Fifth Circuit upholds decision denying attorneys’ demand for timely access to court records for advertising purposes

By Anna Aguillard | Sep 3, 2014

NEW ORLEANS – The Fifth Circuit Court of Appeals has affirmed a district court’s decision prohibiting attorneys from demanding “quick” access to criminal citations.

In 2011, the Texas law firm Sullo and Bobbitt PLLC filed suit against the Chief Municipal Judge of Arlington, Stewart Milner; the Chief Court Clerk of the Municipal Court for the City of Dallas, Gloria Lopez; The Justice of Peace in Dallas, Thomas Jones; and the Chief Municipal Judge of the City of Forth Worth, Ninfa Mares, seeking a judgment establishing “their rights to quickly access court records.”

The plaintiffs, citing federal common law and the U.S. Constitution, demanded copies of new misdemeanor criminal citations and copies of new misdemeanor case files. The firm sought the information so that they could mail advertisements for legal representation to people facing misdemeanor charges.

Despite Sullo and Bobbitt’s offer to pay for the records and to have the records picked up by office personnel, the defendants denied the plaintiff’s request for the records to be released within one business day of filing. Sullo and Bobbitt took the matter up with a district court.

The district court ruled against the plaintiffs, arguing that Sullo and Bobbitt failed to pass the “experience and logic" test “when attempting to argue for a right under the U.S. Constitution."

In order to pass the experience and logic test, plaintiffs must prove that their argument applies to courts across the United States, not merely to those within a certain state, the decision states. Because Sullo and Bobbitt only argued that courts within Texas, not across the country, provided quick access to court records, the district court ruled that their Constitutional argument was invalid.

Appealing the district court’s decision, Sullo and Bobbitt argued that the application of the experience test was “not required” in the situation, or if it was required, it was satisfied by the fact that they cited multiple municipal jurisdictions throughout the state of Texas.

They also argued that the experience test did not apply in their argument, so they were not required to meet it. They pointed to a difference in their case from other similar case precedents where the test was applied, claiming that the previous applications within the Fifth Circuit Court of Appeals were only to court “proceedings,” not court “records.”

However, the plaintiffs introduced this argument for the first time during their appeal. Because plaintiffs cannot make new claims on appeal, the Fifth Circuit rejected their argument.

It further ruled that, regardless of the improper way that the plaintiffs introduced the claim to the court, Sullo and Bobbitt’s argument was still “meritless.” Although previous cases within the circuit court only applied the experience test to court proceedings, other circuit courts have applied the test to court records without finding that it does not apply.

The plaintiffs alternatively argued that, contrary to the district court’s findings, their demand for quick access to court records did indeed pass the experience test. However, the Appeals Court determined that experience must be established nationwide, and not limited to a particular region or municipality. Citing El Vocero de Puerto Rico v. Peurto Rico, the court ruled that when asserting a right under the U.S. Constitution, plaintiffs must use arguments that apply to courts throughout the United States.

The case was heard by Judge W. Eugene Davis, Judge Jerry Edwin Smith and Judge Edith Brown Clement.

Case. no. 13-10869.

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