246 So. 3d 686
La. Ct. App.2018Background
- Christopher Holder was convicted of second-degree murder; his post-trial counsel/curator (via Christopher's father Gary) alleged the official transcript omitted or altered parts of the prosecutor’s closing argument and defense objection.
- Pesnell (attorney) sought the courtroom audio recording used to prepare the transcript to compare it to the transcript; requests were directed to the clerk, the court reporter (Jennifer Bolden), and the 26th Judicial District judges, and were denied under a local court policy and La. R.S. 44:4(47).
- Plaintiffs filed a Public Records Law suit seeking inspection/testing of the recording and an as-applied and facial constitutional challenge to La. R.S. 44:4(47), which exempts court reporters’ recordings/notes from the Public Records Law.
- Defendants (clerk, court reporter, judges) filed exceptions of no cause of action arguing they were not custodians or the recording was excluded from the statute; the State filed exceptions asserting lack of subject-matter jurisdiction and that it was not the proper defendant.
- The trial court sustained the exceptions as to the clerk, court reporter, and judges (dismissing Plaintiffs’ public-records claims) but reserved the constitutional challenge; the court sustained the State’s exceptions and dismissed it as a defendant.
- The appellate court held Plaintiffs had pleaded a cause of action as to the clerk, court reporter, and judges (reversing as to them), affirmed dismissal of the State, and remanded for determination of the constitutionality of La. R.S. 44:4(47).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is the custodian of the requested audio recording for a Public Records Law request? | Pesnell: clerk, court reporter, and the court (judges) have custody/control; statute requiring reporters to retain recordings makes reporter a custodian. | Clerk/Reporter/Judges: reporter must retain recordings but recordings are property of the court; clerk not in possession; judges control access by local rule. | Court: Plaintiffs pleaded a cause of action against clerk, reporter, and judges — reversal of dismissal as to those defendants. |
| Does La. R.S. 44:4(47) exclude the requested recordings from the Public Records Law, mooting Plaintiffs’ claim? | Plaintiffs: statutory exclusion may be unconstitutional as applied; cannot dismiss underlying claim before resolving constitutionality. | Defendants: § 44:4(47) excludes recordings from the Public Records Law; access (if any) is governed by local court rule and appellate correction procedures. | Court: Could not resolve access without first deciding constitutionality; remanded for that determination. |
| Is the State of Louisiana a proper defendant for the constitutional challenge to La. R.S. 44:4(47)? | Plaintiffs: named the State to defend the statute. | State: not custodian; no justiciable controversy requiring State as defendant absent adverse party; AG may defend if necessary. | Court: Affirmed dismissal of the State — State not a proper defendant on the public-records claim. |
| Was bifurcation and sustaining of exceptions before ruling on constitutionality improper? | Plaintiffs: trial court erred by dismissing the records claim before resolving constitutionality, leaving a ‘‘naked’’ constitutional claim. | Defendants: dismissal proper because recordings are excluded and any access issue is moot; constitutional challenge could be collateral. | Court: Agreed that Plaintiffs stated causes of action; remanded so trial court can rule on constitutionality and further relief. |
Key Cases Cited
- Marler v. 22nd Judicial Dist. Ct., 645 So.2d 821 (La. App. 1 Cir. 1994) (denial of tape when full transcript provided and retention period expired)
- Fink v. Bryant, 801 So.2d 346 (La. 2001) (exception of no cause of action accepts well-pleaded facts as true)
- State v. Granger, 982 So.2d 779 (La. 2008) (statutes presumed constitutional; challenger bears burden)
- State v. Fleury, 799 So.2d 468 (La. 2001) (same proposition on presumption of constitutionality)