State v. Waldner

2024 S.D. 67

• Court: South Dakota Supreme Court
• Decided: November 13, 2024
• Docket: 30343
• Status: Published

Opinion

#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. #30343

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

[¶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 . . .) -10- #30343

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

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 . . .) -31- #30343

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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