State v. Conrad (In re Hope Coal.)

977 N.W.2d 651

IN RE HOPE COALITION, Petitioner.

State of Minnesota, Respondent,

v.Kevin Maynard Conrad, Respondent,Hope Coalition, Appellant.

A21-0880

Supreme Court of Minnesota.

Filed: July 13, 2022

Rana S. Alexander, Standpoint, Saint Paul, Minnesota; and Katherine S. Barrett Wiik, Saul Ewing Arnstein & Lehr LLP, Minneapolis, Minnesota, for appellant.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Kerrie Kelly, Wabasha County Attorney, Wabasha, Minnesota, for respondent State of Minnesota.

Jennifer M. Shabel and Paul H. Grinde, Grinde & Dicke Law Firm P.A., Rochester, Minnesota, for respondent Kevin Maynard Conrad.

Robert Small, Executive Director, and Kelly O'Neill Moller and Adam E. Petras, Assistant Hennepin County Attorneys, Minneapolis, Minnesota, for amicus curiae Minnesota County Attorneys Association.

Michael P. Boulette, O. Joseph Balthazor, Jr., and Abby N. Sunberg, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota, for amici curiae Minnesota Coalition Against Sexual Assault, Violence Free Minnesota, the Battered Women's Justice Project, and the National Crime Victim Law Institute.

OPINION

HUDSON, Justice.

This case concerns how sexual assault counselors’ statutory privilege under Minnesota Statutes section 595.02, subdivision 1(k) (2020), interacts with a criminal defendant's interests in a fair trial. Although appellant Hope Coalition invoked the sexual-assault-counselor privilege under section 595.02, subdivision 1(k) to prevent respondent Kevin Maynard Conrad's motion in his criminal prosecution seeking disclosure of any records concerning the alleged victim's counseling, the district court never addressed the privilege. Nevertheless, the court concluded that compliance with the subpoena to produce records protected by that privilege for in camera review was reasonable, and it denied Hope Coalition's motion to quash the subpoena. The court of appeals agreed and denied Hope Coalition's petition for a writ of prohibition. Hope Coalition asks this court for relief.

We conclude that the district court's actions were unreasonable because the plain language of Minnesota Statutes section 595.02, subdivision 1(k), creates a privilege for sexual assault counselors that cannot be pierced in a criminal proceeding without the victim's consent. Accordingly, the district court's denial of Hope Coalition's motion to quash the subpoena seeking records protected by that privilege was unreasonable even for the purpose of in camera review and, as a result, unauthorized by law. We therefore grant the writ of prohibition.

FACTS

Respondent Kevin Maynard Conrad ("Conrad") is charged with second-degree criminal sexual conduct. See Minn. Stat. § 609.343, subd. 1(b) (2020) (sexual conduct when the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant and in a current or recent position of authority over the complainant). The alleged victim is currently 15 years old. In a July 2019 interview with a detective, she made a report of repeated sexual conduct by Conrad, her grandfather, beginning in 2014 when she was eight years old. The alleged victim's mother and a sexual assault counselor with appellant Hope Coalition, a nonprofit organization supporting survivors of sexual assault, were present at the interview. The criminal complaint was filed in Wabasha County District Court later in July 2019.

Conrad filed a Motion for In Camera Review of Confidential and Privileged Records pursuant to State v. Paradee , 403 N.W.2d 640 (Minn. 1987). He asked the court to order Hope Coalition "to produce any and all notes, memoranda, records, reports, or any other documentation" about the victim since 2014 for in camera review by the district court.¹ Because a Hope Coalition counselor was present at the detective's interview in 2019, Conrad argued that the organization "likely has notes ... or other documentation concerning" the victim's allegations, and that he should therefore be permitted to have the district court review the records in camera to determine whether "any of the records are material and relevant to his defense." Assuming without knowing that the victim had seen a therapist, Conrad also asked the court to order the State to disclose the name of the victim's therapist and to order the as-yet-unknown therapist to produce all "notes, memoranda, records, reports, or any documentation" about the victim since 2014.

The State replied that Conrad failed to meet his requisite burden of showing that the information sought was specific and may plausibly relate to his guilt or innocence, in accordance with Paradee . The State emphasized that Conrad provided no proof that the information even existed or, if it did, that it would be material to his case. Referring to the motion as a "fishing expedition," the State contended that Conrad offered "no reliable basis for [his] assertions."

In response, Conrad relied on language from Hope Coalition's website advising sexual assault victims to seek safety, guidance from an advocate, and medical attention, and to take means to preserve evidence (e.g., wait to shower until after an examination). Conrad argued that this general advice "suggest[s] that the Hope Coalition advocates encourage a discussion about the specific events of the alleged assault." He then argued that the victim had likely received the advice, then discussed the alleged assaults with Hope Coalition, and that Hope Coalition would have kept records from any discussions, which could contain statements made by the victim that "may include contextualized facts, impeachment evidence, or inconsistent statements" useful for his defense.

At the October 30, 2019 hearing where the motion was considered, Conrad reiterated that because the victim met with a Hope Coalition counselor and a therapist around the time she spoke to law enforcement, it was possible that their records contained statements about the sexual assault allegations. This possibility, he argued, fulfilled his burden to make a plausible showing that there is "material and relevant" information to his defense in the files.

The district court granted Conrad's motion on December 2, 2019, and ordered the victim's therapist and Hope Coalition to produce the records for in camera review by the district court within 30 days. The court agreed with Conrad's argument that Hope Coalition's presence at the victim's interview with law enforcement meant that it had likely already interacted with the victim. And the court found that the likely existence of records about those interactions amounted to a plausible showing that the alleged confidential statements could be material and favorable to the defense. The district court further found that the information sought from Hope Coalition and the therapist—all records, notes, and memoranda related to the victim since 2014—was reasonably specific.

In a letter to the court, Hope Coalition asked the court to reconsider the motion. It made several arguments in support of the motion. Most relevant here, Hope Coalition argued that, as a nonparty, it was denied an opportunity to argue against releasing the records. And the Coalition specifically asserted that it has "an absolute privilege" under Minnesota Statutes section 595.02, subdivision 1(k), protecting the victim's counseling records from disclosure of any type.

The district court denied Hope Coalition's request for reconsideration and maintained its order granting Conrad's motion for in camera review. After the court received no files from Hope Coalition in response to its order, Conrad filed an application for an Order to Show Cause for Hope Coalition's failure to produce the records and sought relief, including dismissal of the complaint. The court held a hearing to discuss the "fact that the Court has not received any records," except for the therapist's name from the State.² Hope Coalition wrote to the court before the hearing to confirm whether it needed to appear to support its position, noting that it had not received any directive to do so. The court did not respond to Hope Coalition before the hearing.

At the hearing, the State emphasized that it had complied with its obligation to produce the therapist's name and argued that the court should not dismiss the complaint based on Hope Coalition's failure to comply, which is beyond the State's control. Conrad contended that Hope Coalition "knowingly and willfully failed to comply with the Court's order," because "they disagree" with it, not because it is "burdensome" or "because there is some other adequate excuse under law." Hope Coalition, having received no response to its inquiry about whether it needed to appear, did not do so.

Shortly after the hearing, the district court ordered Hope Coalition to show cause why it was not in contempt for failing to produce the records. The court did not hold the show-cause hearing until December 2020. In the interim, the court of appeals released its opinion in In re Program to Aid Victims of Sexual Assault , 943 N.W.2d 673 (Minn. App. 2020), clarifying that a subpoena—after a motion for a court order—is the proper method, under the Minnesota Rules of Criminal Procedure, for a criminal defendant to obtain production of privileged or confidential records about a victim. At the Order to Show Cause hearing in this case, Hope Coalition argued that, under Program to Aid Victims of Sexual Assault , it could not be held in contempt of court without a subpoena. Conrad then moved the court to issue a subpoena, which the district court granted.

Shortly thereafter, Hope Coalition moved the district court to quash the subpoena or, in the alternative, to stay the court's decision to allow for further review. It reiterated that the subpoena is an "unwarranted interference with the privileged relationship between the advocate and sexual assault survivor." In response, Conrad argued that the "sexual-assault-counselor privilege ... must...