Ray v. Stanton, App. No. 88-285-Ii, 1989 Wl 14135 (Tenn. Ct. App. Feb. 24

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
ROBIN M. COLE, )
)
Plaintiff/Appellant, )
) Hickman Chancery
) No. 9512136
VS. )
) Appeal No.
) 01A01-9603-CH-00140
DONAL CAMPBELL, et al., )
)
Defendants/Appellees. ) FILED
December 18, 1996
DISSENTING OPINION
Cecil W. Crowson
Appellate Court Clerk
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.1 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.
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 occasions2
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.
1
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.
2
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).
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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).
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).
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Thus, despite the 80-year-old dictum that felons are not citizens because they have
been adjudged infamous,3 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.
____________________________
WILLIAM C. KOCH, JR., JUDGE
3
In re Petition of Curtis, 6 Tenn. Civ. App. (Higgins) 12, 18 (1915).
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