Estate of Romero v. City of Santa Fe, 28,816.

• Decision Date: 08 June 2006
• Docket Number: No. 28,816.,28,816.
• Citation: 2006 NMSC 028,137 P.3d 611
• Parties: The ESTATE OF Rudy ROMERO, by Evelyn ROMERO, personal representative, and Evelyn Romero, individually and as guardian and next friend of Robbie R., a minor, Plaintiffs-Respondents, v. CITY OF SANTA FE, The City of Santa Fe Police Department, and Jerry Archuleta, Defendants-Petitioners.
• Court: New Mexico Supreme Court

137 P.3d 611

2006 NMSC 028

The ESTATE OF Rudy ROMERO, by Evelyn ROMERO, personal representative, and Evelyn Romero, individually and as guardian and next friend of Robbie R., a minor, Plaintiffs-Respondents, v. CITY OF SANTA FE, The City of Santa Fe Police Department, and Jerry Archuleta, Defendants-Petitioners.

No. 28,816.

Supreme Court of New Mexico.

June 8, 2006.

COPYRIGHT MATERIAL OMITTED

French & Associates, P.C., Stephen G. French, Valerie A. Chang, Albuquerque, NM, Davis, Gay & Jahner, P.C., Michael S. Jahner, Albuquerque, NM, for Petitioners.

Catron, Catron & Pottow, P.A., Richard S. Glassman, Santa Fe, NM, for Respondents.

Montgomery & Andrews, P.A., Sarah M. Singleton, Carolyn A. Wolf, Santa Fe, NM, for Amicus Curiae, New Mexico Association of Counties.

Randall D. Van Vleck, Santa Fe, NM, for Amicus Curiae, New Mexico Municipal League.

OPINION

CHÁVEZ, Justice.

{1} The question in this case is whether documents and other information in an on-going criminal investigation are discoverable in related civil litigation. This litigation arises out of the disappearance of Robbie Romero, who was seven years old when he was last seen near his home in Santa Fe on June 7, 2000. Plaintiffs are the parents of Robbie Romero,¹ who sued the City of Santa Fe, the Santa Fe Police Department (City Defendants), and Jerry Archuleta, a former Santa Fe police lieutenant, for alleged negligence in the handling of the investigation into Robbie's disappearance. This tragic backdrop makes the conflicting interests in this case, between the parents' natural desire to know the fate of their son and a police department's understandable need to protect confidential materials gathered in the course of a criminal investigation, all the more compelling and of substantial public interest.

{2} During litigation Plaintiffs sought to discover the police department's investigation files. Although City Defendants provided Plaintiffs with approximately one thousand three hundred and seventy-seven pages of documents related to their internal investigation, City Defendants objected to producing material related to its on-going criminal investigation. The district court declined to compel production of the entire criminal investigation file, concluding the materials are privileged. A majority of the Court of Appeals reversed the district court, holding that City Defendants cannot claim executive or public interest privilege. Although our rules and constitution do not presently recognize an executive or public interest privilege in the Santa Fe Police Department, we believe portions of the criminal investigation files may still be immune from discovery. Whether the documents are discoverable requires the district court to balance the competing interests between plaintiffs' legitimate discovery requests and law enforcement's need to protect on-going criminal investigations. Accordingly, we remand to the district court for proceedings consistent with this opinion. Because we believe the public interest in New Mexico requires a comprehensive law enforcement privilege which provides some protection against unfettered disclosure of materials obtained by law enforcement during a criminal investigation, we also take this opportunity to refer this matter to our Rules of Evidence Committee to recommend such a privilege.

I. BACKGROUND AND PROCEDURE

{3} During discovery, City Defendants objected to some of Plaintiffs' discovery requests on the grounds that the requested information and materials were part of the on-going criminal investigation into Robbie's disappearance, and disclosure would compromise and prejudice the investigation. Plaintiffs filed a motion to compel disclosure. The district court denied the motion to compel based on executive privilege, public policy, and the factors outlined in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973) (describing "executive privilege" and the factors to consider in determining whether a privilege exists for requested materials), partially superseded by rule on other grounds as stated in Crawford v. Dominic, 469 F.Supp. 260 (E.D.Pa.1979). Recognizing that its order "involves a controlling question of law for which there are substantial grounds for difference of opinion," the district court certified the matter for interlocutory appeal as provided under NMSA 1978, § 39-3-4 (1971).

{4} The Court of Appeals accepted the interlocutory appeal and in an unpublished opinion, a two-judge majority of the Court of Appeals reversed the denial of the motion to compel, holding that the City Defendants could not invoke executive privilege because the executive department, as defined by the state constitution, did not include municipalities. The Court of Appeals rejected a "public interest" privilege, because although federal courts have recognized the privilege, "our Supreme Court has not recognized such a privilege and we cannot anticipate that they will do so." The dissenting opinion expressed concern that "the trial court was too quick to completely uphold Defendants' assertion of privilege and the majority is too quick to completely reject it."

{5} City Defendants petitioned this Court to reverse the Court of Appeals, advancing two main arguments. First, they urge us to recognize a "common law public interest privilege" that would preclude the production of police investigatory materials during civil litigation. Second, and as an alternative theory, City Defendants contend that public policy demands that the records of an on-going criminal investigation be confidential and subject only to limited disclosure. Plaintiffs argue that no law enforcement privilege exists, and if this Court deems some of the police files to be confidential, a balancing of interests should apply in determining whether the requested materials are discoverable.

II. DISCUSSION

{6} Discovery orders are generally reviewed for abuse of discretion. Pub. Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166. However, we review the trial court's construction of the law of privileges de novo. Id. (citing N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450).

A. OUR CONSTITUTION AND COURT RULES DO NOT RECOGNIZE A LOCAL LAW ENFORCEMENT PRIVILEGE

{7} Generally, a person is required "to disclose any information which he may possess that is relevant to a case pending before a court of justice." State ex rel. Att'y Gen. v. First Judicial Dist. Court, 96 N.M. 254, 257, 629 P.2d 330, 333 (1981) (citing Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 551 P.2d 1354 (1976)). There are exceptions to this general rule, found in the privilege against self-incrimination in the United States and New Mexico constitutions as well as other evidentiary privileges. State ex rel. Att'y Gen., 96 N.M. at 257, 629 P.2d at 333. This court's "`constitutional power under N.M. Const. art. III, section 1 and art. VI, section 3 of superintending control over all inferior courts carries with it the inherent power to regulate all pleading, practice and procedure affecting the judicial branch of government.'" Id. (quoting State ex rel. Anaya v. McBride, 88 N.M. 244, 246, 539 P.2d 1006, 1008 (1975)). "Pursuant to the exercise of this power, we have adopted a comprehensive set of rules of evidence which govern proceedings before the courts," including evidentiary privileges. Id.

{8} The New Mexico Rules of Evidence generally follow the federal rules of evidence, but "New Mexico's approach to privileges is a special product of our state law jurisprudence." Lyons, 2000-NMCA-077, ¶ 12. Federal Rules of Evidence 501 provides:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or ... statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience.

In contrast, New Mexico Rules of Evidence 11-501 states:

Except as otherwise required by the 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.

Based on the difference between the New Mexico rule and the federal rule, we have held "[t]he fact that New Mexico did not follow the approach of Congress but instead limited the privileges available to those recognized by the Constitution, the Rules of Evidence, or other rules of this Court manifests the abrogation and inapplicability of the common law evidentiary privileges." State ex rel. Att'y Gen., 96 N.M. at 260, 629 P.2d at 337.

{9} In questioning the wisdom of our case law that precludes the adoption of common law privileges, City Defendants suggest we follow the reasoning of the dissent in State ex rel. Attorney General. There, two justices concluded that common law privileges are still available to the court when the subject matter is not otherwise covered in the Constitution or court rules. Id. at 263, 629 P.2d at 339 (Easley, C.J., and Federici, J., dissenting). City Defendants urge us to agree that we retain the authority to adopt common law privileges, and further, that we should overrule State ex rel. Attorney General to the extent it declines to recognize a public interest privilege, which defendants assert is similar to a law enforcement privilege. The reasons supporting their request seem compelling. They assert that the privilege is necessary to protect important public interests such as bringing perpetrators of serious crimes to justice and "to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law...