FILED

September 17, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

JOHN L. GOODWIN, III, )

)

Plaintiff/Appellant, )

) Sumner Chancery

) No. 95C-88

VS. )

) Appeal No.

) 01A01-9509-CH-00423

HENDERSONVILLE POLICE DEPT., )

DAVID L. KEY, Police Chief, and )

R.J. (HANK) THOMPSON, Mayor, )

)

Defendants/Appellees. )

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., JUDGE
1

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).

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O P I N I O N

This appeal concerns the efforts of a state prisoner to obtain access to the

police investigative files relating to his convictions. The prisoner filed suit against

the Hendersonville Police Department in the Circuit Court for Sumner County

seeking access to the department’s investigative files on the grounds they contained

exculpatory evidence that had been withheld during his criminal prosecution. The

police department responded by asserting that criminal proceedings involving the

prisoner were still open because his case had been remanded for resentencing and that

the prisoner did 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 entitled to relief under the Public Records Act. The

prisoner has appealed. We have determined that we cannot reach the merits of this

case because the prisoner’s notice of appeal was untimely.

I.

On December 12, 1989, John L. Goodwin was convicted in the Criminal Court

for Sumner County of second degree burglary and assault with intent to commit rape.

He received two consecutive eight-year sentences. 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 motion for new trial or to pursue a direct appeal. The

criminal court denied post-conviction relief; however, on November 12, 1992, the

Court of Criminal Appeals held that Mr. Goodwin should be afforded the right to file

a motion for new trial and to perfect a delayed appeal.1

On April 12, 1995, Mr. Goodwin filed a pro se suit against the Hendersonville

Police Department and others seeking access to the department’s investigative files

concerning his crimes. He asserted that these files contained exculpatory evidence

that had been improperly withheld by the district attorney general during his 1989
2The police department was relying on Appman v. Worthington, 746 S.W.2d 165, 166-67

(Tenn. 1987) in which the Tennessee Supreme Court held that persons charged 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.

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trial. Eight days later, the Court of Criminal Appeals remanded Mr. Goodwin’s case

to the criminal court (1) to recalculate his sentence in the manner required by State

v. Pearson, 858 S.W.2d 879 (Tenn. 1993), (2) to identify the enhancing factors

applied to each conviction, and (3) to reconsider the issue of consecutive sentencing.

See State v. Goodwin, 909 S.W.2d 35, 45-46 (Tenn. Crim. App. 1995).

On May 22, 1995, the local authorities moved to dismiss Mr. Goodwin’s Public

Records Act suit on the ground that Mr. Goodwin’s criminal case was still open and,

therefore, that he did not have a present right to examine the investigative files.2 The

trial court denied the motion to dismiss and directed the authorities to produce the

files for the court’s inspection. The trial court later announced that “[a] complete and

thorough reading through the investigative file . . . revealed nothing exculpatory for

plaintiff.”

The local authorities filed a timely Tenn. R. Civ. P. 59 motion requesting the

trial court to alter or amend its order because Mr. Goodwin’s criminal prosecution

was ongoing following the remand for resentencing by the Court of Criminal

Appeals. For the first time, the local authorities also asserted that Mr. Goodwin

lacked standing to invoke the Public Records Act because , as a convicted felon, he

was not a “citizen” for the purpose of Tenn. Code Ann. § 10-7-503(a) (Supp. 1996).

On July 11, 1995, the trial court filed a memorandum opinion and final order, finding

that the criminal proceedings involving Mr. Goodwin were over even though the

Court of Criminal Appeals had remanded the case for resentencing. However, the

trial court dismissed Mr. Goodwin’s complaint on the ground that he had lost his

citizenship rights following his felony convictions and, therefore, he did not have

standing the seek relief under the Public Records Act. Mr. Goodwin, still

representing himself, then sought to appeal to this court. His noncompliance with the

procedural rules for perfecting an appeal as of right to this court is outcome

determinative.

II.
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Mr. Goodwin was incarcerated in the Lake County Regional Correctional

Facility in Tiptonville when he filed this suit in April 1995. Several months later, the

prison authorities moved him to the Riverbend Maximum Security Facility in

Nashville. Mr. Goodwin informed the trial court clerk of his change of address on

July 14, 1995. As it turned out, the trial court clerk had already mailed a copy of the

trial court’s memorandum opinion and final order to Mr. Goodwin by the time he

received notice of his change of address. The move did not prevent Mr. Goodwin

from receiving the copies of the memorandum opinion and final order. On August

7, 1995, he mailed his notice of appeal and designation of the appellate record to the

trial court clerk. The trial court clerk received and filed Mr. Goodwin’s notice of

appeal on August 11, 1995 - thirty-one days after the entry of the trial court’s final

order. 

A.

The local authorities moved to dismiss Mr. Goodwin’s appeal on the ground

that he had failed to file his notice of appeal with the trial court clerk within thirty

days as required by 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

with Tenn. R. App. P. 4(a) is a necessary prerequisite to our appellate jurisdiction.

See Jefferson v. Pneumo Servs. Corp., 699 S.W.2d 181, 184 (Tenn. Ct. App. 1985).

Appellate courts have the inherent power to revisit the issue of their jurisdiction, and

so our previous refusal to dismiss this appeal does not prevent us from giving

additional consideration to this question. We must remain free to set aside an

erroneous order relating to our subject matter jurisdiction.

Whether we have subject matter jurisdiction over this appeal turns on an

extremely narrowprocedural point. The procedural rules, however, regulate the order

and method by which things must be done. It provides the travelable avenue for

arriving at the application of the substantive law. See Occidental Life Ins. Co. of

Calif. v. Kielhorn, 98 F. Supp. 288, 292-93 (W.D. Mich. 1951); Allen v. Fisher, 574

P.2d 1314, 1315 (Ariz. Ct. App. 1977). As Professor Llewellyn put it, "[P]rocedural
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regulations are the door, and the only door, to make real what is laid down by

substantive law." Karl Llewellyn, The Bramble Bush 9 (1960).

The Tennessee Rules of Appellate Procedure set out the basic rules governing

appeals to this court. Whether Mr. Goodwin invoked the subject matter jurisdiction

of this court depends upon his adherence to these rules. Tenn. R. App. P. 1 counsels

us to construe the appellate rules to secure justice on the merits, and accordingly, we

may use our power under Tenn. R. App. P. 2 to suspend the normal operation of

many of the appellate rules for good cause. However, our power to suspend the

appellate rules is not without limits. Both Tenn. R. App. P. 2 and Tenn. R. App. P.

21(b) expressly provide that this court cannot – even in the interest of reviewing a

case on the merits – suspend the requirement in Tenn. R. App. P. 4(a) that notices of

appeal in civil cases must be received and filed by the trial court clerk within thirty

days after the date of the entry of the judgment appealed from. John Barb, Inc. v.

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

Mr. Goodwin's certificate of service shows that he mailed his notice of appeal

from Riverbend Maximum Security Facility on August 7, 1995. However, under

Tenn. R. App. P. 4(a), filing with the clerk means actual delivery of papers to the

clerk and not just mailing of papers to the clerk. See Lambert v. Home Fed. Sav. &

Loan Ass'n, 481 S.W.2d 770, 773 (Tenn. 1972). Regardless of when Mr. Goodwin

mailed his notice of appeal, it was received and filed by the trial court clerk on

August 11, 1995 – thirty-one days after the entry of the judgment appealed from.

Thus, Mr. Goodwin’s notice of appeal was received by and filed with the trial court

clerk one day late. 

In order to dissuade us from dismissing his appeal as untimely, Mr. Goodwin

cites and relies on Tenn. R. App. P. 20(a) which provides that for incarcerated pro se

inmates, “filing shall be timely if the papers are delivered to the appropriate

individual at the correctional facility within the time fixed for filing." However,

Tenn. R. App. P. 20(a) also states that it applies only to “[p]apers required or

permitted to be filed in the appellate court.” It does not, by its own terms, apply to

papers that must be filed in the trial court. Because Tenn. R. App. P. 4(a) requires

timely filing of the notice of appeal in the trial court, the special relief accorded to
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incarcerated persons in Tenn. R. App. P. 20(a) has no application. In addition, Tenn.

R. App. P. 4(a) makes no special exception for incarcerated persons. 

B.

The United States Supreme Court confronted a similar procedural issue nine

years ago in Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379 (1988), a case arising out

of the United States District Court for the Western District of Tennessee. In that case,

the district court had dismissed a Tennessee prisoner’s pro se petition for a writ of

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 expiration of the thirty day period for

filing a notice of appeal under Fed. R. App. P. 4(a). The United States Court of

Appeals for the Sixth Circuit dismissed the appeal on the ground that it was untimely.

The United States Supreme Court, by a five to four vote, reversed. While the

majority noted that granting pro se prisoners relief was a departure from the general

requirement of Fed. R. App. P. 4(a) in civil cases, it determined that pro se prisoners

should be excused from the strict requirement of Fed. 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 the entry of an appealable judgment or order. Houston v.

Lack, 487 U.S. at 273, 108 S. Ct. at 2383.

The dissenting justices asserted that the court’s decision to equate an

incarcerated pro se litigant’s filing date with the date the litigant delivers the notice

of appeal to correctional authorities went over “the line between textual construction

and textual enactment.” Houston v. Lack, 487 U.S. at 277, 108 S. Ct. at 2385 (Scalia,

J., dissenting). They maintained that the courts should construe crucial phrases in

procedural rules consistently and opposed creating a special exception to Fed. R.

App. P. 4(a) for incarcerated pro se litigants. As they put it, 

Rules of procedure are a necessary part of an orderly

system of justice. Their efficacy, however, depends upon

the willingness of the courts to enforce them according to

their terms. Changes in rules whose inflexibility has

turned out to work hardship should be effected by the

process of amendment, not by ad hoc relaxations by this

Court in particular cases. Such dispensations in the long

run actually produce mischievous results, undermining the
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certainty of the rules and causing confusion among the

lower courts and the bar (citation omitted).

Houston v. Lack, 487 U.S. at 283, 108 S. Ct. at 2389 (Scalia, J., dissenting).

The dissenting justices also pointed out that the Court had the power to revise

the Federal Rules of Appellate Procedure to reach the same result and suggested that

the Court should have followed that route instead of amending the appellate rules by

case law decision. Houston v. Lack, 487 U.S. at 284, 108 S. Ct. at 2389 (Scalia, J.,

dissenting). In 1993 the Court amended the Fed. R. App. P. 4 and 25 to conform with

its holding in Houston v. Lack. See 9 James W. Moore et al., Moore's Federal

Practice ¶¶ 204.21 & 225.01[8] (2d ed. 1996). As we read Houston v. Lack and the

Federal Rules of Appellate Procedure, were Mr. Goodwin in the federal courts, his

notice of appeal would be considered timely.

C.

The Tennessee Rules of Appellate Procedure are not identical to the Federal

Rules of Appellate Procedure. See Tenn. R. App. P. 1, advisory comm’n com.. In

January 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 behalf of incarcerated pro se litigants would be deemed to be

timely filed in the appellate court if they were delivered to the appropriate individual

at the correctional facility within the time fixed for filing. See Re Amendments to the

Tennessee Rules of Appellate Procedure - Rules 12, 20, and 39, Tenn. Decisions 842-

46 S.W.2d XLIV and Tenn. Decisions 847-52 S.W.2d LI. The Tennessee Supreme

Court’s revision of Tenn. R. App. P. 20(a) mirrored the United States Supreme

Court’s earlier textual revision of Fed. R. App. P. 25(a). However, for whatever

reason, the Tennessee Supreme Court did not make corresponding revisions to Tenn.

R. App. P. 4(a) dealing with the filing of notices of appeal in the trial court. Thus,

Tenn. R. App. P. 4(a) contains no special provision for the filing of appeal notices by

incarcerated pro se litigants in the trial courts similar to the provision in Tenn. R.

App. P. 20(a) dealing with filings in the appellate courts.

Notwithstanding the apparent incongruity between Tenn. R. App. P. 4(a) and

Tenn. R. App. P. 20(a), these rules bind this court and we must follow them. See
3The latest case in a long series of cases dating back to 1989 holding that convicted felons

did not have standing to pursue records under the Public Records Act was this court’s decision in

Cole v. Campbell, App. No. 01A01-9603-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.

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State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991). This court may not presume to

derogate, disregard, or modify Tenn. R. App. P. 4(a). The power to amend the

Tennessee Rules of Appellate Procedure belongs not to this court but to the

Tennessee Supreme Court. Accordingly, we conclude that Mr. Goodwin’s appeal

must be dismissed because his notice of appeal was not filed with and received by the

trial court clerk within the time required by Tenn. R. App. P. 4(a). If Mr. Goodwin

desires to seek relief from the plain and mandatory requirements of Tenn. R. App. P.

4(a), he must obtain it from the Tennessee Supreme Court.

III.

We recognize that Mr. Goodwin is representing himself in this proceeding and

that pro se litigants, like all other litigants, are entitled to fair and equal treatment in

the courts. While dismissing pro se litigants’ cases on procedural technicalities is not

favored, pro se litigants must act within the time periods provided in the applicable

statutes and rules of procedure to have their cases considered. See Williams-Guice

v. Board of Educ., 45 F.3d 161, 164 (7th Cir. 1995); Kelley v. Secretary, Dep’t of

Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). We cannot, in an effort to treat a pro

se litigant fairly, treat other litigants unfairly.

The record undisputably shows that Mr. Goodwin’s notice of appeal was

received by and filed with the trial court clerk one day late. Because we do not

possess the authority to waive Tenn. R. App. P. 4(a), we find that we have no

jurisdiction to consider Mr. Goodwin’s potentially meritorious substantive law

argument concerning his standing to seek access to the contents of his investigative

file under the Open Records Act.3 As Chief Justice Chase wrote over one hundred

years ago, “Jurisdiction is power to declare the law, and when it ceases to exist, the

only function remaining to the Court is that of announcing the fact and dismissing the

cause.” See Ex parte McCardle, 74 U.S. (7 Wall.), 506, 514 (1869). Accordingly,

we dismiss Mr. Goodwin’s appeal and tax the costs of the appeal against him. 
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____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

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

________________________________

BEN H. CANTRELL, JUDGE