In re Program to Aid Victims of Sexual Assault, Petitioner,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0196

In re Program to Aid Victims of Sexual Assault, Petitioner,

State of Minnesota,
Respondent,

vs.

Matthew John Brett King,
Respondent.

Filed April 13, 2020
Writ granted
Cleary, Chief Judge

St. Louis County District Court
File Nos. 69DU-CR-18-3985, 69DU-CR-18-3987

Rana S. Alexander, Standpoint, St. Paul, Minnesota (for petitioner)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Jonathan D. Holets, Assistant County Attorney,
Duluth, Minnesota (for respondent State of Minnesota)

Andrew T. Poole, LaCourse, Poole & Envall, P.A., Duluth, Minneso ta (for respondent
King)

Considered and decided by Cleary, Chief Judge; Worke, Judge; and Florey, Judge.
S Y L L A B U S
To obtain privileged or confidential records in the possession of a third party for in
camera review by the district court, a cr iminal defendant must comply with the

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requirements of Minn. R. Crim. P. 22.01, subd. 2(c), and obtain a court order for a
subpoena.
S P E C I A L T E R M O P I N I O N
CLEARY, Chief Judge
This matter is before a special term pane l of this court on a petition for a writ of
prohibition filed by Program to Aid Victims of Sexual Assault (PAVSA), a nonprofit rape-
crisis counseling center. PAVSA seeks a writ to prevent the district court from enforcing
an order directing PAVSA to produce privile ged records for in ca m e r a r e v i e w b y t h e
district court. Because the district court did not have authority to order PAVSA to produce
the records without a valid subpoena, we grant the writ.
Respondent Matthew John Br ett King, a massage therapist at Massage Envy in
Duluth, is charged with third- and fourth-d egree criminal sexual conduct for allegedly
engaging in nonconsensual sexual penetr ation and contact with two women while
performing massages for hire. PAVSA assisted the women in reporting the incidents to
the police. In each case, King’s counsel filed a motion for in camera review of all records
from PAVSA, including “the dates and times the alleged victims visited their facility,” and
any statements that were made about King. King’s counsel relied on Minn. R. Crim. P.
9.01, subd. 2(3), which provides for disc losure of “any relevant material” on the
defendant’s motion. In a supporting memorandum, King’s counsel argued that the records
are relevant to determine whether the a lleged victims’ disclosures to PAVSA are
inconsistent with their statemen ts to police because the state intends to use each case as

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Spreigl1evidence in the trial on the other case, making credibility the primary issue. King’s
counsel sought the dates and times that the victims visited PAVSA to determine whether
they may have had contact with each other. The state opposed the motion.
In an August 15, 2019 order, the district court directed the state to obtain the records
in PAVSA’s possession and to deliver them to the court for in camera review. The state
thereafter informed the court that it was unable to comply with the order, because PAVSA
is not a state agency and is unwilling to prov ide the records. On October 9, 2019, the
district court issued an amended order di recting PAVSA to produce the records for in
camera review. PAVSA filed a motion to r econsider, arguing that King’s motion should
be denied for several reasons, including that PAVSA is not a party a nd “the district court
lacks personal jurisdiction over PAVSA, ” and because PAVSA is precluded from
disclosing privileged records under Minn. Stat. § 595.02, subd. 1(k) (2018).
After a hearing, the district court issued an order on January 27, 2020, denying
PAVSA’s motion to reconsider. The order directed PAVSA to produce the records to the
district court for in camera review within 14 days. In a supporting memorandum, the
district court recognized that King should have sought a subpoena for the PAVSA records
under Minn. R. Crim. P. 22.01, subd. 2(c), and commented that the court “likely would
have granted a subpoena seeki ng such records,” in light of its conclusion that in camera
review was appropriate. The district cour t also acknowledged that, if a subpoena was
issued, PAVSA could move to quash the sub poena. Nonetheless, the district court

1 In Minnesota, other-crimes evid ence is often referred to as Spreigl evidence, after the
supreme court’s decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965).

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concluded that its prior order “acted as a subpoena,” and PAVSA had an opportunity to be
heard on its motion to reconsider. The court concluded that, “while the procedure was not
technically correct, it would have been inefficient to grant PAVSA’s motion only to allow
the defense to go through the proper procedure and get to the same place.” PAVSA filed
a petition for a writ of prohibition seeking to pr event enforcement of the order to produce
the records.
D E C I S I O N
To obtain a writ of prohibition, PAVSA must show three things: “(1) an inferior
court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise
of such power must be unauthorized by law; and (3) the exercise of such power must result
in injury for which there is no adequate remedy.” State v. Turner, 550 N.W.2d 622, 625
(Minn. 1996) (quotation omitted). A writ of prohibition is an extraordinary remedy, and
the appellate courts have limited its availability “to those cases where the lower court has
exceeded its jurisdicti on and no other adequa te remedy exists.” Id. “For example, a
petition for a writ of prohibition is an appropriate means of obtaining review of a discovery
order, which is not appealable as of right, where the district court has ordered the
production of information clearly not discoverable.” Id. at 625-26.
The parties appear to agree that the district court’s Ja nuary 27, 2020 order is an
exercise of judicial power and that PAVSA, a nonparty to the crim inal proceeding, does
not have an ordinary remedy by appeal. The only remaining question is whether the district
court’s order was unauthorized. PAVSA argues, among other things, that the district court
abused its discretion by ordering a nonparty, nongovernmental entity to produce the records

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for in camera review. King urges this court to deny the writ and construe the district court’s
order as a subpoena under Minn. R. Crim. P. 22.01, subd. 2(c).
Minnesota’s “criminal rules allow only limited discovery, with a handful of
provisions meant to give the defendant and prosecution as complete discovery as is possible
under constitutional limitations.” State v. Deal , 740 N.W.2d 755, 763 (Minn. 2007)
(quotation omitted). The prosec utor is required to disclo se, without court order, “all
matters within the prosecutor’s possession or control that rela te to the case.” Minn. R.
Crim. P. 9.01, subd. 1. The prosecutor’s obligations under rule 9.01, subdivision 1, “extend
to material and information in the possession or control of members of the prosecution staff
and of any others who have participated in the investigation or evaluation of the case and
who either regularly report, or with reference to the particular case have reported, to the
prosecutor’s office.” Id., subd. 1a(1).
Rule 9.01, subdivision 2, provides for additional discovery pursuant to a court order.
On the defendant’s motion an d a showing of good cause, the court must require the
prosecutor to assist the defe ndant in obtaining access to matters in the possession of a
governmental agency not within the prosecutor’s control, and may require the prosecutor
to disclose and “to permit the inspection, reproduction, or testing of any relevant material
and information not subject to disclosure without [court] order” upon establishing that the
information may relate to the defendant’s gu ilt or innocence, or negate guilt, or reduce
culpability. Id., subd. 2(1), (3). Because the records that King seeks are not in the state’s
possession or in the possession of another g overnmental agency, the state is under no
obligation to produce them. See id., subds. 1, 1a, 2(1); State v. Schmid, 487 N.W.2d 539,

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543 (Minn. App. 1992) (declining to order prosecutors to disclose records over which they
exercised no control), review denied (Minn. Sept. 15, 1992).
In order to obtain records from PAVSA, King was required to obtain a court order
for a subpoena. “A subpoena requiring the production of privileged or confidential records
about a victim . . . may be served on a third party only by court order.” Minn. R. Crim. P.
22.01, subd. 2(c); see State v. Hummel, 483 N.W.2d 68, 71 (Minn. 1992) (recognizing that
rules permit defendant to request subpoena of psychological records in possession of third
party). “A motion for an order must comply with Rule 10.03, subd. 1,” which requires that
the motion be made in writing and served on opposing counsel three days before the
omnibus hearing, “unless the court for good cause permits the motion to be made and
served later.” Minn. R. Crim . P. 22.01, subd. 2(c), 10.03, s ubd. 1. “Before entering the
order, the court may require giving notice to the victim so that the victim can move to quash
or modify the subpoena or otherwise object.” Minn. R. Crim. P. 22.01, subd. 2(c).
King did not comply with Minn. R. Crim. P. 22.01, subd. 2(c), and the district court
did not grant a subpoena. The district court only said that it “likely” would have granted a
subpoena if King had asked. Because the district court did not require King to follow the
procedure in rule 22.01, subdi vision 2(c), for obtaining a su bpoena to produce privileged
or confidential records about th e victims, the district cour t’s discovery order directing
PAVSA to produce the records for in camera review is unauthorized by law.
If King were to bring a motion to subpoena the records, the next question is whether
King made a plausible showing that the record s contain information that is relevant and
material to his defense. PAVSA argues that the district court abused its discretion by

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ordering in camera review because the in formation acquired by its sexual-assault
counselors is privileged. See Minn. Stat. § 595.02, subd. 1(k). Although we conclude that
the district court’s order for in camera revi ew is unauthorized for a different reason, we
note that the supreme court has held that privileges “‘sometimes must give way to a
defendant’s right to confront his accusers.’” State v. Evans, 756 N.W.2d 854, 872 (Minn.
2008) (quoting State v. Kutchara , 350 N.W.2d 924, 926 (M inn. 1984)). The proper
procedure to follow is for the district court to review the privileged records “in camera to
determine whether the privilege must give way.” Id. This approach “strikes a fairer
balance between the interest of the privilege holder in having his confidences kept and the
interest of the criminal defendant in obtaining all relevant evidence that might help in his
defense.” State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987)). We express no opinion
in this case on whether the district court sh ould grant a subpoena for the records, if
presented with a proper motion, or on the po ssible outcome of any in camera review, if
ordered.
Writ granted.