holding that where the record provides support for the trial court’s decision, “an examination into the mental processes of the judge will not be allowed”
How later courts described this case
- holding that where the record provides support for the trial court’s decision, “an examination into the mental processes of the judge will not be allowed”
- “courts have refused to issue subpoenas for oral testimony of the decision-makers as to the basis for their opinions absent extreme and extraordinary circumstances”
- finding a judge should not testify about the issuance of an arrest warrant because the arrest warrant itself was the best evidence of the fact sought
- “Absent a showing of extraordinary need, a judge may not be compelled to testify about matters observed as the consequence of the performance of his official duties.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kellen Brown, Administrator of ) C/A No.: 0:19-595-JMC-SVH
the Estate of Tiffany Brown, )
)
Plaintiff, )
)
vs. )
)
Leon Lott, in his capacity as ) ORDER
Sheriff of the Richland County )
Sheriff’s Department, and Joe )
Phillip Smith, in his individual )
capacity, )
)
Defendants. )
)
This suit concerns the allegedly improper arrest of Tiffany Brown
(“Brown”) on January 30, 2017, for assault and battery, third degree. [ ECF
No. 1-1 ¶ 17]. This matter comes before the court on the motion to quash
Plaintiff’s deposition subpoena, submitted by the Honorable Barbara Wofford-
Kanwat, a non-party to this suit, a Magistrate Court Judge within the State of
South Carolina’s Unified Judicial System, and the judge who issued the arrest
warrant for Brown based on information she received from Joe Phillip Smith
(“Smith”), the prosecuting officer in the underlying criminal matter. [ECF No.
32].
All pretrial proceedings in this case were referred to the undersigned
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(f) (D.S.C.). For the following reasons, the undersigned grants the
motion.
Plaintiff seeks to take Judge Wofford-Kanwat’s deposition concerning
the following questions:
1. Does the arrest warrant (“Warrant”) attached as Exhibit A
appear to be a true and correct copy of the arrest warrant sought
from you by Joe Phillip Smith (“Smith”) as against Tiffany
Williams for Assault and Battery 3rd Degree on or about January
9, 2017; if not, please explain why?
2. Does the warrant worksheet (“Worksheet”) attached as
Exhibit B appear to be a true and correct copy of the worksheet
accompanying the Warrant with notations; if not, please explain
why?
3. Do the written notations (“Notations”) contained on the
Worksheet appear to be true and correct Notations created by
yourself at or about the time Smith provided sworn testimony
pursuant to his request for the Warrant; if not, please explain why?
4. Is it your habit or routine to make notations of exculpatory
testimony of a sworn Witness on warrant worksheets; if not, please
explain why?
5. Do you recognize any exculpatory statement Notations on
the Worksheet as made by Smith? If no, is the absence of any
exculpatory statement Notations an indication that Smith did not
present any exculpatory evidence in his sworn testimony pursuant
to his request for an arrest warrant; if not, please explain why?
[ECF No 32-2 at 7; ECF No. 33 at 3].
The Supreme Court of South Carolina has addressed the issue currently
before the court , 580 S.E.2d 447 (S.C. 2003). In , a
former circuit court judge moved to quash a subpoena requiring him to testify
in a hearing about a case over which the judge had previously presided. The
court held a judge cannot be compelled “to testify regarding a case in which he
previously presided unless the testimony is: 1) critical; and 2) can be obtained
by no other means,” and further held that there was “[n]o relevant need for
Whetstone’s testimony” sufficient to overcome “ the presumption judges should
not be called to testify regarding matters from a case over which they
previously presided.” at 448–49; , 440 F.
Supp. 894, 896 (W.D. Va. 1977) (“courts have refused to issue subpoenas for
oral testimony of the decision-makers as to the basis for their opinions absent
extreme and extraordinary circumstances”).
Here, Plaintiff seeks information from Judge Wofford-Kanwat
concerning the information she received from Smith and relied upon for
purposes of establishing probable cause in the underlying criminal matter
against Brown. More specially, it is Plaintiff’s contention based on the general
practices of both Smith and Judge Wofford-Kanwat, that Smith did not inform
Judge Wofford-Kanwat of exculpatory allegations of which he was aware in
seeking the arrest warrant. [ ECF No. 33 at 1–3].
Regarding the applicable test, here, the relevant documents
already in Plaintiff’s possession, the arrest warrant affidavit, arrest warrant,
and warrant worksheet, are the best evidence for the questioning sought by
counsel. , 19 S.E. 852 (S.C. 1892) (finding a judge should
not testify about the issuance of an arrest warrant because the arrest warrant
itself was the best evidence of the fact sought). Further, Smith is available to
testify regarding the information he conveyed to Judge Wofford-Kanwat with
respect to the issuance of the arrest warrant.
Plaintiff makes a number of arguments in opposition. First, Plaintiff
argues the requests are extremely limited and “almost exclusively concern
record keeping measures.” [ECF No. 33 at 5]. The undersigned rejects this
argument. Plaintiff’s questions concerning the authenticity of the arrest
warrant and related documents, although doubtless critical to Plaintiff’s case,
can be obtained by other means such as obtaining certified copies of the
documents or through the deposition testimony of Smith.
Plaintiff additionally argues that these requests do not seek Judge
Wofford-Kanwat’s mental processes and are only aimed at obtaining
information she obtained from Smith. Plaintiff argues “the records of
Smith’s material disclosures to Movant are critical to presenting his case as
against Smith and defending against forthcoming defenses of qualified
immunity,” and, that “in light of Smith’s lack of certainty in what was disclosed
to Movant in seeking Tiffany’s Arrest Warrant, Movant is the only other
witness available to answer these Requests and so the information can not be
obtained by any other means at this time.” 1 Plaintiff cites no case law in
1 Smith has testified that he would have informed Judge Wofford-Kanwat, as
support.
Plaintiffs questions inquire primarily about whether Judge Wofford-
Kanwat normally recorded exculpatory testimony on warrant worksheets and
whether a lack of such recording in this case means no such testimony was
provided. Although Plaintiff tries to classify it otherwise, she seeks Judge
Wofford-Kanwat’s mental impressions and mental processes concerning the
arrest warrant she executed on January 9, 2017. See Dowdy, 440 F. Supp. at
896 (holding that where the record provides support for the trial court’s
decision, “an examination into the mental processes of the judge will not be
allowed”); see also Hensley v. Alcon Labs., Inc., 197 F. Supp. 2d 548, 550
(S.D.W. Va. 2002) (“Absent a showing of extraordinary need, a judge may not
be compelled to testify about matters observed as the consequence of the
performance of his official duties.”). Therefore, the court grants the motion to
quash Plaintiff's deposition subpoena.
IT IS SO ORDERED.
September 21, 2020 Shiva V. Hodges
Columbia, South Carolina United States Magistrate Judge
a matter of practice, before securing the arrest warrant about “the different
accounts of what took place” from others, but could not recall specifically
providing any account that another person, not Brown, was the aggressor other
than what was contained in the narrative of the affidavit. [ECF No. 33-1 at
62:1—24].