Lead
OPINION
¶ 1 Psychological Counseling Services, Ltd., (“PCS”) located in Arizona, provided counseling to Samuel C. Johnson. The Mari-copa County Superior Court has issued a summons under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (“the Uniform Act” or “the Act”), codified in AR.S. §§ 13-4091 to -4096, ordering PCS’s custodian of records (“custodian”) to testify and to produce Johnson’s treatment records in a Wisconsin criminal proceeding against Johnson. PCS and Johnson seek review of the superior court’s order. They make various arguments that the superior court had no authority to issue the summons, but argue primarily that the superior court erred in issuing it without first determining whether the treatment records were protected from disclosure under Arizona’s medical records privacy statutes and psychologist-client privilege.
¶ 2 We hold that the superior court properly issued the summons and correctly declined to consider whether the treatment records are privileged or protected by medical record privacy laws. Whether evidence sought under the Uniform Act is privileged or protected from disclosure is a determination for the state court requesting the summons, not for the state court issuing the summons.
FACTS AND PROCEDURAL HISTORY
¶ 3 During Johnson’s treatment with PCS, Johnson made statements that led the treating psychologists to reasonably believe that a minor in Wisconsin had been abused. PCS reported those statements to authorities, as AR.S. § 13-3620 requires.
¶4 In February 2012, once criminal proceedings against Johnson had begun in Wisconsin, the Racine County Circuit Court for the State of Wisconsin issued a certification pursuant to the Uniform Act to secure documents and a witness for Johnson’s trial. The documents requested included Johnson’s medical records, including those records that involved group therapy sessions. On behalf of the Wisconsin court, the State of Arizona presented the certification to the Maricopa County Superior Court and asked it to issue a summons ordering PCS’s custodian to appear, testify, and produce documents in the Wisconsin court. The superior court ordered the custodian to appear before it and show cause why a summons should not issue. Under AR.S. § 13-4092(B), the superior court was required to issue the summons if it found after a hearing that the custodian was a “material and necessary” witness, that compelling his attendance and testimony would not cause an “undue hardship,” and that the laws of Wisconsin would protect the custodian from arrest or service of process. It also
¶ 5 On July 19, 2013, the circuit court sent a second certification stating that a criminal prosecution against Johnson was pending and again requesting that the custodian appear, testify, and produce documents for a trial set for January 6, 2014. The certification noted that PCS’s custodian could send Johnson’s treatment records in lieu of personally appearing. After receiving the certification, the superior court again issued an order to show cause. The superior court vacated its order, however after it learned that the January 6 trial date had been vacated.
¶ 6 On December 17, 2013, the circuit court issued a third certificate, repeating its request for the appearance of PCS’s custodian with Johnson’s treatment records — or the submission of the records in lieu of the custodian’s appearance — at a hearing scheduled for March 26, 2014. The hearing’s purpose was to review the records requested. The superior court issued a third order to show cause.
¶ 7 Johnson and PCS made several arguments why the court should not issue a summons. They argued that (1) the superior court was collaterally estopped from considering the certification because another superior court had denied the earlier certification for the lack of a trial date; (2) the current certification did not set forth a trial date and the case was currently pending review before the Wisconsin Supreme Court; and (3) the Uniform Act does not allow for subpoenas of documents. They also argued that, if the court issued the summons, the court must determine whether the requested records were protected under the psychologist-client privilege, because if the records were protected, the custodian would not be a material witness under the Uniform Act.
¶8 The State objected to Johnson’s involvement in the matter, arguing that Johnson had no standing to object to the issuance of the summons. The State noted that although Johnson could object to the admission of the records based on psychologist-client privilege, the venue to resolve that issue was Wisconsin.
¶ 9 The court applied the Uniform Act and found that PCS’s custodian was a material and necessary witness and that the custodian would be protected from arrest and service of process in Wisconsin. The court also found, however, sending the custodian to Wisconsin would be an undue hardship because the court was uncertain whether the hearing would occur, given that a proceeding was occurring in the Wisconsin Supreme Court.
¶ 10 The State moved for reconsideration, arguing that the March 26 hearing was still set to occur. The State attached a letter from a Wisconsin circuit court judge explaining that the March hearing would occur and that he would review the requested documents in camera. PCS and Johnson opposed this motion, arguing that because a trial date still had not been set, the request for the custodian did not comply with the Uniform Act. The State moved to strike Johnson’s pleading, repeating its argument that Johnson lacked standing in the proceeding.
¶ 11 The court granted the motion for reconsideration, finding that the certification satisfied the Uniform Act’s requirements. The court noted that it had already found that PCS’s custodian was a material and necessary witness and that the custodian would be protected from arrest and service of process, and stated that it would now find that sending the custodian to Wisconsin would not be an undue hardship because the hearing would occur. The court also granted the State’s motion to strike Johnson’s pleadings in the matter. The court recognized that the Arizona Supreme Court had held in Tracy v. Superior Court (Navajo Nation),
¶ 12 PCS and Johnson separately petitioned for special action review of this order. This Court consolidated the special actions and stayed the order until further review. This Court heard oral argument on March 26, 2014.
MOOTNESS
¶ 13 Because the summons was issued for a March 26 hearing and that date has since passed, whether the superior court erred in issuing it is moot. This Court will nevertheless consider moot issues when they have great public importance or are capable of repetition yet evade review. Slade v. Schneider,
JURISDICTION
¶ 14 We accept special action jurisdiction. PCS and Johnson have no adequate remedy by appeal because the custodian is ordered to produce documents regarding a client’s medical records. Special action review is appropriate when a party is ordered to disclose what it believes is privileged information. Blazek v. Superior Court,
DISCUSSION
¶ 15 Johnson and PCS present several arguments that the superior court erred in issuing a summons for PCS’s custodian to appear before the Wisconsin court. Because these arguments involve questions of statutory interpretation and application, we review them de novo. Obregon v. Indus. Comm’n,
¶ 16 Arizona adopted the Uniform Act in 1937. Tracy,
¶ 17 The Uniform Act provides in relevant part that if a judge of a court of record in another state “certifies under the seal of such court that there is a criminal prosecution pending in such court ... that a person being within this state is a material witness in such prosecution ... and that his presence will be required,” then a superior court judge in the Arizona county in which the person resides “shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for a hearing.” A.R.S. § 13-4092(A). At the hearing, the superior court shall accept the certificate as “prima facie evidence of all the facts stated therein” and determine whether (1) the witness is material and necessary, (2) no undue hardship results to the witness by attending and testifying in the prosecution or grand jury investigation, and (3) the laws of the state in which the prosecution is pending will give the witness protection from arrest and the service of civil and criminal process. A.R.S. § 13-4092(B). If those requirements are satisfied, the court shall issue a summons directing the witness to attend and testify in the court where the prosecution is pending. Id.
¶ 18 Here, the superior court followed this procedure. A judge of a Wisconsin court of
¶ 19 Many of the issues the petitioners raise are easily resolved. Although the parties argued about whether the March 26, 2014, hearing would occur and whether the Wisconsin Supreme Court’s consideration of the criminal proceedings removed the circuit court’s jurisdiction to conduct the hearing, the Wisconsin circuit court reaffirmed the hearing date after the Wisconsin Supreme Court’s review. At the time the superior court considered the certification, the Wisconsin court had set a hearing for March 26, 2014, and that order remained in force.
¶20 We also reject the argument that the superior court was collaterally es-topped from considering the December 17, 2013, certification because it had previously found that Wisconsin’s February 2012 certification was moot for lack of a trial date. Collateral estoppel — or issue preclusion— precludes a party from “relitigating an issue identical to one he has previously litigated to a determination on the merits in another action.” State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication Comm’n,
¶ 21 Petitioners also argue the superi- or court could not issue a summons that also served as a subpoena for the production of documents. The Uniform Act makes no mention of producing documents; it only addresses the use of a summons to order witnesses in one state to testify in another state. A.R.S. § 13-4091(3) (Summons is defined as “a subpoena, order, or other notice requiring the appearance of a witness.”). All of the states that have confronted this issue — except one — have held that in view of the Uniform Act’s purpose and the broad construction of the word “subpoena,” the Uniform Act authorizes the issuance of a subpoena duces tecum — a subpoena only for documents. See Ex parte Simmons,
¶ 22 The central issue in this case, however, is whether the superior court should have considered the arguments that the records were protected under Arizona’s medical records privacy laws and psychologist-client privilege before issuing the subpoena. A review of the applicable statutes and precedent shows that the records may be disclosed without violating Arizona’s medical records privacy laws and that whether the records are privileged is for the Wisconsin courts to determine.
¶ 23 PCS argues that Arizona’s medical records privacy statute, AR.S. § 12-2292, precludes the disclosure of medical records that may be subpoenaed under the Uniform Act. This is not accurate. Of course § 12-2292(A) deems all medical records and payment records privileged and confidential, but also allows disclosure “as authorized by state or federal law.” Certain Arizona statutes do require disclosure. Section 12-2294(A) requires a health care provider to disclose medical records or payment records and “the information contained in medical records or payment records ... when ordered by a court or tribunal of competent jurisdiction,” even without the patient’s authorization. Section 12-2294.01 requires a health care provider to release medical records pursuant to a subpoena if it is accompanied by a court or tribunal order requiring the release of the records to a third party.
¶ 24 Under these statutes, PCS is required to disclose the records that pertain to its treatment of Johnson when ordered by a court of competent jurisdiction and must respond to a subpoena requiring the release of the records. The Maricopa County Superior Court is a “court of competent jurisdiction,” and the court issued the necessary subpoena under the Uniform Act. Nothing in these privacy statutes precludes PCS from disclosing the medical records.
¶ 25 Johnson and PCS also maintain that the records are protected from disclosure under A.R.S. § 32-2085(A), which provides that a psychologist may not divulge information that is received “by reason of the confidential nature of the psychologist’s practice.” The confidential relations and communication between a client and a psychologist are protected on the same basis as relations and communications between a client and an attorney. Id. The superior court correctly declined to consider the applicability of the privilege to the records, however, because that is a question for the Wisconsin court to resolve.
¶26 The Arizona Supreme Court considered in Tracy whether the Arizona court must determine if evidence sought under the Uniform Act is protected under a constitutional or statutory privilege before issuing a subpoena.
¶ 27 Our supreme court rejected these arguments. The court held that a witness could not circumvent the Uniform Act by claiming an intent to invoke the privilege against self-incrimination, but must invoke the privilege in the proceeding when called to testify because “the privilege is a matter to be ruled on by the court conducting the trial.” Id. at 27,
¶ 28 Based on the supreme court’s clear directive in Tracy, the superior court understandably — and correctly — held that whether Johnson’s treatment records are protected under the psychologist-client privilege should be resolved in the Wisconsin court and that Johnson consequently had no standing to object to the issuance of the summons. The psychologist-client privilege is a statutorily created professional privilege, just like the attorney-client and accountant-client privileges. See Ulibarri v. Superior Court,
¶ 29 PCS argues that Tracy is not controlling because it did not address privileges and privacy laws pertaining to medical records. Although the physician-patient and related privileges are undoubtedly important, nothing distinguishes those privileges from the professional privileges Tracy addressed. The physician-patient privilege is not constitutionally required and it did not exist at common law. Benton v. Superior Court,
¶ 30 Even were Tracy not controlling authority, however, it states the correct rule, for several reasons. First, Tracy’s holding is consistent with the Uniform Act’s purposes. The Uniform Act was enacted to “require[ ] reciprocal cooperation among jurisdictions for the enforcement of witness attendance orders,” and it must be interpreted to “further effective criminal prosecution.” Id. at 35,
¶ 31 Second, Tracy’s holding is consistent by analogy with other uniform law statutes. Under the Uniform Criminal Extradition Act, codified in AR.S. §§ 13-3841 to - 3870.02, when a state submits the proper documentation for the extradition of a criminal suspect who resides in Arizona, the documentation “becomes prima facie evidence that the constitutional and statutory requirements for extradition have been met,” and
¶ 32 The same principles apply to the Uniform Act. Once the requesting state presents the proper documentation under § 13-4092(A), which an Arizona court must accept as “prima facie evidence of all the facts stated therein,” the court is limited to determining whether the requirements of § 13-4092(B) are met. The court has no interest in whether and to what extent the testimony or evidence in question is admissible in the requesting state court.
¶33 Third, Tracy’s holding is consistent with conflict of laws principles that apply to privileges. The Restatement (Second) of Conflicts of Laws § 139(2) (1971) provides that the admission of evidence will be governed by the privilege law of the jurisdiction trying a matter, and not by the privilege law of the state that “has the most significant relationship” with the evidence, “unless there is some special reason why the forum policy favoring admission should not be given effect.” Under this principle, the admission of Johnson’s treatment records should be governed by Wisconsin — not Arizona — privilege law.
¶ 34 This does not mean that Johnson’s treatment records are not privileged or should be admitted in evidence. This means only that whether and the extent to which the records are privileged is for the Wisconsin court to determine under Wisconsin law. Johnson and PCS will be free to contest that issue in that forum.
¶35 Other state courts have considered whether states issuing summons under the Uniform Act can decide privilege issues. Some agree with Tracy. See, e.g., Codey v. Capital Cities, Am. Broadcasting Corp.,
¶36 But weighty as this interest is, the Arizona Legislature and appellate courts have determined that the need to protect the victims of crime — particularly minor victims of physical or sexual abuse — weighs even more heavily. See AR.S. § 13-3620; Benton,
¶37 Johnson and PCS can nevertheless argue to the Wisconsin court that it should honor Arizona’s privilege because Johnson and PCS relied on the confidentiality of that privilege in seeking and providing treatment. Although conflict of law principles provide that the privilege law of the state trying a matter controls, a court may deviate from that principle if “countervailing considerations” exist. Restatement (Second) of Conflict of Laws § 139, cmt. d (1971). A court “will be more inclined to give effect to a privilege if it was probably relied on by the parties.” Id. Johnson and PCS will have authority to argue that Wisconsin should apply Arizona law in deciding whether the treatment records are privileged from disclosure. But the resolution of that argument is for the Wisconsin court.
¶38 The superior court did not err in declining to consider whether the treatment records were privileged under Arizona law in determining whether to issue the summons under the Uniform Act. The superior court made no other error and properly issued the summons.
CONCLUSION
¶ 39 For these reasons, we accept jurisdiction but deny relief. The stay previously entered in this ease is lifted, and we remand this matter to the superior court for further proceedings consistent with this opinion.
Notes
. Johnson and PCS also argue that the "law of the case" doctrine bars the superior court from considering the December 17 certification. But that doctrine is inapplicable for the same reason: the question at issue and the facts are not the same in both proceedings. See State v. Johnson,
. The dissent expresses concern that once the superior court issues the summons and the medical records are sent to Wisconsin, the records are disclosed and "the information cannot be recalled,” which will necessarily defeat any privilege Johnson or the other group therapy patients may have in the medical records. (Dissent, ¶ 48.) But the issuance of the summons does not necessarily disclose the records in a way that vitiates their privilege. The purpose of the March 26, 2014, hearing was for the Racine County Circuit Court to review the records in camera to determine their admissibility. If the court had determined that the records were privileged under Wisconsin law, the records would not have been disclosed, and Johnson's and the other patients' interest in the privacy of those records would have been maintained. Moreover, because the records as they pertain to Johnson’s fellow group therapy patients are likely irrelevant to the issues in Johnson's criminal trial, the risk to the fellow group therapy patients that their records would have been disclosed and admitted was likely nonexistent. See Wis. Stat. § 904.02 ("Evidence which is not relevant is not admissible.”). Moreover, if a health care provider is concerned that medical records will be disclosed merely by complying with a summons issued under the Uniform Act, it may ask the superior court to seal the records until the receiving state determines whether the records are privileged.
Concurrence in Part
¶41 I agree that the superior court had authority to issue a summons that also served as a subpoena for producing documents. I respectfully disagree, however, with the majority’s conclusion that the superior court properly ordered disclosure of records — including group therapy documents— without first determining whether PCS’s client records are privileged or confidential under Arizona law. See AR.S. § 12-2292(A) (“Unless otherwise provided by law, all medical records ... and the information contained in medical records ... are privileged and confidential.”). In my view, communications that take place in Arizona are subject to Arizona law, and Arizona courts should apply that law before ordering the release of privileged or confidential documents sought for use in a prosecution in another jurisdiction.
¶42 The Uniform Act to Secure the AG tendance of Witnesses From Without a State in Criminal Proceedings, as codified in Arizona in AR.S. §§ 13-4091 to -4096, does not by its terms require disclosure of privileged or confidential communications without first determining whether the law of the jurisdiction in which the communications occurred precludes disclosure. As noted in the majority opinion, other states have in fact chosen to undertake such an analysis before ordering disclosure under the Uniform Act, and there has been no suggestion that this approach violates any provision of the Act.
¶ 43 Implicitly acknowledging that the Act does not preclude the requested privilege/confidentiality review, the majority bases its ruling on an interpretation of the Arizona
¶ 44 In Tracy, the Navajo Nation prosecuted its former Chairman and his son for an alleged conspiracy with several non-Indian businessmen to buy land and then sell it to the Navajo Nation at a profit. Id. at 26,
¶45 After a Maricopa County Superior Court judge signed orders compelling Tracy and the others to appear in tribal court, they sought special action relief. Id. at 26-27,
¶ 46 The Arizona Supreme Court concluded after extensive analysis that the Navajo Nation is a qualifying “territory” under the Uniform Act. Id. at 27-39,
¶ 47 Finally, the court addressed the other petitioners’ assertion that they (lawyers and accountants to the parties involved in the land transaction) should not be required to testify because “the Navajo District Court might not recognize the Arizona statutory privileges for attorney-client and accountant-client relationships.” Id. at 43 & n. 20,
¶48 The majority urges that the above-quoted language from Tracy regarding professional privileges encompasses the issues raised in this ease. But that discussion only addresses in-eourt testimony, and not the production of documents. See id. at 26-27,
¶ 49 Furthermore, Tracy’s holding did not specifically address whether communications that occurred in Arizona are subject to disclosure if the “foreign” jurisdiction’s privilege and confidentiality laws differ from Arizona’s. Although Tracy noted broadly that the “laws [relating to professional privileges] of each jurisdiction may appropriately vary,” id. at 43,
¶ 50 Unlike Tracy, in the instant case, there is no question that the communications at issue took place in Arizona and not in the requesting state (Wisconsin). Accordingly, we are faced with issues not specifically addressed in Tracy: does the law of the state in which the communications took place govern whether the communications are privileged or confidential, and if so, which state should determine how to apply that law?
¶ 51 As to the issue of which state’s law governs whether the communications are privileged or confidential, the Maryland ease on which the Arizona Supreme Court relied in Tracy in its discussion of professional privileges is instructive and compels the conclusion that the site of the communication is dispositive. See id. at 43,
¶ 52 Because the law of the jurisdiction where the communications took place governs, courts from that jurisdiction are best situated to address whether the communications are privileged and/or confidential under the law of that jurisdiction. In fact, to leave the analysis to another jurisdiction could lead to inconsistent interpretations and applications of the law of the jurisdiction where the communications took place.
¶ 53 Here, Arizona courts are the appropriate forum in which to apply and interpret Arizona law governing psychotherapist-patient privilege and confidentiality. Accordingly, the superior court should have reviewed the documents sought by subpoena to determine whether they include privileged and/or confidential information, and if so, whether the documents should be redacted before being sent to the requesting jurisdiction.
¶ 54 Although my colleagues acknowledge a “weighty” interest in enforcing Arizona’s psychologist-client privilege statute, they nevertheless assert that the Arizona Legislature and appellate courts have determined that the need to protect the victims of crime — particularly minor victims of physical or sexual abuse — weighs even more heavily. But to the extent legislative pronouncements regarding privilege and confidentiality issues are seen to conflict with legislative pronouncements under the Uniform Act, the more specific privilege and confidentiality provisions control, rather than the general provisions of the Act. See Lange v. Lotzer,
¶ 55 Requiring the superior court to undertake a privilege/confidentiality review before sending documents to another state would simply ensure that Arizona-specific provisions (as adopted by the Legislature or by Arizona courts) relating to privilege and confidentiality are applied to communications that take place in Arizona. In contrast, the majority’s position abrogates the responsibility to interpret Arizona legislative and judicial pronouncements regarding privilege and confidentiality to courts of another state, which may or may not apply Arizona law, and even if the foreign state chooses to apply Arizona law, the foreign state may or may not interpret it in the same way that Arizona courts would interpret it.
¶ 56 The Wisconsin trial judge who will review the records after they are sent from Arizona has indicated that “the information requested from Arizona, if relevant and compliant with Wisconsin evidentiary rules, is admissible at the trial in this matter.” That statement does not indicate, however, whether Wisconsin evidentiary rules require application of the law of the jurisdiction where communications took place in addressing privilege/confidentiality issues. But regardless whether the Wisconsin court intends to apply Arizona law, and regardless whether Wisconsin law regarding patient/client privilege is substantially similar to Arizona law, in my view, the documents memorializing communications that took place in Arizona are subject to Arizona law, which should be interpreted by Arizona courts.
¶ 57 Furthermore, leaving to a foreign jurisdiction the decision whether and how to apply Arizona privilege and confidentiality concerns places Arizona patients and treating professionals in an untenable position in which there is uncertainty as to what types of communications are protected from disclosure. Patients and treating professionals who engage in communications in Arizona should not be required to know the laws and rules regarding disclosure of confidential information in jurisdictions outside Arizona. See Restatement (Second) of Conflict of Laws § 139(2) emt. d (1971) (courts should consider “fairness to the parties” — particularly reliance on local privilege or strict confidence
¶58 Finally, there is no inherent unfairness in having an Arizona court review documents relating to Arizona communications for privilege and confidentiality concerns under Arizona law before ordering disclosure of the documents to another jurisdiction. Significantly, the communications at issue would have remained private but for a provision in Arizona law (A.R.S. § 13-3620) that imposes a duty on certain categories of individuals (including mental health professionals) to immediately report to law enforcement instances of child abuse of which they become aware. But that provision does not eliminate other privilege and confidentiality concerns that may require that information in records detailing alleged child abuse be redacted before the records are disseminated or otherwise made public. See Wilson,
¶ 59 In my view, the request for disclosure of documents reflecting communications that took place in Arizona should be treated the same as if the request were made by Arizona prosecutors seeking disclosure of documents in an Arizona case. I would thus accept jurisdiction and reverse the superior court’s finding that the court is not required to undertake a privilege/confidentiality review before ordering that the documents at issue be disclosed for use in a Wisconsin prosecution.
. The Arizona Supreme Court also quoted this court’s order declining jurisdiction, which noted that, although the Navajo Nation might not have initially been an intended participant in the Uniform Act, "a majority of this court considers the Navajo Tribal Courts to now provide those safeguards and procedures recognized by courts of other states, including the constitutional protection against self-incrimination and the statutory privilege associated with attomey/account-ant/client communication.” Tracy,
Concurrence Opinion
¶ 40 Because I conclude that the Arizona Supreme Court’s opinion in Tracy v. Superior Court (Navajo Nation),