RENDERED: APRIL 16, 2021; 10:00 A.M. TO BE PUBLISHED
OPINION OF MARCH 19, 2021, WITHDRAWN
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1181-MR
WILLIAM LANE; RONNIE GOLDY; APPELLANTS AND DEANNA ROBERTS
APPEAL FROM BATH CIRCUIT COURT v. HONORABLE PHILLIP R. PATTON, SPECIAL JUDGE ACTION NO. 18-CR-00059
LAURA LEWIS MAZE; AND APPELLEES COMMONWEALTH OF KENTUCKY
OPINION VACATING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
GOODWINE, JUDGE: On November 1, 2019, Laura Lewis Maze (“Judge
Maze”)1 was indicted on two counts of second-degree forgery2 and one count of
1 Judge Maze retired from her position as circuit judge of the Commonwealth’s 21st Judicial Circuit, Division No. 2, which comprises Bath, Menifee, Montgomery, and Rowan Counties, effective October 27, 2019. 2 Kentucky Revised Statutes (KRS) 516.030 (Class D felony). tampering with public records.3 These charges stem from Judge Maze’s signing of
two orders on September 18, 2017, for her ex-husband to obtain drug tests from
two hospitals in relation to his criminal case.
During the underlying criminal proceedings, Judge Maze served
subpoenas duces tecum on Appellants, all of whom were non-parties to the action
and two of whom were elected officials from the 21st Judicial Circuit, including
Circuit Judge William E. Lane4 and Commonwealth’s Attorney Ronnie Goldy.
Deanna Roberts is Judge Lane’s secretary and District Judge William Roberts’
wife.
The subpoenas demanded production of all Appellants’ text messages
from various dates. Appellants moved to quash the subpoenas, arguing Judge
Maze had not and could not meet the requirements governing subpoenas duces
tecum in criminal matters. Appellants further argued the subpoenas were overly
broad and not limited to messages relevant to the underlying criminal charges.
On August 6, 2019, after hearing numerous motions on the matter, the
Bath Circuit Court ordered the cell phone service providers to produce the
subpoenaed text message records for in camera review. The circuit court’s
3 KRS 519.060 (Class D felony). 4 Judge Lane serves the 21st Judicial Circuit, Division No. 1.
-2- reasoning was that Appellants were potential witnesses. This appeal followed.5
After careful review, we vacate the order.
On October 1, 2019, during the pendency of this appeal, Judge Maze
appealed the denial of her motion to dismiss the underlying indictment. This Court
dismissed the appeal as interlocutory.6 The Supreme Court of Kentucky denied
Judge Maze’s motion for enlargement of time to file a motion for discretionary
review and dismissed her appeal.7
Prior to Judge Maze’s indictment on the underlying criminal charges,
on May 21, 2018, the Commonwealth’s Judicial Conduct Commission (“JCC”)
filed a notice of formal proceedings and charges against Judge Maze for the same
conduct. Judge Maze was initially suspended with pay on September 11, 2018 but
retired from her position on October 27, 2019. Judge Maze argued the JCC lost
jurisdiction because of her retirement, but the JCC proceeded with the hearing.
During the pendency of the JCC proceedings, Judge Maze served subpoenas duces
5 The notice of appeal was timely filed on August 6, 2019. On December 20, 2019, this appeal was stayed pending the resolution of Judge Maze’s appeal of the denial of her motion to dismiss the indictment (Nos. 2019-CA-1482-MR and 2020-SC-0199-D). On March 3, 2020, this appeal was assigned to another panel of this Court for a decision on the merits. However, the presiding judge of that panel recently recused, and the appeal was reassigned to this panel on February 25, 2021. 6 Maze v. Commonwealth, No. 2019-CA-1482-MR (Ky. App. Feb. 4, 2020). 7 Maze v. Commonwealth, No. 2020-SC-0199-D (Ky. Jul. 2, 2020).
-3- tecum on Appellants and other nonparties to the JCC proceedings seeking text
messages about her. Appellants and other nonparties filed motions to quash the
subpoenas, and the JCC granted their motions without any analysis. Ultimately, on
November 7, 2019, the JCC found Judge Maze guilty of violating the Code of
Judicial Conduct and engaging in misconduct and issued a public reprimand.8
Judge Maze appealed various issues to the Supreme Court of Kentucky, but she did
not appeal the JCC’s order quashing the subpoenas for the text messages. Maze v.
Judicial Conduct Commission, 612 S.W.3d 793 (Ky. 2020). The Court affirmed
the JCC’s findings of fact, conclusions of law, and final order. Id. at 811.
Herein, Appellants argue the circuit court abused its discretion in
denying their motions to quash Judge Maze’s subpoenas duces tecum of their text
message records and ordering Appellants’ cell phone service providers to produce
their text message records for in camera review. “A trial court order denying a
nonparty’s motion to quash a discovery request is a final and immediately
appealable judgment.” Allstate Property & Casualty Insurance Company v.
Kleinfeld, 568 S.W.3d 327, 333 (Ky. 2019). “Like most of the myriad other
matters a trial court is called upon to decide during the course of proceedings, . . .
8 “[T]he most that this Commission can do in regard to discipline is the issuance of a public reprimand.” See Commonwealth of Kentucky, Judicial Conduct Commission, In Re: The Matter of [Laura] Lewis Maze, Circuit Court Judge 21st Judicial Circuit, Findings of Fact, Conclusions of Law and Final Order, p.16 (Nov. 7, 2019).
-4- motions to quash subpoenas are subject to the trial court’s sound discretion and
will be reversed on appeal only for abuse of that discretion.” Commonwealth v.
House, 295 S.W.3d 825, 828 (Ky. 2009) (citation omitted). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
RCr9 7.02(3) governs subpoenas duces tecum in criminal cases:
A subpoena may also command the person to whom it is directed to produce the books, papers, documents, data and data compilations or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, data and data compilations or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, data and data compilations or objects or portions thereof to be inspected by the parties and their attorneys.
(Emphasis added.) This “rule was taken verbatim from Federal Rule of Criminal
Procedure 17(c),” and the Supreme Court of Kentucky adopted the federal “four-
part test for determining when a movant is entitled to the production of subpoenaed
materials prior to trial[.]” House, 295 S.W.3d at 828. The proponent must satisfy
all four prongs of the following test:
9 Kentucky Rules of Criminal Procedure.
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RENDERED: APRIL 16, 2021; 10:00 A.M. TO BE PUBLISHED
OPINION OF MARCH 19, 2021, WITHDRAWN
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1181-MR
WILLIAM LANE; RONNIE GOLDY; APPELLANTS AND DEANNA ROBERTS
APPEAL FROM BATH CIRCUIT COURT v. HONORABLE PHILLIP R. PATTON, SPECIAL JUDGE ACTION NO. 18-CR-00059
LAURA LEWIS MAZE; AND APPELLEES COMMONWEALTH OF KENTUCKY
OPINION VACATING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
GOODWINE, JUDGE: On November 1, 2019, Laura Lewis Maze (“Judge
Maze”)1 was indicted on two counts of second-degree forgery2 and one count of
1 Judge Maze retired from her position as circuit judge of the Commonwealth’s 21st Judicial Circuit, Division No. 2, which comprises Bath, Menifee, Montgomery, and Rowan Counties, effective October 27, 2019. 2 Kentucky Revised Statutes (KRS) 516.030 (Class D felony). tampering with public records.3 These charges stem from Judge Maze’s signing of
two orders on September 18, 2017, for her ex-husband to obtain drug tests from
two hospitals in relation to his criminal case.
During the underlying criminal proceedings, Judge Maze served
subpoenas duces tecum on Appellants, all of whom were non-parties to the action
and two of whom were elected officials from the 21st Judicial Circuit, including
Circuit Judge William E. Lane4 and Commonwealth’s Attorney Ronnie Goldy.
Deanna Roberts is Judge Lane’s secretary and District Judge William Roberts’
wife.
The subpoenas demanded production of all Appellants’ text messages
from various dates. Appellants moved to quash the subpoenas, arguing Judge
Maze had not and could not meet the requirements governing subpoenas duces
tecum in criminal matters. Appellants further argued the subpoenas were overly
broad and not limited to messages relevant to the underlying criminal charges.
On August 6, 2019, after hearing numerous motions on the matter, the
Bath Circuit Court ordered the cell phone service providers to produce the
subpoenaed text message records for in camera review. The circuit court’s
3 KRS 519.060 (Class D felony). 4 Judge Lane serves the 21st Judicial Circuit, Division No. 1.
-2- reasoning was that Appellants were potential witnesses. This appeal followed.5
After careful review, we vacate the order.
On October 1, 2019, during the pendency of this appeal, Judge Maze
appealed the denial of her motion to dismiss the underlying indictment. This Court
dismissed the appeal as interlocutory.6 The Supreme Court of Kentucky denied
Judge Maze’s motion for enlargement of time to file a motion for discretionary
review and dismissed her appeal.7
Prior to Judge Maze’s indictment on the underlying criminal charges,
on May 21, 2018, the Commonwealth’s Judicial Conduct Commission (“JCC”)
filed a notice of formal proceedings and charges against Judge Maze for the same
conduct. Judge Maze was initially suspended with pay on September 11, 2018 but
retired from her position on October 27, 2019. Judge Maze argued the JCC lost
jurisdiction because of her retirement, but the JCC proceeded with the hearing.
During the pendency of the JCC proceedings, Judge Maze served subpoenas duces
5 The notice of appeal was timely filed on August 6, 2019. On December 20, 2019, this appeal was stayed pending the resolution of Judge Maze’s appeal of the denial of her motion to dismiss the indictment (Nos. 2019-CA-1482-MR and 2020-SC-0199-D). On March 3, 2020, this appeal was assigned to another panel of this Court for a decision on the merits. However, the presiding judge of that panel recently recused, and the appeal was reassigned to this panel on February 25, 2021. 6 Maze v. Commonwealth, No. 2019-CA-1482-MR (Ky. App. Feb. 4, 2020). 7 Maze v. Commonwealth, No. 2020-SC-0199-D (Ky. Jul. 2, 2020).
-3- tecum on Appellants and other nonparties to the JCC proceedings seeking text
messages about her. Appellants and other nonparties filed motions to quash the
subpoenas, and the JCC granted their motions without any analysis. Ultimately, on
November 7, 2019, the JCC found Judge Maze guilty of violating the Code of
Judicial Conduct and engaging in misconduct and issued a public reprimand.8
Judge Maze appealed various issues to the Supreme Court of Kentucky, but she did
not appeal the JCC’s order quashing the subpoenas for the text messages. Maze v.
Judicial Conduct Commission, 612 S.W.3d 793 (Ky. 2020). The Court affirmed
the JCC’s findings of fact, conclusions of law, and final order. Id. at 811.
Herein, Appellants argue the circuit court abused its discretion in
denying their motions to quash Judge Maze’s subpoenas duces tecum of their text
message records and ordering Appellants’ cell phone service providers to produce
their text message records for in camera review. “A trial court order denying a
nonparty’s motion to quash a discovery request is a final and immediately
appealable judgment.” Allstate Property & Casualty Insurance Company v.
Kleinfeld, 568 S.W.3d 327, 333 (Ky. 2019). “Like most of the myriad other
matters a trial court is called upon to decide during the course of proceedings, . . .
8 “[T]he most that this Commission can do in regard to discipline is the issuance of a public reprimand.” See Commonwealth of Kentucky, Judicial Conduct Commission, In Re: The Matter of [Laura] Lewis Maze, Circuit Court Judge 21st Judicial Circuit, Findings of Fact, Conclusions of Law and Final Order, p.16 (Nov. 7, 2019).
-4- motions to quash subpoenas are subject to the trial court’s sound discretion and
will be reversed on appeal only for abuse of that discretion.” Commonwealth v.
House, 295 S.W.3d 825, 828 (Ky. 2009) (citation omitted). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
RCr9 7.02(3) governs subpoenas duces tecum in criminal cases:
A subpoena may also command the person to whom it is directed to produce the books, papers, documents, data and data compilations or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, data and data compilations or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, data and data compilations or objects or portions thereof to be inspected by the parties and their attorneys.
(Emphasis added.) This “rule was taken verbatim from Federal Rule of Criminal
Procedure 17(c),” and the Supreme Court of Kentucky adopted the federal “four-
part test for determining when a movant is entitled to the production of subpoenaed
materials prior to trial[.]” House, 295 S.W.3d at 828. The proponent must satisfy
all four prongs of the following test:
9 Kentucky Rules of Criminal Procedure.
-5- (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.”
Id. (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)). Our Supreme
Court opined, “the relevancy and no-fishing-expedition prongs are not satisfied by
subpoenas grounded in nothing more than conjecture or mere hope that the
subpoenaed material will include admissible evidence.” Id. If a subpoena fails this
test, then it is “unreasonable.” Id. at 829.
In House, the Supreme Court of Kentucky held a subpoena for
Intoxilyzer code failed to satisfy the four-prong test because “the party demanding
production [could] point to nothing more than hope or conjecture that the
subpoenaed material [would] provide admissible evidence.” Id. The defendant’s
mere hope that his “expert might discover flaws in” the code with “no evidence
whatsoever suggesting that the code was flawed” amounted to a “classic fishing
expedition[.]” Id.
Appellants argue the subpoenas fail the relevancy and fishing
expedition prongs of the test. First, they argue Judge Maze failed to explain how
the text messages are evidentiary and relevant. Judge Maze never explained the
-6- significance of the dates listed in the subpoenas. Appellants assert the fact that
they may be called as witnesses and their text messages might contain extrinsic
evidence of bias to impeach them does not satisfy RCr 7.02(3). Second,
Appellants argue the subpoenas amount to a fishing expedition because Judge
Maze hopes they reveal a conspiracy among Appellants to remove her from office.
Appellants argue that even if such evidence existed, it would have no bearing on
whether Judge Maze was guilty of forgery or tampering with public records.
Judge Maze’s argument does, in fact, focus on Appellants’ alleged
conspiracy to remove her from office. She argues the text messages are necessary
to show motivation and bias of the Appellants who may be called as witnesses at
trial. Judge Maze argues she will suffer irreparable injury if she is not granted an
in camera inspection of the text messages. She does not describe how she will be
injured and fails to argue the subpoenas meet the four-prong test in House.
Rowan Circuit Court Clerk Kim Barker Tabor testified in her
deposition10 that she overheard Appellants having conversations about trying to get
Judge Maze removed from office. Although Tabor’s testimony provides some
support for Judge Maze’s allegation of Appellants’ collusion, Judge Maze
presented no evidence to show Appellants ever sent text messages to each other in
furtherance of such a conspiracy. Judge Maze cannot point to anything more than
10 Tabor’s deposition was taken during the pendency of the JCC proceedings.
-7- mere hope or conjecture that Appellants’ text messages will reveal support for her
theory that Appellants colluded to remove her from office. Thus, the subpoenas
amount to a general fishing expedition. Furthermore, it is unclear how the text
messages are relevant, since Judge Maze voluntarily retired from her position.
Based on our analysis, the subpoenas fail the four-part subpoena test and are
“unreasonable” under RCr 7.02(3). As such, we hold the circuit court abused its
discretion in failing to quash Judge Maze’s subpoenas of Appellants’ text message
records.
For the foregoing reasons, we vacate the August 6, 2019 order of the
Bath Circuit Court.
ALL CONCUR.
-8- BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE LAURA LEWIS MAZE: Daniel Cameron Attorney General of Kentucky Thomas E. Clay Louisville, Kentucky Laura C. Tipton Sarah Ellen Eads Adkins Assistant Attorneys General Frankfort, Kentucky
REPLY BRIEF FOR APPELLANTS:
Daniel Cameron Attorney General of Kentucky
Carmine G. Iaccarino Marc Manley Assistant Attorneys General Frankfort, Kentucky
S. Chad Meredith Solicitor General of Kentucky
Matthew F. Kuhn Deputy Solicitor General Frankfort, Kentucky
-9-