137 Wash. 2d 774 | Wash. | 1999
Petitioner State of Washington seeks review of a decision of the Court of Appeals, Division Two, which reversed and remanded to the Pierce County Superior Court for further proceedings that court’s decision interpreting the clergy-penitent privilege statute, RCW 5.60-.060(3), and reversing its order holding an ordained minister in contempt of court for refusing to testify in a deposition for the State of Washington in a case against a defendant charged with second-degree murder in the death of his three-month-old son. We granted review. We affirm.
QUESTIONS PRESENTED
The questions presented in this case are: (1) whether the words “in the course of discipline enjoined by the church to which he or she belongs” in RCW 5.60.060(3), the clergy-penitent privilege statute, refer to the penitent or to the clergy member; (2) the meaning of the word “confession” as used in the statute; (3) whether the presence of a third party during a communication between a penitent and a clergy member vitiates the privilege; and (4)
STATEMENT OF FACTS
On July 6, 1997, Devyn Martin, three-month-old son of Defendant Scott A. Martin, was hospitalized at Madigan Army Medical Center at Fort Lewis, Washington.
On July 7, 1997, Respondent Rich Hamlin, an ordained minister and pastor of the Evangelical Reformed Church of Tacoma, while working at the offices of Youth for Christ of Tacoma, received a telephone call from Ms. Leona Harri asking him to meet with her son, Defendant Scott A. Martin.
The Evangelical Reformed Church is a nonprofit religious organization in the state of Washington.
On July 7, 1997, Respondent went to Defendant Martin’s apartment in Tacoma.
On July 8, 1997, Respondent disclosed part of the conversation he had with Defendant the day before to two colleagues from Youth for Christ.
Petitioner State of Washington learned of Respondent Hamlin’s involvement with Defendant Martin from a conversation Detective Bomkamp had with Respondent at Madigan Army Medical Center.
The infant Devyn Martin died on July 10, 1997.
Petitioner State of Washington on July 11, 1997 filed an Information in the Pierce County Superior Court charging Defendant Scott A. Martin with murder in the second degree, in violation of RCW 9A.32.050(l)(b), for causing the death of his infant son, Devyn Martin, on July 10, 1997.
After their initial meeting on July 7, 1997, but prior to his surrendering to the Sheriff, Mr. Martin met two additional times with Respondent Rich Hamlin.
On September 25, 1997, Petitioner State of Washington filed a motion in the Pierce County Superior Court requesting that statements made by Defendant Martin to Respondent on July 7, 1997 not be considered privileged under RCW 5.60.060(3).
On October 24, 1997, Defendant Martin filed a notice for discretionary review in this court seeking to reverse the trial court’s decision granting Petitioner State’s motion.
On November 24, 1997, Petitioner State of Washington filed a motion for an order to depose Respondent
On January 8, 1998, the trial court held a hearing on the constitutional issues,
Respondent then petitioned for and was granted discretionary review by the Court of Appeals, Division Two.
In reversing the trial court, the Court of Appeals, the Honorable Elaine Houghton writing, held “[Defendant] Martin’s statements to [Respondent] Pastor Hamlin, to the extent they were confidential, are privileged under RCW 5.60.060(3).”
DISCUSSION
The earlier Court of Appeals’, Division One, case of State v. Buss
In relying on Buss, the trial court in this case concluded Defendant Martin’s statements to Respondent were not privileged because Mr. Martin did not feel “constrained by any religious obligation to make the statement he made to [Respondent] Pastor Hamlin.”
The clergy-penitent (priest-penitent) statute, RCW 5.60.060(3), states:
A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional*785 character, in the course of discipline enjoined by the church to which he or she belongs.
Petitioner State of Washington assigns error to the Court of Appeals’ interpretation of RCW 5.60.060(3), which it asserts violates the well-established legal principle that testimonial privileges, generally speaking, are strictly construed.
Petitioner’s interpretation of RCW 5.60.060(3) asserted in its brief is not correct. One element of the privilege requires the clergy member to act in a professional capacity,
The Utah Supreme Court interpreted language in the Utah statute, which has substantially the same words as “in the course of discipline enjoined by the church to which he or she belongs” in the Washington statute, as referring to the clergy member only. Scott v. Hammock.
A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
If we construed RCW 5.60.060(3) as Buss and Petitioner suggest, the penitent would be required to establish that the penitent’s religion requires the penitent to engage in confession before the privilege would apply. Under that reasoning the statute could also be construed as requiring the penitent to in fact be a member of the church of the clergy to whom the penitent confessed. The language of RCW 5.60.060(3) does not lend itself to such a construction.
Petitioner State also assigns error to the Court of Appeals’ concept of “confession.”
The Court of Appeals also addressed the questions whether the presence of a third party during the confession vitiates the privilege, and whether the clergy member divulging part of the confession to a third party without the penitent’s consent waives the privilege. Confidentiality is a necessary factor in establishing a testimonial privilege.
Respondent’s divulging part of his July 7, 1997 conversation with Defendant Martin to his colleagues at Youth for Christ does not of itself constitute a waiver of the privilege.
The petition for review, without fully elaborating, raises the constitutional question whether a member of the clergy has a right to refuse to testify under the First Amendment or the Fourth Amendment concerning nonconfidential communications with a penitent.
Issues of statutory construction are questions of law over which this court exercises de novo review.
Although testimonial privileges are usually strictly construed, the word “confession” in RCW 5.60.060(3) should not be. A broad interpretation of “confession” would “minimize the risk that [RCW 5.60.060(3)] might be dis-criminatorily applied because of differing judicial perceptions of a given church’s practices or religious doctrine . . . .”
We agree with the Court of Appeals that the language “in the course of discipline enjoined by the church to which he or she belongs” in RCW 5.60.060(3), the clergy-penitent privilege statute, requires that the “clergy member ... be enjoined by the practices or rules of the clergy member’s religion to receive the confidential communication and to provide spiritual counsel.”
SUMMARY AND CONCLUSIONS
On July 7, 1997, during a conversation between Respondent Rich Hamlin, an ordained minister of the Evangelical Reformed Church, and Defendant Scott A. Martin, Mr. Martin made what he believed to be confidential disclosures to the ordained minister relating to the substance of an anticipated criminal charge arising out of the death of his infant son. An Information was filed in the Pierce County Superior Court on July 11, 1997 charging Mr. Martin with second-degree murder.
Based upon Petitioner State of Washington’s motion, Pierce County Superior Court Judge Brian M. Tollefson ruled there was no clergy-penitent privilege under RCW 5.60.060(3) for the July 7, 1997 communication between Respondent and Defendant Martin because it was not shown that Mr. Martin felt constrained by religious obligation to confess to Respondent Hamlin as required under the trial court’s interpretation of State v. Buss and the clergy-penitent statute, RCW 5.60.060(3).
In reversing the trial court, the Court of Appeals disagreed with Buss and concluded it is the “clergy member receiving the confidential communication [who is] . . . enjoined by the practices or rules of the clergy member’s religion to receive the confidential communication and to provide spiritual counsel.”
We affirm the decision of the Court of Appeals, Division Two, which reversed and remanded the case to the Pierce County Superior Court for farther proceedings and interpreted RCW 5.60.060(3), the clergy-penitent privilege, in this manner: (1) the phrase “in the course of discipline enjoined by the church to which he or she belongs” refers to the member of the clergy and not to the penitent; (2) “confession” is defined by the religion of the clergy; (3) confidential communications between the member of the clergy and the penitent are privileged and the presence of a third person may vitiate the privilege unless that person is another member of the clergy or the person’s presence is necessary for the communication; and (4) the penitent is the holder of the privilege and the only person who can waive it.
Our decision in this case necessarily disposes of the order of contempt imposed upon Respondent Hamlin and requires its dismissal.
Got, C.J., and Durham, Johnson, Madsen, Alexander, Tal-madge, Sanders, and Ireland, JJ., concur.
We adopt the ordinary dictionary meaning of “penitent” as one who repents of sin and asks for forgiveness.
Clerk’s Papers at 73.
Id.
Id.
Id. at 12-13.
Id. at 13.
State v. Martin, 91 Wn. App. 621, 623, 959 P.2d 152 (1998).
Clerk’s Papers at 12.
Id. at 13.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
State v. Martin, 91 Wn. App. 621, 625, 959 P.2d 152 (1998).
Clerk’s Papers at 14.
Id. at 73.
Id.
Id.
Id. Admissibility of statements by Defendant Martin’s wife is not an issue in this proceeding. See RCW 5.60.060(2).
Clerk’s Papers at 73-74.
Id. at 73.
Martin, 91 Wn. App. at 624-25.
Id. at 625.
Id.
Clerk’s Papers at 73.
id.
Id. at 74.
Id. at 71-72.
Id. at 2.
Id.
Martin, 91 Wn. App. at 623.
Id.
Clerk’s Papers at 18-21.
Id. at 24.
76 Wn. App. 780, 786, 887 P.2d 920 (1995).
Clerk’s Papers at 24.
Id. at 75.
Id. at 76-81.
Id. at 25-27.
Id. at 36.
Martin, 91 Wn. App. at 624.
Clerk’s Papers at 42-52, 56-61.
Id. at 39.
Id. at 66.
Id. at 63-64.
Martin, 91 Wn. App. at 625.
Id.
Id. at 623.
Id.
76 Wn. App. 780, 887 P.2d 920 (1995).
Id. at 784.
ld. at 785-86.
Id. at 786.
Id. at 785-86.
Clerk’s Papers at 24.
Martin, 91 Wn. App. at 627.
Id. at 623.
Id. at 629.
Pet. for Review at 10; see Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 912, 63 L. Ed. 2d 186 (1980).
Pet. for Review at 12.
Id. Petitioner, however, in oral argument before this court conceded that the questioned phrase in the statute refers to the clergy and not to the penitent.
Scott v. Hammock, 870 P.2d 947, 955 (Utah 1994); People v. McNeal, 175 Ill. 2d 335, 677 N.E.2d 841, 222 Ill. Dec. 307 (1997) (Penitent’s brother, a clergy member, was not acting in professional capacity at the time of communication); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992) (statements to clergy member who was employer not privileged); Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992) (statements were not made to clergy member in his professional capacity); State v. Barber, 317 N.C. 502, 346 S.E.2d 441 (1986) (friend was not clergy member at time of statements); Masquat v. Maguire, 638 P.2d 1105 (Okla. 1981) (statements to a nun in her capacity as a hospital administrator and not as a clergy member were not privileged).
Scott, 870 P.2d at 955; Bonham v. State, 644 N.E.2d 1223, 1225 (Ind. 1994).
See Mont. Code Ann. § 26-1-804; Utah Code Ann. § 78-24-8(3); W Va. Code § 57-3-9(1).
See State v. MacKinnon, 957 P.2d 23 (Mont 1998); Scott, 870 P.2d 947; State v. Potter, 197 W. Va. 734, 478 S.E.2d 742 (1996).
870 P.2d 947, 950 (Utah 1994).
Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993) (“The court must give words in a statute their plain and ordinary meaning unless a contrary intent is evidenced in the statute.”).
Fet. for Review 11.
Martin, 91 Wn. App. at 628; see also Clerk’s Papers at 23-24 ■
Scott, 870 P.2d at 951.
Dietz v. Doe, 131 Wn.2d 835, 850, 935 P.2d 611 (1997) (attorney-client privilege); Carson v. Fine, 123 Wn.2d 206, 213, 867 P.2d 610 (1994) (physician-patient privilege); State v. Barnhart, 73 Wn.2d 936, 940, 442 P.2d 959 (1968) (spousal privilege).
See Dietz, 131 Wn.2d at 850; Barnhart, 73 Wn.2d at 940; Scott, 870 P.2d at 955.
Barnhart, 73 Wn.2d at 940; State v. Thorne, 43 Wn.2d 47, 56, 260 P.2d 331 (1953).
In re Grand Jury Investigations, 918 F.2d 374, 384, 386 (3d Cir. 1990). The case involved application of the clergy-penitent privilege under Federal Rule of Evidence 501. Washington Rules of Evidence (ER), although substantially identical to the federal rulés, does not state an equivalent rule, but reserves and cites applicable statutes on privilege, including the “clergyman or priest” privilege under RCW 5.60.060(3).
See Martin, 91 Wn. App. at 634.
Clerk’s Papers at 14.
Potter, 197 W. Va. at 746; Dietz, 131 Wn.2d at 850 (“The attorney-client privilege can ordinarily be waived only by the client, to whom the privilege belongs.”); McUne v. Fuqua, 42 Wn.2d 65, 74, 253 P.2d 632 (1953) (“The [physician-patient] privilege is for the benefit of the patient. . . .”).
Pet. for Review at 13-16.
Martin, 91 Wn. App. at 624.
Answer to Pet. for Review at 14-16. ■
State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981).
Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 352, 932 P.2d 158 (1997).
Utah Code Ann. § 78-24-8(3) (1953); see Scott, 870 P.2d 947.
See State v. MacKinnon, 957 P.2d 23, 28 (Mont..1998).
Martin, 91 Wn. App. at 629.
Martin, 91 Wn. App. at 629.