United States District Court, W.D. Virginia, Abingdon Division
Meade Sargent, United States Magistrate Judge
matter is before the court on the motions to quash, (Docket
Item Nos. 5, 7) (collectively, “Motions”), filed
by the Judicial Inquiry and Review Commission of Virginia,
(“Commission”), and the defendant, Kurt Pomrenke,
(“Pomrenke”). The Motions were heard before the
undersigned on August 31, 2017. Based on the below-stated
reasons, the Motions will be DENIED.
Motions seek to quash two subpoenas issued by the Government.
One of these subpoenas was issued to the Commission for the
pretrial production of “[a]ll documents and records
submitted by Kurt J. Pomrenke or his counsel in the matter
of: In Re: Judge Kurt J. Pomrenke, Inquiry No:
2016-0259.” (Joint Exhibit No. 1.) The other is a
witness subpoena that was issued to the custodian of records
of the Commission to appear and testify at the September 13,
2017, trial. (Joint Exhibit No. 2.) At the hearing, counsel
for the Government stated that the custodian of records was
subpoenaed for the sole purpose of authenticating the records
received by the Commission from the defendant.
is charged with criminal contempt based on allegations that
he violated an order of this court entered in the criminal
case of his wife, United States v. Stacey Pomrenke,
No. 1:15cr00033. In particular, the Government alleges that
Pomrenke violated a court order that allowed him to receive
and review the discovery materials provided by the Government
to his wife's counsel. This order, entered by United
States District Judge James P. Jones on December 1, 2015,
stated in pertinent part:
The defendant and/or her spouse must not disclose or
disseminate the materials to any other person, nor reveal or
discuss them with any other person, other than defense
counsel…. The defendant and her spouse are prohibited
from making or allowing copying of the materials, including
without limitation, paper copies of the discovery materials.
(Case No. 1:15cr00033, Docket Item No. 33.) The Government
alleges that Pomrenke violated the terms of this order when
he discussed these discovery materials in a letter to the
Commission and provided the Commission with a copy of a
document provided in these discovery materials.
Commission and the defendant argue that the Motions should be
granted and the subpoenas quashed because the records of the
Commission are privileged under state law. See
Virginia Code Annotated 17.1-913, -914 (2015 Repl. Vol.).
Under the Federal Rules of Evidence, federal law controls a
claim of privilege in a federal criminal case. See
Fed. R. Evid. 501. The parties here agree that, assuming that
the Commission's records are privileged, this court must
balance the policy considerations underlying the state
privilege against the interest in the enforcement of federal
criminal law. See United States v. Gillock, 445 U.S.
360, 373 (1980); United States v. Cartledge, 928
F.2d 93, 95-96 (4th Cir. 1991). The important
policy considerations underlying the need to protect the
confidentiality of the Commission's investigations and
proceedings have been recognized by the United States Supreme
Court, and, for the sake of brevity, will not be repeated
here. See Landmark Commc'ns Inc. v. Comm. of
Virginia, 435 U.S. 829, 835-36 (1978). Nonetheless, the
court is of the opinion these important interests must yield
to the federal government's interest in enforcing federal
criminal law in this case.
facts of this case support this finding. The Commission's
investigation of and proceedings against the defendant are no
longer confidential, but rather became public knowledge with
the Commission's filing of a complaint against the
defendant with the Virginia Supreme Court seeking his
retirement, censure or removal from judicial office. Also,
the Government's subpoena requesting documents is
narrowly drawn to seek only those documents necessary to
prove the charge against the defendant. It does not seek any
documents provided by the original complainant; nor does it
seek any documents regarding the Commission's
investigation or deliberative process. It seeks only those
documents provided by the defendant to the Commission.
Furthermore, the Government has agreed that the custodian of
records is being subpoenaed to testify for the sole purpose
of authenticating documents provided to the Commission by the
Supreme Court's decision in Gillock also
supports the court's finding. In Gillock, the
Court denied a request to recognize a Tennessee
constitutionally established legislative privilege to prevent
the introduction of the legislative acts of a defendant
charged with public corruption. See 445 U.S. 360. In
so holding, the Court recognized that it previously had held
that a claim of presidential executive privilege was found
wanting when balanced against the need “to secure all
relevant evidence in a criminal proceeding.”
Gillock, 445 U.S. at 373 (citing United
States v. Nixon, 418 U.S. 683 (1974)).
evidentiary privileges are not favored. “Whatever their
origins, these exceptions to the demand for every man's
evidence are not lightly created nor expansively construed,
for they are in derogation of the search for the
truth.” Nixon, 418 U.S. at 710. “The law
will sustain a claim of privilege only when absolutely
necessary to protect and preserve an interest of significant
public importance that the asserted privilege is designed to
serve.” Spell v. McDaniel, 591 F.Supp. 1090,
1116 (E.D. N.C. 1984) (citing United States v.
Mandel, 415 F.Supp. 1025 (D. Md. 1976)).
above-stated reasons, the Motions are
protect the confidential nature of any Commission documents
not made public in its filing with the Virginia Supreme
Court, the court ORDERS that the Commission
documents provided pursuant to subpoena will be placed on
file in the ...