Danny A. Stewart v. Gayle Ray, Commissioner, TDOC

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 19, 2011

DANNY A. STEWART v. GAYLE RAY, COMMISSIONER, TDOC ET AL.

Appeal from the Chancery Court for Davidson County

No. 10-457-II Carol L. McCoy, Chancellor

No. M2010-01808-COA-R3-CV - Filed May 19, 2011

Danny A. Stewart, a prisoner serving multiple sentences, some concurrently and some

consecutively, filed a petition for certiorari naming as respondents the Commissioner of the

Department of Correction and heads of various other agencies allegedly responsible for

determining his eligibility for parole (collectively referred to as “TDOC”). He alleges TDOC

is incorrectly calculating his eligibility for parole in that it is basing its calulation on the

aggregate consecutive sentences of 42 years, whereas the correct method is to calculate

eligibility on each separate sentence so that he would start serving his next consecutive

sentence as an “in custody” parolee of his earliest consecutive sentence. The trial court

dismissed the case based on Stewart’s failure “to exhaust his administrative remedies,” i.e.,

by seeking a “declaratory order from TDOC before filing the present action.” Stewart

appeals. We vacate the order of dismissal and remand for further proceedings.

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

Vacated; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL

S WINEY and J OHN W. M CC LARTY, JJ., joined.

Danny A. Stewart, Nashville, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Pamela S. Lorch, Senior Counsel,

Nashville, Tennessee, for the appellees, Gayle Ray, Commissioner, Tennessee Department

of Correction; Candice Whisman, Director, Sentence Claculation/Sentence Information

Department; Tennessee Board of Probation and Parole; William Parsons, Director, Parole

Hearings; and Charles Traughber, Chairperson, Tennessee Board of Probation and Parole.

OPINION

I.

In 2003, Stewart entered a guilty plea to multiple drug charges. He was sentenced to

prison on each charge, some to be served concurrently and some to be served consecutively.

The consecutive sentences total 42 years, in increments of 20 years, 12 years and 10 years.

He was first denied parole in 2006 after a “safety valve” hearing; he was scheduled for a

rehearing in three years. On October 19, 2009, the subsequent parole hearing was held.

Stewart was again denied parole. He filed a request for an appeal hearing with the Tennessee

Board of Probation and Parole based on alleged “significant procedural errors.” He attached

to his request an explanation of his reasons in which he argued that, pursuant to Howell v.

State, 569 S.W.2d 428 (Tenn. 1978), an inmate with separate determinate sentences must be

considered for parole on each sentence separately. He argued that TDOC was acting in

violation of Howell by calculating his eligibility based on his aggregate sentence of 42 years.

The Board of Probation and Parole denied the appeal in a letter dated January 27, 2010. The

letter advised Stewart that the review was conducted in accordance with Tenn. Code Ann §

40-28-105 and the Administrative Rules and Regulations of the Tennessee Board of

Probation and Parole, and, significantly, further advised that the “disposition is final and

there is no further appeal recourse available to you on this matter through the Tennessee

Board of Probation and Parole.”

On March 17, 2010, Stewart filed his petition for writ of certiorari. The substance of

his allegations is that he became eligible for parole sometime in 2006 and that, at least by the

time of the 2009 parole hearing, he should have been earning credit toward his second

sentence as an in custody parolee on his first sentence. This, according to the allegations of

Stewart’s complaint, is what Howell requires. The complaint also fairly alleges that even

after Stewart attempted to bring the error to TDOC’s attention through his administrative

appeal, it persisted in its error. The complaint incorporates numerous exhibits which include

TDOC’s notification of denial of parole, the request for appeal, and the denial of appeal. The

complaint specifically alleges that “once [Stewart] has complied with his right to appeal . . .

the [TDOC] decision to deny him parole from custody, there exists no other plain, speedy,

or adequate remedy available for him to address the issues . . . .”

TDOC filed a motion to dismiss on the sole ground that “Stewart has failed to allege

and show that he filed a petition for declaratory order from the Tennessee Department of

Correction prior to filing the court petition, in derogation of Tenn. Code Ann. § 4-5-225(b).”

The trial court agreed with TDOC and granted the motion. The order of dismissal states, in

pertinent part:

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Although the Petitioner has styled this case as a certiorari action,

the statutory scheme implementing common law certiorari

envisions judicial review of a final order or judgment issued

after a hearing by a board, commission, or officer exercising

judicial or quasi-judicial authority. Bernard v. Metropolitan

Government of Nashville and Davidson County, 237 S.W.3d

658, 664 (Tenn. Ct. App. 2007). The statutes also contemplate

that a record of the hearing will be examined by the reviewing

court. Id. In contrast, a declaratory judgment action brought

pursuant to Tenn. Code. Ann. § 4-5-225 of the Uniform

Administrative Procedures Act (“APA”) is an original action

that allows a party to challenge the legal validity of a statute,

rule, or order of an agency, or its application to specific

circumstances. Utley v. Rose, 55 S.W.3d 559, 562-563 (Tenn.

Ct. App. 2001).

In the present case, the Petitioner contends that TDOC failed to

schedule him for custodial parole hearings on his consecutive

determinate sentences. There is no underlying hearing to form

the basis for certiorari review.1 Instead, the Petitioner alleges

that the Respondents have misapplied the law to his particular

circumstances. Accordingly, this action is properly

characterized as a Declaratory Judgment action.

Before seeking a declaratory judgment, a petitioner must first

seek a declaratory order from the underlying agency. Watson v.

Tennessee Department of Correction, 970 S.W.2d 494, 497

(Tenn. Ct. App. 1998). Tenn. Code Ann. § 4-5-225(b) states

that

a declaratory judgment shall not be rendered

concerning the validity or applicability of a

statute, rule or order unless the complainant has

petitioned the agency for a declaratory order and

1

The Petitioner states that he had a parole hearing on October 19, 2009, as a result of which he was

denied parole. He further states that he appealed the denial on December 10, 2009 and that his appeal was

denied in a letter dated January 27, 2010. The Petitioner is not seeking judicial review of this parole decision

in the present action.

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the agency has refused to issue a declaratory

order.

Thus, before this case can proceed, the Petitioner is required by

statute to exhaust his administrative remedies.

Nowhere in the petition does the Petitioner state that he sought

a declaratory order from TDOC before filing the present action.

The Tennessee Supreme Court has stated that “[i]n no uncertain

terms, [Section 4-5-225] requires a prospective plaintiff to make

a request for a declaratory order with an agency before bringing

an action for a declaratory judgment in the Chancery Court.”

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 842 (Tenn.

2008)(citing Watson v. Tenn. Dep’t of Corr., 970 S.W.2d 494

(Tenn. Ct. App. 1998)).

(Brackets and footnote in original.)

II.

Stewart has articulated several issues in his brief, but the focus of his appeal is

whether the trial court erred in dismissing his case for failure to exhaust his administrative

remedies. Our standard of review of such a dismissal is de novo without a presumption of

correctness. Bernard v. Metropolitan Government, 237 S.W.3d 658, 662 (Tenn. Ct. App.

2007).

III.

There can be no doubt that one seeking a declaration that his sentence is being

improperly calculated for parole purposes must first allow TDOC or its designee an

opportunity to address the question. As we stated in Bonner v. Tennessee Dept. Of

Correction, 84 S.W.3d 576 (Tenn. Ct. App. 2001),

It is settled that an inmate may seek judicial review of the

Tennessee Department of Correction’s calculation of the

prisoner’s sentence, including reduction credits, pursuant to

Tenn.Code Ann. § 4–5–101 et seq , but that inmate must first

seek a declaratory order regarding the sentence calculation from

the Department. Tenn.Code Ann. § 4–5–225(b); Watson v.

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Tennessee Dep’t of Corr., 970 S.W.2d 494, 497 (Tenn. Ct. App.

1998); see also Jones[v. Reynolds], 1997 WL 367661, at *2

[(Tenn. Ct. App. July 2, 1997)] (the manner of calculation of

prisoner’s sentence, including credits, was subject to review by

petition for declaratory judgment).

The plain language of Tenn.Code Ann. § 4–5–225 requires a

petitioner to seek a declaratory order from the agency as a

prerequisite to filing a petition for declaratory judgment with the

court. Absent evidence that such an order was sought, the

petition must be dismissed for lack of subject matter

jurisdiction. Watson, 970 S.W.2d at 497.

Id. at 583; but see Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008)(holding

some applications of the statute to be unconstitutional in violation of the separation of powers

doctrine).

The statute relied upon by us in Bonner states as follows:

A declaratory judgment shall not be rendered concerning the

validity or applicability of a statute, rule or order unless the

complainant has petitioned the agency for a declaratory order

and the agency has refused to issue a declaratory order.

Tenn. Code Ann. § 4-5-225(b)(2005).

We note, however, that neither the statute nor the cases specify the exact form that a

request for a declaratory order from the agency must take. In the absence of authority to the

contrary, we hold that any written request which makes the agency aware of the substance

of the controversy and asks the agency to act in accordance with a suggested course of action

is sufficient.

Stewart argues that, after TDOC denied his appeal, he had “no other administrative

remedy to exhaust; nor, is there any plain, speedy, or adequate administrative remedy to

address the issue(s) raised after the . . . decision [to deny in custody parole].” We agree.

Stewart’s request for appeal to TDOC clearly raised the issue of whether the TDOC was

calculating his sentence and his eligibility for parole in contravention of Howell. Further,

it asked TDOC to act in accordance with Howell and to not base eligibility for parole on his

aggregate sentence. TDOC denied Stewart’s request and told him that the decision was final

and that there was no further avenue of appeal. We hold that the request for appeal on the

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basis of Howell and the letter denying appeal satisfied the requirement of requesting a

declaratory order from the agency prior to filing what the trial court treated as a declaratory

judgment action.

Alternatively, we hold that, even if the trial court did not have subject matter

jurisdiction over the case as a declaratory judgment action, it had subject matter jurisdiction

through the writ of certiorari, codified now at Tenn. Code Ann. § 27-9-101 (2000)2 . It is not

always easy to determine whether a case is properly brought as a declaratory judgment action

or by demand for a writ of certiorari. See Bernard, 237 S.W.3d at 662-65; Thompson v.

Department of Codes Admin., 20 S.W.3d 654, 659-60 (Tenn. Ct. App. 1999). In general

illustrative terms, a declaratory judgment action is the proper vehicle to challenge the validity

of a statute or a rule, whereas certiorari is the vehicle for challenging an agency’s final

determination after a hearing that requires application of the statute or rule. Bernard, 237

S.W.3d at 665. Sometimes, however, provided the case is timely filed and the jurisdictional

prerequisites are met, a given case might qualify for judicial review under both the

declaratory judgment statute and the writ of certiorari. See Bonner, 84 S.W.3d at 582-83

(case was untimely as an action for certiorari and did not ask for a declaratory order of the

agency so as to qualify as a declaratory judgment action); Thompson, 20 S.W.3d at 660

(since the litigant did not perfect a certiorari action by asking for a hearing that would allow

preparation of a record for judicial review, the matter would be reviewed as a declaratory

judgment action).

In the present case, Stewart did all he could do to secure a hearing with the TDOC that

would allow for review, and he appealed the matter as high as he could within the

administrative agency. Morever, he alleged in his petition that the agency was acting

illegally and beyond its jurisdiction, and he filed the matter as a “petition for common law

writ of certiorari” less than 60 days of the denial of his request for appeal. His petition

specifically references “T.C.A. § 27-9-101 et seq.” as a basis of jurisdiction. We are aware

2

The statute provides, in pertinent part, as follows:

Anyone who may be aggrieved by any final order or judgment of any board

or commission functioning under the laws of this state may have the order

or judgment reviewed by the courts, where not otherwise specifically

provided, in the manner provided by this chapter.

Id.

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that the trial court stated in a footnote to its order of dismissal that “Petitioner is not seeking

judicial review of [the denial of parole as a result of the October 19, 2009, hearing and the

denial of appeal by letter of January 27, 2010] in the present action.” We believe the trial

court is reading the allegations of the pro se complaint too narrowly. Courts must be mindful

when dealing with a pro se litigant to read the pleadings for their substance more than for

their form. Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003). Pleadings

prepared by pro se litigants are entitled to be construed with as much liberality as pleadings

prepared by attorneys. Id. We believe it is clear that the substance of Stewart's petition is

that he is “seeking judicial review of the . . . parole decision in this action.” It is also clear

that part of the reason he is seeking judicial review is that TDOC continued to ignore Howell,

thereby acting illegally and outside its authority, even after he had pointed out the problem

in his request for appeal from the parole hearing. It is true that Stewart also alleged that

TDOC violated Howell by not holding hearings as they came due. This, we believe, is fairly

read as a permissible alternative pleading. Tenn. Rule. Civ. P. 8.05(2). We hold, therefore,

that the trial court had subject matter to review the administrative action of TDOC pursuant

to Tenn. Code Ann. § 27-9-101.

Rather than address the merits, we will remand this matter to the trial court for a

determination of the merits of the case. Nothing herein is intended to state an opinion one

way or the other on the merits of the case. We merely hold that the trial court erred in

holding that it did not have subject matter jurisdiction to hear this case.

IV.

The judgment of the trial court is vacated. Costs on appeal are taxed to the appellees,

Gayle Ray, Commissioner, Tennessee Department of Correction; Candice Whisman,

Director, Sentence Calculation/Sentence Information Department; Tennessee Board of

Probation and Parole; William Parsons, Director, Parole Hearings; and Charles Traughber,

Chairperson, Tennessee Board of Probation and Parole. This case is remanded, pursuant to

applicable law, for further proceedings consistent with this opinion.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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