Petition for Writ of Certiorari — Steven A. DeLoge, Petitioner v. DeSoto County Sheriff's Department, et al.

APPENDIX A

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CP-01590-COA

STEVEN A. DELOGE

APPELLANT

kv

DESOTO COUNTY SHERIFF'S

DEPARTMENT

SHERIFF BILL RASCO, IN HIS

OFFICIAL

CAPACITY, AND LENT RICE,

DIRECTOR OF

INTERNAL AFFAIRS, IN HIS

OFFICIAL

CAPACITY

DATE OF JUDGMENT:

TRIAL JUDGE:

COURT FROM WHICH APPEALED;

ATTORNEY FOR APPELLANT:

ATTORNEY FOR APPELLEES:

NATURE OF CASE:

TRIAL COURT DISPOSITION:

DISPOSITION:

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

APPELLEES

08/25/2015

HON. MITCHELL M. LUNDY JR.

DESOTO COUNTY CHANCERY COURT

STEVEN A. DELOGE (PRO SE)

ROBERT E. QUIMBY

CIVIL OTHER

GRANTED DESOTO COUNTY

SHERIFF'S

DEPARTMENT'S MOTION TO DISMISS

AFFIRMED 3/14/2017

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-

BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

LEE, C.J., FOR THE COURT:

Steven DeLoge appeals the decision of the DeSoto County Chancery Court to grant

the DeSoso County Sheriff's Department's (DCSD) motion to dismiss for failure to state a

claim upon which relief can be granted. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

DeLoge is currently serving six consecutive life sentences in Wyoming for the sexual

abuse of a minor. In February 1999, DeLoge resided with Katherine Lowery in Olive

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APPENDIX A

Branch. Mississippi. Lowery disappeared around that date and was last known to reside in

Olive Brance. DeLoge departed from Mississippi with Lowery's children. He was arrested

in November 1999 in Cheyenne, Wyoming for sexually abusing Lowery's eight-year-old

daughter, to which he pleaded guilty and was sentenced to serve six life sentences.

Following his guilty plea, evidence that had been collected by Wyoming officials and the

FBI was forwarded to DCSD to assist in its investigation of the disappearance of Lowery, in

which DeLoge was a suspect. The investigation into Lowery's disappearance is ongoing.

In 2013, DeLoge submitted a public-records request under the Mississippi Public

Records Act (the Act) to DCSD, seeking records to indicate the physical location, itemized

inventory, chain of custody, current condition, and status of all property and evidence

obtained or transferred to DCSD from Wyoming. The DCSD responded to the public-records

request with an inventory sheet provided by the FBI and informed DeLoge that the items

were in DCSD's evidence-storage room. DCSD further advised DeLoge that under the Act,

they were not subject to production of the documents and items because the missing-person

investigation of Lowery was still in active status.

DeLoge filed a public-opinion request with the Mississippi Ethics Commission

pursuant to Mississippi Code Annotated section 25-61-13(1)(b) (Rev 2010), inquiring

whether DCSD's denial of the production request was compliant with the Act. In October

2013, the Mississippi Ethics Commission found that the records sought by DeLoge were

investigative reports under Mississippi Code Annotated section 25-61-3(f) (Rev. 2010) and

thus exempted from production under the Mississippi Code Annotated section 25-61-12

(Rev. 2010).

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APPENDIX A

DeLoge then filed a complaint against DCSD in the DeSoto County Chancery Court,

arguing DCSD improperly denied his request for information, requesting declaratory and

injunctive relief, and seeking a de novo review of the Ethics Commission's opinion. DCSD

moved to dismiss DeLoge's complaint pursuant to Mississippi Rule of Civil Procedure

12(b)(6), arguing that DeLoge failed to state a claim for which relief could be granted

because the documents sought by DeLoge fall within an exemption of the Act, as they are

investigative in nature and directly related to an open criminal investigation.

On May 4, 2015, the chancery court heard arguments from DCSD and DeLoge on the

motion to dismiss. DeLoge was present by telephone. DCSD argued that all of the

documents and property were investigative in nature and exempt from production under the

Act. DeLoge argued that the documents and items in DCSD's possession were not

investigative in nature. He instead argued that the documents and items were exculpatory in

nature, and that their production was necessary to pursue his appeal in Wyoming. On May 5,

2015, the chancery court granted DeLoge' s motion for an in camera review to determine

whether the disputed documents and items were investigative and thus exempt under the Act.

The review was conducted on June 29, 2015.

The chancery court issued its final ruling on August 24, 2015. The court gave a report

of the in camera inspection and noted that all of the documents in the possession of DCSD

had been reviewed for their relevance and necessity in the open investigation of a missing

person. A complete transcript of the review was made and included as part of the certified

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APPENDIX A

record on appeal. The chancery court stated that upon review, it could not make the

determination that the documents and items were not relevant—as DeLoge argued—to the

missing-person investigation in DeSoto County. For that reason, the court granted DCSD's

motion to dismiss. The chancery court's order dismissing DeLoge's complaint specifically

stated:

This action came on to be heard on August 24, 2015, on the [DCSD's] Joint

Motion to Dismiss (Doc. 5).As requested by Mr. DeLoge,the Court conducted

an in camera review of the numerous boxes of documents in the [DCSD's]

possession for their relevance to an open investigation of a missing person in

which Steven DeLoge is a suspect. The Court cannot in good conscience hold

that the documents Mr. DeLoge seeks are not relevant to Defendants' open

investigation. Therefore, the motion is well[]taken at this time and should be

granted.

IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the Joint

Motion to Dismiss is granted.

It is from this order that DeLoge now appeals. We have condensed his issues as

follows: (1) whether the chancery court erred when it did not convert DCSD's motion to

dismiss to a summary-judgment proceeding; (2) whether the chancery court erred when it

granted DCSD's motion to dismiss; and (3) whether DeLoge's constitutional rights were

violated.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief

can be granted presents questions of law, which an appellate court reviews de novo.

Covington Cty. Bank v. Magee, 177 So. 3d 826, 828 (J5) (Miss. 2015) (citing City of Belmont

v. Miss. State Tax Comm'n, 860 So. 2d 289, 295 (J10) (Miss. 2003)). "Rule 12(b)(6)

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APPENDIX A

motions are decided on the face of the pleadings alone." Covington, 177 So. 3d at 828 (15)

(quoting State v. Bayer Corp., 32 So. 3d 496, 502 (J21) (Miss. 2010)). "On a motion to

dismiss, 'the allegations in the complaint must be taken as true, and the motion should not be

granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of

facts in support of his claim." Id. (quoting Belmont, 860 So. 2d at 295 (T1 0)).

DISCUSSION

I.

Motion to Dismiss Not Converted to Summary-Judgment

Proceeding

DeLoge contends that the chancery court erred when it granted DCSD's motion to

dismiss because the court considered matters outside the pleadings during the in camera

review of documents submitted by DCSD. Specifically, he contends that the ruling is

erroneous because the chancery court failed to convert the motion to a Mississippi Rule of

Civil Procedure 56 summary-judgment proceeding and allow DeLoge to engage in further

fact-finding or leave to amend his complaint.

It is true that "[w]hen presented with a Rule 12(b)(6) motion, there is only one way

for the trial court to consider evidence outside the pleadings—converting the 12(b)(6) motion

into a motion for summary judgment.." Williams v. Mueller Cooper Tube Co., 149 So. 3d

527, 529 (J5) (Miss. Ct. App. 2014). "[C]onversion must be explicit[.]" Id. "Whenever a

trial judge converts a Rule 12(b)(6) motion to dismiss into one for summary judgment by

considering matters outside the pleadings, the judge must give all parties ten days' notice that

his is converting the motion." Id. (quoting Delta MK LLC v. Miss Transp. Comm 'n, 57 So.

3d 1284, 1289 (J13) (Miss. 2001)).

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APPENDIX A

In Breeden v. Buchanan, 164 So. 3d 1057, 1068 (f53) (Miss. Ct. App. 2015), we

acknowledged "that a motion to dismiss for failure to state a claim limits the matters that the

trail court may consider." However, we further held that "the court may certainly consider

the contents of the complaint, the documents attached to the complaint, and the documents

that are referred to in the complaint if they are central to the plaintiffs claim, even though

they are not attached to the complaint." Id. (emphasis added).

Here, the chancery court granted DCSD's motion to dismiss after its in camera review

of the documents and items submitted by DCSD. The chancery court's review of this

evidence was not outside of the pleadings. Rather, the documents and items considered by

the chancery court during its in camera review were as Breeden stated: "documents that

[were] referred to in the complaint [that were] central to the plaintiff's claim, even though

they [were] not attached to the complaint." Id. Furthermore, the review was conducted at

the request of DeLoge pursuant to his complaint that these items were central to his claim.

Accordingly, the chancery court did not err by not converting DCSD's motion to dismiss to a

summary-judgment proceeding. This issue is without merit.

II. Motion to Dismiss

We now turn to whether the chancery court erred in granting DCSD's motion to

dismiss. As we have stated, a motion to dismiss for failure to state a claim is a question of

law, which we review de novo. Covington, 177 So. 3d at 828 (J5). The instant case required

the chancery court to determine whether the documents at issue were investigative prior to

ruling on DCSD's motion to dismiss. Whether the documents "constitute an 'investigative

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APPENDIX A

report'

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is a question of fact[,] which must be answered on a case-by-case basis." Miss..

Att'y Gen. op., 2010-00381, 2010 WL 4105478, Janous (Sept. 8, 2010). As such, this case

presents a mixed question of law and fact for our review. "[P]roper review of mixed

questions of law and fact require that the

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court's 'factual findings be reviewed for clear

error[,] and that its interpretation of the law be reviewed de novo." Burgess v. Patterson,

188 So. 3d 537, 547 (J31) (Miss. 2016) (quoting Hewes v. Langston, 853 So. 2d 1237, 1241

(113) (Miss. 2003)).

Chancery Court's Findings of Fact

¶15.

Here, the chancery court determined that the documents and items that DCSD

asserted were exempt from production were, in fact, investigative. When DCSD asserted that

the items were investigative, and DeLoge averred that they were not, the court found

DeLoge's motion for an in camera review well taken. Our examination of the record shows

that the chancery court, during the in camera review, thoroughly examined all of the records,

items, and documents in DCSD's possession. Further, the court inquired to DCSD about the

relevance and potential evidentiary value of each item to the ongoing investigation of a

missing person in which DeLoge was a suspect. After the in camera review, the court ruled

that it could not find that the items would not be relevant to DCSD's open investigation of a

missing person and granted DCSD's motion to dismiss. Upon our review, we do not find

that the chancery court's factual finding that the items and documents were investigative was

clearly erroneous or manifestly wrong. Therefore, we affirm.

Chancery Court's Findings of Law

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APPENDIX A

The chancery court dismissed DeLoge's complaint under Rule 12(b)(6)—failure to

state a claim upon which relief can be granted. DeLoge sought the production of the items

and documents in DCSD's possession under the Act. Mississippi Code Annotated section

25-61-1 (Rev. 2010) provides, "It is the policy of this state that all public records shall be

available for inspection by any person unless otherwise provided by this [Act]."

It is undisputed that DCSD is a "public body" and that the documents and items at

issue in this appeal are "public records" within the meaning of the Act. See Miss. Code.

Ann. § 25-61-3(a),(b). But the Act provides a specific exemption for investigative reports:

"when in the possession of a law enforcement agency, investigative reports shall be exempt

from the provisions of this chapter.. ." Miss. Code Ann. § 25-61-12(2)(a) (Rev. 2010).

The Act defines "investigative report," in part, as follows:

(f) "Investigative report" means records of a law enforcement agency

containing information beyond the scope of the matters contained in an

incident report, and generally will include, but not be limited to, the following

matters if beyond the scope of the matters contained in an incident report:

(i) Records that are compiled in the process of detecting and

investigating any unlawful activity or alleged unlawful activity,

the disclosure of which would harm the investigation which

may include crime scene reports and demonstrative evidence;

Records that would prematurely release information that

would impede the public body's enforcement, investigative or

detection efforts;

Records that would disclose investigatory techniques

and/or results of investigative techniques;

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APPENDIX A

(viii) Records that would impede or jeopardize a prosecutor's

ability to prosecute the alleged offense.

Miss. Code Ann. § 25-61-3.

Here, the chancery court determined that the documents and items within DCSD's

possession were investigative. As such, they were exempted under the Act from production.

It follows that DeLoge's complaint, which states DCSD improperly denied his request for

information and production, fails to state a claim upon which relief can be granted.

Accordingly, the chancery court did not err in granting DCSD's motion to dismiss. This

issue is without merit.

DeLoge also contends that his constitutional rights were violated by DCSD's

retention of the documents and items at issue. "Property seized under a search warrant is an

exercise of the police power of the [S]tate, and the [S]tate has the authority to keep and

maintain control of the property until it is no longer needed in a criminal prosecution or

investigation." Kea v. Keys, 83 So. 2d 399, 405 (f15) (Miss. 2011) (quoting Newman v.

Stuart, 597 So. 2d 609, 614 (Miss. 1992)). Here, the documents and items at issue were

seized under a search warrant in Wyoming and were transferred to DCSD only at the close of

the Wyoming case against DeLoge. DCSD has the authority to keep and maintain control of

the property until it is no longer needed in the investigation, which is ongoing. DeLoge also

argues that his constitutional rights were violated because he was not present when the

chancery court announced its ruling on August 24, 2015. "The Confrontation Clause of the

Sixth Amendment guarantees that '[i]n all criminal prosecutions, the accused shall enjoy the

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APPENDIX A

right.

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to be confronted with the witnesses against him." Corbin v. State, 74 So. 3d 333,

337-38 (J13) (Miss. 2011) (quoting Davis v. Washington, 547 U.S. 813, 821 (2006)). This

was a civil action in which DeLoge was the plaintiff—not a criminal action in which he was

the defendant. Therefore, the Confrontation Clause is not implicated so as to require

DeLoge's presence. Furthermore, the chancery court did not hear any testimony at the

hearing. The court merely announced its ruling on the motion to dismiss.

¶21. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS

AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO

COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON

AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT

ONLY WITHOUT SEPARATE WRITTEN OPINION.

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APPENDIX ,C

FILED

Oct 262017

SERIAL: 215505

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CT-01590-SCT

STEVENA. DELOGE

Office of the clerk

Supreme court

Court of appeals

APPELLANT/PETITIONER

V.

DESOTO COUNTY SHERIFF'S DEPARTMENT,

SHERIFF BILL RASCO,

IN HIS OFFICIAL CAPACITY, AND

LENT RICE, DIRECTOR OF INTERNAL

AFFAIRS, IN HIS OFFICIAL CAPACITY

APPELLEE/RESPONDENT

ORDER

Now before the Court comes the petition for writ of certiorari filed pro se by Steven

A. DeLoge. After due consideration, the Court finds that the petition should be denied.

IT IS THEREFORE ORDERED that the petition for writ of certiorari is hereby

denied-.

SO ORDERED, this the 23' day of October, 2017.

LESLIE D. KING, JUSTICE

FOR THE COURT

TO DENY: WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,

MAXWELL, BEAM, AND CHAMBERLIN, JJ.

NOT PARTICIPATING:

ISHEE, J.

App. 13

Additional material

from this filing is

available in the

Clerk's Office.