James Quen, through counsel, filed a petition for writ of
supervisory control requesting this Court accept original
jurisdiction over the Eleventh Judicial District Court, the
Honorable Heidi J. Ulbricht presiding, and direct the
District Court to issue various subpoenas duces tecum. Quen
also requests that, "if necessary," this Court
order the "documents subject to the subpoena duces tecum
... be produced and held under seal for later appellate
review." The State filed a response objecting to
charged with the deliberate homicide of Brad Winters by
shooting him on April 25, 2018. Quen filed notice of intent
to rely upon the affirmative defense of justifiable use of
force. Discovery is ongoing and there are currently no
pending motions to compel discovery or request that sanctions
be imposed for any failure on the part of the State to
provide discovery. On June 22, 2018, at Quen's request,
the Flathead County Clerk of Court issued subpoenas duces
tecum to various detention and law enforcement entities
requesting records and other information pertaining to the
victim and several witnesses. The State filed a motion to
quash the subpoenas duces tecum. After consideration of the
parties' briefs, the District Court quashed Quen's
subpoenas duces tecum as improperly obtained because they
"do not establish the relevancy of the documents sought,
do not establish that the documents are necessary for trial
preparation, and do not establish that the documents are not
otherwise procurable reasonably in advance of trial through
discovery process of Section 46-15-322, MCA."
Court has supervisory control over all other courts in
Montana and may, on a case-by-case basis, supervise another
court through a writ of supervisory control. Mont. Const,
art. VII, § 2(2); Mont. R. App. P. 14(3). Supervisory
control is an extraordinary remedy and is only appropriate
when the normal appeal process is inadequate; when the case
involves purely legal questions; and when one or more of the
following exists: (1) the lower court is proceeding under a
mistake of law and is causing a gross injustice, (2)
constitutional issues of state-wide importance are involved,
or (3) the lower court has granted or denied a motion for
substitution of judge in a criminal case. Tipton v. Mont.
Thirteenth Judicial Dist. Ct., 2018 MT 164, ¶ 9,
392 Mont. 59, 421 P.3d 780.
"orders pertaining to discovery are interlocutory in
nature and are generally not reviewable in an original
proceeding." Hegwood v. Mont. Fourth Judicial Dist.
Ct., 2003 MT 200, ¶ 6, 317 Mont. 30, 75 P.3d 308.
This Court has "expressed disfavor in granting a writ in
the context of a discovery issue." State ex rel.
Burlington N. R.R. v. Dist. Q., 239 Mont 207, 212, 779
P.2d 885, 889 (1989). We have refused to "micromanage
discovery or perform exhaustive document review on
supervisory control." Montana State
University-Bozeman v. First Judicial Dist. Ct., 2018 MT
220, ¶ 17 n.12, 392 Mont. 458, ___P.3d ___.
asserts the factual record in the District Court will be
incomplete without disclosure of the records he subpoenaed
and therefore appellate review an inadequate remedy. Quen
also asserts that appellate review would be limited to the
highly deferential "abuse of discretion" standard.
Finally, Quen maintains that whether §§ 46-15-101
and -106, MCA, were correctly interpreted and applied by the
District Court is the core issue in his petition and is a
"purely legal" question. Quen maintains that the
district courts across the state are interpreting these
constitutional provisions inconsistently and that this Court
has yet to provide an interpretation or construction of the
statutes. The State offers that discovery is ongoing and that
Quen has remedies available during trial to secure needed
information. The State maintains that Quen's requests are
overly broad and burdensome, which is not an atypical
discovery issue presented for a trial court's resolution.
aware that this Court has not yet construed or interpreted
the relevant statutes pertaining to the process of issuance
of a subpoena duces tecum. Should the matter be properly
presented for appellate review, we would consider the issue
on a more complete and developed record. However, at this
juncture we are not convinced that there is no adequate
remedy of appeal, a fundamental requirement for this Court to
take supervisory control of District Court proceedings. For
the same reasons, we decline to order production of the
documents under seal. This is an issue for the District Court
to decide upon proper motion and inquiry by the parties. The
District Court was not given an opportunity to determine the
propriety of such a request.
Quen's application for a writ of supervisory control is
Clerk is directed to provide a copy of this Order to the Hon.
Heidi Ulbricht, Eleventh Judicial District Court, Flathead
County; to the Clerk of District ...