# FILED
September 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JOHN L. GO ODWIN, III , ) ) Plaintiff /Appella nt, )

) Sumner Chancery ) No. 95C- 88 VS. ) ) Appeal N o. ) 01A01-9509- CH-00423 HENDERSO NVILLE PO LICE DEPT., ) DAVIDL. KEY, Polic e Chief, and ) R.J. (HANK) THOMPSON, Mayor, ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE TOM E. GRAY, CHANCELLOR

For the Plaintiff/

Appellant : For the Defendants/Appellees : John L. Goodwin, III John R. Bradley Pro Se Hendersonville, Tennessee



## APPEAL DISMISSED

WILLIAM C. KOCH, JR., JUDGE1 State v. Goodwin , App. No. 01C01-9108-CR-00242, 1992 WL 328725, at *3-4 (Tenn. Ct.

App. Nov. 12, 1992) (No Tenn. R. App. P. 11 application filed). -2- 

## O P I N I O N

This appeal concerns the efforts of a state prisoner to obtain ac cess to the police investigat

ive files relating t

o his convictions. The prisoner filed suit agains t the Hendersonville Police Department in the Ci rcuit Cou rt for Su mner Count y seeking access to the department’s investigative files on the grounds they contained
e xculpatory evidence that had be en withhe ld during his criminal pr osecution. Th e police department responde d by assert ing that cr

iminal pro ceedings involvi ng the prisonerwere still open because his case had been remanded for resentencing and that the prisonerdid not have standing to seek relief under the Public Records Act. Based
on the pleadings, the trial court determined that while the prisoner’s prosecution was over, the prisoner was not ent itled to r elief unde r the Publi c Records Act. T h e prisoner ha s appeale d. We ha ve determ ined that w e cannot

reach the merits of this case bec ause the pr

isoner’s n otice of a

ppeal wa s untimely.

I.

On Decemb er 12, 1989 , JohnL. Goo dwin was convicted in the Criminal Court for Sumner County of se cond degre e burglar y and assault with intent to commit rape. He received two consecut ive eight -year sente nces. He did not pursue a direct appeal from these convictions. However, he later filed a petition for post-conviction relief, alleging, among other things, that he was denied effective assistance of counsel when deciding whether

to file a m

otion for ne w trial o r to pursu e a direc t appeal. The criminal cou rt de nied post-c onviction re lief; how ever, on November

12, 1992, t

he Courtof Criminal Appeals h eld that Mr . Goodw in should be af forded the

right to fi le a motion fo r new tr

ial and to pe

rfect a delayed a

ppeal. 1

On April 12, 1995, Mr. Goo dwin filed a pr o se suit aga

inst the Hendersonvill e Police Departm

ent and othe

rs seeking access tothe department’s invest igativefiles concernin g his crime s. He a sserted th at these files contained exculpatory evidence thathad been im properly w ithheld by the district a ttorney gen eral duri ng his 19892 The police department was relying on Appm an v. W orthington , 746 S.W.2d 165, 166-67 (Tenn. 1987) in which the Tennessee Supreme Court held that persons char ged with crimes were not entitled to obtain access to police investigative files under the Public Records Act as long as there was a pending criminal prosecution. -3- trial. Eight days later, the Court of Criminal Appeals remande d Mr. Go odwin’s c ase to the criminal court(1) to recalculate his sentence in the manner required by State
v. Pearson , 858 S.W .2d 879 (T enn. 1993) , (2) to i dentify the enhanci ng factors applied to each c onviction, and(3) to re consider t he issue of

consecutiv e sentenc ing. See State v. G

oodwin , 909 S.W.2d 35, 45-46 (Tenn. Crim. A pp. 1995).

On May 22, 1995, the l ocal author ities move d to dismiss Mr. Goodw in’s Public Records Act

suit on the gr

ound that Mr. Goodwin’ s crimina l case w as still ope n and, therefore, that hedid not have a present r ight to exam

ine the inve stigative f

iles. 2 The trial court deni ed the moti on to dismiss a nd directe d the authori ties to prod uce the files for the c ourt’s inspe ction. The trial cour t later a nnounced tha

t “[a] c omplete a

nd thorough reading th

rough theinvestigat

ive file . . . revea

led nothing e xculpatory

for plainti ff.”

The local authorities filed a ti mely Tenn. R. Ci v. P. 59 m otion reque sting the trial court to alter or am

end i ts o rder bec ause Mr. Goodwin’ s crimina l prosecut ion
was ongoing fo llowi ng the remand for resentencing by the Court of Criminal Appeals. For the f

irst time , the loca

l authoriti es also ass erted tha t Mr. G oodwin lacked standing to i nvoke thePublic Re cords Act bec ause , as a convicte d felon, h e was not a “cit

izen” for the purpose

of Tenn. Code Ann. § 10-7-503(a) (Supp. 1996). On July 11, 1995, the trial court filed a memora ndum opinion a

nd final or

der, fi nding thatthe crimin al proceedi ngs inv olving Mr. Goodwin we re over even though t he Courtof Crimi nal Appea ls had r emanded the case f or resent encing. H owever, the trial court dismissed Mr. Goodwin’s complaint on the ground that he had lost h is citizenshi p rights foll owing his f

elony c onvicti ons and, the refore, he did not ha

ve standing the seek r

elief unde

r the Publi c Recor

ds Act. Mr. Go odwin, st ill represe nting himself, then sought toappeal tothis cou rt. His noncom pliance w ith the procedural rules for perfecting an appeal as of right to this court is outcome determinative.

II.-4- Mr. Goodwin was incarcerated in the Lake County Regional Correctional Facility in Tiptonvi lle when h e filed thi s suit in Apr il 1995. Se veral mont

hs later, the prisonautho ritie s moved him t o the River

bend Maxim

um Secur

ity Facili ty in Nashville

. Mr. Go odwin infor med the tr

ial court c lerk of his change of address o n July 14, 1995. As it turned out, the tr ial court c lerk had a

lready ma iled a copy

of the trial court’s memorandum opinion and fi nal order t o Mr. Go odwin by the time he received notice of his change of address. The mo ve did not prevent Mr. Goodw in from receiving the copies of the memorandum opinion and final order. On August 7, 1995, he ma

iled his noti ce of

appeal and designation of the appellate record to the trial court clerk. The trial court clerk received and fi l ed Mr. G oodwin’s no tice of appeal on Au gust 11, 1995 - thirty-one days after the entry of the trial court’s final order.

A.

The local authorities moved to dismiss Mr . Goodw in’s appea l on the grou nd thathe had failed to file his notice of appeal with the trial court cler k within thirty days as required b y Tenn. R. App. P. 4(a) . We previously declined to dismiss Mr. Goodwin’s appeal, but the local authorities have pressed us to reconsider this issue. We have an obligation to return to this question because an appellant’s compliance withTenn. R. App. P. 4(a) is anecessar y prerequi site to our a

ppellate j urisdiction

. See Jefferson v. Pneu mo Servs. Corp. , 699 S.W.2 d 181, 184 (Tenn. Ct. App. 1985). Appellat e courts hav e the inher

ent power to revisit the

issue of their jurisdic tion, and
so our previous refusal to dismiss this appeal does not prevent us fro m givin g additional considera

tion to this q

ue stion. We must remain free to set aside an
erroneous order re lating to our subject ma

tter juri sdiction.

Whether we have s ubject ma

tter juri sdiction ove

r thi s appeal turns on an extreme ly na rrow procedu ral point. The procedural rules, however, regulate the order and method b y which thi ngs must be do ne. It pr ovides the t

ravelabl e avenue f

or ar riving at the appl ication o f the subs tantive l aw. See Occidenta l Life Ins. C o. o f Calif. v. Kiel

horn , 98 F. S upp. 288, 2 92-93 (W. D. Mich . 1951); Allen v. Fisher , 574 P.2d 1314, 1315 (Ariz. Ct . App. 1977). As Professor Llewellyn put it, "[P]rocedural-5-

regulation s are the d oor, and t he only door, to make re al what i s laid down by substantive law." Karl Llewellyn, The B ramble Bush 9 (1960).

The Tennesse e Rules of

Appellat e Proced ure set out

the basicrules gove

rning appeals to this court. Whether Mr. Goodwin invokedthe subjec t matter jurisdicti on of this court depends upon hi s adherenc e to these r ules. T enn. R. App. P. 1 couns els
us to construe

the appell ate rules to secure jus tice on th e merits, and according ly, we may use our pow er under T enn. R. App. P. 2 to suspend th e normal o peration of many of the appe ll ate rules for good ca use. How ever, ou

r power to suspend the appellate rules is not

without limits. Both Tenn. R. App. P. 2 and T enn. R. App. P. 21(b) expr essly provide that this court cannot – even in the intere st of revie wing a
case on the mer

its – suspend t

he requir ement in T enn. R. App. P. 4(a) tha t notices of appeal in civilcases mus t be received and fi led by the tr ial court c lerk wit

hin thirty days after the dat e of the entr y of the ju dgment ap pealed from

. John B ar b, Inc. v. Underwrit

ers at Lloy

ds of London , 653 S.W.2d 422, 424 (Tenn. Ct. App. 1983).

Mr. Goodwin's certificate of service shows that he mailed his noticeof appeal from Riv erbend Maximum Security Facility on August 7, 1995. However, under T enn. R. App. P. 4(a) , filing w ith the cle rk means a

ctual deli very of pa

pers to th e clerk and not just mai ling of papers to the clerk. See Lambert v. Home Fed . Sav. & Loan Ass'n , 481 S.W .2d770, 773 (Tenn. 1972). Regardless of when Mr. Goodwin mailed his notice of appeal , it was receive d and filed by the tria

l court cle

rk on August 11, 1995 – thirty-one d ays af ter the entry of the judgment appealed from. Thus, Mr. Goodwin’s notice of appeal was received by and filed with the trialcourt clerk one d ay late.

In order to di ssuade us f

rom dismiss ing his appeal as untimel y, Mr. Goodwin cites and relies on Tenn. R. App. P. 20(a) w hich provide s that for incarce rated prose inmates, “filing sha

ll be timely if the pap ers ar e deliver ed to the ap propriate individual at the cor

rectiona l facilit y withi n th e time fixed for filing." However, Tenn. R. App. P. 20(a) also stat es that it applies only to“[p]ape rs requir ed or permitte d to be filed in th e appella te court. ” It does n ot, by its own te rms, app ly to papers that must be filed in the trial court. Bec ause T enn. R. App. P. 4(a) r equires timely filing of t

he notice o f appeal i n the trial court, the specia

l relief accorde d to-6-

incarceratedpersons in Tenn. R. App. P. 20(a) has no application. In addition, Tenn. R. App. P. 4(a) makes no special exceptio n for incarce rated perso ns.
B.

The United States Suprem e Court conf ronted a si milar pro cedural i ssue nine years ago in Houston v. Lack , 487 U.S. 266, 108 S. Ct. 2379 ( 1988), a c ase arisi ng out of the United Stat es District Court for th e Western Dist rict of Tenne ssee. In that case, t he district c ourt had dism issed a Tennessee pr

isoner’s p ro se petit

ion for a wr

it o f habeas corpus. The prisoner filed his notice of appeal thirty-one days after the entry of the district court’s order – one day after the expira

tion of the t

hirty day pe

riod for filing a noti ce of appeal

under Fed . R. A

pp. P. 4( a). Th e United S tates Cour t of Appeals for the S ixth Circuit di smissed the appeal on t

he ground that it wa s untimely. The United States Supr

eme Cour

t, by a fi ve to four v ote, rev ersed. While the majoritynoted that granting pro se prisoners relief was a departure from the general requirem ent of Fed. R. App. P. 4(a) in civil ca ses, it determined that pro se prisoners shouldbe excused from the strict requirement of Fe d. R. App. P. 4(a) if they delivered their notice of appeal to prison authorities for filing with the district court within thirty days after th e entry of an appeal able judgment or order. Houston v. Lack , 487 U. S. at 273, 108 S. Ct. at 2383.

The diss entin g justices asserted that the court’s decision to equate an incarceratedpro se liti gant’s fil ing date w ith the date the litigan

tdelivers t

he notice of appeal to correctional authorities went over “the line between textual construct ion and textual enactment.” Houston v. Lack , 487 U.S. at 277, 108 S. Ct. at 2385 (Sca lia, J., dissenting). They maintained that the courts should construe crucial phra s es in procedural rules cons istently a nd opposed creating a special exception to Fed. R. App. P. 4(a) for in carcerated pr o se litig ants. As they put it,

Rules of procedure are a nece ssa ry part of an orderly system of justic e. Their e fficacy , however , depends u pon the willingne ss of thecourts to enforce them acc ording to their terms. Changes in rules whose inflexibility has t urned out to work

hardship sho uld be eff

ected by th e process of amendm

ent, not by ad hoc r ela xations by thi s Court in particu lar case s. Such di spensations in the lon g run actually p roduce mis chievous results, underminin g the-7- c ertaintyof the rules and causing confusion amo ng th e lower courts and the bar (citation omitted). Houston v. Lack , 487 U.S. at 283, 108 S. Ct. at 2389 (Sca lia, J., dissenting).

The dissenting ju stices als o pointed out t hat theCourt had the power to revise the Federal Rules of Appellate Procedure to reach the same r esult and suggested that the Court should

have followed

that route

instead of

amending the appella

te rules by case law decis ion. Houston v. Lack , 487 U.S. at 284 , 108 S. Ct. at 23 89 (Scalia, J ., dissenting). In 1993 the Court amended the Fe d. R. A pp. P. 4 a nd 25 to confo rm with its holding in Houston v. Lac k

. See 9 James W. Moore et al., Moore's Federal Practice ¶¶

204.21 & 225.01[8 ] (2d ed. 1996). A s we rea d Houston v. Lack

and the Federal Rule s of Ap pellate P rocedure , were

Mr. Goo dwin in the

federal courts, his notice of a

ppeal woul d be conside

red timely.
C.

The Tennessee Ru les of Ap p ellate Procedure are not identical to the Federal R ules of Appellat e Procedure. See Tenn. R. App. P. 1, advisory co mm’n com.. I n J anuar y 1993, the Tennessee Supreme Court partially followed the United States Supreme Court’s lead when it amended Tenn. R. App. P . 20(a) to provide that papers prepared by or on be half o f incarc erated pr o se litigan

ts would be

deemed tobe timely filed in th e appellate court if they were delivered to the appropriate individual atthe correction al facility within th e time fixed for filing

. See Re Amen dments to the Tennessee Rules of Appellate Procedure - Rules 12, 20, and 39, T enn. De cisions 842- 46 S.W. 2d XLIV and Tenn. De cisions 847-52 S.W.2d LI. The Tennessee Supreme Court’s revi sion o f Tenn. R. App. P. 20(a) mirrored the United States Supreme Court’s earlier

textual revisio n of Fed. R. App. P. 25(a) . However, for whatever reason, the Tenne ssee Supr eme Cour t did not make

correspo nding revisi ons to Tenn. R. App. P. 4(a) dealing w ith th e filing of notices of

appeal in t

he trial c ourt. T

hus, Tenn. R. App. P. 4(a) contains no special pr ovision for the filing o f

appeal notices by incarceratedpro se liti gants in the trial cour

ts similar to the provi s ion in T enn. R. App. P. 20(a) dea

ling with f

ilings in the

appellate courts. Notwiths tanding the appar ent incongr

uity betwe en Tenn. R. App. P. 4(a) and Tenn. R. App. P. 20(a), these r ules bind this court and we mu st follow them

. See3 The latest case in a long seri es of ca ses dating back to 1989 holding that convicted felons didnot have s tanding to

pursue r ecords u nder the Public Rec ords Act w as this court’s de cision in Cole v. Campbell, App. No. 01A01-96 03- CH-00140, 1996 WL 724920 (Tenn. Ct. App. Dec. 18, 1996). The Tennessee Supreme Court granted Mr. Cole’s application for permission to appeal on May 5, 1997, and the case is set for argument before the Tennessee

Supreme Court on October 7, 1997. -8- State v. Hodges , 815 S.W.2 d 151, 155 (T enn. 1991) . This c ourt may not presume t

o derogate, disregard, or modify Tenn. R. App. P. 4(a ) . The pow er to amend the Tennes see Rules of A

ppellate P

rocedure belongs not tothis court b ut to the Tennessee Supreme

Cou r t. Accordingly, we conclude that Mr. Goodwin’s appeal must be dismissed because his notice of appeal was not filed w ith and receive d by the trial courtclerk within the time required by Tenn. R. App. P. 4(a). If Mr. Goodwin desires to seek re lief fro m the plain and mandat

ory requir ements of Tenn. R . App. P. 4(a), he must obtain it from the

Tennesse e Suprem

e Court.

III.

We recogniz e that Mr. Goodwin i s represe nting himsel f in this pr oceeding a

nd thatpro se litigants, like all other litigants, are entitled tofair and equal tre atment in the courts. While dismissing pro se litigant s’ cases on procedur al technic alities is not favored, pro se litigants m ust act wi thin the tim

e periods provided in the applic able statutes and rules o f procedure to have th eir cases con sidered. S ee Williams-Guice
v. Board o

f Educ. , 45 F.3d

161, 164 (7t

h Cir. 199 5); Kelley v. Secretary, Dep ’t o f Labor , 812 F.2d 137 8, 1380 (F ed. Cir. 1987 ). We c annot, in a n effort to treat a

pro se litigant fairly, treat othe

r litigants unfairly.

T he record undisputably shows that Mr. Goodwin’s notice of ap peal wa s receive d b y and filed

with the t

rial cour t clerk one

day late. Because

we do not possess the author

ity to waiv e Tenn. R. App. P. 4(a) , we fi nd that we have no juri sdict ion to consider Mr. Goodwin’s potentially meritorious substantive law argument concerning his standing to seek access to the contents of his inve stigative file under t he Open Records A ct. 3 As Chief Justice Chase wrote over one hundred years ago, “Jur

isdiction is power to declare the law, and when it cease s to exist, the only function remaining to the Court is that of announci ng the fac t and dismiss ing the cause.” See Ex pa rte McCa rdle , 74 U. S. (7 W all.), 506, 514 (18 69). Ac cordingly, we dismiss Mr. Goodwin’s appeal and tax the cos ts of the ap peal again st him.-9- _________________ ___________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

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

_________________

_______________ BEN H. CANTRELL, JUDGE