Supervisory Control Denied Absent a Developed Record; Pretrial Subpoenas of Child Victims to Test Waiver Are Unreasonable Under Montana’s Victim‑Advocate Privilege

Supervisory Control Denied Absent a Developed Record; Pretrial Subpoenas of Child Victims to Test Waiver Are Unreasonable Under Montana’s Victim‑Advocate Privilege

Case: A. Burch v. Twentieth Judicial District Court (Sanders County), Hon. Molly Owen, Presiding

Court: Supreme Court of Montana

Date: September 9, 2025

Docket: OP 25-0426

Introduction

This original proceeding arises from a criminal case in which Petitioner Alan Wayne Burch, Sr. (Burch) is charged with six counts of incest against minor complainants S.B. and B.B. (ages 11 and 9 at the time of the evidentiary hearing). Anticipating trial, Burch caused subpoenas to issue for the county victim advocate, Tara Vanek, as well as S.B. and B.B. He sought the children’s testimony at an evidentiary hearing to determine whether they had “expressly” waived the victim‑advocate privilege codified at § 26-1-812, MCA, and sought Vanek’s testimony both at trial and at that hearing. The District Court quashed the children’s subpoenas as an emergency matter on the eve of the hearing and later quashed Vanek’s subpoena on the ground that the advocate’s privilege barred examination. Burch petitioned the Montana Supreme Court for a writ of supervisory control, arguing the court was proceeding under mistakes of law.

The key issues presented were:

  • Whether the District Court erred by quashing pretrial subpoenas compelling the testimony of the minor complainants for the limited purpose of probing waiver of the advocate privilege.
  • Whether a victim advocate may categorically refuse to answer even threshold questions about communications without in camera court review, and whether the District Court erred in accepting that categorical stance.
  • Whether the extraordinary remedy of supervisory control was appropriate in light of Montana’s strict standards for such writs, especially in the discovery context.

Summary of the Opinion

The Montana Supreme Court denied Burch’s petition for a writ of supervisory control.

As to the subpoenas directed to S.B. and B.B., the Court held the District Court correctly quashed them as “unreasonable and overly burdensome” under § 46‑15‑101(3), MCA. The advocate privilege belongs to the victim and may be waived only by “express consent,” and it “continues even if the victim is unreachable.” § 26‑1‑812(2), MCA. The mother (Nicole Burch) testified the children neither understood “waiver” nor had they been asked to waive; the children had not discussed the allegations “in detail” with the advocate and had participated in forensic interviews already available to the defense. The Court further reiterated that the Confrontation Clause is a trial right, not a vehicle for pretrial discovery (citing Daenzer v. Municipal Court, 2020 MT 140).

As to Vanek, the Court acknowledged the text of § 26‑1‑812(1), MCA, which forbids examination of a victim advocate “without consent of the victim” regarding communications and related records. The Court noted that while Montana courts have allowed in camera review for other enumerated privileges (see § 26‑1‑801, MCA), this case presented the first occasion to consider whether, and to what extent, the victim‑advocate privilege might permit categorical refusal to answer without any court review. The Court declined to resolve that question on the incomplete record presented. It emphasized the absence of trial-court findings or legal analysis, and the lack of a specific proffer by Burch explaining what exculpatory evidence he believed Vanek possessed. Without a developed record and absent a showing that appeal would be inadequate, supervisory control was inappropriate. The Court also declined to order in camera review at this juncture.

Analysis

Precedents Cited and Their Influence

  • Truman v. Montana Eleventh Judicial District Court, 2003 MT 91: Establishes that supervisory control is reserved for extraordinary circumstances: the district court must be proceeding under a mistake of law that, if uncorrected, would cause significant injustice and where appeal is inadequate. The Court applied Truman’s standard to conclude Burch had not met this high bar—particularly given the prospect of direct appeal after trial and the undeveloped record.
  • State ex rel. Burlington Northern R.R. v. District Court, 239 Mont. 207 (1989) and Hegwood v. Fourth Judicial District Court, 2003 MT 200: Reinforce that discovery orders are interlocutory and generally not appropriate for original-writ review, with the Court expressing disfavor toward using supervisory control to police discovery.
  • Montana State University‑Bozeman v. First Judicial District Court, 2018 MT 220: The Court’s caution against “micromanag[ing] discovery” underscores its refusal to step in absent extraordinary circumstances—an approach the Court continued here.
  • Sixth Judicial District Court, 1998 MT 164: Along with Truman, supports the writ’s exceptional nature and the need for extraordinary justification.
  • Daenzer v. Municipal Court, 2020 MT 140: Clarifies that the Confrontation Clause is a trial right, not a pretrial discovery mechanism. The Court invoked Daenzer to reject Burch’s implicit reliance on confrontation as a basis for subpoenaing the child complainants at a pretrial evidentiary hearing.

Statutory Framework

  • § 26‑1‑812, MCA (Victim‑Advocate Privilege):
    • (1) “Unless a report is otherwise required by law, [a victim advocate] may not, without consent of the victim, be examined as to any communication made to the advocate by a victim and may not divulge records kept during the course of providing shelter, counseling, or crisis intervention services.”
    • (2) The privilege belongs to the victim, may be waived only by “express consent,” and “continues even if the victim is unreachable.”
  • § 26‑1‑801, MCA: Expresses the broader policy underlying enumerated privileges—protecting certain confidential relations by rendering the person “not examinable” as a witness.
  • § 46‑15‑101, MCA: Recognizes the right to subpoena witnesses in criminal cases but authorizes courts to quash or modify subpoenas where compliance would be “unreasonable or oppressive.”

Legal Reasoning

1) Quashing the children’s subpoenas was correct under § 46‑15‑101(3), MCA. The Court credited the record that the children did not understand “waiver,” had not been asked to waive, and had not discussed the allegations in detail with the advocate. Because the object of the subpoenas was to test waiver—a matter that turns on “express consent”—the District Court reasonably viewed compelling the children to testify at a pretrial waiver hearing as unnecessarily burdensome, especially for young alleged victims. The defense already had the forensic interviews and the children would be available for cross‑examination at trial; the Confrontation Clause does not compel pretrial discovery (Daenzer). These factors rendered the subpoenas unreasonable.

2) Victim‑advocate privilege: categorical refusal versus in camera review. The advocate, Vanek, declined to answer even threshold questions, asserting privilege categorically. While § 26‑1‑812(1) is strongly worded, the Supreme Court noted that in other privilege contexts Montana courts sometimes use in camera review to test the claim. The Court stated this was the first occasion to address whether an advocate may assert privilege categorically without court oversight. It did not decide the point because the record was incomplete: there were no district‑court findings or reasons addressing why in camera review would be inappropriate; there was no proffer from Burch describing the specific exculpatory information sought; and there was no developed legal analysis of the privilege’s scope and application to the questions posed. The Court highlighted that even a targeted proffer could have allowed the trial court, and then the Supreme Court, to evaluate whether a narrow, in camera process was warranted. Absent that record, the Court declined to reach the merits.

3) Supervisory control is inappropriate on this record. Applying Truman and related cases, the Court concluded Burch did not show a mistake of law that would cause significant injustice for which appeal is inadequate. Discovery rulings are generally ill‑suited to writ review (Hegwood; Burlington Northern; MSU‑Bozeman). Because Burch can pursue appellate review on a developed record after trial, the extraordinary writ was denied. The Court likewise declined to order the trial court to conduct an in camera review at this stage.

Impact and Forward‑Looking Implications

Immediate effects:

  • Child victims and pretrial subpoenas: Subpoenaing minor complainants to probe whether they “expressly” waived the victim‑advocate privilege will, absent more, be deemed unreasonable and overly burdensome. Practitioners should expect courts to quash such subpoenas in pretrial hearings, especially where a parent/guardian attests no waiver and the Confrontation Clause will be fully vindicated at trial.
  • Robustness of the advocate privilege: The Court reaffirmed the strength of § 26‑1‑812, MCA: the privilege belongs to the victim, requires express consent to waive, and is durable.
  • No categorical rule (yet) on in camera review for victim‑advocate materials: The Court did not decide whether and when an advocate’s categorical assertion can be tested via in camera review. That question remains open for a future case with a fuller record.
  • Supervisory control remains extraordinary in discovery disputes: The decision continues Montana’s reluctance to use the writ to manage discovery. Litigants should build a record and seek ordinary appellate review.

Strategic guidance for litigants:

  • Develop a precise proffer. If seeking to examine a victim advocate notwithstanding § 26‑1‑812, counsel should specify, under seal if appropriate, what exculpatory information is believed to exist, why it is material, and why it cannot be obtained by less intrusive means. The Supreme Court expressly signaled that “even a proffer” would have been helpful.
  • Propose narrow, staged procedures. Consider asking the district court to:
    • Review narrowly defined materials or questions in camera;
    • Issue findings explaining the privilege analysis;
    • Use protective orders to minimize dissemination if any disclosure is warranted.
  • Avoid fishing expeditions. The Court emphasized the need to distinguish targeted, substantiated requests from speculative rummaging.
  • For child witnesses: Be prepared to show why any pretrial testimony is necessary and not unduly burdensome, and why the information is unavailable through existing discovery (e.g., forensic interviews) or will not be fully addressable at trial.

Open questions left by the Order:

  • Does the victim‑advocate privilege protect not only the content of communications but also the mere fact that communications occurred, the dates, or the identities of participants? The Court did not decide.
  • How should courts balance § 26‑1‑812 with the practice of using in camera review in other privilege contexts? The Court suggested analogies may be appropriate but expressly reserved decision.
  • What effect, if any, do joint meetings involving an advocate, law enforcement, prosecutors, and family members have on the privilege’s scope? The record here was insufficient to analyze that question.

Complex Concepts Simplified

  • Writ of Supervisory Control: An extraordinary remedy allowing the Montana Supreme Court to direct a lower court’s actions mid‑case. It is granted only when the lower court is clearly mistaken on the law, significant injustice will result if not corrected, and ordinary appeal would be inadequate.
  • Victim‑Advocate Privilege (§ 26‑1‑812, MCA): Protects confidential communications between victims and designated advocates (and the advocates’ related records). The privilege belongs to the victim, survives even if the victim cannot be reached, and may be waived only by explicit, express consent.
  • In Camera Review: A procedure where the judge privately reviews documents or testimony outside the presence of the parties to determine if a privilege applies, and, if so, whether any portion can be disclosed without undermining the privilege’s purpose.
  • Unreasonable or Oppressive Subpoenas (§ 46‑15‑101(3), MCA): Even though parties have subpoena power, courts can quash subpoenas when compliance would be unduly burdensome or otherwise improper—especially salient with vulnerable witnesses like children.
  • Confrontation Clause as a Trial Right: The constitutional right to confront adverse witnesses is vindicated at trial through cross‑examination. It does not create a constitutional entitlement to pretrial discovery depositions or hearings of adverse witnesses.
  • Fishing Expedition: A discovery effort based on speculation rather than specific, articulable grounds to believe relevant, material information exists. Courts typically disallow such efforts, particularly where privileges are implicated.

Conclusion

The Montana Supreme Court’s order in Burch reaffirms two core themes in Montana practice. First, supervisory control is a rare remedy, particularly in discovery disputes, and litigants must build a careful record—including concrete proffers—to justify extraordinary intervention. Second, Montana’s victim‑advocate privilege is robust: it belongs to the victim, endures unless expressly waived, and can support quashing pretrial subpoenas directed at child complainants when the aim is merely to test waiver.

At the same time, the Court purposefully left open an important doctrinal question: whether, and to what extent, a victim advocate’s categorical assertion of privilege can be tested through in camera review. The Court signaled that future cases, developed with trial‑court findings and targeted proffers, may present an appropriate vehicle to delineate the procedural contours of § 26‑1‑812, MCA. For now, the message is clear: build the record, avoid speculative discovery, and reserve extraordinary writ practice for truly extraordinary circumstances.

Case Details

Year: 2025
Court: Supreme Court of Montana

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