In re Issuance of a Summons Compelling, 28263
| Decision Date | 14 February 2018 |
| Docket Number | 28264,28263 |
| Citation | 908 N.W.2d 160 |
| Parties | IN RE: The Matter of the ISSUANCE OF a SUMMONS COMPELLING an ESSENTIAL WITNESS TO APPEAR AND TESTIFY IN the STATE OF MINNESOTA In re: The Matter of the Issuance of a Summons Compelling an Essential Witness To Appear and Testify in the State of Minnesota |
| Court | South Dakota Supreme Court |
JASON UNGER, Flandreau, South Dakota, Attorney for Appellants, M.M.W. & William Joseph Wilkie.
MARTY J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant Attorney General, Pierre, South Dakota, Attorneys for Appellee, State of South Dakota.
[¶ 1.] Appellant William Joseph Wilkie (Wilkie) and his granddaughter, Appellant M.M.W., each appeal the entry of a circuit court order in two separate proceedings. The orders summon Wilkie and M.M.W. to appear and testify in an out-of-state criminal proceeding in Clay County, Minnesota. We consolidate the cases for resolution of their appeals. Wilkie and M.M.W. claim their rights as victims were violated because they were not advised of their right to counsel during the circuit court proceedings. They also claim the circuit court erred in issuing the orders. We affirm the order pertaining to Wilkie and reverse and remand the order pertaining to M.M.W.
[¶ 2.] Dustin James Wilkie (Dustin), Wilkie’s son and M.M.W.’s father, was charged with domestic assault of M.M.W. in Minnesota. M.M.W. immediately called her grandfather after the alleged assault to report the incident. M.M.W. subsequently moved to South Dakota to live with Wilkie. The State of Minnesota sought to summon Wilkie and M.M.W. as witnesses at Dustin’s trial.
[¶ 3.] On April 26, 2017, a judge of the Seventh Judicial District of the State of Minnesota issued two certificates declaring Wilkie and M.M.W. necessary and material witnesses in the prosecution of the criminal action against Dustin. The certificates also stated there were no known hardships for either witness to testify. The certificates were supported by affidavits submitted by the Clay County, Minnesota prosecuting attorney, setting forth the facts in support of the request to summon the testimony of Wilkie and M.M.W. The certificates directed Wilkie and M.M.W. to be available to testify for one to three days in May of 2017 in Moorhead, Minnesota, an approximate three-hour drive from Flandreau, South Dakota, where Wilkie and M.M.W. were living.
[¶ 4.] The Minnesota certificates were issued in conformity with the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act), codified at SDCL 23A-14-14 through SDCL 23A-14-24. Upon receipt of the Minnesota certificates, the Moody County State’s Attorney filed a motion requesting the South Dakota circuit court to enter an order summoning Wilkie and M.M.W. to appear and testify in the Minnesota criminal proceeding. Pursuant to SDCL 23A-14-151 and SDCL 23A-14-16,2 the circuit court ordered Wilkie and M.M.W. to attend a hearing in Flandreau on May 8, 2017, to show cause why they should not be ordered to attend and testify in the Minnesota criminal case. On the date of the hearing, Wilkie and M.M.W. mistakenly drove to Moorhead, Minnesota, believing the hearing would be held there. By the time the mistake was realized, it was impossible for the pair to travel back to Flandreau in time for the hearing. The circuit court allowed Wilkie to voice his objections to the State’s motion over the telephone.
[¶ 5.] Wilkie and M.M.W. were unrepresented by counsel at the hearing, and the circuit court did not advise or discuss consultation with an attorney. Wilkie represented over the phone that M.M.W. had "a rough year in the past year" and was seeing a counselor. Wilkie also stated that he did not want M.M.W. to have to relive the incident by testifying and that it was "starting to cost [Wilkie] a lot of money to go back-and-forth." The circuit court stated that it had reviewed a letter from M.M.W.’s counselor dated May 5, 2017.
[¶ 6.] The court determined that Wilkie had failed to show a personal hardship. As to M.M.W., the court noted the severity of the underlying charges against M.M.W.’s father and the belief that the State of Minnesota could implement procedures to protect M.M.W. upon her request. The circuit court entered orders directing both Wilkie and M.M.W. to appear and testify as witnesses at the Minnesota trial.
[¶ 7.] Wilkie and M.M.W. raise two issues for our review:
[¶ 8.] In its brief, the State requests this Court to dismiss the appeal for lack of jurisdiction. The State argues this Court lacks appellate jurisdiction because there is not a criminal statute conferring such jurisdiction in SDCL chapter 23A-32. The State correctly notes that " State v. Schwaller , 2006 S.D. 30, ¶ 5, 712 N.W.2d 869, 871 (quoting Dale v. City of Sioux Falls , 2003 S.D. 124, ¶ 6, 670 N.W.2d 892, 894 ).
[¶ 9.] The State’s argument is premised on its categorization of the appealed orders as criminal matters. The State recognizes the possibility that the proceedings are civil in nature, citing Codey ex rel. State of New Jersey v. Capital Cities, American Broadcasting Corp. , 82 N.Y.2d 521, 605 N.Y.S.2d 661, 626 N.E.2d 636 (1993), and acknowledges that if the proceedings are civil, then the case may be appealable under SDCL 15-26A-3(2) or (4). Wilkie and M.M.W. assert that the case is properly appealed as a matter of right under SDCL 15-26A-3 and SDCL 15-26A-4.
[¶ 10.] In Codey , the Court of Appeals of New York determined that proceedings to summon a witness under the Uniform Act are civil proceedings. 605 N.Y.S.2d 661, 626 N.E.2d at 640. The court stated that an order determining the "validity and force of another State’s demand for a witness’s appearance ... is analytically analogous to a motion to quash a subpoena, which is ordinarily deemed civil in nature." Id.
[¶ 11.] We conclude a proceeding to summon a witness to testify in an out-of-state criminal proceeding under SDCL 23A-14-14 through SDCL 23A-14-18 is a civil proceeding.3 Although the South Dakota proceedings are ancillary to a criminal proceeding in another state and the governing statutes are found in the criminal procedure section of the South Dakota Code, the proceedings do not involve the arrest, charge, or punishment of an individual for a public offense. Rather, the proceedings represent the circuit court’s determination whether a witness is material and necessary, and whether the summons will cause the witness undue hardship under SDCL 23A-14-16. These determinations are civil in nature and do not implicate the resolution of a criminal charge. Thus, this Court has jurisdiction to consider the appeals from these orders as a "final order affecting a substantial right, made in special proceedings" under SDCL 15-26A-3(4).
[¶ 12.] The State also moves this Court to strike certain statements and materials referenced by Wilkie and M.M.W. in their briefs. First, Wilkie and M.M.W. reference motions they filed to stay the orders summoning their testimony pending their appeals and the circuit court’s denial of the motions for lack of jurisdiction. The State concedes the motions are in the record, but the record does not contain a ruling or a transcript of a hearing. Second, the State asks to strike references by Wilkie and M.M.W. concerning further proceedings in the Minnesota criminal case while these appeals were pending. The record does not contain evidence of such proceedings. Because the contested references are not material to this appeal, we do not consider these references.
[¶ 13.] Wilkie and M.M.W. argue that the recent amendment found in the South Dakota Constitution, article VI, § 29, approved by South Dakota voters in November of 2016, otherwise known as Marsy’s Law, guarantees crime victims the right to be informed that they may consult an attorney about their rights as victims.4 They suggest this right is commensurate with a criminal defendant’s Sixth Amendment right to the assistance of counsel. Wilkie and M.M.W. argue that, at a minimum, they were deprived of their rights under Marsy’s Law because they were not properly notified of their right to consult an attorney. The State responds that Minnesota law applies to this proceeding. The State also argues that the victim rights set forth in South Dakota’s Constitution are not applicable to a crime committed outside South Dakota. Finally, the State asserts that even if Marsy’s Law is applicable, Wilkie and M.M.W. are not entitled to the appointment of counsel but at most, to be advised of a right to consult with an attorney. To resolve this issue, we only address the narrow question whether the Marsy’s Law rights in South Dakota’s Constitution are applicable to crimes committed outside the State of South Dakota.
[¶ 14.] "Constitutional amendments are adopted for the purpose of making a change in the existing system and we are ‘under the duty to consider the old law, the mischief, and the remedy, and interpret the constitution broadly to accomplish the manifest purpose of the amendment.’ " Doe v. Nelson , 2004 S.D. 62, ¶ 15, 680 N.W.2d 302, 308 (quoting South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 697 (S.D. 1981) ). "The object of constitutional construction is ‘to give effect to the intent of the framers of the organic law and the people adopting it.’ " Davis v. State , 2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 643 (Gilbertson, C.J., concurring in result) (quoting Doe...
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