State v. Russell, No. 16-0807

CourtUnited States State Supreme Court of Iowa
Writing for the CourtZAGER, Justice.
Citation897 N.W.2d 717
Parties STATE of Iowa, Appellee, v. Andrew Lee RUSSELL, Appellant.
Decision Date23 June 2017
Docket NumberNo. 16-0807

897 N.W.2d 717

STATE of Iowa, Appellee,
v.
Andrew Lee RUSSELL, Appellant.

No. 16-0807

Supreme Court of Iowa.

Filed June 23, 2017


Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, and John Sandy of Sandy Law Firm, P.C., Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins and Andrew B. Prosser, Assistant Attorneys General, David Patton, County Attorney, and Ashley Bennett, Assistant County Attorney, for appellee.

Alan R. Ostergren, Muscatine, for amicus curiae Iowa County Attorneys Association.

ZAGER, Justice.

In this interlocutory appeal, Andrew Russell asserts the right to serve ex parte subpoenas duces tecum1 upon third parties under the rules of criminal and civil procedure without providing notice to the State. Additionally, Russell asserts that denying him the right to issue ex parte subpoenas duces tecum denies him the constitutional rights to the effective assistance of counsel, compulsory process, and due process under the United States and Iowa Constitutions. The State filed a motion to regulate discovery that would prevent the defendant from issuing an investigatory subpoena duces tecum except in three circumstances: (1) by express agreement of the parties, (2) to a witness for a deposition with notice to all parties, or (3) to a witness for a trial or court hearing. After a hearing, the district court found there was no statutory or constitutional authority to support Russell's position that he had a right to issue ex parte subpoenas duces tecum. The district court also ordered counsel for the defendant to provide notice to the State before serving any subpoenas duces tecum on third parties. Russell sought interlocutory review and a stay, which we granted and retained. For the reasons stated below, we affirm the decision of the district court.

I. Background Facts and Proceedings.

Because this case comes before us on a motion for interlocutory review on a discovery dispute, only the procedural history is relevant.

On December 4, 2015, the State charged defendant Andrew Russell with one count of child endangerment in violation of Iowa Code section 726.6A (2015). On March 15, 2016, the State filed a motion to regulate discovery and requested that the district court enter an order prohibiting Russell

897 N.W.2d 722

from issuing ex parte subpoenas duces tecum. In the motion, the State requested that the district court order defense counsel not to "serve or deliver any subpoena upon any person or entity" except in three situations: (1) the express agreement of the parties, (2) to a witness for a deposition with notice to all parties, or (3) to a witness for trial or hearing.

Russell resisted the motion and requested a hearing. At the hearing, Russell argued that under the Iowa rules of criminal and civil procedure, he had the right to issue subpoenas without the necessity of subpoenaing a witness to a hearing or trial, and without notice to the State. Russell further argued that granting the State's motion would violate his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution ; his right to compulsory process; and his due process rights under the United States Constitution and article I, section 9 of the Iowa Constitution.

The district court set the matter for hearing on April 11. After the hearing, the district court granted the State's motion and issued a protective order stating that Russell's counsel was

prohibited from issuing any subpoena except to secure the attendance of a witness listed as a witness by the State at a deposition on notice to all parties pursuant to Iowa Rule of Criminal Procedure 2.13(1) ; to secure the attendance of a witness not listed by the State by order of the Court pursuant to Iowa Rule of Criminal Procedure 2.13(2) ; to secure the attendance of a witness at trial or other court proceedings pursuant to Iowa Rule of Criminal Procedure 2.13(2). The Defendant may also attach a request for documents, subpoena duces tecum, pursuant to Iowa Rule of Criminal Procedure 2.15(2), provided the subpoena also requests the witness's attendance in the above-prescribed manner.

The district court found that there was no authority to support Russell's position whether statutory, rule-based, or in caselaw. The district court noted that its decision did not prevent Russell from obtaining information to support an investigation, nor did it require him to show his hand prematurely. Russell applied for interlocutory review which we granted and retained.

II. Standing.

Russell argues the State does not have standing to object because it is not "injuriously affected" by the issuance of a subpoena duces tecum to a third party as part of a defendant's investigation to build a defense. Because the third party possesses the records and not the State, the State is not injured by the subpoena. The State responds it does have standing to object because the third party's refusal to produce documents or the third party's deliverance of documents may impact the State's ability to bring the defendant to trial within the limits of speedy trial requirements.

Our general rule for a party to have standing to object is whether the party was "prejudiced by the claimed error." Mundy v. Warren , 268 N.W.2d 213, 218 (Iowa 1978). Other courts have described the test for standing to quash a subpoena. "A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." United States v. Raineri , 670 F.2d 702, 712 (7th Cir. 1982). In such a situation, "[t]he prosecution's standing rest[s] upon its interest in preventing undue lengthening of the trial [and] undue harassment of its witness...." Id. ; see also Schreibvogel v. State , 228 P.3d 874, 880 (Wyo. 2010).

897 N.W.2d 723

Other courts have decided whether the State has standing to challenge the issuance of subpoena duces tecum. The majority approach for courts interpreting Federal Rule of Criminal Procedure 17(c)2 or their own similar rules is to find the State does have standing. See, e.g. , Commonwealth v. Lam , 444 Mass. 224, 827 N.E.2d 209, 213 (Mass. 2005).

In Lam , the State objected to the defendant's issuance of subpoenas duces tecum and the defendant argued the State lacked standing. 827 N.E.2d at 213. The Supreme Judicial Court of Massachusetts noted it would follow the majority approach and found

[t]he Commonwealth, charged with prosecuting the case, will often be able to assist a judge in determining whether a motion under rule 17(a)(2) involves an improper "fishing expedition." The Commonwealth, of course, also has an interest in preventing unnecessary harassment of a complainant and other Commonwealth witnesses caused by burdensome, frivolous, or otherwise improper discovery requests. A complainant or witness should be forced neither to retain counsel nor to appear before a court in order to challenge, on the basis of a partial view of the case, potentially impermissible examination of her personal effects and the records of her personal interactions.

Id. at 213–14 (citation omitted).

In State v. DeCaro , the Connecticut Supreme Court held the State had standing to move to quash a defendant's subpoena duces tecum. 252 Conn. 229, 745 A.2d 800, 816 (2000). Although the subpoena duces tecum was served on a key witness, the court's reasoning for concluding the State had standing to object rested upon the State's "interest in preventing undue lengthening of the trial [and] undue harassment of its witness." Id. at 816 (alteration in original) (quoting Raineri , 670 F.2d at 712 ).

In People v. Spykstra , the Colorado Supreme Court likewise held the State had standing to move to quash a third-party subpoena duces tecum. 234 P.3d 662, 666 (Colo. 2010). As the prosecuting party, the State has standing to object because it has an "interest in ensuring the propriety of the subpoenas," managing the case, and preventing "witness harassment through improper discovery requests." Id.

California has also recognized that the government generally has the right to file a motion to quash "so that evidentiary privileges are not sacrificed just because the subpoena recipient lacks sufficient self-interest to object." Kling v. Super. Ct. , 50 Cal.4th 1068, 116 Cal.Rptr.3d 217, 239 P.3d 670, 677 (2010) (quoting M.B. v. Super. Ct. , 103 Cal.App.4th 1384, 127 Cal.Rptr.2d 454, 461 (2002) ); see 2 Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure § 275, at 262 (4th ed. 2009) (noting the rationale for requiring notice to the victim in Rule 17(c)(3) is that third parties "do not have the same incentive to challenge" a subpoena and a "victim may be unaware of the subpoena for his personal or confidential information").

While we acknowledge that a small minority of jurisdictions would find that the government has no standing to challenge the court's issuance of an ex parte subpoena

897 N.W.2d 724

duces tecum, we conclude the State clearly has a specific interest in the outcome of this litigation as the party prosecuting the criminal case. As the prosecuting party, the...

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14 practice notes
  • Behm v. City of Cedar Rapids & Gatso United States, Inc., No. 16-1031
    • United States
    • United States State Supreme Court of Iowa
    • August 31, 2018
    ...procedural due process must first show an impairment of an interest in life, liberty, or property by government action. State v. Russell, 897 N.W.2d 717, 732-33 (Iowa 2017); State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005). Once a protected interest has been established, the next question ......
  • Behm v. City of Cedar Rapids, No. 16-1031
    • United States
    • United States State Supreme Court of Iowa
    • January 25, 2019
    ...due process must first show an impairment of an interest in life, liberty, or property by government action. State v. Russell , 897 N.W.2d 717, 732–33 (Iowa 2017) ; State v. Seering , 701 N.W.2d 655, 665 (Iowa 2005). Once a protected interest has been established, the next question is what ......
  • Endress v. Iowa Dep't of Human Servs., No. 18-1329
    • United States
    • United States State Supreme Court of Iowa
    • May 29, 2020
    ...(applying federal substantive standards to a party's procedural due process claim raised under the Iowa Constitution); State v. Russell , 897 N.W.2d 717, 732 & n.7 (Iowa 2017) ("Russell also did not present an argument for why we should depart from established precedent in our interpretatio......
  • State v. Heard, No. 17-1075
    • United States
    • United States State Supreme Court of Iowa
    • October 11, 2019
    ...497 (Iowa 1997) ). Heard’s constitutional claim that his right to compulsory process was violated is reviewed de novo. State v. Russell , 897 N.W.2d 717, 724 (Iowa 2017). We review for abuse of discretion a ruling denying a motion for a new trial on grounds the verdict is against the weight......
  • Request a trial to view additional results
14 cases
  • Behm v. City of Cedar Rapids & Gatso United States, Inc., No. 16-1031
    • United States
    • United States State Supreme Court of Iowa
    • August 31, 2018
    ...procedural due process must first show an impairment of an interest in life, liberty, or property by government action. State v. Russell, 897 N.W.2d 717, 732-33 (Iowa 2017); State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005). Once a protected interest has been established, the next question ......
  • Behm v. City of Cedar Rapids, No. 16-1031
    • United States
    • United States State Supreme Court of Iowa
    • January 25, 2019
    ...due process must first show an impairment of an interest in life, liberty, or property by government action. State v. Russell , 897 N.W.2d 717, 732–33 (Iowa 2017) ; State v. Seering , 701 N.W.2d 655, 665 (Iowa 2005). Once a protected interest has been established, the next question is what ......
  • Endress v. Iowa Dep't of Human Servs., No. 18-1329
    • United States
    • United States State Supreme Court of Iowa
    • May 29, 2020
    ...(applying federal substantive standards to a party's procedural due process claim raised under the Iowa Constitution); State v. Russell , 897 N.W.2d 717, 732 & n.7 (Iowa 2017) ("Russell also did not present an argument for why we should depart from established precedent in our interpretatio......
  • State v. Heard, No. 17-1075
    • United States
    • United States State Supreme Court of Iowa
    • October 11, 2019
    ...497 (Iowa 1997) ). Heard’s constitutional claim that his right to compulsory process was violated is reviewed de novo. State v. Russell , 897 N.W.2d 717, 724 (Iowa 2017). We review for abuse of discretion a ruling denying a motion for a new trial on grounds the verdict is against the weight......
  • Request a trial to view additional results

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