People v. Knisley

521 P.3d 641

In re The PEOPLE of the State of Colorado, Plaintiff,

v. Belinda KNISLEY, Defendant, andConcerning: Tina Peters.

Supreme Court Case No. 22SA290

Supreme Court of Colorado.

December 19, 2022

Attorneys for Petitioner Honorable Matthew D. Barrett : Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Abigail M. Hinchcliff, First Assistant Attorney General, Denver, Colorado

Attorneys for Respondent Mesa County District Court: Philip J. Weiser, Attorney General, E. Lee Reichert, Deputy Attorney General, Christopher J.L. Diedrich, Senior Assistant Attorney General, Janna K. Fischer, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent Tina Peters: Springer and Steinberg, P.C., Harvey Steinberg, Stephen F. Prager, Craig L. Pankratz, Denver, Colorado

No appearance on behalf of Defendant Belinda Knisley.

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MARQUEZ, JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 In this original proceeding pursuant to C.A.R. 21, we review the district court's order denying Mesa County District Court Judge Matthew D. Barrett's motion to quash a subpoena compelling him to sit for a deposition in his judicial capacity.

¶2 Because, on the undisputed facts and the record before us, we cannot conclude that Judge Barrett's testimony is necessary to the proceeding for which it is being sought, we conclude that the district court abused its discretion in compelling Judge Barrett to appear for a deposition in this case.

¶3 Accordingly, we make our rule to show cause absolute.

I. Facts and Procedural History

¶4 In February 2022, Judge Barrett presided over a hearing in a case captioned People v. Knisley , No. 21CR1312 (Dist. Ct., Mesa Cnty.). At one point during this hearing, which concerned the return on certain subpoenas duces tecum issued by the defendant in that case, Belinda Knisley, District Attorney Daniel Rubinstein asked to approach the bench. At the bench, he informed Judge Barrett that his paralegal had alerted him to the fact that Tina Peters, who was present in the courtroom and who is a defendant in a separate case over which Judge Barrett is presiding, appeared to be recording the hearing. Rubinstein then confirmed that he had "seen the screen, and indeed it's recording."

¶5 The attorneys stepped back, and Judge Barrett asked Peters if she was recording. The transcript of the hearing indicates that her response was "indiscernible." When Judge Barrett then asked her if she was broadcasting the hearing, however, she clearly responded, "No, sir."

¶6 Immediately thereafter, Deputy District Attorney Jonathan Mosher informed the court that at the time Rubinstein had first approached the bench, Mosher looked at Peters's screen and "actually saw that it was depicting what's happening in the courtroom." After asking Mosher a follow-up question, Judge Barrett had the following conversation with Peters:

THE COURT: Ms. Peters—is that Ms. Peters; that's who I was told is—that's Ms. Peters. Were you recording or not, ma'am?

MS. PETERS: No, Sir. I was not. (Indiscernible). This is a work day for me.

THE COURT: So then, did you have your video up for some reason?

MS. PETERS: No.

THE COURT: So, he just completely mis-saw what was ever [sic] on your screen?

MS. PETERS: Yes. I don't need to record. This is recorded, right? I don't need to [do] that.

THE COURT: No. You don't need to do it, because there's a sign outside the door that says no recording.

MS. PETERS: I understand. You know, they're just wrong. And, if [it] makes Your Honor feel better—

....

THE COURT: Well, the bottom line is—as I mentioned, there's a sign on the door that says no recording, video, audio—it's all common sense for most folks to know that. This is a recorded proceeding in any event. So, this is the one warning that the individual in the courtroom will get. If I find that someone has violated this order in the future, then I'll take appropriate action, and it will be appropriate—no doubt in my mind about that.

Judge Barrett then directed the parties back to the subject matter of the hearing.

¶7 Later in the hearing, after returning from a recess, Judge Barrett made the following pertinent findings:

I'll begin by noting that previously—it had come to the Court's attention that someone may have been recording in the courtroom. I do not find one way or another as to whether that person was recording, or broadcasting, or audio recording—video recording[,] whatever it may have been. That individual told me that they were not doing any of those three things.

So, I relied on that representation in not entering any type of action at that time. If I had known if it had been confirmed I would have done something differently, and that's in-part, because there is a decorum order that I entered in this case back on September 8th. ... My decorum order says this—no one is authorized to record any portion of the Court's proceedings via audio or—or video, and that, of course, would encompass broadcasting of the same. So, I make that additional record.

¶8 A few weeks later, the People filed a verified motion for an order directing the issuance of a citation commanding Peters to show cause why she should not be held in contempt for dishonesty to the court when she answered the court's questions as to whether she was recording the proceedings. In support of this motion, the People referenced and attached affidavits from the paralegal who had first informed Rubinstein of the alleged recording at issue and from a witness asserted to have been sitting next to Peters at the hearing. The motion indicated that according to the latter witness, Peters had later admitted that she had, in fact, been recording the hearing.

¶9 The day after the People filed this verified motion, Judge Barrett issued a written order titled, "ACTION TAKEN: Verified Mot [sic] for contempt—Peters." In this order, Judge Barrett concluded, "out of an abundance of caution only," that the verified motion should be referred to, and if necessary be heard by, a separate judicial officer. Judge Barrett further indicated that he was referring the motion for reassignment, in part, because he "may be a peripheral witness to some of the alleged conduct." He reiterated, however, that he "never found that Ms. Peters was, or was not, engaging in the act of videotaping," nor could he, because he "did not observe it." Accordingly, Judge Barrett never passed judgment on the veracity of either Peters's or the People's representations.

¶10 Thereafter, the verified motion was assigned to Judge Lance Timbreza. After reviewing the transcript of the hearing, as well as the verified motion and attached affidavits, Judge Timbreza directed the issuance of a citation "as to why Peters should not be found to be in indirect contempt ... for being dishonest to the court." Judge Timbreza further ordered the parties to submit all future filings regarding the contempt action in People v. Knisley & Concerning Tina Peters, No. 22CV10 (Dist. Ct., Mesa Cnty.).

¶11 Several months later, Peters served on Judge Barrett a subpoena to appear for a deposition in the contempt action. Judge Barrett responded by filing a motion to quash the subpoena, arguing that (1) his testimony was unnecessary because the transcript of the February hearing demonstrated that he did not observe Peters's alleged conduct, while other witnesses who did observe her conduct could testify to the relevant facts; and (2) any deposition would impermissibly intrude on his mental processes.

¶12 In the interim, all of the district judges of the 21st Judicial District recused themselves from the contempt matter, and Chief Judge Paul Dunkelman of the 5th Judicial District was appointed to preside over it. As pertinent to the matter before us, Chief Judge Dunkelman ultimately denied in part Judge Barrett's motion to quash. In so ruling, the court noted that Judge Barrett had made a clear record that (1) "he did not observe Ms. Peters recording, broadcasting or audio recording the proceedings" and (2) he had "interpreted Ms. Peters’ response to him as denying that she was recording the proceedings." Nevertheless, the court agreed with Peters that the record did not capture "the tone, demeanor or attitude of Ms. Peters or how her conduct may have offended the dignity of the Court." On those issues, the district court opined that "there may be information and knowledge that no other person other than Judge Barrett has."

¶13 The court thus concluded that although "[i]t is a difficult inquiry to balance the public policy against deposing a judge with the rights of Ms. Peters and the potential prejudice to her," there were "areas where this balance supports a limited deposition of Judge Barrett." Accordingly, the court found that Judge Barrett could be deposed, although the court limited the scope of the deposition "to ensure it [would not be] undertaken in an investigatory manner or as part [of] a fishing expedition ...." In permitting such a limited deposition to take place, the court hastened to add that it was "making no determination as to whether Judge Barrett is a necessary witness."

¶14 Notably, based on Peters's representations that she did not seek to examine or question Judge Barrett on his mental processes or "about why he made any particular decision, including whether or not to hold her [in] contempt," the district court's order stated that the parties had agreed "that Judge Barrett's mental processes are not subject to discovery." Judge Barrett, however, came to believe, based on Peters's counsel's later representations, that Peters did, in fact, "plan to delve into large areas of Judge Barrett's mental processes." Judge Barrett thus filed a motion for a protective order, requesting that the district court limit his deposition to written questions only or, in the alternative, impose additional...