Miller, S. v. Shutt, M.

J-A23022-23

2024 PA Super 37

STACY PARKS MILLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHELLE SHUTT :
:
: No. 263 MDA 2023
APPEAL OF: JUDGE PAMELA A. :
RUEST :

Appeal from the Order Entered January 31, 2023
In the Court of Common Pleas of Centre County Civil Division at No(s):
2015-3434

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION PER CURIAM: FILED: MARCH 5, 2024

The Honorable Pamela A. Ruest, Judge of the Court of Common Pleas of

Centre County, appeals from the order denying her motion to quash a

subpoena and for a protective order. Because we determine the judicial

deliberative process privilege is implicated such that Judge Ruest is immune

from testifying, we reverse.

In January 2018, Stacy Parks Miller, plaintiff below, filed a complaint

naming Michelle Shutt as a defendant and alleged that Shutt falsely accused

Parks Miller of forging Judge Ruest’s signature on an order. In sum,

[t]he underlying cause of action focuses on the circumstances
surrounding the issuance of a certain Bail Order [“Bail Order” or
“Order”] which appears to bear Judge Ruest’s signature. At the

____________________________________________

* Former Justice specially assigned to the Superior Court.
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time of the Order’s issuance Plaintiff, Stacy Parks Miller, was the
elected District Attorney of Centre County who alleges that she
was involved in an “undercover sting operation” involving a
murder for hire prosecution. As part of her plan[,] she intended to
obtain a “fake” bail order to entice an inmate to further her cause
in the prosecution. She alleges that she discussed the plan and
need for a fake bail order with Judge Ruest and that, based on
those discussions, Judge Ruest signed the order in furtherance of
the plan. During this period of time[,] Defendant Michelle Shutt
was an executive assistant to Plaintiff [Parks Miller] and, claiming
that she was present and aware of the circumstances, reported to
others that [Parks Miller] had forged the [J]udge’s signature. The
issue of unlawful forgery of a [c]ourt order becomes the key issue
in the civil claim.

Trial Court Opinion, filed 1/31/23, at 1-2.

Shutt issued a subpoena for Judge Ruest, a non-party in the underlying

action, to appear for a deposition to be questioned about the Bail Order that

Shutt claims Parks Miller forged. The notice of deposition indicated that Shutt

intended to depose Judge Ruest “on all matters not privileged which are

relevant and material to the issues and subject matter involved in the

[underlying] action.” Notice of Deposition, dated 6/20/22, at 1. According to

Shutt’s counsel, the scope of the deposition would be as follows:

[W]e are only interested in asking Judge Ruest about events and
facts pertaining to an alleged [B]ail [O]rder that Plaintiff Parks
Miller is claiming Judge Ruest signed after discussions with the
DA’s office. Our client claims that [Parks Miller] signed and forged
Judge Ruest’s signature. We have no interest in any reasoning or
thought process behind the signing or non-signing of the Order.
We simply want to ask Judge Ruest if she remembers
conversations with the DA’s office about the signing of the “fake
bail order” and whether she remembers signing the Order.

Email from Shutt’s Counsel to Judge Ruest’s Counsel, dated 3/30/22.

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Judge Ruest filed a motion to quash the subpoena and for a protective

order arguing that she was immune from testifying about her judicial actions.

The trial court denied Judge Ruest’s motion.

In denying the motion, the court concluded the core issue is the factual

determination of whether Judge Ruest did or did not sign the Bail Order, which

does not implicate her deliberative process privilege. Trial Ct. Op. at 2. While

it recognized the importance of the judicial deliberative process privilege, it

found that “the factual answers which could be provided [by deposing Judge

Ruest] are critically important to the fact-finding to be made by the jury.” Id.

at 3. It explained that if Judge Ruest testifies that she signed the Bail Order,

Shutt’s claim that Parks Miller forged the order would be defeated. Id. at 2.

The court stated if Judge Ruest denies signing the Bail Order, then Shutt

“would have an open door to her allegation that the signature was a forgery.”

Id. It found that if Judge Ruest does not recall signing the order or could not

identify with certainty that the order contained her signature, then Parks Miller

and Shutt would have to rely on other circumstantial evidence to convince the

jury of the order’s authenticity. Id. The court explained:

The deposition of Judge Ruest, while focusing predominantly on
the key issue as to whether she did or did not sign the Order[,] a
purely factual question[,] could be followed, in the event of a
negative answer, with another question as to whether she had any
recollection of the Order[,] again a purely factual question. The
inquiry could proceed as to whether she could, with certainty,
identify her signature as authentic. Other questions could pursue
her recollection as to any discussions she may have had with
Plaintiff about the purpose of the Order and the process by which
the Order could have been returned to [Parks Miller]. Off-limits

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would include any questions which attempted to elicit her thinking
regarding the need or propriety of such a “fake” bail order.

Id. at 3 (brackets from original removed).

Judge Ruest filed the instant appeal as a collateral order under Pa.R.A.P.

313. This Court directed Judge Ruest to show cause why the order was an

appealable collateral order. In response to the rule to show cause, Judge Ruest

argued that if she was compelled to testify as to her judicial actions, her

deliberative process privilege and immunity would be irreparably lost. On

March 22, 2023, the rule to show cause order was discharged, and the issue

was referred to this panel.

Judge Ruest raises the following issues:

1. Did the trial court err in denying Judge Ruest’s motion to quash
the subpoena and for a protective order?

2. Did the trial court err by holding that a judge is subject to
inquiry by parties in civil litigation regarding the facts and
circumstances surrounding the judge’s judicial actions?

3. Even assuming the circumstances surrounding a judge’s
judicial actions are relevant in civil litigation, did the trial court
err because the unnecessary burdens and consequent chilling
effect to the judiciary weigh against ordering a judge to testify
about the circumstances surrounding the judge’s judicial
actions?

Judge Ruest’s Br. at 4.

We initially consider whether we have jurisdiction over this appeal. “The

appealability of an order directly implicates the jurisdiction of the court asked

to review the order.” Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1067

(Pa.Super. 2014) (citation omitted). This Court may “inquire at any time, sua

sponte, whether an order is appealable.” Id. at 1068 (citation omitted). “As a

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general rule, only final orders are appealable, and final orders are defined as

orders disposing of all claims and all parties.” In re Bridgeport Fire

Litigation, 51 A.3d 224, 229 (Pa.Super. 2012) (citation omitted); see also

Pa.R.A.P. 341. Discovery orders typically are not final orders because they do

not end the case. See Leber v. Stretton, 928 A.2d 262, 265 (Pa.Super.

2007). One exception to this rule, however, is that a party has a right to

appeal a collateral order pursuant to Pa.R.A.P. 313.

Judge Ruest maintains the order is an appealable collateral order and

meets the three-prong test set forth in Pa.R.A.P. 313. Rule 313 defines a

collateral order as “an order separable from and collateral to the main cause

of action where the right involved is too important to be denied review and

the question presented is such that if review is postponed until final judgment

in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). “[A]n order

is separable from the main cause of action if it is entirely distinct from the

underlying issue in the case and if it can be resolved without an analysis of

the merits of the underlying dispute.” Keesee v. Dougherty, 230 A.3d 1128,

1132 (Pa.Super. 2020) (citation omitted). “[A] right is important if the

interests that would go unprotected without immediate appeal are significant

relative to the efficiency interests served by the final order rule.” Id. (citation

omitted). “[A] right sought to be asserted on appeal will be ‘irreparably lost’

if, as a practical matter, forcing the putative appellant to wait until final

judgment before obtaining appellate review will deprive the appellant of a

meaningful remedy.” Id. (citation omitted).

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Here, the order denying Judge Ruest’s motion to quash is “separable”

from the underlying action, as “the question of whether a judicial officer can

be compelled to testify does not require an analysis of underlying . . . claims.”

Leber, 928 A.2d at 266. Next, the order involves a right that is too important

to be denied review. Indeed, “the deliberative process privilege has been

determined to meet the importance prong of Rule 313.” Id. Lastly, if review

is postponed until final judgment in the case, the claim will be irreparably lost.

The order effectively results in the loss of the confidentiality of potentially

privileged information because once disclosed, there would be no meaningful

review after final judgment. See id.; see also Commonwealth v. McClure,

172 A.3d 668, 684 (Pa.Super. 2017) (finding orders denying judge’s motions

to quash subpoenas were appealable collateral orders because the orders were

separable from underlying action, orders implicated important deliberative

process privilege, and postponement of review would result in irreparable loss

of the confidentiality of potentially privileged information). Having found that

Judge Ruest satisfied all three prongs of the collateral order doctrine, we

conclude this Court has jurisdiction over this appeal, and we now address the

merits of her claim.

Judge Ruest asserts Shutt’s subpoena should be quashed because,

under Leber, judges are immune from testifying in civil cases about their

judicial conduct. Appellant’s Br. at 11 (citing Leber, 928 A.2d at 270). While

Judge Ruest recognizes that judges “do not have personal immunity from

testifying in civil litigation for actions outside of their judicial duties,” she

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maintains “immunity does attach for matters involving their judicial actions.”

Id. at 13-14. She states that the immunity is “rooted” in the deliberative

process privilege and that even a judge’s ministerial actions, including signing

or not signing an order, are considered “judicial actions” to which the immunity

attaches. Id. at 8-9, 11. Accordingly, Judge Ruest argues “[i]t is unworkable

and impractical at a deposition to query [her] about the [B]ail [O]rder without

exposing her judicial deliberative process.” Id. at 26.

“The standard of review regarding a motion to quash a subpoena is

whether the trial court abused its discretion.” Rogers v. Thomas, 291 A.3d

865, 887 n.26 (Pa.Super. 2023). However, if the issues an appellant raises

are purely questions of law, this Court’s standard of review is de novo, and its

scope plenary. Id.

“Our courts have long recognized that judges may not be compelled to

testify regarding their thought processes in reaching official judgments.”

McClure, 172 A.3d at 686. This concept, known as the deliberative process

privilege, “protects confidential deliberations of law, or policymaking that

reflect opinions, recommendations or advice.” Leber, 928 A.2d at 268

(citation omitted). “The purpose for the privilege is to allow the free exchange

of ideas and information within government agencies.” Commonwealth v.

Vartan, 733 A.2d 1258, 1264 (Pa. 1999) (plurality opinion). The privilege

“benefits the public, and not the officials who assert that privilege,” and

“recognizes that if governmental agencies were forced to operate in a

fishbowl, the frank exchange of ideas and opinions would cease and the quality

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of administrative decisions would consequently suffer.” Leber, 928 A.2d at

268 (citation and internal quotation marks omitted).

For the deliberative process privilege to apply, several requirements

must be met.

First, the communication must have been made before the
deliberative process was completed. Secondly, the communication
must be deliberative in character. It must be a direct part of the
deliberative process in that it makes recommendations or
expresses opinions on legal policy matters. Information that is
purely factual, even if decision-makers used it in their
deliberations[,] is usually not protected.

Id. (internal quotation marks and citation omitted).

In Leber, this Court held that pursuant to the deliberative process

privilege, “judicial officers are immune from testifying as to information

surrounding their conduct during an official proceeding.” Id. at 270. There,

Leber, the District Attorney of Potter County, filed defamation suits against an

attorney and a newspaper, alleging that the attorney had defamed him by

stating Leber was unethical when Leber publicly criticized two judges for their

judicial decisions, and that the newspaper defamed him by printing the

attorney’s statements. Id. at 263-64. Leber’s statements about the two

judges stemmed from the judges’ dismissal of an underlying case in which

they determined Leber had not established a prima facie case. Id. at 264.

Leber served the judges with a subpoena to testify. Id. In seeking the

judges’ testimony, Leber maintained that he had “no intention of inquiring into

either privileged communications between [the judges] and their attorney or

into their decision making process ‘other than to inquire of the facts upon

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which those decisions are based.’” Id. at 266 (quoting Leber’s Brief at 3).

Leber conceded, however, that he ultimately sought to ask the judges, “Why

did you decide there was no prima facie case?” Id. Leber asserted “the

question is legitimate and relevant, but admit[ted] that such question may

delve into the [judges’] thought processes[.]” Id. The judges filed motions to

quash the subpoenas and for protective orders, which were denied. Id. at

264.

In reversing the trial court’s decision, we concluded that because

requiring judges to be subject to such questioning would “necessitate[]

delving into the thought processes they utilized” in their judicial roles, judges

were immune from giving such testimony:

[Leber’s] desire to question [the judges] regarding events which
occurred in the course of their judicial duty not only will take time
away from their role as district judges but also necessitates
delving into the thought processes they utilized in those
positions. As a matter of public policy, we find this type of
questioning unacceptable and hold that judicial officers are
immune from testifying as to information surrounding their
conduct during an official proceeding.

Id. at 270 (emphasis added).

We distinguished the case from one in which “the testimony of a judicial

officer is sought regarding a matter in which he or she merely happened to

witness or was personally involved in a circumstance that later becomes the

focus of a legal proceeding, and this matter does not involve his or her judicial

decision-making.” Id. at 270 n.12. In that situation, “such testimony would

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not implicate the judicial officer’s thought processes in his or her professional

capacity.” Id.

In McClure, this Court reaffirmed our holding in Leber but found the

privilege not implicated because the conduct at issue – ex parte

communication – was “outside the protected sphere of the judge’s internal

deliberations.” 172 A.3d at 690 (quoting In re Enforcement of Subpoena,

972 N.E.2d 1022, 1033 (Mass. 2012)). McClure was convicted of assault and

related offenses. Id. at 672. On appeal, she claimed misconduct during her

trial on the part of the trial judge and prosecutors alleging they engaged in ex

parte communications, which denied her a fair trial. Id. at 672, 676. McClure

served the trial judge with a subpoena to testify and produce copies of any

communications, including text messages, between him and the prosecutors

at the time of her case. Id. at 677, 679. The judge filed a motion to quash,

which was denied. Id. at 677.

In affirming the denial of the motion to quash, we held that the

deliberative process privilege does not protect ex parte communications from

disclosure. Id. at 690. We pointed out that the policy objective of the

deliberative process privilege is to protect legitimate judicial decision-making

and extending the privilege to ex parte communications would not serve that

objective. Id. at 691. We emphasized that “[i]n seeking copies of any ex parte

communications, McClure does not seek to intrude into deliberations that were

part of proper and legitimate decision-making, but instead she seeks to find

out whether there were outside influences that might have tainted her criminal

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trial.” Id. at 689. Accordingly, we found that “in seeking to determine whether

such forbidden communications took place in this case, McClure is not invading

a part of the judicial process that deserves privileged protection.” Id. at 690.

We nevertheless additionally held:

[A]ny inquiry into [the trial judge’s] thought processes and
deliberative processes during McClure’s trial is barred under the
privilege, and McClure may not ask about such matters in any
testimony by [the trial judge] pursuant to her subpoena; she thus
may not ask [the trial judge] why he rendered particular decisions
in her case or whether those decisions were influenced by
specified information.

Id. at 691.

Here, the subpoena must be quashed. Shutt seeks Judge Ruest’s

testimony as to her alleged signing of the Bail Order. This undeniably

implicates the “protected sphere” of Judge Ruest’s conduct in an official

proceeding. If the subpoena stood, Judge Ruest would be compelled to testify

as to the alleged signing of an order, which is perhaps the most fundamental

judicial action. There is no allegation of misconduct against Judge Ruest or

that she acted outside of her proper judicial function, as was alleged in

McClure. Under Leber, Judge Ruest is immune from giving such testimony.

As to Shutt’s attempt to distinguish the testimony she seeks as purely

factual and separate from inquiry into Judge Ruest’s thought process, this

Court in Leber rejected this argument. 928 A.2d at 269. Questioning a judge

during a deposition about factual events that occurred during a judicial

proceeding while skirting any inquiry into the judge’s thought process is not

practicable. Indeed, Shutt’s counsel admits that she intended to ask Judge

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Ruest about the circumstances surrounding the alleged signing of the Bail

Order. See Appellee’s Br. at 5. As recognized in Leber, the questioning of

Judge Ruest under these facts would not only take time away from her role as

a judge but also would necessitate “delving into the thought processes [she]

utilized in th[at] position[.]” 928 A.2d at 270. As a result, Judge Ruest is

protected from testifying on this issue. We therefore reverse the trial court’s

order denying the motion to quash.

Order reversed.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/05/2024

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