WILLIAM ALAN PESNELL and CHRISTOPHER HOLDER Plaintiffs-Appellants
JILL SESSIONS, CLERK OF COURT, JENNIFER BOLDEN, CERTIFIED DIGITAL REPORTER, AND THE JUDGES OF THE 26TH JUDICIAL DISTRICT COURT: MICHAEL O. CRAIG, JEFF R. THOMPSON, JEFF COX, E. CHARLES JACOBS, MICHAEL NERREN and PARKER O. SELF Defendants-Appellees
Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Bossier, Louisiana Trial Court No. 151, 118
Honorable Eric R. Harrington (Ad Hoc), Judge.
PESNELL LAW FIRM, A.P.L.C. By: Billy R. Pesnell, J. Whitney
Pesnell, W. Alan Pesnell Counsel for Appellants, In Proper
Person & Christopher Hatch.
LANDRY Attorney General Counsel for Appellees, Judges of the
26th Judicial District Court.
G. SANDERS Assistant Attorney General, PATRICK R. JACKSON
Counsel for Appellee Jennifer Bolden, Certified Digital
LANGLEY, PARKS & MAXWELL LLC., By: Glenn L. Langley,
Julianna Petchak Parks, JAMES D. SOUTHERLAND, Counsel for
Appellee Jill Sessions, Clerk of Court.
PITMAN, STONE, and BLEICH (Ad Hoc), JJ.
William Alan Pesnell and Christopher Holder appeal the trial
court's judgment sustaining the exceptions of no cause of
action filed by Defendants-Appellees Jill Sessions, Clerk of
Court; Jennifer Bolden, certified digital reporter; and the
judges of the 26th Judicial District Court: Michael O. Craig,
Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren
and Parker O. Self ("the Judges"). Sessions has
filed a motion to dismiss for lack of jurisdiction and an
exception of res judicata. For the following reasons, we
grant Sessions's motion to dismiss and affirm the
judgment of the trial court as to Bolden and the Judges.
was convicted of the second degree murder of his mother. On
appeal, this court affirmed his conviction and sentence.
State v. Holder, 50, 171 (La.App. 2 Cir. 12/9/15),
181 So.3d 918, writs denied, 16-0092 (La. 12/16/16),
211 So.3d 1166, and 16-0056 (La. 12/16/16), 212 So.3d 1176.
Holder's uncle opened the intestate succession of
Holder's mother and asked that Holder be declared
unworthy to inherit from his mother. The trial court granted
a motion for summary judgment, finding Holder was convicted
of the intentional killing of his mother. This court affirmed
the judgment of the trial court. In re Succession of
Holder, 50, 824 (La.App. 2 Cir. 8/10/16), 200 So.3d 878,
writ denied, 16-1694 (La. 12/16/16), 212 So.3d 1169.
September 22, 2016, Pesnell and Holder filed against
Defendants a petition to declare provision of public records
law unconstitutional in substance and as applied, and to
compel production of public record for inspection and
testing. They claimed that persons who were present
at Holder's criminal trial did not believe that the
transcript of the trial was correct. They stated that an
objection was missing from the transcript and language
attributed to the prosecutor was not correct and that these
substantive issues could alter the outcomes of the criminal
and succession proceedings. They argued that they had a right
to listen to, review and test the data file recording of the
criminal trial ("the recording").
petition detailed Pesnell's efforts to acquire the
recording. He sent a letter to Sessions as the clerk of court
and was advised to make the request to the court reporter. He
requested the recording from Bolden, the court reporter, and
received a response from Melissa Fox, the court administrator
and senior staff attorney for the 26th Judicial District
Court. Fox advised him that the request was not covered by
the Public Records Law, citing La. R.S. 44:4(47) and the
Listening to Recordings Policy of the 26th Judicial District
Court ("the court's policy"). Pesnell then
requested to listen to the recording pursuant to the
court's policy, and Fox responded that Judge Nerren
denied his request, informing him that any questions as to
the content and form of the recording should be presented to
the court of appeal.
argued that La. R.S. 44:4(47) does not provide an applicable
exception to the Public Records Law in this case and that the
recording is a public record subject to public review. They
contended that if La. R.S. 44:4(47) provides an exception in
this case, then the statute is unconstitutional because it
denies due process to litigants and denies public access to
records of public events. Plaintiffs also found fault with
the court's policy. They argued that Defendants should be
ordered to turn over a copy of the recording or, in the
alternative, that they should be allowed to review the
recording for comparison to the transcript.
October 17, 2016, the Judges filed an exception of no cause
of action. They argued that because the Public Records Law
does not apply to the recording sought, Plaintiffs have no
right of access to it. They stated that Plaintiffs had no
right to access the recording pursuant to the court's
policy because the court denied permission. They contended
that the recourse available to Plaintiffs is to obtain an
order from the appellate court, not to sue the Judges. The
Judges noted Plaintiffs' attempt to have La. R.S.
44:4(47) declared unconstitutional and responded that they
have no interest in, or enforcement powers with respect to,
the Public Records Law.
November 2, 2016, Sessions filed an exception of no cause of
action. She stated that, as clerk of court, she is the keeper
of the written records of the trial, but not the keeper of,
and does not have access to, the electronic recordings of the
November 18, 2016, Bolden filed an exception of no cause of
action. She stated that she is not the custodian of the
recording, that she has no discretion to secure the recording
and that all of her duties are ministerial.
November 28, 2016, Plaintiffs filed an opposition to the
exceptions of no cause of action.
December 13, 2016, the trial court filed a judgment
maintaining the exception of no cause of action filed by
Sessions and dismissing Plaintiffs' proceedings against
December 23, 2016, the trial court signed a judgment. It
stated that Bolden is not a proper party defendant and
dismissed Plaintiffs' claims against her. It found that
the Judges are the custodians of the records sought but that
pursuant to La. R.S. 44:4(47) and the court's policy,
Plaintiffs have no right to the recording. Therefore, it
found that no cause of action had been stated and dismissed
Plaintiffs' claims under the Public Records Law. The
trial court reserved for a later date the claims that La.
R.S. 44:4(47) and the court's policy are
January 11, 2017, Plaintiffs filed a motion for new trial or
rehearing as to the December 23, 2016 judgment and ...