STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. MARK WALDNER, and MICHAEL M. WALDNER, JR., Defendants and Appellees.
#30343-r-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 11/13/24
2024 S.D. 67
THE
ARGUED MARCH 20, 2024
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA
JEREMY LUND of Siegel, Barnett and Schutz, LLP Aberdeen, South Dakota Attorneys for appellant E.H.
MARTY J. JACKLEY Attorney General
CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellant State of South Dakota.
KENT E. LEHR Scotland, South Dakota Attorney for defendant and appellee Mark Waldner.
TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for defendant and appellee Michael M. Waldner, Jr.
DEVANEY, Justice
[¶1.] Michael Waldner, Jr., and Mark Waldner (Waldners) were indicted in Brule County, South Dakota, on varying degrees of rape and sexual contact involving E.H., a minor less than sixteen years of age. During the investigation, law enforcement obtained a journal written by E.H. detailing the alleged misconduct. After receiving the journal through discovery, the Waldners sought other journals and diaries written by E.H. through a subpoena duces tecum. E.H. moved to quash the subpoena. The circuit court denied the motion to quash and ordered E.H. to produce her other journals and/or diaries for an in-camera inspection by the court. E.H. filed a petition for an intermediate appeal to this Court. We granted the petition and instructed the parties to address jurisdiction in addition to the claims relating to the circuit court‘s order. We reverse and remand.
Factual and Procedural Background
[¶2.] The Waldners were charged by indictment on July 30, 2021, with various crimes against E.H. occurring between January 2019 and December 2020. Specifically, Mark was charged with one count of rape in the second degree (
[¶3.] The Waldners and E.H. are members of a Hutterite colony in rural Brule County, South Dakota. After E.H. reported the incidents, she was moved to a sister colony. At her new colony, E.H. was under the care of Adam and Levi Wipf, educators and leaders at the colony. Eventually, E.H. began to confide in Adam and Levi, who accompanied her to speak to law enforcement about the alleged misconduct. While talking to law enforcement, E.H. disclosed that after the incidents with the Waldners, she had written journal entries detailing the events and her experiences. Thereafter, she provided one of her journals to
[¶4.] Shortly after the charges were filed, the State provided discovery to the Waldners, including police reports, E.H.‘s interview with Child‘s Voice, E.H.‘s medical and mental health records, photographs of E.H., and a copy of the pages from E.H.‘s journal that had been provided to law enforcement. Following this initial discovery, the State requested a protective order concerning the information contained in these materials. The circuit court granted the protective order on December 8, 2021. However, before the court entered its order, Michael Waldner, Sr., sent an email to leaders and members of other colonies disparaging E.H. and disclosing personal and sensitive information contained within the discovery materials.
[¶5.] On April 8, 2022, the Waldners filed a motion for further discovery with requests that included any and all disciplinary records from the colony relating to E.H. and “[a]ll of E.H.‘s diaries and/or journals.” The Waldners argued that “E.H. has made extensive diaries and/or journals which disclose her thoughts, feelings, events, fantasies, and other information which is relevant to the allegations made against the [Waldners], are relevant to E.H.‘s credibility, and may be used to impeach her testimony at trial.”2 The Waldners also issued subpoenas duces tecum to Adam and Levi Wipf seeking “diaries, journals, or other documents of any nature” that E.H. had written from “the time period of January 1, 2010, through the present.”
[¶6.] Pursuant to the subpoena, Levi appeared at a June 7, 2022 motion hearing with documents and pictures requested in the subpoenas. However, during testimony provided at this hearing, Levi stated that neither he nor Adam had possession of E.H.‘s other journals and indicated that they were in E.H.‘s possession. Additionally, he described how difficult the investigation had been on E.H. and how the email sent from Michael, Sr. circulated on social media and caused E.H. a tremendous amount of distress.
[¶7.] At the same hearing, the State clarified that it did not have any other journals and argued that the proper procedure for obtaining them was through a subpoena duces tecum directed to E.H. that satisfied the requirements established in this Court‘s decision in Milstead v. Johnson (Milstead II), 2016 S.D. 56, 883 N.W.2d 725. The State also asserted that issuing the subpoena to E.H. would allow her the opportunity to secure counsel. Over the State‘s objection, the court granted the discovery motion and ordered the State to acquire the journals and provide them to the court for an in-camera inspection. The court also ordered the State to submit an index containing any assertions of privilege, as well as a brief setting forth the State‘s position why disclosure to the defense should not be permitted. It further directed the State to advise E.H. of her right to seek counsel to help her assert her Marsy‘s Law rights. After the court‘s oral ruling, the Waldners issued a subpoena duces tecum directed to E.H. to gain access to her “diaries, journals, or other
[¶8.] E.H. thereafter retained an attorney and, with her attorney‘s assistance, filed a motion to quash the Waldners’ subpoena duces tecum which included a supporting brief asserting her right to privacy and her right to refuse a discovery request under
[¶9.] E.H. then filed a motion to vacate this discovery order. In her supporting brief, E.H. argued that the order for further discovery was improper because it violated her due process rights set forth in Marsy‘s Law. Specifically, E.H. noted her right to notice of the hearing on the matter and her right to appear and be heard before the court issued an order affecting her rights. As to the merits of the order, she argued that it was not supported by either the discovery statutes in
[¶10.] At a hearing on the motion to vacate, E.H. reiterated her arguments set forth in her brief and also asserted that the only mechanism for seeking to obtain the journals was through a subpoena duces tecum. She further noted that there are separate arguments that would apply to whether such a subpoena should be quashed, but those were not yet at issue because the Waldners had withdrawn their previously issued subpoena.
[¶11.] In response, the Waldners argued E.H. waived her right to privacy by providing one of her journals to law enforcement and cited this Court‘s decision in State v. Karlen, 1999 S.D. 12, 589 N.W.2d 594, as support. The court took the matter under advisement and at a later hearing, announced its decision regarding the motion to vacate. The court stated that its prior discovery order was improper and explained to the parties, “I can‘t order [the State] or the DCI to go and fetch these diaries or journals. You have to subpoena them from a third party.” The court therefore vacated its prior discovery order “without prejudice to the defendants’ right to subpoena the records under the proper process.”
[¶12.] The Waldners then reissued their subpoena duces tecum to E.H. seeking “[a]ny and all statements, notes, video tapes, recordings, photographs, emails, text messages, computer maintained records, electronic records, social media records or recordings, diaries, journals, or other documents of any nature” in E.H.‘s possession or control for “the time period of January 1, 2010, through the present.” E.H. once again filed a motion to quash
[¶13.] At a hearing on E.H.‘s motion, E.H. primarily argued to the court that the subpoena was “unreasonable and oppressive” and did not satisfy the elements of Nixon, and that she had an absolute constitutional right to refuse discovery pursuant to Marsy‘s Law. E.H. also asserted that she did not waive her right to privacy by turning one of her journals over to law enforcement. The State advised the court that it supported E.H.‘s motion to quash.
[¶14.] In response, the Waldners argued that they had “rights . . . to a fair and impartial and just trial” and that their rights outweighed E.H.‘s. The Waldners asserted that it was proper for the journals to be reviewed by the court in-camera to “make a determination as to whether or not . . . they‘re something that should be disclosed further to the defendants.” They suggested this process would maintain E.H.‘s right to privacy. The Waldners further argued that E.H. had waived her right to privacy when she wrote in the journal that she provided to law enforcement, “Really, I don‘t care anymore who reads it. I don‘t care what they think.” The Waldners contended this was a clear “relinquishment of any privacy right in these journals.”
[¶15.] After considering the parties’ arguments and balancing E.H.‘s privacy rights with the Waldners’ rights to a fair trial, the court denied the motion to quash. The court ordered “that all journals or diaries be delivered to the [c]ourt for an in-camera inspection within ten days.” The court filed its findings of facts and conclusions of law and its order denying the motion to quash, and a notice of entry of the order was filed on April 28, 2023. E.H. filed a motion to stay the court‘s order denying the motion to quash while her anticipated appeal was pending, and the court granted the stay.
[¶16.] E.H. then petitioned this Court for an intermediate appeal on May 8, 2023, seeking review of the circuit court‘s order denying her motion to quash. The State submitted a response joining E.H.‘s petition. We granted E.H.‘s petition and instructed the parties to “also brief the question of whether this Court has jurisdiction to hear an appeal from an interlocutory order brought by the alleged victim in a criminal case.”
[¶17.] E.H.‘s petition presents the following issues on appeal:
- Whether this Court has jurisdiction to hear the appeal.
- Whether the circuit court erred by requiring E.H. to produce her diaries and journals.
Analysis
1. Whether this Court has jurisdiction to hear the appeal.
[¶18.] “Questions of jurisdiction are legal questions reviewed under a de novo standard.” State v. Bettelyoun, 2022 S.D. 14, ¶ 16, 972 N.W.2d 124, 128-29 (citation omitted). Further, “[i]ssues of constitutional and statutory interpretation are . . . subject to de novo review.” In re Implicated Individual, 2023 S.D. 16, ¶ 11, 989 N.W.2d 517, 521.
a. Right to appeal under Marsy‘s Law
[¶19.] Under
The victim, the retained attorneys of the victim, a lawful representative of the victim, or the attorney of the government, upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or
before any other authority with jurisdiction over the case, as a matter of right.
(Emphasis added.) This provision clearly affords crime victims the opportunity to seek enforcement of their rights from this Court. However, the provision does not specify, nor have we had the occasion to determine, what the proper procedure is for seeking appellate review for the rights delineated in Marsy‘s Law. The State nevertheless asserts that Marsy‘s Law created a self-executing right to appeal for victims seeking to enforce the rights delineated in this constitutional provision.
[¶20.] This Court has explained that a constitutional provision is “self-executing when no legislation is necessary to give it effect.” Kneip v. Herseth, 87 S.D. 642, 655, 214 N.W.2d 93, 100 (1974). We have further stated that “[a] constitutional provision may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected . . . and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.” State v. Bradford, 12 S.D. 207, 80 N.W. 143, 144 (1899) (citation omitted); see also 16 Am. Jur. 2d Constitutional Law § 105 (providing that a constitutional provision is self-executing “if the nature and extent of the right conferred . . . [is] fixed by the constitution itself . . . and there is no language indicating that the subject is referred to the legislature for action“); 16 C.J.S. Constitutional Law § 129.
[¶21.] Applying these principles, the State notes that the right to appeal accorded by Marsy‘s Law does not expressly or impliedly require additional legislation before such right may be enjoyed and protected. Rather, “[t]he Legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to further define, implement, preserve, and protect the rights guaranteed to victims by this section.”
[¶22.] Here, the plain language of Marsy‘s Law creates a constitutional right for a victim to seek enforcement of certain rights in any trial or appellate court, and it directs the “court or other authority with jurisdiction [to] act promptly on such a request, affording a remedy by due course of law for the violation of any right.” Marsy‘s Law does not, however, grant a victim party status in a criminal case, nor does it specify the procedural steps regarding when or how a victim may appeal to this Court.5 Therefore, notwithstanding the
b. Jurisdiction via a discretionary appeal
[¶23.] E.H. asserts that Milstead v. Smith (Milstead I), 2016 S.D. 55, 883 N.W.2d 711, and Milstead II, 2016 S.D. 56, 883 N.W.2d 725 “stand for the premise that when a non-party to a criminal proceeding seeks to appeal the denial of a motion to quash, the appropriate method to appeal is a petition for intermediate appeal.” In the Milstead cases, the third-party sheriff petitioned this Court for permission to file intermediate appeals challenging the circuit court‘s denial of his motions to quash subpoenas directing the production of documents from officer personnel files. Milstead I, 2016 S.D. 55, ¶ 5, 883 N.W.2d at 715; Milstead II, 2016 S.D. 56, ¶ 5, 883 N.W.2d at 729. This Court granted both petitions. However, we did not note or address any jurisdictional issues. Thus, our decisions in the Milstead cases do not resolve the jurisdictional question at issue here.
[¶24.] Aside from her reliance on the Milstead cases, E.H. further asserts that this Court has jurisdiction to hear her appeal under
As to any intermediate order made before trial, as to which an appeal is not allowed as a matter of right, either the state or the defendant may be permitted to appeal to the Supreme Court, not as a matter of right, but of sound judicial discretion, such appeal to be allowed by the Supreme Court only when the court considers that the ends of justice will be served by the determination of the questions involved without awaiting the final determination of the action.
[¶25.] In particular, E.H. notes that because
c. Appeal as a matter of right under SDCL 15-26A-3(4)
[¶26.] The State argues that this Court has jurisdiction to hear this appeal under
[¶27.] In In re Essential Witness, we first examined the nature of a proceeding commenced pursuant to the procedures in
[¶28.] Although In re Essential Witness is not directly on point because it concerned a separate action outside a pending criminal case, the rationale discussed in that case is instructive here. E.H., akin to the appellants in In re Essential Witness, is not a party to the criminal proceeding; thus, the proceeding on E.H.‘s motion to quash is ancillary to the criminal proceeding. Also, as with the proceeding to summon a witness, a proceeding on a motion to quash does not “involve the arrest, charge, or punishment of an individual for a public offense.” See id. Further, the proceeding on E.H.‘s motion to quash does “not implicate the resolution of a criminal charge.” See id. Thus, the circuit court‘s order denying E.H.‘s motion to quash is civil in nature similar to the proceeding in In re Essential Witness.
[¶29.] We further conclude that the circuit court‘s decision denying E.H.‘s motion to quash was made in a special proceeding. We have recognized that “[t]he design of [
[¶30.] The circuit court‘s denial of E.H.‘s motion to quash the subpoena duces tecum also affected E.H.‘s substantial rights, in particular, her constitutional right to privacy and her right to refuse discovery requests under Marsy‘s Law. Further, the court‘s decision was final because, although the court indicated it would consider whether and to what extent any documents produced would be disclosed to the State and the defense, the court‘s order directing E.H. to produce the documents left nothing to be determined as it pertained to E.H.‘s motion to quash the subpoena.10 See In re Implicated Individual, 2021 S.D. 61, ¶ 10 n.7, 966 N.W.2d 578, 582 n.7 (concluding that the circuit court‘s orders were final orders made in a special proceeding because the orders finally determined the question at issue).
[¶31.] For these reasons, we conclude the circuit court‘s order denying E.H.‘s motion to quash was a “final order affecting a substantial right, made in [a] special proceeding[ ]”
[¶32.] However, we must still address the fact that an appeal pursuant to
[¶33.] As E.H. noted, this Court has previously elected to treat an improper filing as invoking this Court‘s jurisdiction when the appellant relied on our prior decisions in determining the proper manner to bring an appeal. See City of Rapid City, 279 N.W.2d at 166 (electing to treat the State‘s notice of appeal in the case at hand as a petition for intermediate appeal and allowing ten days to file a conforming petition with the Supreme Court clerk). While we have the opposite scenario here because E.H. filed a petition with the Supreme Court rather than a notice of appeal with the circuit court, E.H.‘s use of a petition for discretionary appeal presents less of an impediment than the appellant‘s use of a notice of appeal instead of a petition in the City of Rapid City case.
[¶34.] First, there is no dispute that E.H. filed her petition within the timeframe required for notices of appeal under
[¶35.] Moreover, although
2. Whether the circuit court erred by requiring E.H. to produce her diaries and journals.
a. Waiver
[¶36.] Prior to determining the nature and scope of E.H.‘s asserted right to privacy, we must first address the Waldners’ claim that E.H. waived her right to refuse to produce her diaries and journals either expressly or by her actions. This claim is based on the fact that during the investigation into the allegations against the Waldners, E.H. disclosed to law enforcement that she had made journal entries following the alleged misconduct by the Waldners. E.H. provided the journal containing this information to Adam. With E.H.‘s consent, Adam and Levi provided it to law enforcement. These journal entries were then disclosed to the Waldners as part of the State‘s discovery.
[¶37.] The Waldners rely on Karlen, 1999 S.D. 12, 589 N.W.2d 594, to support their assertion that E.H. waived her right to privacy. Although they acknowledge that, unlike the victim in Karlen, E.H. is not asserting a statutory privilege, they nevertheless contend Karlen “supports the concept that once a person discloses information they deem personal or private, such action constitutes a waiver of any right to further maintain said information confidential in a criminal prosecution.” They contend that E.H.‘s disclosure of one of her diaries to law enforcement is like the disclosures of the victim in Karlen whose privileged communications with his counselor were deemed waived.
[¶38.] In Karlen, the defendant was convicted of multiple counts of rape, sexual contact without consent, and distribution of a substance with potential for abuse. The defendant issued a subpoena duces tecum to obtain the victim‘s counseling records but the circuit court granted the victim‘s motion to quash and denied an in-camera review of the documents. On appeal, this Court reversed, and in doing so, applied
[¶39.] Although the circuit court also relied on Karlen, it appears to have done so for a different purpose. The circuit court‘s conclusions of law recognized that “[a] person may waive any statutory or constitutional right they may have and such a waiver may be made either orally, in writing, or by the person‘s actions and conduct.” Notably, however, the circuit court did not make a determination whether E.H. waived her right to privacy. Instead, the court concluded, based on Karlen, that private or confidential information could be disclosed in a manner in which “the privacy or confidential right may be protected.” It thus appears the court believed it did not need to determine whether E.H. waived her rights prior to ordering the disclosure of the documents to the court for an in-camera review.
[¶40.] To the extent the circuit court relied on Karlen for this premise, such reliance is misplaced. It was only after this Court determined that the victim in Karlen had waived his privilege in his counseling
[¶41.] As to whether E.H. waived her right to privacy, we must apply the law governing waivers of constitutional rights. A waiver of a constitutional right must be voluntary, knowing, and intelligent. See, e.g., State v. Larson, 2022 S.D. 58, ¶ 28, 980 N.W.2d 922, 930; State v. Hauge, 2019 S.D. 45, ¶ 12, 932 N.W.2d 165, 170. Also, Marsy‘s Law provides that, with regard to discovery, interviews, or depositions, victims may “set reasonable conditions on the conduct of any such interaction to which the victim consents.”
[¶42.] While E.H. agreed to give law enforcement the journal in which she described the acts forming the basis for the current charges against the Waldners, there is nothing in the record showing that prior to doing so, E.H. knew she had a constitutional right to privacy or that she knew she was waiving that right by relinquishing one of her journals. Yet, the Waldners assert E.H. waived her right to privacy in all of her other diaries and journals when she wrote in the one disclosed journal, “Really, I don‘t care anymore who reads it. I don‘t care what they think.” However, the preceding statements in this journal entry reveal that the “it” she was referring to was a “purple notebook” containing her poems which she described as “very depressing and disturbing.” Also, the above-quoted statement about E.H. not caring who read her poems related to a suggestion by Levi that she should give this notebook to his mom to read. Regardless of any implications that can be drawn from this particular statement, there is no evidence that E.H. knowingly and intelligently waived her right to refuse disclosure of any other remaining diaries or journals. Furthermore, as noted under
b. Whether a victim‘s right to privacy is absolute
[¶43.] E.H. contends that her right to privacy as stated in Marsy‘s Law is absolute. If so, she claims she has no obligation to comply with the Waldners’ subpoena. E.H. notes that the language in Marsy‘s Law is not conditional and does not contain any exceptions when stating that a victim has the right to refuse discovery requests. In contrast, E.H. notes that other states’ versions of Marsy‘s Law are not written in such absolute terms. For example, Ohio‘s rendition of Marsy‘s Law expressly refers to a criminal defendant‘s
[¶44.] But an absence of express exceptions to a privilege or constitutional right may not insulate E.H. from complying with a
[¶45.] The case was heard by the United States Supreme Court after the Court granted a petition and a cross-petition for a writ of certiorari. On appeal, Nixon presented two arguments to support his claim of absolute privilege: (1) “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties” which derives from the exercise of the President‘s Article II powers; and (2) the need for “independence of the Executive Branch within its own sphere” as required under the doctrine of separation of powers. Id. at 705-06, 94 S. Ct. at 3106.
[¶46.] In assessing Nixon‘s arguments, the Court determined that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Id. at 706, 94 S. Ct. at 3106. The Court instead concluded that “the legitimate needs of the judicial process may outweigh Presidential privilege” and thus deemed this privilege, although “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution[,]” to be a “presumptive privilege.” Id. at 707-08, 94 S. Ct. at 3107. Ultimately, the Court held that a president‘s claim of privilege “based only on the generalized interest in confidentiality, . . . cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” Id. at 713, 94 S. Ct. at 3110.
[¶47.] Although E.H.‘s right to privacy is not just “rooted” in the South Dakota Constitution but is instead expressly recognized in a constitutional amendment, her appeal nevertheless involves competing constitutional interests of adverse parties in a criminal prosecution similar to those at stake in Nixon. Thus, the question before us in this appeal is not one in which we can simply apply the “basic [tenet] ‘of American jurisprudence that a statutory provision never be allowed to trump a Constitutional right.‘” Milstead II, 2016 S.D. 56, ¶ 10, 883 N.W.2d at 730. Rather,
[¶48.] Further, to read a victim‘s right of privacy under the State constitution as absolute, or superior to the rights of a defendant, would at some point infringe upon a defendant‘s federal due process right to defend against a charge. “[D]ue process is in essence the right of a fair opportunity to defend against the accusations.” State v. Packed, 2007 S.D. 75, ¶ 23, 736 N.W.2d 851, 859 (citations omitted). As noted in Nixon, a “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713, 94 S. Ct. at 3110.
[¶49.] Here, the circuit court balanced the competing interests of E.H. and the Waldners and concluded that the Waldners’ constitutional rights outweighed E.H.‘s right to privacy. In reaching this conclusion, the court relied on Karlen, which, in turn, quoted language from Nixon supporting its determination:
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense . . . . Whatever [the privileges‘] 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 truth.
Karlen, 1999 S.D. 12, ¶ 34, 589 N.W.2d at 602 (quoting Nixon, 418 U.S. at 709-10, 94 S. Ct. at 3108) (alteration and omission in original). The Court in Nixon observed that the right to production of evidence for a criminal trial “has constitutional dimensions” stemming from the Sixth Amendment right of a defendant to confront witnesses against him and “to have compulsory process to obtain witnesses in his favor,” and from the Fifth Amendment guarantee “that no person shall be deprived of liberty without due process of law.” 418 U.S. at 711, 94 S. Ct. at 3109. In order to accomplish “the manifest duty of the courts to vindicate those guarantees,” the Court noted that “it is essential that all relevant and admissible evidence be produced.” Id.
[¶50.] In light of this Court‘s past reliance on Nixon‘s analysis of competing rights and interests, which applies broadly to various claimed privileges, including those of constitutional origin, we conclude
c. Whether the circuit court erred by not applying the Nixon factors
[¶51.] “Ordinarily, ‘[w]e review the [circuit] court‘s rulings on discovery matters under an abuse of discretion standard.‘” Milstead II, 2016 S.D. 56, ¶ 7, 883 N.W.2d at 729 (citation omitted). “However, the question whether the circuit court erred when it interpreted
[¶52.] Like the Waldners’ subpoena duces tecum, the challenged subpoena in Nixon was issued under
[¶53.] This Court adopted the Nixon test while analyzing a
[¶55.] For instance, in Milstead II, the defendant was attempting to subpoena “[a]ll disciplinary records/reports, disciplinary actions or complaints” of three law enforcement officers involved in his arrest. Id. ¶ 2, 883 N.W.2d at 728. On appeal, this Court determined that because the defendant sought to obtain confidential personnel records, he had to “establish a factual predicate showing that it is reasonably likely that the requested file will bear information both relevant and material to his defense.” Id. ¶ 25, 883 N.W.2d at 735. We concluded that the defendant‘s showing of relevance [was] lacking” and that he only subpoenaed the records because “the requested information in the personnel records might produce information useful to impeach his credibility.” Id. ¶ 26. We also noted that “[i]t is well established . . . that the need for evidence to impeach witnesses is [generally] insufficient to require its production in advance of trial.” Id. (quoting Nixon, 418 U.S. at 701, 94 S. Ct. at 3104) (second alteration in original).
[¶56.] Here, the Waldners assert two bases for issuing the subpoena. They assert that E.H.‘s mental health is at issue given other disclosures in her medical and mental health records, and that the requested diaries or journals may contain additional information relevant to her ability to reliably recall and recount events. The circuit court found that “E.H. appears to suffer from mental health conditions which may have an impact on her general credibility” and that “[i]t appears that the journals may shed light on E.H.‘s general credibility and the search for the truth in this prosecution.” But based on prior decisions from the United States Supreme Court and this Court, the Waldners’ assertions and the court‘s finding that the journals “may” contain additional information relating to E.H.‘s general credibility are insufficient to establish the necessary relevancy.
[¶57.] However, the Waldners also suggest the reference, in the journal E.H. did disclose, to a “purple notebook” indicates that she has other journals that may contain further information about her allegations against the Waldners. Prior to turning over this journal, E.H. told law enforcement she made journal entries detailing the events and her experiences involving her allegations against the Waldners, and the circuit court found that “the one journal produced discloses events which are relevant to the allegations against the Defendants as E.H. described the criminal conduct perpetrated against her[.]” We agree that although such case-specific information, if it exists in other journals, would meet the relevancy test, E.H.‘s reference to the contents of a purple notebook did not refer in any respect to the Waldners. Instead, she referred only to the purple notebook containing depressing and disturbing poems she had written. Nonetheless, even if there is a sufficient factual predicate or showing that it is reasonably likely that other diaries or journals may contain relevant and admissible evidence, the Waldners’ subpoena unquestionably fails to meet the specificity factor identified in Nixon.
[¶58.] This Court has recognized that, “[o]f the three requirements set forth
[¶59.] The Waldners’ subpoena does not meet the specificity requirements required under Nixon. “The specificity and relevance elements require more than the title of a document and conjecture as to its contents.” Id. ¶ 29. Further, we have said that use of the word “all,” and other similarly overbroad language, “does little to narrow the scope of the subpoena[,]” and such language “could require production of completely irrelevant materials[,] and falls short of the specificity necessary for production.” Id. ¶ 28. Here, the only other document referenced in the current record is the “purple notebook” containing poems that E.H. mentioned in the disclosed journal. But the Waldners’ subpoena requests all journals and/or diaries written by E.H. from January 1, 2010, to the present. Importantly, the charged conduct was alleged to have taken place in 2019 and 2020.
[¶60.] Similar to our conclusion in Milstead II, where the subpoena sought “all disciplinary records” and did not limit the requested documents to a particular relevant time frame, the “all” language here resembles “a general, non-specific fishing expedition,” and would in and of itself invalidate the Waldners’ subpoena.13
See id. ¶¶ 26-28, 883 N.W.2d at 735-36. Therefore, the circuit court erred by not granting E.H.‘s motion to quash. We reverse the court‘s order denying the motion to quash and remand for further proceedings consistent with this opinion.
[¶61.] Reversed and remanded.
[¶62.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices, concur.
Notes
An appeal from an intermediate order made before trial . . . may be sought by filing a petition for permission to appeal, together with proof of service thereof upon all other parties to the action in circuit court, with the clerk of the Supreme Court within ten days after notice of entry of such order.
Except as otherwise provided by constitution or statute or by this chapter or other rules promulgated by the Supreme Court of this State, no person has a privilege to:
. . .
(2) Refuse to disclose any matter;
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.