Because of a statutorily created privilege, communication to a social worker from the social worker's client is protected from disclosure. But the privilege does not extend to communication taking place before the statute was enacted.
Facts and Procedural History
In 2002, Robert Jeffrey Pelley ("Pelley") was charged with the April 29, 1989 slayings of his father-Reverend Robert Pel-ley, stepmother-Dawn Peliey, and two
On August 22, 2002, the State served a subpoena duces teeum on Center requesting "[alny and all counseling records from the ... Pelley family from 1986-1989." Appellant's App. at 30(a) Center responded with a motion to quash, At a hearing on the motion Center argued that the records authored by Mabel Davis were protected by the counselor/client privilege as codified in Indiana Code $ 25-23.6-6-1; the psychological evaluation performed by Dr. Schwab was protected by the psychologist/patient privilege as codified in Indiana Code § 25-83-1-17; and none of the records fell within the "homicide exception" codified in both I.C. § 25-28.6-6-1 and 1.C. § 25-383-1-17. Following the hearing, and after conducting an in camera inspection of the documents, the trial court granted Center's motion and quashed the subpoena.
The- State pursued an interlocutory appeal arguing: @) the statute creating the counselor/client privilege did not exist when the records were created and thus the statute does not extend to communications made to Mabel Davis by members of the Pelley family; (i) the statute is not retroactive; and (iil) the requested documents may have come within the "homicide exception" to both the counselor/client and the psychologist/patient privileges. On this latter point, the State also complained that the trial court reviewed the documents in camera without affording the State the opportunity to review the documents for the purpose of determining whether the homicide exception was applicable.
Affirming the trial court, a divided pafiel of the Court of Appeals determined that: (1) although the statute conveying the counselor/client privilege did not exist at the time of the counseling'seséions, the date of disclosure is the determinative date for discovery requests regarding privileges; (2) notwithstanding the foregoing determination, the statute applies retroactively; and (8) the trial court did not abuse its discretion in reviewing the requested documents in camera. State v. Pelley,
Discussion
I. The Relevant Date: the Date of Communication or the Date of Disclosure.
Indiana Code section 25-28.6-6-1 provides in pertinent part: '
Matters communicated to a counselor 1 in the counselor's official capacity by aclient are privileged information and may not be disclosed by the counselor to any person, except under the following circumstances:
(1) In a criminal proceeding involving a homicide if the disclosure relates directly to the fact or immediate cireum-stances of the homicide.
This statute was enacted effective July 1, 1990. Center contends that because I.C. § 25-28.6-6-1 prohibits a counselor from disclosing communications, the critical time for determining the applicability of the statute is when the communications are sought to be disclosed, not when the communications are originally made. According to Center, because the communications made by Pelley and members of his family were sought to be disclosed well after the statute was enacted, the trial court correctly quashed the subpoena.
When construing a statute our main objective is to determine, give effect to, and implement the intent of the legislature. Melrose v. Capitol City Motor Lodge, Inc., 705 N.E2Z2d 985, 989 (Ind. 1998). This jurisdiction generally recognizes that privileges are statutory in nature and that it is within the power of the legislature to create them. Terre Haute Reg'l Hosp., Inc. v. Trueblood,
In Matter of CP.,
By enacting LC. § 25-28.6-6-1 the Legislature extended to counselors the same privilege that exists for physicians. The intent and dominant purpose of the statute is to grant a privilege to protect confidential communication between a counselor and the counselor's client. It is
II. The Retroactivity of Indiana Code section 25-23.6-6-1
The general rule of statutory construction is that unless there are strong and compelling reasons, statutes will not be applied retroactively. Martin v. State,
We first observe that it is not at all clear to us that the counselor/client privilege statute is remedial. It is true the statute was enacted following the Court of Appeals' decision in Matter of CP., 548 N.E2d 410 (Ind.Ct.App.1989), affd in part, 563 NE.2d 1275 (Ind.1990), which held that the physician/patient privilege did not protect communications between a counselor and a client. However, it is equally true, as the State points out, that the statute was enacted as part of a much broader scheme to regulate social workers as professionals. Public Law 186-1990 created Article 28.6, "Marriage and Family Therapists." This article created a credentialing board for social workers and marriage family therapists, and addressed certification, examinations, unlawful practices, privileged communications, and mandatory disclosures. See I.C. § 25-28.6. It is reasonably plausible that by creating Article 28.6 under Title 25, the Legislature intended to recognize social workers as mental health professionals who were afforded state recognition and subject to state regulation, much the same as psychologists under Title 25, Article 38. We have no legislative history to inform us either way.
In any event, even assuming the counselor/client privilege statute is remedial, Center's retroactivity argument still fails. Despite language in Bourbon and Martin suggesting otherwise, not all remedial statutes are automatically applied retroactively. It has long been the law in this jurisdiction that although statutes and rules concerning procedural and remedial matters may be made to operate retroactively, it is not the case that they must apply retroactively. State ex rel. Uzelac v. Lake Crim. Ct.,
Unless there are strong and compelling reasons, statutes will normally be given prospective application. While statutes addressing merely procedural and remedial matters may be applied retroactive-. ly, such application is not required.
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Even under [the] argument that the statute is merely procedural or remedial, retroactive application is the exception, and such laws are normally to be applied prospectively absent strong and compelling reasons.
Like the physician/patient privilege, the statutorily created counsel- or/client privilege is also in derogation of common law. So it too must be strictly construed. Trueblood,
III. The Homicide Exception
Both the counselor/client privilege and the psychologist/patient privilege contain exceptions to the non-disclosure of confidential communication. At issue here are what are commonly referred to as the "homicide exceptions." For the counsel- or/elient privilege the exception applies, "[iln a criminal proceeding involving a homicide if the disclosure relates directly to the fact or immediate cireumstances of the homicide." I.C. § 25-23.6-6-1(1). Worded only slightly differently the exception for the psychologist/patient privilege applies in "[t}rials for homicide when the disclosure relates directly to the fact or immediate cireumstances of said homicide." LC. § 25-88-1-17(1). After conducting an in camera inspection of the contested documents, the trial court determined that the homicide exceptions did not apply. The State contends that the trial court abused its discretion in making this determination. Although not necessarily raising the issue as error, the State makes a related claim that it "has not been able to review the documents, even for the limited purpose of arguing whether the documents fall within an exception to the privilege." Appellant's Pet. to Trans. at 11.
We first observe that we have already determined that the counselor/client privilege is not applicable in this case. Thus, our focus here is on the psychologist/patient privilege, which predated the time the Pelley family received counseling. Unless the homicide exception applies, any communication between Center's psychologist and the Pelley family is privileged and not discoverable. As for the State's claim that it has not been afforded the opportunity to review the privileged documents to
In essence we entrust trial courts rather than sparring litigants with the authority to preserve the inviolability of privileged information. And although the trial court may have allowed the State to review the requested documents in this case under a confidential protective order, it was not compelled to do so. See Van Meter v. Zimmer,
[Iln those rare cases where the physician-patient privilege is properly invoked, it is incumbent on the party seeking to assert the privilege to identify to the court specifically which documents are believed to remain within the privilege, after which the court will review the contested documents in camera to ascertain their entitlement to the protection of the privilege. .
Id. at 608 (emphasis added); see also Hu-lett v. State, 552 NE.2d 47, 49 (Ind.Ct. App.1990), trans. denied, (ruling the trial court erred in failing to conduct an in camera inspection of a counselor's file, because "[wlithout such inspection, it was not possible for the trial court to exercise its discretion in ruling upon the presence of discoverable evidence as opposed to irrelevant or immaterial matter."); Sturgill v. State,
Concerning the State's claim that the trial court abused its discretion in determining that the contested documents did not fall within the homicide exception, the case of Jorgensen v. State, 574. 915 (Ind.1991) is instructive. In Jorgen-sen, after a trial by jury the defendant was convicted of murder and conspiracy to commit murder. The conviction was affirmed on appeal and the defendant sought transfer raising a number of issues. We remanded the cause to the trial court for further proceedings after finding one issue dispositive: whether the trial court erred in denying the defendant an opportunity to depose two people.
The essential facts were these. While married to the murder victim, the defendant was involved in a relationship with Gary Cochran. There was testimony at trial that Cochran told a friend that he
We went on to explain that with respect to non-privileged information, there are two principal questions a trial court must consider when ruling on discovery matters in a criminal trial: (1) is there a sufficient designation of the items to be discovered; and (2) are the items sought material to the defense? Id. Noting that the answer to the first question was affirmative, we then said:
However, we cannot determine whether the information sought is material to her defense because we do not know what information Ball or Dr. Greenburg have relative to the homicide. The "catch-22" is that there is no method of determining what information they may hold unless some discovery is conducted.
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Although the trial court has wide discretion in discovery matters, we conclude - that the court should have allowed some discovery in order to make possible the determination of whether Ball and Dr. Greenburg possessed information which would have been material to J orgensen's - defense. It was error for the trial court to have concluded that whatever information they possessed was privileged without a factual basis for arriving at such a conclusion. Similarly, it was error to have denied discovery because of no showing of materiality where the only method for Jorgensen to have met. the materiality requirement was to have the information made available to her.
Id. (emphasis added).
Among other things Jorgensen stands for the proposition that "some discovery" is permissible in order to make the determination whether a witness may have information not subject to a privilege. Here, the State makes no claim that it has sought discovery in this case and that its efforts to do so have been thwarted. Indeed the State readily admits that it has interviewed several witnesses, which has given the State reason to believe that the documents it requests "should include information concerning the facts and immediate cireumstances of the murders." Appellant's Pet. to Trans. at 12. But the State does not elaborate further to explain what information the State obtained from these witnesses that formed the basis for its belief, In fact, had the State presented such evidence to the trial court then there may have been evidence of record before this Court to evaluate the State's contention that the trial court abused its discretion in determining that the homicide exception did not apply. However, on this record there is simply nothing before us to
Conclusion
The judgment of the trial court is affirmed in part and reversed in part. This cause is remanded.
Notes
. Although referred to in the record as a "social worker," Tr. at 23, Mabel Davis identified herself in the contested documents as a "counselor." The discrepancy is of no conse
. The statute read in relevant part, ''Except as otherwise provided by statute, the following persons shall not be competent witness: ... (3) [plhysicians, as to matters communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases." LC. § 34-1-14-5(3) (recodified as ILC. § 34-46-3-1 without substantial change).
. At the time of the defendant's trial the counselor/client privilege did not exist.