which imposes behavior
requirements on children who are brought to visit incarcerated individuals. There exist many sound
reasons for prison officials to institute such a policy which relate to safety and security of inmates,
visitors, and employees.

                                                           II.

        Ms. Boles also asserts that the policy is invalid because it was not promulgated as a rule
under the Administrative Procedures Act. If the policy is properly defined as a rule, it would indeed
be subject to invalidation by the court if it was not promulgated in compliance with requirements
of the Administrative Procedures Act. Tenn. Code Ann. §§ 4-5-216 and -225(c).

         The UAPA defines “rule” as


         3
           On appeal, Ms. Boles no longer alleges any constitutional violation, but maintains that she is not required to
assert a violation of a constitutional right in order to have standing to bring an action for a declaratory judgment under
Tenn. C ode Ann . § 4-5-225 (a).

                                                           -4-
       each agency statement of general applicability that implements or prescribes law or
       policy or describes the procedures or practice requirements of any agency. “Rule”
       includes the amendment or repeal of a prior rule, but does not include:

       (A) Statements concerning only the internal management of state government and not
       affecting private rights, privileges or procedures available to the public
       [and]
       (G) Statements concerning inmates of a correctional or detention facility.

Tenn. Code Ann. §4-5-102(10).

        The Department asserts that the policy in question falls within both the statutory exemptions
set out above. In Mandela v. Campbell, 978 S.W.2d 531 (Tenn. 1998), our Supreme Court
considered a similar challenge to the Department’s policies on disciplinary procedures for prisoners.
In that opinion, the Court said:

               The legislature has provided the TDOC considerable deference and
               broad discretionary powers to enable the TDOC to manage its
               tremendous responsibilities. See Tenn. Code Ann. § 4-6-102. . .
               This broad grant of legislative discretion necessarily includes the
               power to establish policies and procedures for handling disciplinary
               matters. This broad grant of discretion also envisions that those
               persons intimately involved with the intricacies of the prison system
               and not the voting public are best equipped to establish policies and
               procedures for inmate discipline.

               The promulgation requirements of public notice, public hearing,
               attorney general approval, and filing with the state are simply not
               realistic requirements for implementing procedures that concern the
               intricacies and complexities of a prison environment.

Id. at 534.

       The Court determined that the Department’s disciplinary procedures are internal operating
procedures which are not “rules” under the Administrative Procedures Act. The Court’s decision
was based primarily on its reading of the APA in pari materia with the statutes governing the
authority of the Department, and finding such a reading evidenced a legislative intent “to grant
considerable deference to those best suited and most familiar with the prison setting when
constructing inmate disciplinary policies and procedures.” Id. at 535.

       The Supreme Court’s holding in Mandela was limited to prisoner disciplinary procedures,
and those policies are distinguishable from policies regarding visitation, at least with regard to the
impact on unincarcerated persons. However, visitation policies govern prisoners also, and a


                                                 -5-
prisoner’s rights to visitation can be curtailed due to certain disciplinary infractions. They are
certainly “procedures that concern the intricacies and complexities of a prison environment.”
Visitation can and must be regulated in the interest of institutional safety and security. Therefore,
we conclude that policies regulating visitation at the institution and, consequently to some extent
persons who enter into the institution for purposes of visiting an inmate, are “statements concerning
inmates of a correctional or detention facility” under Tenn. Code Ann. § 4-5-102(10)(G).

       As the Supreme Court found, the legislature has given broad discretion to the Department
to manage its facilities:

         The management and government of the state penitentiaries for adults are vested in
         the department of correction. It has all the power necessary for the full and efficient
         exercise of the executive, administrative, and fiscal supervision over all such
         institutions, except as otherwise expressly provided.

Tenn. Code Ann. § 4-6-102.

       The legislature has also exempted the Department from the rulemaking requirements of the
Administrative Procedures Act in the establishing of policies concerning inmates of the prisons
under the Department’s control. Therefore, we conclude that the Department’s policy on the
governance of the behavior of children who visit prisons are not required to be promulgated
following the rulemaking requirements of the APA.

         We affirm the trial court’s dismissal of the petition. Costs are taxed to the Appellant, Peggy
Boles.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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