In Re Albemarle Mental Health Center
256 S.E.2d 818
N.C. Ct. App.
1979
Check Treatment
MITCHELL, Judge.

The sole question on appeal is whether the trial court properly concluded that it was “without jurisdiction to proceed and to determine the merits, rights and duties of the parties.”

The State argues, and we agree, that this cause is in the nature of a special proceeding. G.S. 1-2 provides that “An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.” G.S. 1-3 provides that “Every other remedy is a special proceeding.” Moreover, G.S. 1-394 provides in part that “Special proceedings against adverse parties shall be commenced as is prescribed for civil actions.” Respondent argues that the trial court here was without jurisdiction because the proceeding was not commenced pursuant to G.S. 1A-1, Rule 3 which provides that a civil action may be commenced only by the *296 filing of a complaint or by the issuance of a summons with permission of the court to file complaint within twenty days. Clearly, this proceeding was not commenced pursuant to our statutory requirements for initiating a civil action. We do not agree, however, with the respondent’s view that our law is so inflexible as to preclude the superior court’s jurisdiction in a matter of such moment as presented by the facts before us.

The superior court is the proper trial division for an extraordinary proceeding of this nature. See G.S. 7A-246. The judicial power of the superior court is that which is granted by the Constitution and laws of the State. Baker v. Varser, 239 N.C. 180, 79 S.E. 2d 757 (1954). Within the guidelines of our Constitution, the legislature is charged with the responsibility of providing the necessary procedures for the proper commencement of a matter before the courts. Occasionally, however, the proscribed procedures of a statutory scheme fail to embrace the unanticipated and extraordinary proceeding such as that disclosed by the record before us. In similar situations, it has been long held that courts have the inherent power to assume jurisdiction and issue necessary process in order to fulfill their assigned mission of administering justice efficiently and promptly. We believe that this is one of those extraordinary proceedings and that our rules of procedure should not be construed so literally as to frustrate the administration of justice.

Our legislature plainly intended that the implementation of the provisos in G.S. 8-53 and G.S. 8-53.3 be a function of the judiciary. By virtue of the failure of our legislature to provide precise statutory directions for fulfilling this responsibility, it becomes incumbent upon the courts to proceed in a manner consistent with law. The general rule is that:

All powers, even though not judicial in their nature, which are incident to the discharge by the courts of their judicial functions, are inherent in the courts, and . . . [they have] such power as is necessary to the exercise of the judicial department as a coordinate branch of the government.

16 C.J.S. Constitutional Law § 144, p. 694 (1956). It has, for example, been held that it is an inherent power of courts to compel the attendance and testimony of witnesses. 97 C.J.S. Witnesses § 4, p. 351 (1957). Our own Supreme Court has indicated that the *297 absence of discovery as a matter of right does not necessarily preclude the trial judge from ordering discovery in his discretion. State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977). Federal courts have also recognized the judiciary’s inherent power to compel pretrial discovery where not specifically prohibited by statute. See United States v. Cannone, 528 F. 2d 296 (2d Cir. 1975); United States v. Jackson, 508 F. 2d 1001 (7th Cir. 1975); United States v. Richter, 488 F. 2d 170 (9th Cir. 1973). In Richter, it was said that:

“A federal court has the responsibility to supervise the administration of criminal justice in order to ensure (sic) fundamental fairness.” (Citations omitted) It would be ill-advised to limit improvidently this inherent power for fear of misuse. The firing point of the legal system is with the trial judge who is best situated to administer the law and protect the rights of all. Id. at 173-74.

The pertinent portion of G.S. 8-53 reads as follows: “[Provided, that the court, either at the trial or prior thereto, or the Industrial Commission pursuant to law may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.” We think that the legislature intended to employ the phrase “may compel such disclosure” in such manner as to authorize the court to require disclosure in all situations governed by G.S. 8-53 without exception, when disclosure “is necessary to a proper administration of justice.”

While the proviso contained in G.S. 8-53.3 does not contain the precise language of the proviso to G.S. 8-53 specifically providing that the required disclosure may be prior to trial, we believe that such was the legislative intent. The pertinent portion of G.S. 8-53.3 reads as follows: “Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.” It would be wholly inconsistent to allow disclosure in the case of a physician-patient relationship while, in a statute extending the rule to the psychologist-client relationship, precluding the required disclosure until the time of trial. We do not assume any such inconsistency on the part of our legislature. Further, we find nothing inherent in the wording of either statute that would prohibit the court in the proper administration of justice from requir *298 ing disclosure prior to the initiation of criminal charges or the commencement of a civil action.

The heart of a statute is the intention of the law-making body. In performing our judicial tasks, “we must avoid a construction which will operate to defeat or impair the object of the statute, if we can reasonably do so without violence to the legislative language.” Ballard v. City of Charlotte, 235 N.C. 484, 487, 70 S.E. 2d 575, 577 (1952). In construing a statute, we must view it as giving effect to the obvious intention of the legislature as manifested in the entire act and other acts in pari materia. 82 C.J.S. Statutes § 381b(l), p. 885 (1953). When so construed, we find the language of both G.S. 8-53 and G.S. 8-53.3 sufficient to allow the trial court to compel disclosure prior to trial and prior to the filing of criminal charges when such action is necessary to the exercise of its implied or inherent powers to provide for the proper administration of justice.

In the case at bar, the District Attorney, acting pursuant to G.S. 8-53.3, filed a motion in the superior court requesting that the court conduct an in camera hearing to determine whether the information in the possession of the director of the Mental Health Center and other employees was “necessary to a proper administration of justice.” The court promptly issued an order requiring the director and other employees to appear in court and this notice was personally served by the Sheriff of Pasquotank County. We can think of no more effective or practical way to effectuate the intent of the proviso in question than through the employed procedure. To interpret our rules of procedure with the rigidity argued for by the respondent would do nothing more than require that we frustrate the ends of justice by an unwarranted insistence on compliance with rules which were not designed to embrace specifically the facts of a situation such as this. We think our legislature intended for the privileges provided by these statutes to be subservient to the greater cause of the proper administration of justice. Unfortunately, the legislature failed to specify the procedural steps for implementation. In such instances it becomes the responsibility of the judiciary, in the absence of some express prohibition, to effectuate the intent of our law by the exercise of its inherent or implied powers. The District Attorney diligently employed a practicable and workable procedure to bring the matter before the trial court. For the reasons *299 previously stated, the trial court improvidently dismissed the action for want of jurisdiction.

It is unnecessary to this decision for us to discuss the question of whether the information in the possession of the director of the Mental Health Center and the other employees is “necessary to a proper administration of justice” such that the shield provided by G.S. 8-53.3 should be withdrawn. Indeed, it will be the trial court’s function on remand to conduct the requested in camera hearing and make this determination. Suffice it for us to say that we can think of no more pointed situation giving rise to implementation of the proviso in question than one in which a physician or psychologist or other affiliated personnel has information concerning an alleged homicide.

We are advertent to the decisions of our Supreme Court in Gustafson v. Gustafson, 272 N.C. 452, 158 S.E. 2d 619 (1968); Lockwood v. McCaskill, 261 N.C. 754, 136 S.E. 2d 67 (1964); and Yow v. Pittman, 241 N.C. 69, 84 S.E. 2d 297 (1954). Those cases held that a superior court judge, prior to trial in a civil action, had no authority to compel a physician to submit to examination by opposing counsel through deposition or to submit to any pretrial examination regarding confidential communications between such physician and patient. In Lockwood, the Court also held that the judge referred to in the statute was the judge presiding at a trial on the merits. When these decisions were rendered, the proviso in G.S. 8-53 provided that “the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.” However, following the decision in Gustafson, our legislature, in 1969, amended G.S. 8-53 and reworded the proviso so as to indicate the clear intent of the legislature that disclosure could be compelled prior to the time of trial. 1969 N.C. Sess. Laws Ch. 914. The proviso to G.S. 8-53 was again reworded by the legislature in 1977 and again indicated that clear intent of the legislature that disclosure could be compelled prior to the time of trial. 1977 N.C. Sess. Laws Ch. 1118. While the legislature on both occasions failed to reword the proviso in G.S. 8-53.3, which was enacted in 1967, the reworded proviso in G.S. 8-53 applies to G.S. 8-53.3 as well. Although each succeeding amendment to G.S. 8-53 has left that statute more inartfully drafted than before, the intent of the legislature remains clear. The two statutes, G.S. 8-53 *300 and G.S. 8-53.3, are to be read in pari materia. When so read, they extend the physician-patient privilege to the psychologist-client situation and withdraw the privilege in all situations where “necessary to a proper administration of justice.” The reasons for the exceptions to the privileges granted by the two statutes are the same and it would be discordant for us to fail to extend the latter amendment of one to the other.

Finally, we commend the parties to this action for their professional approach in seeking a resolution to the questions presented. Obviously, Mr. Franklin was concerned that the information he and his colleagues received should be brought to the attention of appropriate authority. Sensitive to his professional responsibilities, however, he consulted with counsel. Mr. Hughes, on the basis of case and statutory law, issued his opinion that employees of the Health Center were not at liberty to disclose the requested information. The District Attorney, sensitive to his responsibility to enforce the criminal law in his district, filed his motion before the trial court. The trial court, with little guidance from the General Statutes and, we suspect, from an abundance of caution, dismissed the action and the matter reaches us for decision.

For the reasons stated, the decision of the trial court must be reversed and remanded. On remand, the trial court is directed to conduct the requested in camera hearing and make its determination as to whether the employees of the Albemarle Mental Health Center should disclose information to either the District Attorney or appropriate law enforcement authorities.

Reversed and remanded.

Judges PARKER and Erwin concur.