Albuquerque Rape Crisis Center v. Blackmer, 29,133.

• Decision Date: 18 August 2005
• Docket Number: No. 29,133.,29,133.
• Citation: 2005 NMSC 032,120 P.3d 820
• Parties: ALBUQUERQUE RAPE CRISIS CENTER, Shayla Myers, and Rose Sanchez, Petitioners, v. Hon. James F. BLACKMER, Second Judicial District Court Judge, Respondent, and State of New Mexico and Marco Antonio Brizuela, Real Parties in Interest.
• Court: New Mexico Supreme Court

Page 820

120 P.3d 820

2005 NMSC 032

ALBUQUERQUE RAPE CRISIS CENTER, Shayla Myers, and Rose Sanchez, Petitioners, v. Hon. James F. BLACKMER, Second Judicial District Court Judge, Respondent, and State of New Mexico and Marco Antonio Brizuela, Real Parties in Interest.

No. 29,133.

Supreme Court of New Mexico.

August 18, 2005.

Dixon, Scholl & Bailey, P.A., Arthur Brent Bailey, Albuquerque, NM, for Petitioners.

Patricia A. Madrid, Attorney General, David K. Thompson, Assistant Attorney General, Santa Fe, NM, for Respondent.

Kari Brandenburg, District Attorney, Niki Tapia-Brito, Assistant District Attorney, Ralph Odenwald, District Public Defender, Sophie Cooper, Assistant Public Defender, Albuquerque, NM, for Real Parties In Interest.

OPINION

CHÁVEZ, Justice.

{1} In this case, we give effect to the Victim Counselor Confidentiality Act (Confidentiality Act), NMSA 1978, Sections 31-25-1 to -6 (1987), a statute which we construe to be consistent with this Court's psychotherapist-patient privilege, Rule 11-504 NMRA 2005. Both our psychotherapist-patient privilege and the legislatively enacted privilege at NMSA 1978, Section 31-25-3 (1987), protect confidential communications made during the course of treatment for an emotional or psychological condition from disclosure during court proceedings. Because the record in this case does not reflect whether the communications at issue were disclosed in the course of the counselor's treatment of the alleged victim for any emotional or psychological condition resulting from a sexual assault, we reverse the district court and remand this matter for proceedings consistent with this opinion.

Procedural History

{2} This case arises from a discovery dispute in a criminal prosecution of Brizuela ("Defendant"), a defendant accused of criminal sexual penetration. The alleged victim had presented herself to the Albuquerque Rape Crisis Center (ARCC) several hours after allegedly being raped by Defendant. Defendant filed a motion to compel the ARCC counselors "to participate in pretrial interviews with defense counsel and to provide statements concerning their contact with the alleged victim." The counselors entered a special appearance so they could respond to the motion to compel, asserting that the communications they had with the alleged victim were confidential and protected by the Confidentiality Act. After hearing argument of counsel, the district court entered an order granting Defendant's motion, reasoning that because a victim-counselor privilege is not recognized in the Supreme Court Rules of Evidence, the statements were not protected.

{3} ARCC filed a motion asking the court to reconsider its order contending that Article II, Section 24 of the New Mexico Constitution creates a constitutional privilege by affording certain crime victims "the right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process." The district court reaffirmed its previous order in a comprehensive and thoughtfully worded order acknowledging its strong agreement with the victim's right to privacy and urging this Court to adopt a victim-counselor privilege. The district court ordered the two counselors to give statements concerning their contact with the alleged victim and to reveal any assertions, in whatever form, the alleged victim may have made to the counselors regarding: the events of the alleged criminal sexual penetration; relevant events six months before and after the date of the alleged criminal sexual penetration; the alleged victim's relationship with Defendant before, during and after the alleged criminal sexual penetration; and any statements the alleged victim may have made regarding her bias, prejudice or anger toward Defendant.

{4} ARCC filed a Petition for Emergency Writ of Prohibition or Alternatively for Writ of Superintending Control and Request for Stay of Order. On March 18, 2005, this Court entered an order staying the district court order, pending further order of this Court, and set the matter for oral argument.

The Victim Counselor Confidentiality Act Is Given Effect Because It Is Consistent with the Supreme Court Psychotherapist-Patient Privilege

{5} At the heart of the controversy is the authority of the Legislature to enact legislation that regulates practice and procedure in the courts. Defendant cites Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), for the legal proposition that the power to prescribe rules of evidence and procedure is vested exclusively in the Supreme Court and that the Legislature generally lacks power to prescribe judicial rules by statute. While this Court has ultimate rule-making authority, the analysis in Ammerman and subsequent cases which interpret legislative enactments concerning practice and procedure do not support the broad statement that our rule-making authority is exclusive. See Michael B. Browde & M.E. Occhialino, Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Constraints, 15 N.M. L.Rev. 407, 437 (1985) ("A careful reading of the cases and subsequent decisions applying them suggests, however, that the supreme court intended not to exclude the legislature from the rule-making process but only intended to assure judicial supremacy in any clash between legislative and judicial rules of procedure."). Instead, we have exercised our superintending control under Article VI, Section 3, to revoke or amend a statutory provision when the statutory provision conflicts with an existing court rule, see Southwest Community Health Services v. Smith, 107 N.M. 196, 198, 755 P.2d 40, 42 (1988) ("[w]hile, historically, the judiciary has shared procedural rule-making with the legislature, any conflict between court rules and statutes that relate to procedure are today resolved by this Court in favor of the rules"), or constitutional provision, see State ex rel. Anaya v. McBride, 88 N.M. 244, 247, 539 P.2d 1006, 1009 (1975) ("any legislative measure which affects pleading, practice or procedure in relation to a power expressly vested by the Constitution in the judiciary, such as quo warranto, cannot be deemed binding"), or if the provision impairs the essential functions of the Court. See State ex rel. Bliss v. Greenwood, 63 N.M. 156, 162, 315 P.2d 223, 227 (1957) ("The statutory regulation must preserve to the court sufficient power to protect itself from indignities and to enable it effectively to administer its judicial functions.").

{6} The facts and analysis of Ammerman illustrate that its holding was in fact narrow. In that case, the plaintiffs sued the defendants for alleged slanderous radio broadcasts, news reports and newscasts. Id. at 308, 551 P.2d at 1355. The defendants appealed an order of the district court requiring them to disclose their confidential informants, arguing that the information was privileged under the provisions of NMSA 1953, Section 20-1-12.1 (Supp.1975) (now codified at NMSA 1978, § 38-6-7 (1973)). Id. After concluding that the legislation at issue created a procedural evidentiary privilege, this Court focused on whether the Legislature had authority to enact such a procedural rule. We began our analysis in Ammerman by revisiting one of our earliest opinions on the subject, State v. Roy, 40 N.M. 397, 60 P.2d 646 (1936):

It is true that this court in [Roy] declined to hold that its power and right to promulgate rules of pleading, practice and procedure is an exclusive one over which the Legislature has no control. It was observed that at the time there was no conflict between any rule promulgated by the court and any law enacted by the Legislature, and that when such a conflict arose it would then be time to decide which is paramount in the rule-making field, the court or the Legislature.

Ammerman, 89 N.M. at 311, 551 P.2d at 1358.

{7} We next looked to the discussion in McBride regarding this Court's exclusive power to enact procedural rules. In McBride, we held that statutes purporting to regulate practice and procedure are not binding because the courts have the exclusive constitutional power to regulate practice and procedure:

Under the Constitution, the legislature lacks the power to prescribe by statute rules of practice and procedure, although it has in the past attempted to do so. Certainly statutes purporting to regulate practice and procedure in the courts cannot be made binding, for the constitutional power is vested exclusively in this court.

Ammerman, 89 N.M. at 311, 551 P.2d at 1358 (quoting McBride, 88 N.M. at 246, 539 P.2d at 1008). As in McBride, we were once again confronted in Ammerman with a conflict between a statute and a rule of the New Mexico Supreme Court. In Ammerman, the conflict was between Section 20-1-12.1 (confidential source privilege) and Rule 11-501 NMRA 2005, which provides:

Except as otherwise required by constitution, and except as provided in these rules or in other rules adopted by the Supreme Court, no person has a privilege to:

A. refuse to be a witness; or

B. refuse to disclose any matter; or

C. refuse to produce any object or writing; or

D. prevent another from being a witness or disclosing any matter or producing any object or writing.

The conflict existed because this Court had not adopted a confidential source privilege.¹ Because Rule 11-501 only recognized constitutional privileges or privileges adopted by court rule, we concluded that the statutory confidential source privilege should not be given effect. Ammerman, 89 N.M. at 312, 551 P.2d at 1359.

{8} Following Ammerman, we continued to adhere to the general principle embodied in Rule 11-501 that a privilege must be required or recognized by a court rule or the New Mexico Constitution. See State ex. Rel. Attorney General v. First Judicial District Court, 96 N.M. 254, 629 P.2d 330 (1981). In First Judicial District, we rejected the "public interest" privilege asserted...