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#30343-r-PJD
2024 S.D. 67
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
MARK WALDNER, and
MICHAEL M. WALDNER, JR., Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRUCE V. ANDERSON
Judge
****
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.
****
ARGUED
MARCH 20, 2024
OPINION FILED 11/13/24
****
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.
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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 (SDCL
22-22-1(2)), two counts of rape in the fourth degree (SDCL 22-22-1(5)), and one
count of sexual contact with a child under sixteen years of age (SDCL 22-22-7).
Michael, Jr., was charged with one count of rape in the second degree (SDCL 22-22-
1(2)), one count of aggravated assault (SDCL 22-18-1.1(5)), two counts of rape in the
fourth degree (SDCL 22-22-1(5)), one count of sexual contact with a child under
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sixteen years of age (SDCL 22-22-7), and one count of simple assault (SDCL 22-18-
1(5)). 1
[¶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 Adam and
asked him to provide it to law enforcement. Levi then provided it to DCI Agent
Brian Larson.
[¶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
1. Michael Waldner, Sr., was also charged with rape in the fourth degree and
sexual contact with a child under sixteen, but after this appeal was filed, he
died on November 5, 2023. By stipulation of all the parties and E.H., the
circuit court entered an order dismissing him as a defendant in his pending
case and dismissing him as a defendant/respondent in this appeal.
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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
2. Prior to this motion, the circuit court granted the Waldners’ request for a
mental health expert to assist in their defense. Their request was based, in
part, on their contention that disclosures in E.H.’s journal and her mental
health diagnoses suggest she may be “prone to fantasies and hallucinations”
that affect her ability to accurately recall events and her overall credibility.
In conjunction with granting their request for a mental health expert, the
court also granted the Waldners’ request for the disclosure of E.H.’s mental
health records to share with their expert, subject to a protective order.
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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 documents of any nature” that she had written from 2010 to the present. A
few days later, the court entered its written order memorializing its oral ruling
granting the Waldners’ motion for discovery of all of E.H.’s diaries and/or journals.
[¶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 South Dakota Constitution, article VI, § 29 (Marsy’s Law).
She further argued that the Waldners’ subpoena duces tecum did not satisfy the
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three-part test set out in United States v. Nixon, 418 U.S. 683, 700, 94 S. Ct. 3090,
3103, 41 L. Ed. 2d 1039 (1974), that must be satisfied to obtain production of
documents pursuant to a Rule 17(c) subpoena. 3 However, before the court heard or
ruled on the motion to quash, the Waldners withdrew the subpoena they had issued
to E.H., noting that they had since been granted access to the journals through the
court’s discovery order entered after the June 7 hearing.
[¶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
SDCL chapter 23A-13 or the Brady doctrine because the State did not possess the
documents at issue. She also reasserted her right to privacy under Marsy’s Law,
including the right to refuse discovery requests.
[¶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.
3. Rule 17(c) is the federal counterpart to SDCL 23A-14-5, the statute under
which the Waldners issued their subpoena.
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[¶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 the subpoena, citing the same
arguments made in her previous motion and brief.
[¶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.
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[¶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
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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:
1. Whether this Court has jurisdiction to hear the appeal.
2. 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 Article VI, § 29:
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
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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.” S.D. Const. art. VI, § 29
(emphasis added). Therefore, the State argues that the reference to the Legislature
being able to further define the rights indicates “that the enumerated rights,
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enforcement mechanisms, and remedies referenced within the provision are self-
executing.” 4
[¶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 lack of an express requirement in
4. The State compares South Dakota’s Marsy’s Law to the victims’ rights
provisions in other states, which, unlike South Dakota’s, contain express
language requiring legislative enactments to enforce the provisions. See, e.g.,
State v. Skipwith, 123 A.3d 104, 107 (Conn. App. Ct. 2015) (interpreting a
constitutional provision that expressly directed its legislative body to provide
laws to enforce a victim’s rights contained therein); State v. Nebraska Bd. of
Pardons, 620 N.W.2d 763, 769 (Neb. 2001) (holding that no remedy was
available to a victim’s surviving spouse and daughter because the
constitutional provision expressly states that there are no other remedies
except those specifically provided by the legislature to enforce crime victims’
rights).
5. The Florida Court of Appeals, when considering an identical Marsy’s Law
provision providing a victim an appeal of right, determined that “a victim’s
legally cognizable interest in a criminal proceeding does not also
automatically entitle a victim to party of record status.” L.T. v. State, 296 So.
3d 490, 497 (Fla. Dist. Ct. App. 2020). The court recognized that nonparties
are nevertheless “routinely granted standing in a criminal setting for the
limited purpose of asserting and protecting specific rights.” Id. When
grappling with the manner in which a victim could obtain appellate review,
the court observed that Marsy’s Law “does not provide procedures to
implement and enforce the victim’s rights” or “remedies for failure to
recognize those rights.” Id. at 499. The court further noted that it did not
“have the authority to craft rules” for such implementation and deemed that
to be a task for the legislature. Id. at 499–500. The court nevertheless
(continued . . .)
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Marsy’s Law directing the Legislature to enact statutes to allow for implementation
and enforcement of victims’ rights, we decline to hold that the right to appeal under
Marsy’s Law is self-executing.
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 SDCL 23A-32-12. This
statute provides, in part:
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
________________________
(. . . continued)
considered the merits of the appeal, treating the victim’s petition for a writ of
prohibition as a petition for a writ of certiorari. Id. at 496.
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considers that the ends of justice will be served by the
determination of the questions involved without awaiting the
final determination of the action.
SDCL 23A-32-12 (emphasis added). E.H. acknowledges that this statute refers only
to “the state or the defendant” being permitted to petition for a discretionary
appeal. However, she notes that the State joined her petition. And although the
State’s filing was submitted after the ten-day timeframe required by SDCL 15-26A-
13, E.H. argues that appellate jurisdiction exists nonetheless because SDCL 15-
26A-13 is not a jurisdictional prescription enacted by the Legislature. 6
[¶25.] In particular, E.H. notes that because SDCL 15-26A-13 is a court rule,
this Court can, under SDCL 15-26A-92, waive the time for filing the petition for
good cause shown. 7 See SDCL 15-26A-92 (providing that on a showing of good
6. SDCL 23A-32-12 directs that the procedure for petitioning for appeals under
this statute shall be as set forth in SDCL 15-26A-13, which provides, in
relevant part:
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.
7. In arguing that the State’s untimely filing does not strip this Court of its
jurisdiction to hear the case, E.H. cites the United States Supreme Court’s
decision in Hamer v. Neighborhood Housing Services of Chicago, 583 U.S. 17,
138 S. Ct. 13, 199 L. Ed. 2d 249 (2017), which noted a distinction between
jurisdictional limits and court rules. The Court in Hamer explained that time
allowances to file for appeal are “jurisdictional only if Congress sets the
time,” whereas time limits set by a court are “mandatory claim-processing
rule[s].” Id. at 19, 138 S. Ct. at 17. In making this distinction, the Court held
that while “[f]ailure to comply with a jurisdiction prescription . . . deprives a
court of adjudicatory authority over the case,” court-made rules, on the other
hand, are “less stern,” and “may be waived or forfeited.” Id. at 20, 138 S. Ct.
at 17.
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cause the Court may “extend the time prescribed by this chapter for doing any act
or may permit an act to be done after the expiration of such time”). 8 In regard to
good cause, E.H. notes that she relied on the Milstead cases to exercise her
appellate rights by filing a petition for a discretionary appeal just as Sheriff
Milstead did and this Court did not note any jurisdictional issues in those cases.
She also relies on City of Rapid City v. State, a case in which the appellant, like
E.H., relied on this Court’s prior cases when determining how to seek appellate
review, and this Court treated the appellant’s filing as sufficient even though it
ultimately concluded that appeals must be brought in a different manner. 279
N.W.2d 165, 166 (S.D. 1979) (applying prospectively the determination that an
appeal from a decision on venue must be appealed via a petition for discretionary
appeal, not via a notice of appeal). Although we agree that the approach taken in
City of Rapid City may be warranted here, we conclude for the reasons discussed
below that the proper route for alleged victims to exercise their constitutional right
to appeal is under SDCL 15-26A-3(4).
8. The Waldners contend that SDCL 15-26A-92 does not support E.H.’s waiver
argument because the last clause of the statute provides that “the Supreme
Court may not enlarge the time for filing or serving a notice of appeal.” They
further rely on this Court’s holding in State v. Mulligan wherein we stated
that the time requirement in SDCL 15-26A-13 is mandatory and if it is not
met, it deprives the Court of appellate jurisdiction. 2005 S.D. 50, ¶ 5, 696
N.W.2d 167, 169. In response, E.H. notes that SDCL 15-26A-92, which was
not mentioned or considered in Mulligan, only precludes the Court from
extending the time for filing a notice of appeal. She maintains it does not
preclude the Court from extending the time for filing a petition for
discretionary appeal.
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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 SDCL 15-26A-3(4) because, in its view, the circuit court’s decision denying
E.H.’s motion to quash constitutes a “final order affecting a substantial right, made
in [a] special proceeding[ ].” As support, the State directs this Court to In re
Essential Witness and our conclusion that an order entered in a proceeding to
summon a witness to testify in an out-of-state criminal proceeding constitutes a
“‘final order affecting a substantial right, made in special proceedings’ under SDCL
15-26A-3(4).” 2018 S.D. 16, ¶ 11, 908 N.W.2d 160, 165.
[¶27.] In In re Essential Witness, we first examined the nature of a
proceeding commenced pursuant to the procedures in SDCL 23A-14-14 through
23A-14-18 to obtain an order from the circuit court summoning witnesses within
South Dakota to appear and testify in a criminal proceeding in Minnesota. Id. We
noted that “the proceedings do not involve the arrest, charge, or punishment of an
individual for a public offense” and that the circuit court’s determinations in these
proceedings “do not implicate the resolution of a criminal charge.” Id. We therefore
determined that such a proceeding, ancillary to the criminal proceeding, was civil in
nature. We further concluded that we had jurisdiction to hear the appeal under
SDCL 15-26A-3(4). Id.
[¶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
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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 [SDCL 15-26A-3(4)] was very evidently to secure an aggrieved party a
review of such final orders, affecting substantial rights, as could not be considered
on an appeal from the judgment itself.” 9 Wilge v. Cropp, 74 S.D. 511, 514, 54
N.W.2d 568, 569 (1952). Here, the nature of E.H.’s constitutional right to privacy is
such that it cannot be effectively asserted or enforced after a judgment. Even if the
State or E.H. could assert E.H.’s rights via a notice of review in an appeal from a
judgment after the Waldners’ trial, by that time, E.H.’s diaries and/or journals
would have been reviewed by the circuit court and possibly disclosed to the State
and defense, essentially rendering her motion to quash moot.
9. The State cites two additional cases involving other matters ancillary to a
criminal proceeding to support its assertion that a hearing pertaining to a
subpoena issued pursuant to SDCL 23A-14-5 is a special proceeding. See
State v. Kieffer, 45 S.D. 288, 187 N.W. 164, 166 (1922) (noting that
proceedings for search warrants are special proceedings and “in no sense
‘criminal actions’”); In re Implicated Individual, 2021 S.D. 61, ¶ 10 n.7, 966
N.W.2d 578, 582 n.7 (concluding that an appeal from a ruling unsealing a
search warrant could be brought under SDCL 15-26A-3(4) as an appeal of a
final order affecting a substantial right made in a special proceeding).
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[¶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[.]” SDCL 15-26A-3(4). Thus, it was appealable as a matter of right.
[¶32.] However, we must still address the fact that an appeal pursuant to
SDCL 15-26A-3(4) is governed by the procedural requirements in SDCL 15-26A-4.
Under that statute, “[b]efore the expiration of the time to appeal, appellant shall
file the notice of appeal and docketing statement with the clerk of the trial court in
10. On this issue, E.H. and the State note that recognizing an appeal of right
from a final order alleged to have violated Marsy’s Law would ensure that
victims’ rights “are protected in a manner no less vigorous than the
protections afforded to criminal defendants[.]” S.D. Const. art. VI, § 29. E.H.
argues that just as a criminal defendant would be able to appeal as a matter
of right from a final judgment if the circuit court had instead granted E.H.’s
motion to quash, she should be afforded this same opportunity to appeal, as a
matter of right, the order denying her motion to quash. E.H. also makes a
fair point that the State may not always be in lockstep with the victim. Thus,
a victim needs to have an independent right to pursue enforcement of these
constitutional provisions.
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which the judgment or order was entered.” E.H. did not file a notice of appeal with
the circuit court, as required by this statute. Instead, she filed a petition for
discretionary appeal with this Court—the same procedure employed by the third
party in the Milstead cases. Her reliance on the Milstead cases is understandable
given that no jurisdictional issues were raised by the parties or noted by this Court
in these cases.
[¶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 SDCL 15-26A-6 and that she served
it on the required parties. Second, although the document E.H. filed was captioned
as a petition, it no doubt contained more information than that required in a notice
of appeal. Compare SDCL 15-26A-14 (setting forth the detailed contents required
in a petition seeking a discretionary appeal), with SDCL 15-26A-4(1) (requiring only
that a notice of appeal specify the party taking the appeal, the judgment or order
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appealed from, and that it be signed by the appellant or his or her attorney).
Therefore, we deem E.H.’s petition sufficient to serve as a notice of appeal. This
determination is particularly warranted in light of E.H.’s reliance on the Milstead
cases and because we have not, prior to the current appeal, addressed the proper
procedure for a victim to appeal an alleged violation of Marsy’s Law.
[¶35.] Moreover, although SDCL 15-26A-4(4) provides that the notice of
appeal be filed with the circuit court and E.H.’s filing was with this Court, SDCL
15-26A-4 further provides that the “[f]ailure of an appellant to take any step other
than timely service and filing of a notice of appeal does not affect the validity of the
appeal, but is ground only for such action as the Supreme Court deems
appropriate[.]” This language identifying the failures that affect the validity of an
appeal does not refer to the location of the filing. Therefore, we have discretion to
determine whether a filing with the wrong entity warrants a dismissal. Under the
unique circumstances of this case, we do not believe a dismissal would be
appropriate. As such, we conclude we have jurisdiction to hear this appeal. Going
forward, individuals exercising the right to appeal under Marsy’s Law should follow
the requirements set forth in SDCL 15-26A-4 through 15-26A-6 for appeals
permitted by SDCL 15-26A-3.
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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
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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 SDCL 19-13-26, a statutory exception deeming privileges
conferred in SDCL chapter 19-13 to be waived under certain circumstances. Id.
¶ 32, 589 N.W.2d at 601. The Court determined the victim had waived his privilege
to keep such records confidential by disclosing some of the information to several
other individuals. Id. Because the statutory waivers applied in Karlen are not
applicable to E.H.’s constitutional right to privacy, the Waldners’ reliance on Karlen
to support their waiver argument here is misplaced.
[¶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 records that the Court went on to
discuss whether the trial court’s error in refusing to allow inspection of the records
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was harmless. Id. ¶¶ 32, 35, 589 N.W.2d at 601–02. After finding it was not, the
Court then directed an in-camera review as a method of balancing the tension that
still exists “between the rights of the accused and the confidences of the patient.”
Id. ¶ 45, 589 N.W.2d at 605. Thus, while the protection afforded by an in-camera
review is an appropriate way to balance these competing rights and interests, this
does not supplant the need to first determine if there is an unwaived right or
privilege at stake and whether it can be overcome, before ordering the disclosure of
the documents to anyone, including the court.
[¶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.” S.D. Const. art. VI, § 29(6). As such, the
Waldners would not only have to prove E.H.’s alleged waiver was voluntary,
knowing, and intelligent, but also that her decision to relinquish only the one
journal was unreasonable.
[¶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
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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 Article VI, § 29(6), E.H. had a right to put
reasonable conditions on any information she disclosed. See In re B.H., 946 N.W.2d
860, 869–70 (Minn. 2020) (concluding that a victim’s offer of a “limited amount of
data directly related to the alleged assault” did not constitute a knowing and
voluntary waiver to all other data on her phone). We conclude that E.H. did not
waive her right to privacy as it relates to her other diaries and journals.
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 constitutional rights,
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including the right to compulsory process, as an exception to the victim’s rights
outlined in Marsy’s Law. Ohio Const. art. I, § 10a(A)(6) (citing Ohio Const. art. I,
§ 10, Ohio’s constitutional provision for rights of criminal defendants); see also, N.D.
Const. art. 1, § 25(1)(f) (stating that “[n]othing in [the right to privacy] section shall
abrogate a defendant’s sixth amendment rights under the Constitution of the
United States nor diminish the state’s disclosure obligation to a defendant”); Wis.
Const. art. 1, § 9m(6) (stating that “[the crime victim’s rights] section is not
intended and may not be interpreted to supersede a defendant’s federal
constitutional rights or to afford party status in a proceeding to any victim”).
[¶44.] But an absence of express exceptions to a privilege or constitutional
right may not insulate E.H. from complying with a Rule 17(c) subpoena duces
tecum. A similar argument, although not based on an express constitutional right
like those at issue here, was made in Nixon. In Nixon, the special prosecutor issued
a Rule 17(c) third-party subpoena duces tecum directing the President to produce
tape recordings and documents concerning conversations between the President
and his aides and advisors. 418 U.S. at 686, 94 S. Ct. at 3096. Nixon, an
unindicted coconspirator, filed a special appearance in the proceeding and moved to
quash the subpoena. Among other arguments, Nixon asserted “claims of absolute
executive privilege.” Id. at 686, 94 S. Ct. at 3096. The district court denied Nixon’s
motion to quash.
[¶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
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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
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allowed to trump a Constitutional right.’” Milstead II, 2016 S.D. 56, ¶ 10, 883
N.W.2d at 730. Rather, we must carefully balance the constitutional rights of both
E.H. and the Waldners. In doing so, we note that although Marsy’s Law further
commands “that victims’ rights and interests are protected in a manner no less
vigorous than the protections afforded to criminal defendants[,]” S.D. Const. art. VI,
§ 29, it does not say that a victim’s rights trump the equally important
constitutional rights of criminal defendants. 11
[¶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.
11. Other jurisdictions that have adopted Marsy’s Law have addressed the effect
of the “no less vigorous than protections afforded to criminal defendants”
language. The Court of Appeals of Ohio, when balancing the competing
rights, held that a victim’s right to refuse discovery “must be weighed against
a criminal defendant’s rights to due process, to confront witness[es], to have
compulsory process to obtain evidence, and to effective assistance of
counsel[.]” State ex rel. Thomas v. McGinty, 137 N.E.3d 1278, 1289 (Ohio Ct.
App. 2019). However, we acknowledge that, unlike our version of Marsy’s
Law, Ohio’s law does have express exceptions to a crime victim’s right to
refuse discovery. See also L.T., 296 So. 3d at 495 (noting, generally, that the
overall provisions in Marsy’s Law “call for a careful balance of the rights of
the defendant and those of the victim . . . without impacting the basic
constitutional foundations of the criminal justice system”).
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[¶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 the right to privacy provided in Marsy’s
Law is not so absolute to preclude in all instances a defendant’s right to compel the
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production of relevant and admissible evidence via a Rule 17(c) subpoena.
However, this determination does not resolve the matter before us because not all
subpoenas issued under Rule 17(c) are enforceable. We must next examine whether
the Waldners’ subpoena met the requirements set forth in Nixon to overcome E.H.’s
motion to quash.
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 SDCL 23A-14-5 to permit discovery raises a question of
statutory interpretation and application, which we review de novo.” Id.
[¶52.] Like the Waldners’ subpoena duces tecum, the challenged subpoena in
Nixon was issued under Rule 17(c) of the Federal Rules of Criminal Procedure (the
federal counterpart to SDCL 23A-14-5), “which governs the issuance of subpoenas
duces tecum in federal criminal proceedings.” 418 U.S. at 697–98, 94 S. Ct. at 3102.
In its decision, the Supreme Court developed a specific test to determine the
validity of Rule 17(c) subpoenas. Id. at 700, 94 S. Ct. at 3103. The Court noted that
while “[e]nforcement of a pretrial subpoena duces tecum must necessarily be
committed to the sound discretion of the trial court,” id. at 702, 94 S. Ct. at 3104,
that discretion is not without limit. The Nixon Court held that a party seeking to
require pretrial production of evidence in this manner must “clear three hurdles” by
showing “(1) relevancy; (2) admissibility; [and] (3) specificity” with regard to the
information requested. Id. at 700, 94 S. Ct. at 3103.
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[¶53.] This Court adopted the Nixon test while analyzing a Rule 17(c)
subpoena duces tecum issued pursuant to SDCL 23A-14-5 in Milstead II, 2016 S.D.
56, ¶ 20, 883 N.W.2d at 733–34. 12 Thus, the circuit court erred here by neglecting
to apply the Nixon factors when denying E.H.’s motion to quash the Waldners’
subpoena duces tecum. While the circuit court may have discretion in applying the
Nixon factors to the particular facts or circumstances of the case, the legal
parameters for those factors are defined by this Court.
[¶54.] As to the first factor, i.e., relevancy, we have stated that evidence is
relevant if: “(a) It has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) The fact is of consequence in determining
the action.” Milstead II, 2016 S.D. 56, ¶ 22, 883 N.W.2d at 734 (quoting SDCL 19-
12. To the extent the Waldners are suggesting that Karlen has any bearing on
whether the Nixon factors must be applied, this suggestion is misplaced. We
specifically noted in Milstead II that although Karlen involved a subpoena
duces tecum issued in a criminal case, the Court did not address “the
parameters for discovery of documents under SDCL 23A-14-5 (Rule 17(c))”
because the issue was not raised by the parties. 2016 S.D. 56, ¶ 15, 883
N.W.2d at 732. We further reject the Waldners’ argument that the Nixon
factors need not be applied here because, in their view, Marsy’s Law does not
give a victim the right to refuse a court order (i.e., a subpoena duces tecum),
as well as their suggestion that the Nixon factors need only be applied when
the material subpoenaed is subject to a statutory privilege. Neither premise
is sound. In fact, SDCL 19-19-501 recognizes that constitutional and
statutory provisions, along with Court rules, may allow the precise privileges
claimed by E.H. to be asserted. Relevant here, this statute provides:
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.
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19-401). Although relevancy is generally a low hurdle to clear, there must
nonetheless be a showing that the documents sought are significant to deciding the
issue before the factfinder.
[¶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
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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
in Nixon, ‘[s]pecificity is the hurdle on which many subpoena requests stumble.’”
Milstead II, 2016 S.D. 56, ¶ 27, 883 N.W.2d at 736 (quoting United States v.
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Ruedlinger, 172 F.R.D. 453, 456 (D. Kan. 1997)) (second alteration in original).
“The requirement of specificity ‘ensures that the subpoenas are used only to secure
for trial certain documents or sharply defined groups of documents.’” Id. ¶ 27, 883
N.W.2d at 735 (emphasis added). The main concern is that Rule 17(c) subpoenas
are not “being used as a ‘fishing expedition to see what may turn up.’” Id. ¶ 27, 883
N.W.2d at 736 (citation omitted).
[¶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
13. The State also asserts that the Waldners “have not shown that any
information in the journals would be admissible,” claiming primarily that
(continued . . .)
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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.
________________________
(. . . continued)
“the information within [the journals] would constitute impermissible
hearsay and could be precluded under SDCL 19-19-412 [the Rape Shield
law].” Given our determination that the specificity factor has not been met,
we need not resolve this issue. However, we note that one of the circuit
court’s findings of fact states that E.H. has “made incriminating statements
about other persons who have perpetrated sexual crimes against her.” It is
not clear whether the court was referring to statements E.H. made in the
disclosed journal. In cases involving alleged sexual misconduct, a court
evaluating a Rule 17(c) subpoena must be cognizant of the general
inadmissibility of other sexual behavior by a victim under SDCL 19-19-412.
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Case Information
- Court
- S.D.
- Decision Date
- November 13, 2024
- Status
- Precedential