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

In the Missouri Court of Appeals
Eastern District

WRI'I` DIVISION TWO

STATE OF MISSOURI ex rel. No. ED104226
JENNIFER M. JOYCE, Circuit Attorney
for the City of St. Louis,

Writ of Mandalnus
Relator, Circuit Court of the
City ofSt. Louis
vs.
THE HONORABLE MICHAEL K.

MULLEN, Circuit Judge, Twenty~Second
Judicial Circuit,

Filed: November 15, 2016

\_/\_/\-_/\_/\-/\_,/\_/\_/\_/\_/\_/\_/\¢_/

Respondent.

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 Supreine 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
Facf:m! amf Procedural Backgrormd

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 coult’s permission to deviate from the mandates of the Missouri Supreme Court
Rules and never sought a declaration that Rule 25.03 was uneonstitutional. She seeks protective

orders now, apparently for the first tilne, 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 Ruie 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 defendantsl 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 Michaei 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 consequencel 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 witnes-ses.

l She asks that we order the trial

The Circuit Attorney now seeks writs of mandamus
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.

Wr!'t A nth ority

This Court has the authority “to issue and determine original remedial writs.” Mo. Const.
Art. V, Section 4.1; Smte ex rel Isselhard v. Do/an, 465 S.W.Sd 496, 498 (Mo. App. E.D. 2015).
We do not issue such writs lightly. A writ of mandamus is reserved for extraordinary
emergencies. Iss'ell'mrd, 465 S.W.3d at 498; St. Louis Cty. Bd. of Electz'on Conmzissioner.s* 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. Sf. Louis Cry. Bd.
of Election Cormnissioners, 492 S.W.?)d 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 appeai. See Rom]ey v.

Scimeider, 45 P.3d 685, 686 (Ariz. App. 2002). “A writ of prohibition [or] mandamus is the

l After the Circuit Attorney filed her petitions for writs of mandamus in the fourteen underlying criminal cases, she
moved for voluntary dismissal of the petitions in six of the cases. Accorclingly, this Court has dismissed the writs of
mandamus in the following six cases, and has severed them from this appeal ED104226: ED104229, ED104232,
ED104236, EDt0423'i‘, ED104239, and ED104241.

proper remedy for curing discovery rulings that exceed a court’s jurisdiction or constitute an
abuse of the court’s discretion.” Smre ex rel. Whr're v. Gray, 141 S.W.3d 460, 463 (Mo. App.
W.D. 2004)(internal quotation omitted). “Mandarnus 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 )'el. Poucher v. Vl`ncent, 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.”
Isselha)'d, 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.?)d at 463 (internal quotation omitted).
Constitu!iorml Clzallenge

The trial court concluded that Ruie 25.03 did not violate the l\/Iissouri Constitution.
Constitutional interpretation is a question of law that we review de nr)vr). 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 ali of their

oral statements . ..
The Circuit Attorney must provide the information upon written request of defense counsel,

without the necessity cfa court order. The Missouri Supreme Court adopted this Rule in June of

1979. The Rule became effective on January l, 1980, some thirty-six years ago.

In 1992, the citizens of l\/Iissouri 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 Attorney, or any
prosecutor, shows good cause for issuance of a protective order under Ruie 25.}1. '[`hus, far
from trampling the rights of victinis, Rule 25.03 specifically limits mandatory disclosure if a
protective order is warranted2

Missouri amended its constitution to secure crime victims’ rights nearly a quarter of a
century ago. The Circuit Attorney generally complains that the Rule contains inadequate
safeguards to protect the privacy lights of victims and witnesses if this is true, other avenues
exist and have existed, to address this issue Whether the Rule should be revised is an issue
better addressed through these other avenues. lndeed, counsel represented at oral argument that
a reexamination of the Rule is currently underway by a committee of the Missouri Supreme

Court.

2 We further note that the l992 constitutional amendment addresses the rights of “crilne victims.” We find no
language extending its scope to include rights of witnesses who are not victims

We reject the Circuit Attorney’s challenge to the constitutionality of Rule 25.03.-
Goorl Causefor Protective Orrler

The Circuit Attorney alternatively contends that good cause exists to issue a protective
order under Rule 25.11, allowing her to redact information from police reports before turning
those reports over to the defense A trial court has broad discretion in administering rules of
discovery. Srare ex rel Tuf]er v. Cr'arifor'd, 211 S.W.Sd 676, 678 (Mo. App. S.D. 2007). This
Court will not disturb the trial court’s ruling absent an abuse of that discretion. Id.

Rule 25.11, the rule governing protective orders in the criminal setting, provides that
“[t]he court may at any time, on motion and for good cause shown, order [s]pecified disclosures
be denied, regulated, restricted, or deferred, or make such other order as it deems appropriate . . .”
Rule 25.11(11\).3

For purposes of assessing the trial court’s good-cause ruling only, we assume that all the
information sought to be withheld falls within the ambit of Rule 25.03’s mandatory disclosure
requirement We will later address that precise issue

Irr her motions for protective or‘ders, the Circuit Attorney argued that the trial court must
restrict information about victims and witnesses to ensure their safety, protection, and peace of

mind, and to prevent identity theft. But the Circuit Attorney failed to allege any specific facts in

3 Rule 25.1 l in its entirety reads:
The court may at any tirne, on motion and for good cause shown, order:
(A) Specified disclosures be denied, regulated, restricted, or deferred, or make such other order as
it deems appropriate, provided that all material to which a party is entitled must be disclosed in
time to permit counsel to make beneficial use thereot`;
(B) Non-discoverable parts or portions contained in otherwise discoverable material or
information may be excised and the balance thereof only be disclosed, and the excised parts or
portions shall be sealed, impounded, or preserved in the records of the coun, to be made available
to a reviewing court in the event of an appeal;
(C) At any proceeding for showing cause for deniai, regulation, restriction or deferment of
disclosure or any portions thereof, that such be made in camera, with a record made of such
proceeding and the entire record of such in camera proceeding shall be sealed, impoundet|, and
preserved in the records of the court, to be made available to a reviewing court in tire event of an
appeal.

support of her conclusions lndeed, other than a listing of the involved charges in the case, the
identical motions are completely devoid of any facts whatsoever. The Circuit Attorney’s
argument at the hearing was likewise lacking in substance There, she relied heavily, if not
entir'ely, on that fact that she had filed criminal charges We agree with the trial court that the
mere filing of criminal charges does not create good cause for a protective order under Rule
25.11.

A trial court has the discretion to determine whether good cause exists, but a court must
have evidence presented to it before the court can exercise its discretion Smre v. Rushing, 232
S.W.3d 656, 661-62 (l\/Io. App. S.D. 2007). When a protective order is not supported by an
evidentiary showing of good cause, an order would be both unauthorized and ar'bitr‘ary.“ ]d. at
661-62. The Circuit Attorney failed to provide this evidentiary showing5 The trial court did not
abuse its discretion in denying the Rule 25.11 motions for failure of the Circuit Attorney to show
good cause

Scope ofDisclosure

Though we find no fault in the trial court’s conclusion that the Circuit Attorney failed to
demonstrate good cause for protective orders, we do conclude that the trial court erred in the
scope of disclosure ordered Again, the trial 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.”

“’ The Circuit Attorney has filed numerous other writ applications to this Court to challenge the denial of protective
orders in other underlying criminal cases. Our review of those writ applications firmly convinces us that the trial
courts therein have conscientiously and appropriately exercised their discretion when the Circuit Attorney has
adduced evidence of good cause in support of her motions

5 The Circuit Attorney and certain amici have filed “Brandeis briefs” in this writ proceeding A “Brandeis brief”
seeks to buttress a litigant’s claim by citation to social-science research The problem here is that such citation does
nothing to remedy the Circuit Attorney’s failure to adduce any evidence in support of her motions in the trial court.
Indeed, if appellate courts decided cases based only on facts put forward in “Brandeis briefs,” the parties would be
denied the process they are due to contest factual issues before a fact-finder, and the proper role of the trial court
would be greatly diminished

Resolution of the dispute here requires interpretation of Rule 25.03. We are to interpret
Missour'i Supreme Court Rules in the same fashion as statutes, and statutory interpretation is a
question of law, which this Court reviews de novo. Ressfer v. Cr'ay Cowr!y, 375 S.W.3d 132, 136
(Mo. App. W.D. 2012).

According to the Rule, the State is required to disclose:

The 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 . ..

We interpret Missouri Supreme Court Rules by applying principles similar to those used for
interpreting state statutes State ex rel. Vee-Jay Contmciing Co. v. Neill, 89 S.W.3d 470, 471-72
(Mo. banc 2002). In interpreting a rule, this Court is to ascertain the intent of our Supreme
Court, by considering the plain and ordinary meaning of the words in the rule ld. at 472.

Rule 25.03 explicitly requires the State to disclose last known addresses The Circuit
Attorney’s practice of routinely withholding this information is in direct contravention of the
mandates of the Rule6 This practice should stop immediately7

What then, of other personal identifying information, such as the phone numbers, dates of
birth, and social-security numbers that may be included in the police reports? These items are
not expressly mentioned in Rule 25.03, although they all existed in 1979 when the Missouri
Supreme Court adopted the Rule. lf the Missour'i Supreme Court intended for this additional

identifying information to be routinely disclosed, the Court could have expressly listed the items,

as it did with addresses The Missouri Supreme Court did not. lt is a well-established rule of

“ If the Circuit Attor‘ney believes and can demonstrate with specific evidence in an individual case that good cause
exists to withhold an address, she may move tlre trial court for a protective order under Rule 25.1 l.

"' We reject the Circuit Attorney’s contention that she can comply with her discovery obligations by producing a
victim or witness for a deposition or interview, in lieu of providing the requested information This does not suffice
This is not what the Missouri Supreme Court Rule mandates Further, victims and witnesses do not belong to the
prosecution State v Bersrein, 372 S.W.2d 57, 61 (Mo. 1963).

statutory construction that when a statute - here a rule - enumerates the subjects or things on
which it is to operate, it is to be construed as excluding from its effect all those not expressly
mentionedl Rupert v. Stare, 250 S.W.3d 442, 448-499 (Mo. App. E.D. 2008); Greenbrim' Hr'!ls
Cozmh'y Club v. Dir. of Revemle, 935 S.W.2d 36, 38 (Mo. banc 1996).

Defense counsel contend that identifying information is a statement of a witness, and as
such must be disclosed. We are not persuaded

if the word “statement,” as used in Rule 25.03, encompasses all personal identifying
information, then it was unnecessary for the Missouri Supreme Court to specifically include the
phrase “last known addresses.” We presume every word, sentence, or clause in the rule has
effect, and that the Missouri Supreme Court did not insert idle verbiage or superfluous language
Albe)'z'ci Const)'uc!ors, lnc. v. Director of Revem¢e, 452 S.W.3d 632, 638 (Mo. banc 2015); State
ex rel. Missouri Pac{'fic R. Co, v. Koehr, 853 S.W.Zd 925, 926-27 (Mo. banc 1993). Defense
counsels’ interpretation would render part of the Rule superfluousl

Webster’s Dictionary defines “statement” as: “Act of stating, reciting, or presenting,
orally or on paper; as, the statement of a case. 2. That which is stated; an embodiment in words
of facts or opinions; a narrative; recitai; report; account.” Webster’s New lnternational
Dictionary 2461 (Zd ed. 1950).

Rule 25.03 exists to provide the defendant with an appropriate opportunity to avoid
surprise and to prepare his or her case in advance of triai. Henderson, 410-760/64; State v.
Smirh, 491 S.W.3d 286, 298 (l\/lo. App. E.D. 2016.). A “statement,” as that term is used in Rule
25.03, is a “narrative, recital, report or account.” lt is information that “tells the story” of the
incident. Personal identifying information does not purport to recite, narrate, report, or account

the incident. Accordingly, the Circuit Attorney may redact phone numbers, dates of birth, and

social-security numbers from the police reports.8 Any such redaction by the Circuit Attorney
must be made obvious, so that the defense counsel knows that information has been Withheld.9
Our ruling today does not leave defendants without recourse. Should defendants find that they
need additional personal identifying information for any witness, they may petition the trial court
for disclosure of the information, upon a showing of good cause, under Missouri Supreme Court
Rule 25.04.‘0
Conclusiou
Our preliminary order in mandamus is made permanent in part and quashed in part. The
trial court shall order the Circuit Attorney to disclose the last known addressees of witnesses, but
the Circuit Attorney may redact the witnesses’ phone numbers, dates of birth, and social-security
numbers We trust that henceforth routine discovery will be provided routinely. Put simply, the
parties shall follow the Missouri Supreme Court Rules.

QYW¢»§WM¢¢

LAWRENCE E. MooN'EY, Prta’sromo JUDGE

3 The same holds true if the police officer who prepared the report is endorsed as a \vitness. The entire report is not
discoverable under Rule 25.03 as a written statement of the ot`ticer. Just because the officer records personal
identifying information about a witness or victim does not render that information automatically disclosable as a
written statement of the officer because the personal pedigree information is still not a narrative, recital, report or
account of the incident.
9 According to defense counsel, the Circuit Attorney recently changed her practice of redacting information from
police reports from using a black marker to mark through information to electronically removing information
through a computer prograrn. And, according to defense counsel, the Circuit Attorney did not inform either the
court or the defense that information was being removed from discoveryl ln March of this year, defense counsel
filed for a temporary restraining order to stop that practice. The Circuit Attorney thereafter signed a consent order
agreeing to refrain from electronically removing any information from police reports in the future.
'° Rule 25.04 reads in pertinent part:
(A) The defense may make a written motion in the court having jurisdiction to try said case
requesting the state to disclose material and information not covered by Rule 25.03. Such motion
shall specify the material or information sought to be disclosed lf the court finds the request to be
reasonable, the court shall order the state to disclose to the defendant that material and information
requested which is found by the court to be relevant and material to the defendant‘s case.

ll

GARY M. GAERTNER, JR., J., and
JAMES M, DOWD, J. concur.

12