Blazek v. Superior Court In and For County of Maricopa

• Decision Date: 22 February 1994
• Docket Number: No. 1,CA-SA,1
• Citation: 869 P.2d 509,177 Ariz. 535
• Parties: Bonnie BLAZEK, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge, Edward SEGRAVE, a single man; Scottsdale Unified School District, a body politic, Real Parties in Interest. 93-0278.
• Court: Arizona Court of Appeals

Page 509

869 P.2d 509

177 Ariz. 535

Bonnie BLAZEK, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge Edward SEGRAVE, a single man; Scottsdale Unified School District, a body politic, Real Parties in Interest.

No. 1 CA-SA 93-0278.

Court of Appeals of Arizona,

Division 1, Department D.

Feb. 22, 1994.

[177 Ariz. 536] Law Offices of R. Kelly Hocker by R. Kelly Hocker, Kay Hartwell Hunnicutt, Tempe, for petitioner.

Snell & Wilmer by Barry D. Halpern, Thea F. Silverstein, Phoenix, for real parties in interest.

OPINION

GRANT, Judge.

Petitioner Bonnie Blazek ("petitioner") brings this special action from the trial court's order denying her Motion for Protective Order. The issue presented is whether the trial court was arbitrary and capricious or abused its discretion by ruling (1) that the marital communications privilege allows discovery of statements made by petitioner to her husband when they were separated, and (2) that petitioner must produce psychological records relating to her divorce and child custody proceedings because she put her psychological state in issue by claiming emotional damages in this civil suit for sexual harassment and rape. We accepted jurisdiction by an order dated November 30, 1993, with this opinion to follow because the existence of a privilege is a question of law and a special action is the appropriate means of relief when a party is ordered to disclose what she believes is privileged material. State ex rel. Romley v. Superior Ct. (Roper), 172 Ariz. 232, 235, 836 P.2d 445, 448 (App.1992). We grant partial relief by vacating the trial court's orders.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from petitioner's pending lawsuit in which she alleges that real party in interest Charles Edward Segrave ("Segrave") sexually harassed and raped her while he was her supervisor at the Scottsdale Unified School District. ¹ Segrave admits that he became romantically interested in petitioner while he was working with her, but denies any sexual misconduct.

Petitioner complained of harassment by Segrave to the School District on August 21, 1990. The School District investigated the charges and ultimately removed Segrave from his position. The School District's investigators interviewed petitioner on August 29 and August 30, 1990. She did not allege then that Segrave had raped her. She was expressly asked if she had engaged in sexual intercourse with Segrave and she stated that she had not done so.

Petitioner and her husband, Terry Blazek, were separated for most of the time during which the sexual harassment was allegedly occurring and at the time the alleged rape occurred. When petitioner first accused Segrave of rape, she was involved in a divorce proceeding in which her husband challenged her fitness as a parent for the custody of their children. The domestic relations court appointed Dr. Ronn Lavit, a psychologist, to evaluate the parties' fitness relating to custody and visitation, and ordered petitioner to submit her medical records to him. Petitioner did not participate in the evaluation, although she did release her records to Dr. Lavit. The court awarded custody of the children to petitioner's ex-husband, Terry.

After the divorce, petitioner consulted with Dr. Marcus Earle, another psychologist, for advice concerning visitation problems with her children. In the course of counseling petitioner, Dr. Earle met with petitioner's ex-husband and attempted to reconcile the couple. In his conversations with Dr. Earle, petitioner's ex-husband made allegations of sexual misconduct by petitioner which are reflected in Dr. Earle's records.

In defending this civil suit, the School District subpoenaed the records of Dr. Lavit and Dr. Earle and noticed the deposition of petitioner's ex-husband. ² Petitioner sought a protective order, inter alia, quashing the subpoenas for Dr. Lavit's and Dr. Earle's records and barring Segrave from eliciting or using any information relating to the former marriage between petitioner and Terry Blazek. This special action arises from the trial court's denial of the petitioner's requested protective order.

II. DISCUSSION

Was the Trial Court's Denial of Petitioner's Motion For Protective Order Arbitrary and Capricious or An Abuse of Its Discretion?

A trial court has broad discretion over discovery matters, and this court will not disturb that discretion absent a showing of abuse. Brown v. Superior Ct., 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). A trial court abuses its discretion when it misapplies the law or predicates its decision upon irrational bases. Id. at 332, 670 P.2d at 730. Whether an evidentiary privilege exists is a question of law, and we are not bound by the trial court's conclusions of law. City of Tucson v. Superior Ct., 167 Ariz. 513, 809 P.2d 428 (1991); State ex rel. Babbitt v. Arnold, 26 Ariz.App. 333, 548 P.2d 426 (1976). We construe privilege statutes narrowly because they exclude relevant evidence and impede the fact-finder's search for the truth. Church of Jesus Christ of Latter-Day Saints v. Superior Ct., 159 Ariz. 24, 29, 764 P.2d 759, 764 (App.1988).

A. Does the marital communications privilege protect statements between spouses during periods of separation?

In the trial court, petitioner surmised that Segrave would elicit information from her ex-husband about petitioner's alleged marital infidelities. ³ Petitioner sought a protective order "barring defendants ... from interrogating or eliciting from plaintiff's ex-husband, Terry, by any means any 'communications,'--verbal or non-verbal or documentary--by or between Bonnie and Terry during the time of their marriage; [and] prohibiting defendants from using any documents or testimony, directly or indirectly, relating to the marital relationship between Bonnie and Terry." The trial court held, "Where, as here, the marriage was irretrievably broken at the time of separation, statements made by wife to husband during the period of separation are not privileged." Petitioner requests this court to issue an order "[s]ustaining Bonnie's marital privilege and prohibiting the real parties in interest from interrogating Terry Blazek regarding any conversations/matters that related to or took place during their marriage, including periods they were separated."

There are two marital privileges. The anti-marital fact privilege enables a party spouse in civil and criminal proceedings to prevent the other spouse from testifying. Ariz.Rev.Stat.Ann. ("A.R.S.") §§ 12-2231 to -2232 (1982) ⁴; A.R.S. § 13-4062. See generally Morris K. Udall et al., Law of Evidence § 72 at 130 (3d ed. 1991). Dissolution of the marriage terminates this privilege.

The marital communications privilege, which petitioner has invoked, protects confidential communications made between spouses while they are married. A.R.S. § 12-2232. Unlike the anti-marital fact privilege, the marital communications privilege survives the termination of the marriage. The marital communications privilege protects only confidential communications; it does not protect non-confidential communications or non-communicative acts. Our supreme court has stated:

Each [spouse] may testify for or against the other as to matters which came to their knowledge during the existence of the marital relation, unless such matters were in the nature of confidential communications. In other words, they may testify as to what was done by either spouse, but not as to what was said if it was in the nature of a confidential communication.

Posner v. New York Life Ins. Co., 56 Ariz. 202, 207, 106 P.2d 488, 491 (1940); see also State v. Hunt, 8 Ariz.App. 514, 522, 447 P.2d 896, 904 (1968) ("The privilege only extends to communications and does not apply to acts."); United States v. McCown, 711 F.2d 1441, 1452 (9th Cir.1983) (marital privilege applies to utterances or expressions between husband and wife that are intended to be communicative and confidential). All marital communications are presumed to be confidential, and the burden to prove otherwise is on the person seeking to avoid the application of the privilege. Arizona Title Guar. & Trust Co. v. Wagner, 75 Ariz. 82, 87, 251 P.2d 897, 901 (1952).

The trial court found an exception to the marital communications privilege for statements made during periods of separation in "irretrievably broken" marriages. This exception is not one of the four statutory exceptions found in A.R.S. section 12-2232, nor is it found elsewhere in our statutes. See A.R.S. § 12-1671 (privilege does not apply in proceedings under Uniform Reciprocal Enforcement of Support Act); A.R.S. § 13-3620(F) (privilege does not apply in any proceeding in which a child's neglect, dependency, abuse or abandonment is at issue); A.R.S. § 13-4062 (privilege does not apply in actions for interspousal crimes, certain sex crimes, or a husband's failure to support his wife or minor children).

In support of the trial court's ruling, Segrave cites federal cases which have limited the application of the marital communications privilege to "communications that take place during a valid marriage between couples still cohabitating...." United States v. Byrd, 750 F.2d 585, 593 (7th Cir.1984). These decisions reason:

[W]hile it is in the interests of society to protect the confidentiality of the marriage relationship, there is little societal interest in protecting the confidential relationship of permanently separated couples. The importance of the search for truth at issue in a criminal trial outweighs the interest in protecting separated couples' confidentiality.

Id.; United States v. Roberson, 859 F.2d 1376, 1380 (9th Cir.1988). In addition to these federal decisions, Segrave points to dicta in a state murder case which suggests that Arizona's marital privileges may not protect communications made during separations: "[T]he reasons for not...