*1 Ray- Raymond’s 34.] The trial court also [¶ [¶ considered When we consider 36.] disregard lengthy record, mond’s record of blatant for au- and violent criminal his histo- ry disregard thority. Ray- authority, Police law officers testified for the and consequences victims, especially became for the to his when mond hostile and violent and appears drinking, and them we note to be threatened with what an escalation behavior, bodily point- harm. The court criminal sexual a life sentence with- death trial Raymond dishonorably parole out does not shock con- ed out was dis- the collective charged agree from the Marines several un- science of Court. We absences, being society trial including “[t]he authorized absent court interests of days. kept off without leave for 574 also violated demand that defendant be He parole peni- the rest of 1989 and was to the streets for his life.” returned tentiary. Upon again his violated release he Raymond’s Because we do not find 37.] parole peni- 1990 and to the was returned parole life sentence without meets either tentiary. very day On the his next re- prong of the threshold “shock the conscience lease, perpetrated he on one of sexual abuse test,” necessary it for this Court to His the children. most recent conviction proportionali- consider the issue of whether a shortly after on the was his release first ¶21 5, ty required, review is id. at n. sexual contact conviction. At both sentenc- 5, 394 n. N.W.2d at address the evidentia- case, ing hearings in the instant he showed ry issue raised the State in notice of its remorse, and his to the court no statements review. tendency exhibited a for his blame others judgment affirm [¶ 38.] We of convic- with the troubles law. tion sentence the trial court. and imposes
[¶ When trial court sen- tence, keep commonly it must in mind the MILLER, C.J., SABERS, and 1) namely: accepted goals punishment, JJ., KONENKAMP, and AMUNDSON 2) retribution; deterrence, both individual concur. 3) Gregg general; rehabilitation. Georgia, 428 U.S. 96 S.Ct. (1976).
L.Ed.2d 859 recognized have that while a life sen-
We parole
tence without extracts retribu- [sic]
tion, committing deters the convict from
crime,
street,
removes him from the
fore have determined a trial court should No. 19697. only impose a life sentence when facts of principal previous convic offense and the Supreme Court of South Dakota. unlikely tions make rehabilitation so that it is on Briefs March Considered 1997. sentencing. removed consideration in Peterson, 140, ¶29, 1996 SD N.W.2d at May Decided 1997. Raymond’s sentencing In Raymond incapable rehabilita found record, light say cannot tion.
the trial court in that abused its discretion
regard imposed. the sentence *2 Danforth, Meierhenry
Mark V. Meier- henry Meierhenry & and Michael J. Butler of Falls, Nesson, petition- Butler and Sioux appellants. ers and Daryl R. L. Hecht and Jensen of Steven *3 Huff, Inkster, Sheehan, Crary, Hecht & City, appel- North for Sioux defendant and lee.
GILBERTSON, Justice. David, Cathy Maynard
[¶ 1.] and Jon (Maynards) appeal filed intermediate requiring the circuit court’s order (Heeren) Raymond provide them to Heeren psychotherapy Cathy all records of Maynard.1 affirm We with instruction. FACTS AND HISTORY PROCEDURAL Cathy Maynard [¶ 2.] David are the son, parents of an autistic Jon. Heeren al- legedly taxpayer group is the leader of a opposed expense generated by Hoyt special Greater School District’s edu- placement Maynards cation Jon. claim that Heeren made false statements County taxpayers about them to Union calls, through telephone newspaper solicited advertisements and media interviews. The Maynards suing negligent for Heeren misrepresentation, privacy, invasion of slan- der, and intentional infliction emotional distress. Through discovery process, Cathy Maynard
Heeren discovered that was seeing psychotherapist, Douglas Dr. Anderson. Pursuant to the rules of discov- ery, production Heeren for of: moved notes, notes, All progress therapists’ ports, correspondence, personality invento- sheets, ry answer statements services rendered, flies and all other documents tangible things generated or reviewed by ... Anderson ... [Dr.] the course of Cathy May- evaluation and treatment of nard. Maynard, daughter Cathy plaintiff. David Carrie Maynard, voluntarily out of the dismissed case as physician-patient privilege, provide proposal Maynards failed [¶ When Proposed Rule was not to in- known as and answers requested documents com- Rules adopted a motion to into the Federal of Evidence.
terrogatories, Heeren filed recog- provide Military Rules of Evidence discovery. Maynards agreed to Id. The pel privilege. records, provided physician-patient nize no Id. but evi- treatment some Nevertheless, virtually opinion that all 50 states and the it was Dr. Anderson’s dence that psycho- and the have enacted of all treatment records District Columbia Maynard law in some therapist Mrs. into form. intensely personal information — Redmond, U.S.-,-n. divulged to her to him would be detrimental Jaffee Following hearing 135 L.Ed.2d on Heeren’s 1929 n. treatment. S.Ct. citations).2 (1996) (listing compel, the trial court ordered statute motion to requested Maynard to turn Mrs. over the *4 Every privilege limits the evi [¶ May- or face dismissal fact-finding judicial in the dence available injury or nards’ claims for emotional mental 559, 256 process. Jaques, N.W.2d State Maynards petitioned damage. for The J., (S.D.1977) (Zastrow, concurring spe 564 granted appeal, which was an intermediate disadvantage is balanced cially). This by this Court. public policy argument favor of against the privilege: OF REVIEW the STANDARD the court’s 5.] We review trial expresses a physician-patient privilege The rulings discovery an abuse on matters under policy encourage uninhi- long-standing Hess, Weisbeck v. of discretion standard. physician communication between a bited (S.D.1994) 363, (citing Aberle 364 patient. privilege It that his is a seeks (S.D. 179,182-83 Ringhausen, 494 N.W.2d care, free of health insure the flow 1992)). are asked to determine When we any on the that fears absent the trial order violated the whether court’s says might anything he later used confidentiality privilege, psychologist-patient against him. however, statutory question it of raises D.K., 644, People ex rel. N.W.2d interpretation requiring de novo review. omitted). (S.D.1976)(internal citation Weisbeck, 364-65; also at see N.W.2d (S.D.1995) 58, Penn, psychotherapist Delzer v. N.W.2d The [¶ 9.] (statute fully question phy- is of law the encompassed construction within South Dakota is reviewable). in SDCL sician-patient privilege contained patient has a 19-13-7: “[a] AND ANALYSIS
LEGAL ISSUE any prevent and to other to disclose fuse communi- person disclosing from confidential (the physi- 19-13-6 Whether SDCL [¶ 6.] diagnosis or purpose made cations prevents cian-patient privilege) the trial his mental or emotional treatment of psy- ordering disclosure of A communication is confiden- condition[.]” chological whose records of tial: element or emotional harm an mental claim. her to be disclosed third if not intended law, persons, except persons present to further physi- there was no At common [¶ 7.] consultation, patient in psy- privilege, no the interest cian-patient and therefore interview, examination, persons or reason- privilege. Alan
chotherapist-patient Charles Graham, necessary for transmission of the ably Federal Wright W. & Kenneth (1989). communication, partic- persons who are § 5543 & Procedure Practice and decid- noted state statutes Jaffee, Supreme first time Court the various Court 2. In judicially psychotherapist that "it is recognized made create on basis ed to policy which privilege permits body the umbrella FRE under appropriate to treat consistent privileges by new to define reflecting the Court by legislatures as state determinations ” - principles ... in the "interpreting law common at ‘experience.’ U.S. 'reason' and both -, - experience.” light U.S. at reason and at 135 L.Ed.2d 116 S.Ct. at -, L.Ed.2d at 343. 116 S.Ct. at diagnosis Maynards’ complaints priva- un- ipating in treatment —invasion physician psy- direction of the cy3 der the and intentional infliction of emotional chotherapist, including members distress.4 patient’s family. statutory There a second [¶ 11.] exists 19-13-6. SDCL physician-patient privilege waiver generally recognized It applies which we conclude also in the instant psychotherapy privilege can be provides, part: case.5 SDCL 19-2-3 — patient. Jaffee, waived U.S. at quasi-judi- proceeding action or -, n. 116 S.Ct. at n. proceeding, cial administrative whenever provided L.Ed.2d at n. 14. We have physical any person health of mental physician-pa- coui’t rules for waiver of the issue, § any privilege is in under 19-13-7 Dakota, privilege in including tient South conclusively shall be deemed to be waived 19-13-11, parties cited both trial purposes or for the applicable to the case at bar. SDCL 19-13- chapter pro- under 15-6 if such action or provides: ceeding civil in nature[.] There is no under 19-13-7 as
to a communication
to an
relevant
issue of
if
Even
the emotional and mental state of
physical,
mental or emotional condition
Maynard
May-
Mrs.
is not an element of the
*5
patient
any proceeding
in
in
which nards’ claims for their other two causes of
upon
he relies
the condition as an element
action, i.e.,
negligent misrepre-
slander and
or,
pa-
of his claim or defense
after the
sentation,
alleged
the
mental harm must be
death,
any proceeding
in
in
tient’s
which
prove up
injury
used to
the element of
any party
upon
relies
the condition as an
quired
Maynai’ds
in both.6 The
in their
element of his claim or defense.
damages request compensatory
claim for
$250,000
speaks only
damages
plus
of
proceedings
SDCL 19-13-11
medical bills and
punitive damages
where the mental or emotional condition
for slander and intentional
Certainly
an element Mental and emotional harm is
infliction of emotional distress.
alleged
suffering
Maynard
an element of two of the causes of action in
emotional
of Mrs.
patient-litigant exceptions.
3. We have defined the common law action of
One covers cases
privacy
ap-
invasion of
propriation
as:
unwarranted
"[t]he
where the mental condition is evidence of the
exploitation
personality,
or
of one's
(as
19-2-3)
element
codified at SDCL
and the
publicizing
private
of one’s
affairs with
(ele-
second where the condition itself is the fact
concern,
legitimate
has
which the
no
or
ment)
(as
proved
to be
codified at SDCL 19-13-
wrongful
private
intrusion into
the
ties,
one's
activi-
11).
Graham,
Wright
§
&
5543.
outrage
manner as to
or
in such
cause
shame,
suffering,
per-
humiliation to a
mental
or
20-11-4,
provides
part,
6.See SDCL
which
in
Austad,
ordinary
Krueger
sensibilities.”
son of
unprivileged publication,
"Slander is
false and
¶33,
(citing
545 N.W.2d
Effective an or emotional condition arises as element confidence trust in atmosphere (Fed. willing make a of a claim or defense. SDCL 19-13-11 which the added); facts, 503(d)(3))(emphasis see complete disclosure of R.Evid. frank and memories, 19-2-3; emotions, Taylor, R. and fears. Because S. Stone & Testi- SDCL (2d 1995). problems Privileges nature of the for monial 7.23 ed of the sensitive psychotherapists, simply consult wholesale disclo- which individuals trial court ordered records, regard confidential communications Maynard’s disclosure of without sure of counseling may during sessions made involved might what be relevant the claims disgrace. For Admittedly, permit expan- cause embarrassment rules here. our reason, possibility mere of disclo- discovery: sive development may impede of the confi- sure is, discovery scope pretrial for the relationship necessary for success- dential broadly part, most construed. Bean v. ful As the Judicial Conference treatment. (1957). Best, N.W.2d 565 76 S.D. Advisory observed in 1972 Committee 15-6-26(b) may provides, “Parties Congress rec- it recommended matter, discovery regarding obtain ognize psychotherapist privileged, which is relevant to the Proposed Federal Rules of Evi- ” pending in the action.... matter involved dence, ability help psychiatrist’s her A rules broad construction patients satisfy necessary to the three distinct dependent upon pa- completely [the (1) discovery: purposes of narrow the is- willingness ability to talk tient’s] (2) trial; sues; for use at obtain evidence difficult, makes it if not freely. This (3) lead to secure information impossible, psychiatrist] to func- [a evidence at trial. admissible being able to assure tion without *9 Kaarup Paul Fire and Marine Ins. v. St. and, indeed, confidentiality patients of Co., 17, (S.D.1989)(citing 8 436 N.W.2d 19 Where there privileged communication. Miller, R. Wright A. & Arthur Fed- Charles general exceptions to this rule be (1970)). § Procedure 2001 eral Practice and agreement is wide that confi- there Nonetheless, scope while not limited to qua dentiality is a sine non for success- admissible, discovery requests only the Advisory psychiatric ful treatment. Rules, “reasonably to lead to the dis- Proposed calculated Notes to Committee’s (1972) 183, covery evidence.” 15-6- (quoting Group 242 of admissible 56 FRD
839
2(b).
party may
placing
A
“carte blanche” dis-
waive
No overbroad or
closure,
lacking in
unduly
burdensome
his or her medical condition at issue. For
Lopez
allowed.
v.
specificity, should be
example,
pain
a claim for mental
suf-
351,
Ltd.,
Huntington
150 A.D.2d
Autohaus
fering
psychother-
protection of the
waived
874,
(1989).
876
540 N.Y.S.2d
apist-patient privilege because
claim
patient’s
put the
mental condition
issue.
Discovery of
information
26.]
medical
[¶
A waiver
be found at least where the
long
protected, even
waiver.
will
has
been
sought is
privacy
in the
not an “unlimited’’
legitimate interest
“[T]he
information
relationship
physician-patient
exposure
psychotherapist-patient
not
should
com-
subject
litigant
munications,
every
closely
casual breach
to
and is in
tai-
fact
single-minded pursuit
scrap
in a
of the last
period
lored to the
time
matter
may marginally contribute to
evidence which
the claim.
victory
litigation.”
Strong,
1 J.
McCor-
Berger,
M.
3 J. Weinstein &
Weinstein’s
(4th
1992);
on
105
ed
see
mick
Evidence
(2d
§ 504.07[8]
Federal
ed.
Evidence
Lewis,
107,
141 F.R.D.
112
Harlan v.
added). Here,
1997)(emphasis
the trial court
(8th
(EJD-Ark.1992),affd,
F.2d
Cir.
982
1255
discovery might
no heed
took
that overbroad
(Williams),
1993);
Superior
7
Davis v.
Court
wholly
reveal
irrelevant
to the
information
1008,
331,
Cal.Rptr.2d
Cal.App.4th
335
issues.
all rec-
Indiscriminate
(1992)(“only discovery directly
to
relevant
notes,
ords,
private
in a
communications
plaintiffs
claim and essential to the fair
upon
psychotherapist’s file
intrudes
sanc-
Owen,
lawsuit”);
Owen v.
resolution
mind,
patient’s
tity
potentially expos-
(Ind.l990)(in
605,
spite
563 N.E.2d
ing matters destructive to mental health.
which is unrelated to the
waiver “information
demanding
Although
of discretion is a
abuse
and irrelevant to
cause
condition in issue
overcome,
to
standard
review
State v.
privileged
protected
and therefore
remains
¶8,
339,
Dreps, 1996
558 N.W.2d
SD
(citations omitted);
discovery”)
from
Linton
right
preserve
hallowed
Falls,
City
Great
Mont.
disclosure,
private and
unrelated matter
(1988)(waiver inapplicable to
P.2d
62-63
relatively simple options
as well as the
avail-
“any
not
treatment
condition
related
judges
overseeing discovery,
able to trial
only
ex-
the action” and
waives
super-
refusal to exercise its
make
court’s
claim);
is “relevant” to
tent
visory power
against reason
decision
College,
A.D.2d
v. Trocaire
Wachtman
evidence.
(1988)(scope of
N.Y.S.2d
limited
“does
after waiver is
should
have
involving
permit discovery
not
of information
May-
arranged for an in camera review
treatment”);
gener-
illnesses
see
unrelated
only information
records to ensure
nard’s
Stuck,
43, 54
ally
State
against
Heeren came
the claim
relevant
(S.D.1988)(medical
not
noted,
records
relevant
light.
individ-
“[w]hen
We have
discoverable);
Jampole v.
material not
courageous choice to
ual makes the
seek
(Tex.1984),
Touchy,
673 S.W.2d
begins.
confidentiality
This
help,
Court
grounds
point of discovery); (in overbroad 23 Am.Jur.2d key vent camera examination N.W.2d 17 (1983 Discovery § & Depositions and 29 attorney-client information to re- reviewing inspection appro- Supp.)(m 1996 camera Layton, 337 parts); State v. privileged dact parts requested informa- priate to excise (S.D.1983)(m review of camera N.W.2d 809 discoverable).11 tion not information discoverable statements especially appro- process proper). Such prohibit empowered 29.] Courts case, privacy priate in this substantial exposure of extraneous information courts have interest is at stake. Other unnecessary “annoyance, patient step necessary. Petrillo v. embarrassment, such a oppression, found or undue burden Laboratories, Inc., Ill.App.3d 15-6-26(e)(authorizing 148 Syntex expense.” SDCL 191, 952, Lewis, 581, 172, orders); 130 protective Ill.Dec. 499 N.E.2d Nelson v. 102 (1987)(even 720, (1986)(state 106, in a significant interest A.2d 722 has N.H. 534 971 situation, only relevant to a privacy rights waiver evidence “safeguarding of individu- discoverable, Brodnitz, and “the waives claim is 98 Misc.2d patients”); al Anker v. only necessary to 582, to the extent 148, (Sup.Ct. 586 413 N.Y.S.2d information”). Proper su- provide essential 1979)(court discovery in supervision of case “a trial pervision the rules enables under element of claim mental health was where manage court to exercise ‘broad discretion object patient opportunity to to disclo- gives discovery process in a fashion that will “remote, irrele- sure of philosophy of full disclosure of implement the vant, improper”); v. otherwise Crist Mof- time information and at the same relevant 41, 326, 46 fait, 389 S.E.2d 326 N.C. protec- participants the maximum afford the (1990)(in malpractice “formal medical against harmful effects....’” tion side discovery procedures enable defendants Ct., Cty., Denver 682 Bond v. Dist. & For information while simulta- reach all relevant 33, 4 (Colo.l984)(quoting J. Moore & P.2d 40 privacy by neously protecting ¶ Lucas, Practice 26.6.7 J. Moore’s Federal discovery pro- supervision ensuring over the (1983)); 415, Lifschutz, 2 85 In re Cal.3d cess, judicial in- presence via of counsel 844, 557, 829, Cal.Rptr. 467 P.2d 572 warranted”); tervention, International if (1970)(even waived, protec- privilege is Wallace, 773, v. 843 S.W.2d Surplus Lines pre-discovery inquiry into ma- tion order and (Tex.App.l992)(vacating broad disclosure 776 pri- appropriate “safeguard terials are order; of material should be deter- nature Salter, vacy patient”); Mead v. 566 granted); order Dos- mined before blanket (Ind.Ct.App.l991)(informa- N.E.2d (“Thus, holding sey, at 148 808 S.W.2d injury tion unrelated to condition [psychotherapy] review of the an in camera waiver). despite pro- privileged mains This proper; how- prior records to the order was mindset, along public policy tective ever, clearly discre- judge] abused his [the carefully privilege- behind conducted reasons by subjecting [patient’s] psy- tion all of discovery, that an in cam- waiver mandates chological since even records hearing should have been held era discovery, of broad no the interest having nothing do to exclude matters case totally ignored.”); 1 McCormick should be Duquette generally with the issues. See (some privi- § 105 states rest on Evidence Court, P.2d Supenor 161 Ariz. court; prac- screening in such lege hands (Ct.App.l989)(privilege waivers best con- only protection pri- allow tice “would of discov- sidered under the formal methods vacy against intrusion but would draw trivial ery). injustice the threat carried”); Despite in our generally the clear mandate long see which it has limit dis- Owen, and a nationwide trend to (advising in cam- statutes 563 N.E.2d (1989); Dy- v. General involving L.Ed.2d 469 Zuckerbraun review of information 11. In actions (2d Cir.1991); falling attorney-client privilege, Corp., under F.2d namics proper (10th has been held to be a review camera method Jury, F.2d In re Grand discoverability. judging United Cir.1990). Zolin, 491 U.S. 109 S.Ct. States *11 material, ap- inspected before records are her covery this Court those to relevant opponent. psy- to a proves “absolute” access citing any chotherapy Without records.12 AMUNDSON, J., joins this dissent whatsoever, majority simply authority hereby I and am authorized to so state. in camera during
proclaims that an review parties have access the con- “both makes camera information.” This
tested meaningless. Only the court should
review material to be nondiseover-
examine claimed if it should
able to determine first be dis- No less than the other freedoms
closed.13 thoughts possess, our feel- innermost and SD 61 ings refuge deserve from senseless intrusion. In the ENTER- Matter of RICHTER makers of undertook The our Constitution PRISES, and INC. Kenneth Bar- pur- favorable to the to secure conditions ber, Appellants, happiness. They recognized suit nature,
significance spiritual of man’s feelings They intellect. his and his COUNTY, South SULLY only part pain, pleasure knew that Dakota, Appellee. of life are to be and satisfaction found 19603. No. things. They sought protect material beliefs, thoughts, their Americans their Supreme of South Dakota. Court their emotions and their sensations. Briefs 1996. Considered on Oct. States, 438, 478, v. United Olmstead U.S. 564, 572, 72 L.Ed. 48 S.Ct. May Decided (1928)(Brandeis, J., dissenting). age In this privacy seems ever more difficult to abuse tarnishes the preserve justice system, I
integrity of our civil would and remand with instructions to the
reverse to conduct an in camera relevancy
trial court Maynard’s psychotherapy records
review of covery purposes. objecting party re- The should Rules of Civil 12. In 1993 Federal Procedure "(5) specificity view the and note pertinent as follows: documents were amended Privilege Prepa- portions claimed does not or Protection Trial to which the Claims party apply. objecting party provide Materials. withholds infor- ration When The should judge presiding mation otherwise discoverable under these rules in the documents to by claiming privileged that it or ac- enclosed in a sealed and labeled container material, preparation party protection companied by explanatory as trial cover letter. expressly shall identify cap- make the claim describe shall file cover letter should number documents, communications, explain or proceeding the nature nature of tion of the produced materials, in a things that, or disclosed manner compromising without its the sealed revealing privi- information itself without secrecy. The container should essential parties leged protected, will enable other print. marked "IN CAMERAREVIEW” bold applicability protec- relevancy assess page Each for which a added). (Emphasis tion.” "privi- objection asserted shall be marked leged” the court or both. When or "irrelevant” opens it should isolate the materi- this container following compilation reflects a of various 13. The leaving als it not discoverable and reseal it deems jurisdictions setting rules from other forth re- materials unsealed. Without discoverable inspection: procedure an ob- for in camera If vealing specific nature the nondiscoverable privilege, jection made claim of the bur- on a explain ruling on material court should its request party objecting an in is on den parties. The the benefit of the record for inspection provide the documents camera filed clerk so with the sealed material should request should contain the fac- for review. appellate that it be later available for legal support privi- the claimed tual and basis See, though e.g., Home explain view. Beard Middle Tennessee lege waived how -the Service, (E.D.Tenn.1992). F.R.D. 340 Health the material nonetheless irrelevant for dis- makes