Opinion
Appeal No. 01-A-01-9603-CH-00140.
December 18, 1996.
Appeal from the Chancery Court for Hickman County at Centerville, Tennessee, Hickman Chancery No. 9512136, The Honorable Donald P. Harris, Chancellor.
AFFIRMED AND REMANDED.
ROBIN M. COLE, Pro Se.
CHARLES W. BURSON, Attorney General Reporter, PATRICIA C. KUSSMANN, Assistant Attorney General, Attorneys for Respondents/appellees.
Petitioner/appellant, Robin M. Cole, appealed from the judgment of the trial court granting the motion to dismiss of respondents/appellees, Donal Campbell, et al. The chancery court found that petitioner, a convicted felon, lacked standing to bring an action under section 10-7-503 of the Public Records Act.
Petitioner was convicted of automobile larceny in 1990 and sentenced to six years. After being released on parole, petitioner was charged with and convicted of three counts of burglary. As a result, he received three consecutive four year sentences. In August 1995, petitioner was housed at the Turney Center Industrial Prison and Farm in Only, Tennessee.
On 7 August 1995, a riot broke out at the Turney Center. Thereafter, prison officials placed petitioner in involuntary administrative segregation because of his participation in the riot. Later, petitioner requested all documents in the possession of the warden at Turney Center that related to the August 1995 riot. When petitioner failed to receive these documents, he turned to the courts.
On 14 December 1995, petitioner filed a petition in the Chancery Court for Hickman County requesting access to documents relating to the August 1995 riot pursuant to section 10-7-503 of the Public Records Act. The court issued an order requiring respondents to show cause why the court should not grant petitioner's request. Respondents moved to dismiss the petition and alleged that petitioner lacked standing to bring an action under the Public Records Act. Petitioner responded to the motion. In February 1996, the chancery court granted the motion and dismissed the petition.
The sole issue before this court is whether the chancery court correctly found that petitioner, a convicted felon, lacked standing to bring an action under section 10-7-503 of the Public Records Act.
Tennessee Code Annotated section 10-7-503(a) provides that public records shall be made available to "any citizen of Tennessee" for personal inspection. Tenn. Code Ann. 10-7-503(a) (Supp. 1995). Moreover, a "citizen of Tennessee" may file a petition for access to public records. Id. § 10-7-505(a) (1992). The western section of this court has held that a person convicted of a felony which renders him or her infamous is not a "citizen of Tennessee" within the meaning of Tennessee Code Annotated sections 10-7-503 or 10-7-505 and lacks standing to bring an action for access to public records. Ray v. Stanton , No. 88-285-II, 1989 WL 14135, at * 2 (Tenn.App. 24 Feb. 1989); Roberson v. Rose , No. 01-A-01-9108-CV-00275, 1991 WL 261881, at *1 (Tenn.App. 13 Dec. 1991). Both the middle and eastern sections of this court have adhered to this holding. In re the Records Sought by Daniel B. Taylor , No. 01-A-01-9211-CH-00439, 1993 WL 73905, at *2-*3 (Tenn.App. 17 Mar. 1993); Bradley v. Fowler , C.A. No. 1387, 1991 WL 25929, at *1 (Tenn.App. 4 Mar. 1991). By statute, a person convicted of any felony is infamous. Tenn. Code Ann. § 40-20-112 (1990) (amended by 1996 Tenn. Pub. Acts ch. 675, § 33). Because petitioner was convicted of a felony, he is not a citizen for the purpose of the Public Records Act and lacks standing to bring an action under the Act.
Taylor is a memorandum opinion. Thus, this court does not rely on the opinion as a basis for our decision, but simply cites it to show the affect of the Western section's decision in Ray v. Stanton .
This court has decided several other cases which involved similar issues; however, all of these cases are distinguishable from the present case. To explain, in 1995 this court decided a case involving a petition filed by a convicted felon requesting copies of certain documents. Alcorn v. State , No. 01-A-01-9507-CH-00315, 1995 WL 699964 (Tenn.App. 29 Nov. 1995). In Alcorn , this court held that a convicted felon did not have a statutory right to receive copies of certain public records. Id. at *2. It did not determine whether the felon was entitled to access to the documents. In this case, the petitioner is not requesting copies of the records; he is only requesting access.
In two of the other cases the petitioners were attorneys who represented felons. Capital Case Resource Ctr., Inc. v. Woodall , No. 01-A-01-9104-CH-00150, 1992 WL 12217 (Tenn.App. 29 June 1992); Freeman v. Jeffcoat , No. 01-A-01-9103-CV-00086, 1991 WL 165802 (Tenn.App. 30 August 1991). Also, the court did not directly address the standing issue as presented in the pending case in either opinion. Moreover, because the issue of whether a felon has standing was not necessary to the decision in either case, any discussion of that issue was dicta.
In Freeman , the court addressed the issue of whether a case is "terminated" when there is a post-conviction appeal pending. In Woodall , this court addressed the issue of whether the attorney/petitioner had standing. The court recognized that Freeman did not directly address the issue of whether a convicted felon has standing, but went on to state that "Judge Todd implicitly rejected the proposition that the client himself, a convicted felon, should be barred from maintaining an action under the Public Records Act." Woodall , 1992 WL 12217, at *7. After briefly discussing this concept, the court moved on to the issue before it, whether the attorney had standing, and concluded that any "citizen" has standing including an attorney representing a felon regardless of whether the request is for the benefit of a non-citizen. This is not the issue currently before the court.
Therefore, it results that the judgment of the chancery court is affirmed, and the cause is remanded to the trial court for further necessary proceedings. Costs are assessed to petitioner/appellant, Robin M. Cole, for which execution may issue if necessary.
_________________________________ SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________ BEN H. CANTRELL, JUDGE
_________________________________ WILLIAM C. KOCH, JR., JUDGE
DISSENTING IN SEPARATE OPINION
The court's decision that Robin M. Cole lacks standing to gain access to public records under Tenn. Code Ann. § 10-7-503 (Supp. 1996) rests squarely on Ray v. Stanton, App. No. 88-285-II, 1989 WL 14135 (Tenn.Ct.App. Feb. 24, 1989). I have prepared this separate opinion because I fear that the Ray v. Stanton decision imposes greater civil disabilities on convicted felons than the applicable statutes permit.
I.
Robin Cole received a six-year sentence for auto larceny in December 1990. He committed a string of burglaries after being released on parole, and in October 1993 he received three consecutive four-year sentences for burglary. He was originally incarcerated at the Turney Center but was later placed in the Riverbend Maximum Security Institution because of his activities during a riot at the Turney Center in August 1995.
Mr. Cole decided to challenge the Department of Correction's decision to place him in involuntary administrative segregation at the Riverbend Maximum Security Institution. As part of his research to prepare his lawsuit, he requested the warden of the Turney Center to provide him access to the public records in the department's possession relating to the August 1995 riot. When the warden declined to respond, Mr. Cole filed suit in the Chancery Court for Hickman County. The State responded by filing a motion to dismiss on the ground that Mr. Cole lacked standing to request access to public records under this court's interpretation of Tenn. Code Ann. § 10-7-503(a) in Ray v. Stanton. The trial court dismissed Mr. Cole's petition, and this appeal followed.
The request was broad enough to include documents covered by one or more of the exceptions to the public records statute. Mr. Cole is not entitled to examine any records that are not covered by the public records statute, and thus this opinion deals only with the portions of the request dealing with public records.
II.
Tennessee's public records statute is a broad, remedial act whose purpose is to give the fullest possible access to public records. See Tenn. Code Ann. § 10-7-505(d) (1992); Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 687 (Tenn. 1994); Memphis Publ'g Co. v. Holt, 710 S.W.2d 513, 516 (Tenn. 1986). Despite the policy favoring granting access to public records, this court held in Ray v. Stanton that convicted felons lacked standing to invoke the public records statutes. The court's reasoning was straightforward. Tenn. Code Ann. § 10-7-503(a) limited the right to inspect public records to "citizens," and convicted felons were not "citizens" because they had been declared infamous upon their conviction pursuant to Tenn. Code Ann. § 40-20-112 (Supp. 1996). Ray v. Stanton, 1989 WL 14135, at *2-3.
The Tennessee Supreme Court never reviewed the Ray v. Stanton decision or any of its progeny. This court has followed Ray v. Stanton on three occasions but has also indicated, at least in dictum, its willingness to depart from the decision. In 1991, we noted that "it would be entirely unjust and unacceptable to deny to a person directly interested (the accused) a privilege granted to all other members of the public." Freeman v. Jeffcoat, App. No. 01A01-9103-CV-00086, 1991 WL 165802, at *6 (Tenn.Ct.App. Aug. 30, 1991), perm. app. denied (Tenn. May 18, 1992) (Not Recommended for Publication). We also noted that the Freeman v. Jeffcoat decision "implicitly rejected the proposition that. . . a convicted felon, should be barred from maintaining an action under the Public Records Act." Capital Case Resource Ctr. of Tenn., Inc. v. Woodall, App. No. 01A01-9104-CH-00150, 1992 WL 12217, at *7 (Tenn.Ct.App. Jan. 29, 1992). Within the last year, we stated that even if an inmate has the right to inspect public records, the public records statute did not require the custodian of the records to provide the inmate with copies of the records at governmental expense. Alcorn v. State, App. No. 01A01-9507-CH-00315, 1995 WL 699964, at *2 (Tenn.Ct.App. Nov. 29, 1995), perm. app. denied concurring in results only (Tenn. Mar. 25, 1996).
In re Records Sought by Daniel B. Taylor, App. No. 01A01-9211-CH-00439, 1993 WL 73905 (Tenn.Ct.App. Mar. 17, 1993) (Memorandum Opinion); Roberson v. Rose, 01A01-9108-CV-00275, 1991 WL 261881 (Tenn.Ct.App. Dec. 13, 1991); Bradley v. Fowler, C.A. No. 1387, 1991 WL 25929 (Tenn. Ct. App. Mar. 4, 1991).
This decisional uncertainty should prompt us to give Ray v. Stanton a second look. Were we to do so, we would conclude that the decision cannot withstand renewed scrutiny because it imposes greater civil disabilities on convicted felons than are permitted by statute.
Tennessee is not one of the relatively few remaining states with a "civil death" statute on the books. A civil death statute is a blanket provision that deprives convicted criminals of all civil or citizenship rights while serving their prison sentence. See Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 950-51 (1970). Instead, Tennessee has a series of specific disability statutes pertaining to convicted felons. Upon being convicted of any felony, a person loses his or her right to vote, see Tenn. Code Ann. § 40-20-112, his or her right to hold public office, see Tenn. Code Ann. § 40-20-114 (1990), and his or her right to serve as a fiduciary. See Tenn. Code Ann. § 40-20-115 (1990). Persons convicted of certain violent criminal offenses are also prohibited from carrying handguns. See Tenn. Code Ann. § 39-17-1307(b) (1991). All these civil rights can be restored using the proceeding authorized by Tenn. Code Ann. §§ 40-29-101, -105 (1990 Supp. 1996).
The policy implicit in civil death statutes had its origin in the "fogs and fictions of feudal jurisprudence" and is inconsistent with the spirit of our modern spirit of government. Byers v. Sun Sav. Bank, 139 P. 948, 949 (Okla. 1914). Thus, despite the 80-year-old dictum that felons are not citizens because they have been adjudged infamous, we cannot expand the collateral consequences of a criminal conviction beyond those clearly prescribed by the General Assembly. Nothing in the language of the public records statutes or their legislative history provides a basis for concluding that the General Assembly employed the word "citizen" in Tenn. Code Ann. § 10-7-503(a) in order to prevent incarcerated felons from gaining access to public records. Accordingly, I would hold that Mr. Cole has standing to seek access to the public records concerning the August 1995 riot at the Turney Center.
In re Petition of Curtis, 6 Tenn. Civ. App. (Higgins) 12, 18 (1915).
____________________________ WILLIAM C. KOCH, JR., JUDGE