Filing # E-Filed 12/26/ :55:03 PM

Transcription

1 Filing # E-Filed 12/26/ :55:03 PM IN THE CIRCUIT COURT OF THE SEVENTHEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA BRENDA FORMAN, Petitioner, v. CASE NO.: WILLIAM (BILL) GELIN, Respondent. JUDGE JACKIE POWELL S EMERGENCY MOTION FOR PROTECTIVE ORDER JUDGE JACKIE POWELL (JUDGE POWELL), by and through undersigned counsel and pursuant to Florida Rules of Civil Procedure 1.280(c), moves this Court to enter a protective order (1) preventing her from being compelled to provide testimony in this action or, in the alternative, (2) limiting the scope of the Judge Powell s deposition testimony strictly to what she observed in her encounter with Petitioner, Brenda Forman, on December 12, In support, she states as follows: I. STATEMENT OF EMERGENCY Respondent in this matter served Judge Powell with a subpoena duces tecum on December 20, 2018 and scheduled the deposition for December 27, The compressed timeframe and imminent deposition date justify the Court s consideration of this motion as an emergency. The potential of abuse, as evident by the overbroad nature of the subpoena that seeks testimony from a member of the judiciary, further necessitates the Court s immediate consideration of the instant motion. 1

2 II. BACKGROUND This case concerns a Petition for Injunction for Protection against Stalking filed by Petitioner, Brenda Forman, against Respondent, William Gelin. In a supplemental affidavit, Ms. Forman alleges that Mr. Gelin confronted her on Wednesday, December 12, 2018 in a hallway in the Broward County Courthouse. See supplemental affidavit attached as Exhibit A. This encounter was witnessed by two employees of Ms. Forman s office. Id. Ms. Forman further stated as follows: As we got to the opening where the elevators are before stepping into the garage, I stopped to greet new Judge Powell, as I turned around from greeting her Gelin was right on top of me and the other employee, right in my face. Id. It is clear from Ms. Forman s description of her encounter with Judge Powell that is was fleeting and brief. It is believed that Ms. Forman s mention of Judge Powell in her supplemental affidavit prompted Mr. Gelin to subpoena her for deposition. Judge Powell was served with the subpoena duces tecum on December 20, 2018 (subpoena). See Subpoena attached as Exhibit B. The scope of the subpoena is extremely overbroad: Id. Mr. Gelin unilaterally scheduled the deposition for December 27, 2018 at 11:00am. This motion for protective order follows. 2

3 III. ARGUMENT Florida Rule of Civil Procedure provides in pertinent part: (Fla.R.Civ.P (c)). (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had.. The concerns of annoyance, embarrassment, oppression or undue burden is heightened when a party seeks to depose a member of the judiciary. The circumstances where a party may compel a trial judge to give trial testimony are exceptionally limited and exceedingly rare. This is for good reason. If judges were permitted to be interrogated about each and every decision they make in the course of legal proceedings, the independence of the judiciary would be threatened. Judges would become the frequent targets of harassment by unsatisfied litigants, the threat of which could chill judicial discretion, a possibility that cannot be tolerated by the Courts. These fundamental considerations gave rise to the establishment the doctrine of absolute judicial immunity from civil liability 1 and are likewise at risk when a party seeks to compel a judge to testify. Heeding these concerns, and seeking to protect the judiciary from these risks, Courts crafted limited grounds upon which a Judge may be deposed and generally require a showing of compelling need for the deposition. In some cases, it may be appropriate to have a judge testify to 1 As the United States Supreme Court noted long ago in Bradley v. Fisher, 80 U.S. 335, 337 (1871). For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility 3

4 facts arising out of the proceeding when there is no record of those facts. For example, a judge may be deposed to testify as to the terms of an oral settlement agreement made before the judge when that agreement was never memorialized on the record because the proceedings were not transcribed by a court reporter. Stein v. Professional Center, S.A. 666 So.2d 264 (Fla. 3rd DCA 1996). The Florida Supreme Court has stated that the need to have a trial judge testify is very limited in scope and particularly applies only to factual matters that are outside the record. Rodriguez v. State 919 So.2d 1252 (Fla. 2005). Other Courts have emphasized how limited this right should be: A judge should only be required to testify if he possesses factual knowledge, the knowledge is highly pertinent to the jury's task, and the judge is the only possible source of testimony on the relevant factual information. State v. Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc., 241 P.3d 45 (Kan. 2010)(emphasis added). For all these reasons, any time a party seeks to subpoena a judge to testify Courts must be careful to protect the independence and integrity of the judiciary and ensure that parties do not undermine these core principles with overbroad and harassing discovery. If Mr. Gelin seeks to depose Judge Powell regarding the December 12, 2018 encounter between Ms. Forman and Judge Powell, the subject matter is outside the scope of any court record. However, Mr. Gelin cannot demonstrate a compelling need to depose her under the circumstances of this case. As Ms. Forman stated, two additional witnesses were also present and had more involvement than Judge Powell. See Exhibit A. In addition, it is readily apparent from Ms. Forman s supplemental affidavit that her encounter with Judge Powell was brief and momentary. Therefore, Judge Powell would have little, if any, material information to offer if deposed. Furthermore, the overbroad nature of the request, which, for example, sweeps up attorney client privileged information (i.e. any communication Judge Powell may have had with legal 4

5 counsel regarding the subpoena), demonstrates the risk that Mr. Gelin will pursue improper lines of questioning. This concern is heightened give the compressed and unreasonable time frame Mr. Gelin imposed on Judge Powell - serving her, as he did, with a subpoena just before the holidays and then unilaterally setting the deposition for immediately thereafter. A review of the case docket reveals no imminent hearing date that requires Respondent to act with such urgency. IV. Conclusion For all these reasons, Judge Powell requests an order from this Court (1) preventing Mr. Gelin from deposing her in this matter or, alternatively, (2) limiting the scope of the deposition solely to what she actually observed on December 12, Respectfully submitted PAMELA JO BONDI ATTORNEY GENERAL /s/ John J. Bajger JOHN J. BAJGER Assistant Attorney General Florida Bar Number Office of the Attorney General 1515 North Flagler Drive (Suite 900) West Palm Beach, FL Tel. (561) Fax (561) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via e- service to Counsel for Petitioner Forman, Tom Loffredo, Gray Robinson, tom.loffredo@gray-robinson.com; and Counsel for Respondent Gelin s Counsel, Edward Hoeg, edhoeg@att.net 5

6 6 /s/ John J. Bajger JOHN J. BAJGER Assistant Attorney General

7 December 12, 2018 Re: Case #DVCE Honorable Judge Kaplan, This is additional information to the case number above. On Wednesday December 12, 2018, approximately 12 noon, I, Dian and another employee was exiting the building. We first came out of the private stairwell to the hallway that connects the rotunda to the new building, as always I look to my right to make sure I don't run into anyone as I come thru that door. I did not see Gelin, I spoke to a couple of my employees and we continued to walk, as we got to the top and opening to turn right to go towards security, once again as always I turned to my left to make sure I don't run into anyone, still I did not see Gelin. We continued to walk pass security, and across the bridge into the garage. As we got to the opening where the elevators are before stepping into the garage, I stopped to greet new Judge Powell, as I turned around from greeting her Gelin was right on top of me and the other employee, right in my face. I told Dian and the other employee to let's keep walking and not to stop at my car, he continued to follow us, we stopped so Dian can get her phone out, as I turned back towards him he was tal<lng pictures of us, and once he saw me turn his way, he immediately turned around and started walking away at a quick pace. Judge this man is literally stalking me now and I truly fear that my life is in danger because of his actions. I don't know what his intentions are towards me, his bullying and provoking tactics and just scary moments. This has become a very serious and dangerous matter. d2 Brenda D Fonnan Br~ard County Clerk of Courts $.. /J v=j /Y /J AA

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