Goetz v. State

• Decision Date: 14 November 2001
• Docket Number: No. 21297.,21297.
• Citation: 636 N.W.2d 675,2001 SD 138
• Parties: Cynthia GOETZ and Marlene Laible, individually and as Executors of the Estate of Kathleen Laible, Linda Petrocine, and Terra Laible, Plaintiffs and Appellees, v. STATE of South Dakota; Community Counseling Services; County of Beadle; County of Miner; Human Service Agency; Benny L. Laible, Defendants, and Office of State Court Administrator, Appellant.
• Court: South Dakota Supreme Court

636 N.W.2d 675

2001 SD 138

Cynthia GOETZ and Marlene Laible, individually and as Executors of the Estate of Kathleen Laible, Linda Petrocine, and Terra Laible, Plaintiffs and Appellees, v. STATE of South Dakota; Community Counseling Services; County of Beadle; County of Miner; Human Service Agency; Benny L. Laible, Defendants, and Office of State Court Administrator, Appellant.

No. 21297.

Supreme Court of South Dakota.

Argued April 25, 2000.

Decided November 14, 2001.

Steve Jensen of Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett, Storm and Jensen, Sioux City, Iowa. and Mark V. Meierhenry and Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, South Dakota, for plaintiffs and appellees.

Rory King of Siegel, Barnett & Schutz, Aberdeen, SD, for petitioner and appellant.

ZINTER, Circuit Judge (on reassignment).

[¶ 1.] The State Court Administrator (SCA) filed a petition for an intermediate appeal from a discovery order enforcing a subpoena duces tecum. The discovery order provided for the trial court's in camera review of certain probation records.¹ The probation records were generated by court services officers while performing probation supervision duties. The circuit court concluded that it had discretionary authority to review the records in camera for potential disclosure to civil plaintiffs. We granted the petition for intermediate review.² We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On September 24, 1996, Benny L. Laible (Benny) killed his mother, Kathleen Laible (Kathleen). Benny was found guilty but mentally ill of second degree murder. SDCL 22-16-7, 23A-27-38. We affirmed his conviction on appeal. State v. Laible, 1999 SD 58, 594 N.W.2d 328.

[¶ 3.] The plaintiffs in this action are Kathleen's daughters (collectively referred to as Goetz). They instituted this civil action against the State of South Dakota, Community Counseling Services, Beadle County, Miner County, the Human Service Agency, Benny, his court services (probation) officers and his doctors.³

[¶ 4.] The allegations against the court services officers relate to their supervision of Benny while he was on probation. According to the supplemented record, Benny was on probation on two occasions. At oral argument, Goetz stated that the probation records they sought related to a Class 2 misdemeanor offense of possession of marijuana. Goetz contends that the terms and conditions of that probation required Benny to take medication to treat mental illness, to refrain from using alcohol, and to otherwise comply with the instructions of his court services officers. Goetz alleges that the court services officers were negligent in the following respects:

Failing to monitor and supervise Benny's conduct during the probation;

Failing to monitor and supervise Benny's compliance with prescription medications for the treatment of his mental illness;

Failing to notify a court of Benny's failure to comply with conditions of probation imposed by the court; Failing to take, detain and place Benny in custody because of his non-compliance with the terms of his probation;

Failing to properly diagnose and treat Benny's mental illness.

[¶ 5.] During discovery, Goetz issued a subpoena commanding the Unified Judicial System (UJS) to "search the records of the Unified Judicial System and Court Services for parole and court services records pertaining to Benny L. Laible, including, but not limited to, all records of communications between Benny L. Laible and any court services officer." (emphasis added). The SCA moved to quash the subpoena, arguing that the records were "confidential" under SDCL 23A-27-47.⁴ The circuit court denied the motion to quash. Instead, it ordered that it would examine the records in camera to determine relevance and whether one of the exceptions to confidentiality under SDCL 23A-27-47 could apply.

[¶ 6.] The circuit court emphasized that it intended to protect the confidentiality of the records. It stated:

Certainly in conducting the in camera examination of [these] records, this court will exercise extreme care to preserve the confidentiality of all records which should be kept confidential, either because of the facts and circumstances of this particular case, or to preserve the expectation of confidentiality in general which would apply to discussions between a court service officer and a defendant or to preserve the confidentiality of sources. Until I review the records.... I am not able to make a determination whether they are records that can be disclosed or not. This can be done only after the in camera inspection.

(emphasis added). After the SCA asked for reconsideration, the circuit court gave further assurances. It stated:

Because of the apparent sensitive nature of this question to the State Court Administrator, it would seem appropriate in this case that after conducting the in camera inspection of the records ... the court will indicate to the State Court Administrator exactly what documents, if any, the court rules should be disclosed, at which time the State Court Administrator would have the opportunity to seek an appeal of the releasing of any such documents prior to their being disclosed pursuant to the subpoena. The court would include a list of the factors the court has utilized in making such disclosure decision upon notifying the State Court Administrator of the court's ruling after the in camera inspection.

[¶ 7.] The SCA appealed contending that the circuit court had no authority to conduct an in camera review of probation records for potential disclosure in a civil action. The SCA raised three issues. After oral argument we ordered further briefing on two other issues. We consider two issues to be dispositive.

STANDARD OF REVIEW

[¶ 8.] There are no factual disputes involved in the issues we decide today. The issues are questions of law involving statutory construction which we review de novo. State v. Karlen, 1999 SD 12, ¶ 6, 589 N.W.2d 594, 597.

ISSUE ONE

[¶ 9.] Whether, in civil litigation, SDCL 23A-27-47 gives a circuit court discretionary authority to permit disclosure of records prepared by a court services officer concerning the supervision of a probationer.

[¶ 10.] By way of historical perspective, it is important to note that before SDCL 23A-27-47 was enacted in 1994, there was no confidentiality afforded to probation records. These records were first made confidential in 1994 after passage of Senate Bill 78 (S.B. 78). 1994 Sess.L. ch. 217. S.B. 78 was introduced at the request of the Chief Justice following its recommendation at the Judicial Conference. See generally, SDCL ch. 16-14. Although the Judicial Conference's proposal requested "privilege" status for court services records, the Legislature rejected that approach and made the records "confidential." 1994 House Journal, pp. 843-844.

[¶ 11.] As finally enacted, SDCL 2327-47 provides:

Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons specifically authorized by order of the court.

(emphasis added). This statute makes probation records generally confidential, but subject to two exceptions. The first exception only permits disclosure to UJS employees in the course of their duties. The second, more open-ended exception, is the subject of this appeal. It permits disclosure to others if it is authorized by the court.

[¶ 12.] Goetz contends that, subject to court discretion, they are parties who could be authorized to obtain the records under the second exception. Goetz points out that the second exception is open-ended and broad enough to include them because it contains no language limiting those who may qualify.

[¶ 13.] The SCA, however, argues that we should "construe" the open-ended court-authorized exception so that it is "highly restricted as to purpose, and the purpose must be exclusively related to internal court operations, criminal sentencing, and probation." The SCA also argues that the exception should be further "construed" so that the only persons who qualify for these "sentencing, probation and parole [purposes] ... include psychiatrists, psychologists, counselors, physicians and ministers." The SCA asks us to use the statutory construction canons of ejusdem generis and in pari materia to reach that result.

[¶ 14.] We agree with many of the SCA's policy reasons⁵ for seeking a legislative limitation on the open-ended exception to confidentiality created by SDCL 23A-27-47. However, neither the primary rules of statutory construction nor our precedent permit us to construe the significant statutory changes that the SCA suggests. In our judgment, the SCA's proposed construction would be an unwarranted judicial amendment of the statute.

Primary Rules of Statutory Construction

[¶ 15.] This case requires us to examine the statutory language and apply canons of construction to determine the meaning of the open-ended exception to the general rule of confidentiality. In performing that analysis, we adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.

[¶ 16.] We explained the purpose of these primary rules of statutory construction in US West v. PUC, 505 N.W.2d 115, 123 (S.D.1993):

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. Appeal of AT & T Information Systems, 405 N.W.2d 24, 27 (S.D.1987). The intent of a statute is determined from what the legislature said, rather than what the courts think it should have

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