State v. StrauchState v. Strauch
- Reporters:
- , ,
- Before:
- Vanzi, J. Miles Hanisee
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellant
Duncan Earnest LLC
Theresa M. Duncan
Albuquerque, NM
for Appellee
OPINION
VANZI, Judge.
{1} The State of New Mexico appeals from the district court‘s order granting Defendant‘s motion for a protective order. The question presented is whether Defendant has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications he made to a licensed social worker for the purpose of diagnosis and treatment. We conclude that Defendant has this privilege pursuant to
BACKGROUND
{2} Defendant was charged with four counts of criminal sexual contact of a minor in the second degree based on allegations that he had sexually assaulted his daughter. The State filed a notice of intent to call witnesses, in which it stated it intended to call Frederick Stearns, a licensed social worker who provided counseling to Defendant. Defendant filed a motion for a protective order seeking to bar the State from obtaining, and Stearns from disclosing, confidential communications made by Defendant to Stearns for the purpose of diagnosis and treatment. The State filed a response to Defendant‘s motion, along with a motion to compel the disclosure of Defendant‘s counseling records.
{3} The district court granted Defendant‘s motion following a hearing. The district court found that: (1) Defendant‘s communications with Stearns are privileged under
{4} The State filed a motion to reconsider or, in the alternative, to clarify the order granting Defendant‘s motion for a protective order. Following a hearing, the district court issued an order denying the State‘s motion to reconsider and partially granting its motion to clarify. The district court ordered that Defendant‘s ex-wife may testify that Defendant obtained counseling during a specific period of time, but she “is barred from testifying regarding the reasons . . . Defendant sought counseling, the contents of any communications made during counseling sessions in which she was a participant, and the contents of any communications she and . . . Defendant had related to those sessions.” This appeal followed.
DISCUSSION
{5} The State contends that the district court erred in granting Defendant‘s motion for a protective order because Defendant in this case may not invoke the privilege set forth in
{6} Relying on
{7} We first consider whether Defendant‘s social worker and Defendant‘s ex-wife were subject to the mandatory reporting requirement set forth at
{8} In analyzing these issues, our review is de novo. See State v. Ryan, 2006-NMCA-044, ¶ 41, 139 N.M. 354, 132 P.3d 1040 (“The application of
A. The Mandatory Reporting Requirement Set Forth in Section 32A-4-3(A) Does Not Apply to Defendant‘s Social Worker and Defendant‘s Ex-Wife
{9}
Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school[]teacher; a school official; a social worker acting in an official
capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:
- a local law enforcement agency;
- the department; or
- a tribal law enforcement or social services agency for any Indian child residing in Indian country.
(Emphasis added.) The State makes two arguments. First, it argues that both Defendant‘s social worker and Defendant‘s ex-wife were subject to the mandatory reporting requirement set forth in this statute because it applies to “every person.” Second, the State argues that even if the mandatory reporting requirement does not apply to every person, Defendant‘s social worker was still subject to the requirement because he was “acting in an official capacity” when he provided counseling to Defendant. We consider each argument in turn.
1. The Mandatory Reporting Requirement Does Not Apply to Every Person
{10} The State contends that the words “every person” mean what they say—that every person is required to report suspected child abuse. According to the State, because both Defendant‘s social worker and Defendant‘s ex-wife are people who presumably had a reasonable suspicion that a child was being abused, they were required to report their suspicions pursuant to
{11} In interpreting a statute, “[w]e are to read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.” Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350. Our “principal command” is that we should “determine and effectuate the intent of the [L]egislature using the plain language of the statute as the primary indicator of legislative intent.” State v. Juan, 2010-NMSC-041, ¶ 37, 148 N.M. 747, 242 P.3d 314 (internal quotation marks and citation omitted). “The words of a statute should be given their ordinary meaning, absent clear and express legislative intention to the contrary, as long as the ordinary meaning does not render the statute‘s application absurd, unreasonable, or unjust.” Id. (alteration, internal quotation marks, and citation omitted).
{12} Reading the statute in its entirety, we do not believe that the Legislature intended for every person to be subject to the mandatory reporting requirement of the Abuse and Neglect Act and, as a result, we do not give the words “every person” their ordinary meaning.
- licensed physician
- resident or intern examining, attending or treating a child
- law enforcement officer
- judge presiding during a proceeding
- registered nurse
- visiting nurse
- schoolteacher
- school official
- social worker acting in an official capacity
- member of the clergy who has information that is not privileged as a matter of law
The above list appears to include those professionals who are most likely to come into contact with—and can effectively identify—abused and neglected children during the course of their professional work. We apply the principle of ejusdem generis to this statute, and conclude that, despite the use of the words “every person,” the Legislature intended to impose an affirmative duty to report child abuse or neglect only on these professionals and others like them. To do otherwise would render the inclusion of these specific categories of professionals essentially meaningless.
{13} As our Supreme Court has explained, “New Mexico courts have long recognized the ejusdem generis principle of statutory construction, that where general words follow words of a more specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.” State v. Nick R., 2009-NMSC-050, ¶ 21, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted). While it is less common, we agree with Defendant that this principle is applicable where the specific words follow the general, not just where the general words follow the specific. See, e.g., McClellan v. Health Maint. Org. of Pa., 686 A.2d 801, 806 (Pa. 1996) (“Where the opposite sequence is found, i.e., specific words following general ones, the U.S. Supreme Court and the courts from several other jurisdictions recognize that the doctrine is equally applicable, and restricts application of the general term to things that are similar to those enumerated.“).
{14} We recognize that the principle of ejusdem generis “is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty” and that the principle “may not be used to defeat the obvious purpose of legislation.” State v. Johnson, 2009-NMSC-049, ¶ 20, 147 N.M. 177, 218 P.3d 863 (quoting Gooch v. United States, 297 U.S. 124, 128 (1936)). We do not believe that our reading defeats the obvious purpose of
{15} The reporting requirement, which was not originally mandatory, first appeared in {16} Our reading of the mandatory reporting requirement is supported by the fact that the statute imposes criminal penalties on those who are subject to the reporting requirement and fail to report. See {17} In support of its broad reading of the words “every person,” the State cites State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, and Wilcox v. New Mexico Board of Acupuncture & Oriental Medicine, 2012-NMCA-106, 288 P.3d 902. We are not persuaded by the application of either case here. In Mendez, 2010-NMSC-044, ¶ 37, our Supreme Court noted in a parenthetical that {18} In Wilcox, we noted that “[i]t is true that a statute which uses the word ‘including’ . . . is not limited in meaning to that included” and cited a New Mexico Supreme Court opinion for the proposition that “the use of the word ‘includes’ to connect a general clause to a list of enumerated examples demonstrates a legislative intent to provide an incomplete {19} Consequently, we conclude that neither Defendant‘s social worker nor Defendant‘s ex-wife were subject to the mandatory reporting requirement set forth in {20} The State next argues that even if the mandatory reporting requirement does not apply to every person, Defendant‘s social worker was still subject to the requirement because he was “a social worker acting in his official capacity” when he provided counseling to Defendant. The State claims that a social worker is acting in an official capacity within the meaning of {21} The term “official capacity” is not defined in the Abuse and Neglect Act. See {22} Black‘s Law Dictionary defines “official” as “[o]f or relating to an office or position of trust or authority” or “[a]uthorized or approved by a proper authority.” Black‘s Law Dictionary 1195 (9th ed. 2009). Similarly, the New Oxford American Dictionary defines “official” as “of or relating to an authority or public body and its duties, actions, and responsibilities[.]” New Oxford Am. Dictionary 1217 (3d ed. 2010). These definitions suggest that the word “official” does not have the equivalent meaning of the word “professional,” as the State contends. Instead, unlike “professional,” the word “official” includes a public element, connoting a certain authority. {23} This reading is supported by the Legislature‘s use of the word “professional” rather {24} Our conclusion that the words “official” and “professional” are not synonymous in this case is also supported by the history and background of {25} In 1973, the Legislature repealed the reporting requirement in the 1965 Act and enacted a different reporting requirement in the newly created Children‘s Code. 1972 N.M. Laws, ch. 97. This new reporting requirement, now mandatory, stated, in pertinent part: Any licensed physician, resident or intern examining, attending, or treating a child, any law enforcement officer, registered nurse, visiting nurse, school teacher or social worker acting in his or her official capacity, or any other person having reason to believe that serious injury or injuries have been inflicted upon a child as a result of abuse, neglect or starvation, shall report the matter immediately[.] 1973 N.M. Laws, ch. 360, § 2(A) (emphasis added). The Children‘s Code further made the failure to report suspected child abuse a misdemeanor. 1973 N.M. Laws, ch. 360, § 2(C). {26} In 1993, the Legislature once again repealed the reporting requirement and enacted a new reporting requirement in the newly created Child Abuse and Neglect Act. 1993 N.M. Laws, ch. 77, § 97. The new reporting requirement applied to “[e]very person, including but not limited to . . . a school official or social worker acting in an official capacity.” 1993 N.M. Laws, ch. 77, § 97(A). In 2003, the Legislature made various changes, including deleting the words “not limited to” after “including.” 2003 N.M. Laws, ch. 189, § 1. {27} A review of the legislative history above supports our conclusion that the mandatory reporting requirement was intended to apply to social workers working in school and other government settings only. To view it any other way would make little sense. We note, for example, that the mandatory reporting requirement does not list other professionals who {28} We conclude that the mandatory reporting requirement set forth in {29} The State next argues that Defendant cannot invoke the privilege set forth at {30} Nothing in this section shall be construed to prohibit a licensed social worker from disclosing information in court hearings concerning matters of adoption, child abuse, child neglect or other matters pertaining to the welfare of children as stipulated in the Children‘s Code or to those matters pertaining to citizens protected under the Adult Protective Services Act. (Citations omitted.) The State contends that this exception is applicable here because “[t]he present case involves a court hearing concerning child abuse.” The State‘s argument ignores the plain language of this statute, which limits the exception to court hearings arising under the Children‘s Code or the Adult Protective Services Act, neither of which is at issue here. We therefore will not depart from the plain language of {31} The State also relies on In any proceeding alleging neglect or abuse under the Children‘s Code resulting from a report required by Section 32A-4-3 . . . or in any proceeding in which that report or any of its contents are sought to be introduced in evidence, the report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure. {32} For the reasons discussed above, we conclude that Defendant has a privilege to refuse to disclose and to prevent his licensed social worker and ex-wife from disclosing confidential communications he made to his social worker for the purpose of diagnosis and treatment. The exception set forth in {33} IT IS SO ORDERED. LINDA M. VANZI, Judge I CONCUR: CYNTHIA A. FRY, Judge J. MILES HANISEE, Judge (dissenting) HANISEE, Judge (dissenting). {34} I consider the term “every person,” as articulated in {35} Initially, I note that the language of the statute itself seems unmistakable. When there exists clarity of legislative intent, New Mexico caselaw compels a statute‘s effectuation in a manner that avoids unnecessary interpretation and gives effect to language that is simple and unambiguous. See United Rentals Nw., Inc. v. Yearout Mech., 2010-NMSC-030, ¶ 9, 148 N.M. 426, 237 P.3d 728 (“The first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply the plain meaning rule[.]” (internal quotation marks and citation omitted)). As the Majority Opinion points out, “[t]he words of a statute should be given their ordinary meaning, absent clear and express legislative intention to the contrary, as long as the ordinary meaning does not render the statute‘s application absurd, unreasonable, or unjust.” Juan, 2010-NMSC-041, ¶ 37 (alteration, internal quotation marks, and citation omitted). Thus, in following the plain meaning rule, we will not read into a statute language that isn‘t there, “especially when it makes sense as it is written.” Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147 N.M. 512, 226 P.3d 611 (internal quotation marks and citation omitted). {36} {37} The Majority Opinion stumbles on what I perceive to be an ancillary and purposefully incomplete list of persons whose duty to report exists despite their employment in specified professions. By directly identifying some, but not all, to whom {38} Indeed, my approach is consistent with our own past observation regarding the breadth of the reporting requirement of this very statute. In In re Candice Y., 2000-NMCA-035, ¶¶ 35-36, 128 N.M. 813, 999 P.2d 1045, we held that a person employed as a counselor cannot be prohibited from disclosing information regarding child abuse pursuant to {39} My view is also reinforced by the fact that, like New Mexico, other states have enacted and interpreted similarly inclusive language in this context to apply to everyone. Both Texas and Florida have promulgated similar statutes that mandate all individuals, whether professional or layperson, to report crimes of child abuse or neglect to appropriate authorities. See {40} As well, I note that the Majority Opinion‘s reliance on the doctrine of ejusdem generis is misplaced. Ejusdem generis instructs that “where general words follow an enumeration of persons or things of a particular and specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.” State v. Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029 {41} This entry is in accord with our Supreme Court‘s interpretation of the burglary statute in Muqqddin. See Muqqddin, 2012-NMSC-029, ¶¶ 29-31. That statute contains a string of specific listings followed by a general term: “Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling[,] or other structure[.]” {42} But the statute at issue in this case is constructed differently than the burglary statute or other statutes to which ejusdem generis is intended to apply. {43} Lastly, assuming without agreeing that the principle of ejusdem generis applies to this statute, the Majority Opinion‘s reliance on Wilcox lends no meaningful support to its conclusion. Wilcox states that “[w]e have previously looked to a dictionary definition of the word that precedes ‘including’ to characterize the types of examples consistent with that key word.” 2012-NMCA-106, ¶ 13. However, in this case, if we look to the word that precedes “including,” we find the word “person.” If we then follow the Wilcox illustration and define “person” as set forth in Black‘s Law Dictionary, we are informed that each is “a human being” and are provided with examples. Black‘s Law Dictionary 1257 (9th ed. 2009). Therefore, even were we to apply the doctrine of ejusdem generis, as in Wilcox, we would still reach the same conclusion that the statutory language of “every person” applies to all people. {44} On the heels of its ejusdem generis analysis, the Majority Opinion evokes the rule of lenity to conclude that because the reporting requirement is enforced by application of criminal liability, the statute‘s directive does not constitute an affirmative duty applicable {45} For the foregoing reasons, I would reverse the district court‘s order. J. MILES HANISEE, Judge2. Defendant‘s Social Worker Was Not Acting in an Official Capacity
B. The Legislature Did Not Intend to Exclude From the Rule 11-504 Privilege Any Information That a Social Worker May Obtain Regarding Child Abuse
CONCLUSION
CONCLUSION