Ham v. Fuentes et al

Filing 29

ORDER granting 24 Motion to Quash. Signed by Magistrate Judge Kaymani D West on 12/14/2015. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

EX PARTE: Belinda Timmons

)
)
John Edward Ham and Charles Fuentes,
) C/A No. 4:15-cv-00372-RBH-KDW
)
Plaintiffs,
)
)
v.
)
)
ORDER
Thomas McFadden, Kenney Boone, and Florence )
County Sheriff’s Department,
)
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Defendants. )
_________________________________________ )
This matter is before the court on the Motion of a non-party seeking to quash a
deposition subpoena. Florence County Magistrate Judge Belinda Timmons moved to Quash
her Deposition Subpoena, ECF No. 24, on November 13, 2015, pursuant to Rule
45(c)(3)(A)(iii) of the Federal Rules of Civil Procedure. On November 25, 2015, Plaintiffs
filed a Response objecting to non-compliance with the deposition subpoena in question, ECF
No. 25, and Judge Timmons filed a Reply on December 9, 2015, ECF No. 28. This Motion is
now ripe for review.
On October 27, 2015, Plaintiffs served Judge Timmons with a Subpoena to Testify at
a Deposition in a Civil Action, instructing her to appear on November 16, 2015, at 10:30 a.m.
for the deposition. ECF No. 24-2 at 3-4. Rather than appearing at the noticed time for her
deposition, Judge Timmons moved to quash the subpoena, through counsel. ECF No. 24. In
her Motion, Judge Timmons represents that she was advised by the South Carolina Court
Administration that she should not testify in this matter. ECF No. 24 at 1. In her
memorandum in support of her Motion to Quash, Judge Timmons argues the case of In re

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Whetstone, 580 S.E.2d 447 (S.C. 2003), stands for the proposition that a judge “may not be
required to testify about a case over which she previously presided.” ECF No. 24-1 at 1.
Though noting an exception to that proposition, Judge Timmons argues the exception does
not apply in this instance. Id. at 1-2.
In the case of In re Whetstone, 580 S.E.2d 447, a former South Carolina circuit court
judge petitioned for writ of certiorari to quash a subpoena requiring him to testify in a
postconviction relief hearing. Earlier the PCR court denied Whetstone’s Motion and allowed
limited questioning. Id. at 448. On appeal, the South Carolina Supreme Court noted that
judges should not be required to testify “unless the testimony is 1) critical; and 2) can be
obtained by no other means.” Id. Ultimately, in that instance, the supreme court held that
“[n]o relevant need for Whetstone’s testimony overcomes the presumption judges should not
be called to testify regarding matters from a case over which they previously presided.” Id. at
449. In its analysis, the Whetstone court also noted the case of State v. Talbert, 19 S.E. 852
(1892). In Talbert, the defense sought a judge’s testimony concerning an arrest warrant
issued against the defendant, and the State’s objection was sustained at trial. Id. at 448. The
Whetstone court found:
The issue on appeal [in Talbert] was whether the trial court should allow a
judge to testify as a witness concerning actions taken in his official capacity.
This Court affirmed, reasoning the defendant’s position was “clearly
untenable” because the warrant itself was the best evidence of the fact sought
to be proved, not the testimony of the judge. The Court further found the
judge’s testimony irrelevant.
Id. (emphasis added).
Here, Plaintiffs represent that this case “involves the arrest of two bail bondsman (sic)
for assault that allegedly took place during the time that the two bail bondsmen were
arresting a defendant.” ECF No. 25 at 1. Plaintiffs argue that use of force during the course of

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an arrest of a defendant while out on bond is authorized under South Carolina law. Id. Based
on the nature of the case, Plaintiffs “seeks (sic) to depose Judge Timmons to understand what
facts were relayed to her during the process of signing the arrest warrants for [Plaintiffs].” Id.
Plaintiffs further represent that “Judge Timmons is the only person who can verify whether
or not she knew that the Defendants [now Plaintiffs] in the case were bondsman (sic) and
whether or not she was apprised of the facts of the lawful arrest action being taken at the time
of the alleged assaults.” Id. at 2.
In Reply, Judge Timmons maintains “the best evidence of the issuance of the warrant
is the Affidavit contained in the warrant itself.” ECF No. 28 (citing Talbert, 19 S.E. 852).
The undersigned agrees. Based on the precedent from the South Carolina Supreme Court, the
undersigned grants Judge Timmons’ Motion to Quash her deposition subpoena, ECF No. 24.
The representations made to her in during the course of obtaining the arrests warrants should
be documented in the affidavits that are attached to the warrants. Furthermore, the arresting
officer, Defendant Thomas McFadden, was and is available for questioning regarding the
representations made to Judge Timmons during the course of securing the warrants at issue.
Therefore, the undersigned declines to find that this case presents an exception to the rule
that judges are not required to testify concerning matters considered in their official capacity
as stated in Whetstone. 580 S.E.2d at 447.

IT IS SO ORDERED.

December 14, 2015
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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