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Pesnell v. Sessions

Court of Appeals of Louisiana, Second Circuit

May 22, 2019

WILLIAM ALAN PESNELL and CHRISTOPHER HOLDER Plaintiffs-Appellants
v.
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.

          THE 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.

          JEFF LANDRY Attorney General Counsel for Appellees, Judges of the 26th Judicial District Court.

          DAVID G. SANDERS Assistant Attorney General, PATRICK R. JACKSON Counsel for Appellee Jennifer Bolden, Certified Digital Reporter.

          LANGLEY, PARKS & MAXWELL LLC., By: Glenn L. Langley, Julianna Petchak Parks, JAMES D. SOUTHERLAND, Counsel for Appellee Jill Sessions, Clerk of Court.

          Before PITMAN, STONE, and BLEICH (Ad Hoc), JJ.

          PITMAN, J.

         Plaintiffs-Appellants 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.

         FACTS

         Holder 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.

         On 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.[1] 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").

         The 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").[2] 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.

         Plaintiffs 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.

         On 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.

         On 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 trial.

         On 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.

         On November 28, 2016, Plaintiffs filed an opposition to the exceptions of no cause of action.

         On 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 Sessions.

         On 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 unconstitutional.

         On January 11, 2017, Plaintiffs filed a motion for new trial or rehearing as to the December 23, 2016 judgment and ...


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