Cynthia GOETZ and Marlene Laible, individually and as Executors of the Estate of Kathleen Laible, Linda Petrocine, and Terra Laible, Plaintiffs and Appellees, v. STATE of South Dakota; Community Counseling Services; County of Beadle; County of Miner; Human Service Agency; Benny L. Laible, Defendants, and Office of State Court Administrator, Appellant.
No. 21297
Supreme Court of South Dakota.
Argued April 25, 2000. Decided Nov. 14, 2001.
2001 SD 138 | 675
Rory King of Siegel, Barnett & Schutz, Aberdeen, SD, for petitioner and appellant.
ZINTER, Circuit Judge (on reassignment).
[¶1.] The State Court Administrator (SCA) filed a petition for an intermediate appeal from a discovery order enforcing a subpoena duces tecum. The discovery order provided for the trial court‘s in camera review of certain probation records.1
The probation records were generated by court services officers while performing probation supervision duties. The circuit court concluded that it had discretionary authority to review the records in camera for potential disclosure to civil plaintiffs. We granted the petition for intermediate review.2 We affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] On September 24, 1996, Benny L. Laible (Benny) killed his mother, Kathleen Laible (Kathleen). Benny was found guilty but mentally ill of second degree murder.
[¶3.] The plaintiffs in this action are Kathleen‘s daughters (collectively referred to as Goetz). They instituted this civil action against the State of South Dakota, Community Counseling Services, Beadle County, Miner County, the Human Service Agency, Benny, his court services (probation) officers and his doctors.3
[¶4.] The allegations against the court services officers relate to their supervision of Benny while he was on probation. According to the supplemented record, Benny was on probation on two occasions. At oral argument, Goetz stated that the probation records they sought related to a Class 2 misdemeanor offense of possession of marijuana. Goetz contends that the terms and conditions of that probation required Benny to take medication to treat mental illness, to refrain from using alcohol, and to otherwise comply with the instructions of his court services officers. Goetz alleges that the court services officers were negligent in the following respects:
- Failing to monitor and supervise Benny‘s conduct during the probation;
- Failing to monitor and supervise Benny‘s compliance with prescription medications for the treatment of his mental illness;
- Failing to notify a court of Benny‘s failure to comply with conditions of probation imposed by the court;
- Failing to take, detain and place Benny in custody because of his non-compliance with the terms of his probation;
- Failing to properly diagnose and treat Benny‘s mental illness.
[¶5.] During discovery, Goetz issued a subpoena commanding the Unified Judicial System (UJS) to “search the records of the Unified Judicial System and Court Services for parole and court services records pertaining to Benny L. Laible, including, but not limited to, all records of communications between Benny L. Laible and any court services officer.” (emphasis added). The SCA moved to quash the subpoena, arguing that the records were “confidential” under
[¶6.] The circuit court emphasized that it intended to protect the confidentiality of the records. It stated:
Certainly in conducting the in camera examination of [these] records, this court will exercise extreme care to preserve the confidentiality of all records which should be kept confidential, either because of the facts and circumstances of this particular case, or to preserve the expectation of confidentiality in general which would apply to discussions between a court service officer and a defendant or to preserve the confidentiality of sources. Until I review the records.... I am not able to make a determination whether they are records that can be disclosed or not. This can be done only after the in camera inspection.
(emphasis added). After the SCA asked for reconsideration, the circuit court gave further assurances. It stated:
Because of the apparent sensitive nature of this question to the State Court Administrator, it would seem appropriate in this case that after conducting the in camera inspection of the records ... the court will indicate to the State Court Administrator exactly what documents, if any, the court rules should be disclosed, at which time the State Court Administrator would have the opportunity to seek an appeal of the releasing of any such documents prior to their being disclosed pursuant to the subpoena. The court would include a list of the factors the court has utilized in making such disclosure decision upon notifying the State Court Administrator of the court‘s ruling after the in camera inspection.
[¶7.] The SCA appealed contending that the circuit court had no authority to conduct an in camera review of probation records for potential disclosure in a civil action. The SCA raised three issues. After oral argument we ordered further briefing on two other issues. We consider two issues to be dispositive.
STANDARD OF REVIEW
[¶8.] There are no factual disputes involved in the issues we decide today. The issues are questions of law involving statutory construction which we review de novo. State v. Karlen, 1999 SD 12, ¶ 6, 589 N.W.2d 594, 597.
[¶9.] Whether, in civil litigation,
[¶10.] By way of historical perspective, it is important to note that before
[¶11.] As finally enacted,
Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons specifically authorized by order of the court.
(emphasis added). This statute makes probation records generally confidential, but subject to two exceptions. The first exception only permits disclosure to UJS employees in the course of their duties. The second, more open-ended exception, is the subject of this appeal. It permits disclosure to others if it is authorized by the court.
[¶12.] Goetz contends that, subject to court discretion, they are parties who could be authorized to obtain the records under the second exception. Goetz points out that the second exception is open-ended and broad enough to include them because it contains no language limiting those who may qualify.
[¶13.] The SCA, however, argues that we should “construe” the open-ended court-authorized exception so that it is “highly restricted as to purpose, and the purpose must be exclusively related to internal court operations, criminal sentencing, and probation.” The SCA also argues that the exception should be further “construed” so that the only persons who qualify for these “sentencing, probation and parole [purposes] ... include psychiatrists, psychologists, counselors, physicians and ministers.” The SCA asks us to use the statutory construction canons of ejusdem generis and in pari materia to reach that result.
[¶14.] We agree with many of the SCA‘s policy reasons5 for seeking a legis-
Primary Rules of Statutory Construction
[¶15.] This case requires us to examine the statutory language and apply canons of construction to determine the meaning of the open-ended exception to the general rule of confidentiality. In performing that analysis, we adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.
[¶16.] We explained the purpose of these primary rules of statutory construction in US West v. PUC, 505 N.W.2d 115, 123 (S.D. 1993):
The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. Appeal of AT&T Information Systems, 405 N.W.2d 24, 27 (S.D. 1987). The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Id.
Words and phrases in a statute must be given their plain meaning and effect. Id. When the language of a statute is clear, certain and unambiguous, there is no reason for construction, and the Court‘s only function is to declare the meaning of the statute as clearly expressed. Id.
(emphasis added).
[¶17.] In this case, the language of
[¶18.] Because the words used in the open-ended exception are clear and unambiguous, they can easily be given their plain meaning and effect. Under those circumstances, we have “repeatedly stated that ... it is the function of the court to give [the words] effect and not to amend the statute to avoid or produce a particular result.” Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 802 (S.D. 1980). We therefore decline the SCA‘s invitation to construe the open-ended exception so that it only applies to psychiatrists, psychologists, counselors, physicians, ministers and the like when they are involved in sentencing, probation, or court operations. Such a result would judicially legislate new limitations on the open-ended exception.
[¶19.] In fact, the SCA‘s proposed construction of overstricken):
Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and
to personsif specifically authorized by order of the court, to psychiatrist, psychologists, counselors, physicians, ministers and the like if involved in the sentencing, probation or official functions of the court.
[¶20.] Clearly, the plain language of
[¶21.] The wisdom of refraining from judicially construing these changes is well illustrated by legislative action on an analogous confidentiality statute. In
[¶22.] The explicit language used by the Legislature in the child abuse confidentiality statute is straightforward. It clearly demonstrates that the Legislature knows how to limit the release of confidential records in the manner the SCA suggests. It also demonstrates that when such a limitation is intended, the Legislature has utilized express language. The Legislature did not, however, adopt such a limitation in the court services statute. The inescapable conclusion is that the
Secondary Rules of Statutory Construction
[¶23.] The SCA argues that we should use the rule of ejusdem generis to limit the open-ended exception so that it only applies to persons of the type enumerated in the specific exception for UJS employees. Even if
[¶24.] It is true that “[u]nder the time honored canon of ejusdem generis, where general words in a statute accompany the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general kind as those enumerated.” Sioux Falls School District v. Koupal, 526 N.W.2d 248, 252 (S.D. 1994); See also Wendell v. SD Dept. of Transportation, 1998 SD 130, ¶ 7, 587 N.W.2d 595, 597; State v. Galati, 365 N.W.2d 575, 577 (S.D. 1985); Black‘s Law Dictionary 357 (6th ed. 1990). However, this rule does not apply if the specifically enumerated class is exhaustive. On the contrary,
[w]here the specific words embrace all the persons or objects of the class designated by the enumeration, the general words take a meaning beyond the class. To apply the rule in this instance would render the general words meaningless for the reason that there is nothing of the same kind (ejusdem generis) to fall within their purview. Its application, consequently, would contravene the more important rule of construction that all words are to be given effect.... In order to prevent their rejection as surplusage, the general words take an unrestricted meaning on the ground that the legislature, by the addition of general words to an exhaustive enumeration, must have intended that they have meaning outside the class.
2A Sutherland, Statutory Construction § 47:21 (6th ed. 2000)(emphasis added). See also, United States v. Mescall, 215 U.S. 26, 31-32, 30 S.Ct. 19, 20-21, 54 L.Ed. 77, 79 (1909); Mason v. United States, 260 U.S. 545, 554, 43 S.Ct. 200, 202, 67 L.Ed. 396, 399 (1923); Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 49-50, 45 S.Ct. 440, 441, 69 L.Ed. 841, 843 (1925).
[¶25.] In
[¶26.] Alternatively, the SCA argues that the open-ended exception should be read in pari materia with disclosure restrictions in statutes regulating pre-sentence investigation reports. “Statutes are construed to be in pari materia when they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” 2B Sutherland, Statutory Construction, § 51:03 (6th ed 2000). “Characterization of the object or purpose is more important than characterization of the subject matter in determining whether different statutes are closely related enough to justify interpreting one in light of another.” Id.
[¶27.] The SCA specifically argues that the restrictions on access to pre-sentence investigation reports in
[¶28.] First, although all provisions deal with records created by court services, the statutes deal with different things. Pre-sentence investigation reports are different than probation and all other court services’ records.
[¶29.] Second, the statutes governing the creation and use of pre-sentence investigation reports do not have the same purpose or object as
[¶30.] Third, and most importantly, the “rule of in pari materia is generally used when there is some doubt or ambiguity in the wording of the statute under construction.” 2B Sutherland, supra, at § 51.03. However, as previously noted, the words used in the open-ended
Prior Precedent
[¶31.] We finally note that the circuit court‘s discretionary authority to release this type of confidential information is supported by recent precedent of this Court. In E.P. v. Riley, 1999 SD 163, 604 N.W.2d 7, a number of plaintiffs sought discovery of confidential Department of Social Services (DSS) records relating to abused and neglected children. Like the case now before us, the plaintiffs in E.P. were seeking the records for use in civil litigation against state employees who were allegedly negligent in supervising others.9
[¶32.] In E.P., the DSS turned the files over to the circuit court. After an in camera review, the circuit court released some, but not all of the records. The circuit court relied in part on the confidentiality provisions of
[¶33.] We recognize that in E.P., the DSS did not object to the circuit court‘s in camera inspection. Nevertheless, we expressly held, under an analogous confidentiality statute, that the disclosure decision was within the discretion of the circuit court. Moreover, we affirmed the disputed disclosure of similar confidential records to unrelated civil litigants for an unofficial use; that is, for use in a negligence suit against the children‘s supervisors. We have not been persuaded that there are sufficient differences in
[¶34.] We defer to the plain language of the statute and decline to judicially construe the changes the SCA suggests. We leave it to the legislature to consider those proposed changes.
ISSUE TWO
[¶35.] Whether the records sought are relevant in the civil suit.
[¶36.] The SCA argues that the records at issue are not relevant because a probation officer owes no duty to third parties arising out of a probation relationship. The SCA also argues that court services officers are immune from this suit.
[¶37.] There are motions now pending before the circuit court which could determine these issues. However, this intermediate appeal has deprived the circuit court of the opportunity to first consider them. Moreover, there may be undeveloped fact issues implicated by the SCA‘s arguments. Because this is only an intermediate appeal involving a discovery dispute, these issues are not ripe for review.
[¶38.] We affirm.10
[¶40.] KONENKAMP, Justice, dissents.
[¶41.] ZINTER, Circuit Judge, for MILLER, Retired Chief Justice, disqualified.
[¶42.] KERN, Circuit Judge, for SABERS, Justice, disqualified.
KONENKAMP, Justice (dissenting).
[¶43.] “Records prepared or maintained by court services officers are confidential.”
[¶44.] Rules regarding criminal procedure are not applicable to civil procedure. In the absence of a statute authorizing their release, these confidential records are not subject to civil discovery. If the Legislature wanted to authorize disclosure in noncriminal matters, it knew how to declare when a statute should apply to both criminal and civil proceedings. See, e.g.,
[¶45.] Lastly, if these confidential materials are now going to be discoverable in civil suits, then I think it incumbent on the majority to give courts some guidance on the timing and manner of their release. Leaving it to pure discretion will create inconsistency and conflict. The case of E.P. v. Riley, 1999 SD 163, 604 N.W.2d 7 provides no authority here since, as the majority seems to acknowledge, it is dicta because the DSS records in that case were turned over without objection. Analogously, in dealing with the release of secret grand jury records, the United States Supreme Court held that these materials may be breached only when (1) they are needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the necessity for continued confidentiality; and (3) the request is structured to cover only needed materials. Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The probation records should not be released at all, but if they are going to be released, then these three criteria should serve as guides.
Notes
2. Affiant has very serious concerns that the discoverability of court services records will have significant impact upon the function of the court services officers. Their field notes may contain personal and confidential information. Many people on probation have serious problems. Frequently, they are required to participate in counseling programs or attend treatment programs as a condition of probation. Information is regularly exchanged between counselors and court services regarding a probationer‘s progress. Even here, however, information releases must generally be obtained before the counselor will discuss confidential matters. While I suspect that most probationers assume that counselors will discuss their progress with the assigned court services officer, I doubt they assume that those discussions will include general dissemination of their mental health or chemical dependency problems to civil litigants.
3. Moreover, and particularly in the juvenile area, mental health counselors work closely with the family. Thus, a log entry might read: ‘Spoke with X‘s counsel who feels he is making great progress, but also expressed concern that the mother (or father) is not dealing with their chemical abuse problems.’ Thus, the information contained in these records goes beyond a particular probationer. I do not believe such information can be redacted from the whole of the records without compromising an accurate picture of the entire case. Thus, not only would a probationer‘s mental state become subject to discovery, but also potentially that of every family member, acquaintance, co-defendant, associates, co-workers, etc.
4. Court services also deals with very confidential medical information. Court services offices may have information that a probationer is HIV positive, has AIDS or suffers from hepatitis. This is particularly so in dealing with probationers who have a history of drug abuse. Release of such information in some cases, even in civil litigation, would be tantamount to broadcasting highly confidential medical history.
5. Release of these records could endanger others. Court services offices maintain records on contacts with others, particularly when preparing a presentence investigation (adults) or a pre-hearing social case study (juvenile). The information they obtain is reported to the court Informants, [sic] family members, school or professional counselors, friends, and law enforcement officers may all contribute to the report. While the names of individuals may not be in the report, log entries of contacts are maintained. If this information becomes discoverable, there is a real potential of criminal defendants or others linking unfavorable information to specific individuals, thereby endangering people who gave information under a guarantee of confidentiality.
All investigative case records and files relating to reports of child abuse or neglect are confidential, and no disclosure of any such records, files, or other information may be made except as authorized in chapter 26-7A or this chapter.... The Department of Social Services may release records, files, or other information to the following parties upon the receipt by the department of a request showing that it is necessary for the parties to have such information in the performance of official functions relating to child abuse or neglect ...
We do, however, agree with both the dissent‘s and the trial court‘s guidelines for exercising discretion in a disclosure decision. See ¶ 6 supra and ¶ 45 infra.