State ex rel. Joyce v. Mullen

• Decision Date: 15 November 2016
• Docket Number: No. ED 104226,ED 104226
• Parties: STATE of Missouri EX REL. Jennifer M. JOYCE, Circuit Attorney for the City of St. Louis, Relator, v. The Honorable Michael K. MULLEN, Circuit Judge, Twenty–Second Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

503 S.W.3d 330

STATE of Missouri EX REL. Jennifer M. JOYCE, Circuit Attorney for the City of St. Louis, Relator,

v.The Honorable Michael K. MULLEN, Circuit Judge, Twenty–Second Judicial Circuit, Respondent.

No. ED 104226

Missouri Court of Appeals, Eastern District, WRIT DIVISION TWO .

Filed: November 15, 2016

Beth Hensley Orwick, St. Louis, MO, for Relator.

Sarah P. Sherer–Kohlburn, Richard Kroeger, Mary D. Fox, St. Louis, MO, for Respondent.

LAWRENCE E. MOONEY, PRESIDING JUDGE

The Circuit Attorney filed petitions for writs of mandamus, disputing the trial court's denial of her motions for protective order in fourteen underlying criminal cases. We issued preliminary orders and ordered the cases consolidated, briefed, and orally argued. Today, we quash the preliminary orders in part and make them permanent in part. We agree with the trial court's conclusions that Missouri Supreme Court Rule 25.03 is constitutional and that the Circuit Attorney failed to prove that good cause existed for protective orders. But we disagree with the trial court's interpretation of the scope of disclosure required by Rule 25.03. Therefore, the trial court should deny the Circuit Attorney's motions that she not be required to disclose the last known addresses of witnesses. But the trial court should grant the Circuit Attorney's motions that the scope of discovery under Rule 25.03 does not require her to divulge the phone numbers, dates of birth, and social-security numbers of witnesses.

Factual and Procedural Background

The defendants in the fourteen underlying criminal cases each requested that the Circuit Attorney provide discovery under Missouri Supreme Court Rule 25.03. That Rule requires that the Circuit Attorney provide discovery to defendants upon request, including the names and last known addresses of all persons the Circuit Attorney intends to call as witnesses.

The Circuit Attorney moved for a protective order in each case pursuant to Missouri Supreme Court Rule 25.11, which authorizes the trial court, on motion and for good cause shown, to order that specified disclosures be denied. The Circuit Attorney in her motions sought to withhold the phone numbers, dates of birth, social-security numbers, and last known addresses of victims and witnesses contained in the police reports. She offered to produce victims and witnesses to defense counsel at her office, for a deposition or interview, in lieu of providing the information.

The Circuit Attorney has a long-standing practice, dating back some ten years, of deleting this information from police reports, even deleting the last known addresses, before providing the reports to defense counsel. The Circuit Attorney established this practice based on her own conclusion that Rule 25.03 was unconstitutional in light of an amendment to the Missouri Constitution adopted in 1992. That amendment provides that crime victims have a right to "reasonable protection" from a defendant. In the last ten years, the Circuit Attorney never sought the trial court's permission to deviate from the mandates of the Missouri Supreme Court Rules and never sought a declaration that Rule 25.03 was unconstitutional. She seeks protective orders now, apparently for the first time, after protests from defense counsel.

The fourteen motions filed by the Circuit Attorney were identical, with the exception of the list of pending charges for each defendant. The Circuit Attorney lodged alternative arguments and requests for court action. She first challenged the constitutionality of Rule 25.03, contending that to the extent the Rule required disclosure of the last known address and any other personal identifying information, the Rule violated the victims' and witnesses' constitutional right to privacy. She thus sought the trial court's declaration that Rule 25.03 was unconstitutional as applied to crime victims and witnesses. Alternatively, the Circuit Attorney sought protective orders allowing her to redact the victims' and witnesses' last known addresses and other personal identifying information from the police reports. In arguing that good cause existed for granting her motions, she alleged generally that victims and witnesses were subject to threats, intimidation, potential identity theft, and other cybercrimes. She further generally averred that this had a chilling effect on her ability to prosecute defendants. However, the Circuit Attorney never alleged that any victim or witness in any of the underlying criminal cases had been subject to threats, intimidation, or any untoward consequence. In the event the court rejected this argument, the Circuit Attorney alternatively argued that she could redact all personal identifying information other than the last known addresses of victims and witnesses because the rule on its face only required disclosure of last known addresses.

Judge Michael K. Mullen called the Circuit Attorney's motions for hearing. The court addressed each of the fourteen cases individually. However, the Circuit Attorney never adduced any specific evidence that any victim or witness in any of the cases had been subject to threats, intimidation, or any untoward consequence. Instead, she reargued the general, non-specific allegations contained in her motions.

The trial court denied the Circuit Attorney's motions, concluding that Rule 25.03 is constitutional. The court further held that the Circuit Attorney failed to show good cause for protective orders under Rule 25.11. The court ordered the Circuit Attorney "to comply with Rule 25.03 and provide defendant with last known addresses of all endorsed witnesses and an unredacted police report." An unredacted police report would include phone numbers, dates of birth, and social-security numbers of victims and witnesses.

The Circuit Attorney now seeks writs of mandamus.¹ She asks that we order the trial court to hold Rule 25.03 unconstitutional to the extent it requires disclosure of personal information of crime victims and witnesses. Alternatively, the Circuit Attorney asks that we order the trial court to issue protective orders in the underlying cases.

Writ Authority

This Court has the authority "to issue and determine original remedial writs." Mo. Const. Art. V, Section 4.1; State ex rel. Isselhard v. Dolan , 465 S.W.3d 496, 498 (Mo. App. E.D. 2015). We do not issue such writs lightly. A writ of mandamus is reserved for extraordinary emergencies. Isselhard , 465 S.W.3d at 498 ; St. Louis Cty. Bd. of Election Commissioners v. McShane , 492 S.W.3d 177, 180 (Mo. App. E.D. 2016). The writ of mandamus is to be used only as a last resort, in those cases in which no adequate alternative remedy exists. St. Louis Cty. Bd. of Election Commissioners , 492 S.W.3d at 180.

We take up the matter at this juncture of proceedings because no adequate remedy by appeal exists, as the personal information sought to be protected would not be protected if reviewed only on post-trial appeal. See Romley v. Schneider , 202 Ariz. 362, 45 P.3d 685, 686 (2002). "A writ of prohibition [or] mandamus is the proper remedy for curing discovery rulings that exceed a court's jurisdiction or constitute an abuse of the court's discretion." State ex rel. White v. Gray , 141 S.W.3d 460, 463 (Mo. App. W.D. 2004) (internal quotation omitted). "Mandamus is a discretionary writ that is appropriate where a court has exceeded its jurisdiction or authority and where there is no remedy through appeal." State ex rel. Poucher v. Vincent , 258 S.W.3d 62, 64 (Mo. banc 2008) (internal quotation omitted). The function of the writ of mandamus "is to enforce, not to establish, a claim or right." Isselhard , 465 S.W.3d at 498. A writ may lie "to prevent the forced disclosure of information during discovery, particularly when the information is protected by a statute, rule or privilege." White , 141 S.W.3d at 463 (internal quotation omitted).

Constitutional Challenge

The trial court concluded that Rule 25.03 did not violate the Missouri Constitution. Constitutional interpretation is a question of law that we review de novo . State v. Jackson , 384 S.W.3d 208, 211 (Mo. banc 2012).

Rule 25.03, at the center of this ongoing dispute, reads in pertinent part:

(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request:

(1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements....

The Circuit Attorney must provide the information upon written request of defense counsel, without the necessity of a court order. The Missouri Supreme Court adopted this Rule in June of 1979. The Rule became effective on January 1, 1980, some thirty-six years ago.

In 1992, the citizens of Missouri amended the Missouri Constitution to establish certain rights of crime victims. Mo. Const. Art. I, Sec. 32. Thus, the Missouri Constitution recognizes that crime victims have:

the right to reasonable protection from the defendant or any person acting on behalf of the defendant.

Mo. Const. Art. I, Sec. 32 (1)(6).

The Circuit Attorney argues that in light of this constitutional provision, Rule 25.03 is unconstitutional as applied to crime victims and witnesses. We acknowledge the constitutional protections afforded crime victims, and we understand their importance. We sympathize with the plights of victims and witnesses, and are grateful for their participation in the criminal-justice system. We take seriously the retribution that victims and witnesses may face. But we reject the Circuit Attorney's constitutional challenge. Importantly, the Rule opens with cautionary language providing that Rule 25.03 does not even apply if the Circuit...