       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                                      FILED
                                                     September 17, 1997
JOHN L. GOODWIN, III,               )
                                    )                Cecil W. Crowson
       Plaintiff/Appellant,         )               Appellate Court Clerk
                                    )    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
                                  OPINION

      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


      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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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.


       2
         The 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.

                                                -3-
         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 narrow procedural 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




                                          -4-
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


                                          -5-
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



                                          -6-
             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


                                          -7-
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.


       3
        The 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.

                                               -8-
                                     ____________________________
                                     WILLIAM C. KOCH, JR., JUDGE


CONCUR:


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


________________________________
BEN H. CANTRELL, JUDGE




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