Nussbaumer v. State

• Decision Date: 27 August 2004
• Docket Number: No. 2D03-5573.,2D03-5573.
• Citation: Nussbaumer v. State, 882 So.2d 1067 (Fla. App. 2004)
• Parties: Joseph NUSSBAUMER, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

882 So.2d 1067

Joseph NUSSBAUMER, Jr., Petitioner, v. STATE of Florida, Respondent.

No. 2D03-5573.

District Court of Appeal of Florida, Second District.

August 27, 2004.

Rehearing Denied September 30, 2004.

Mathew D. Staver, Erik W. Stanley, Anita L. Staver, Joel L. Oster, and Rena M. Lindevaldsen of Liberty Counsel, Longwood, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.

WALLACE, Judge.

Joseph Nussbaumer, Jr., an ordained minister, petitions this court for a writ of certiorari to quash two orders of the circuit court that directed him to produce records and answer questions over the objection of clergy communications privilege, section 90.505, Florida Statutes (2003),¹ in a criminal prosecution pending against Mr. Lowell Bloom. We hold that the circuit court's orders departed from the essential requirements of the law, causing material injury to Pastor Nussbaumer from which there is no adequate remedy on appeal. Because the start of Mr. Bloom's trial was imminent, we granted the petition and quashed the circuit court's orders by a prior unpublished order. We issue this opinion to explain our ruling.

THE PROCEEDINGS IN THE CIRCUIT COURT

Mr. Bloom, who is an adult, was charged with committing the offense of lewd or lascivious molestation on a child, a violation of section 800.04(5), Florida Statutes.² On or about June 20, 2003, the State caused a subpoena for records to be issued and served on Pastor Nussbaumer for "any and all records relating to treatment and or counseling from 06/01/02 to present date of LOWELL BLOOM ... relating to his involvement with sexual abuse of a child." Pastor Nussbaumer declined to produce the requested records and notified the State Attorney that he objected to producing the records or giving testimony based on the clergy communications privilege. On July 17, 2003, Mr. Bloom's counsel filed a motion to quash the subpoena pursuant to section 90.503, the psychotherapist-patient privilege. The State responded by filing a motion to compel compliance with its investigative subpoena and scheduled a hearing on the motion for August 14, 2003. The State issued and served a subpoena on Pastor Nussbaumer requiring his appearance at the scheduled hearing.

Pastor Nussbaumer did not appear at the hearing as scheduled. On the day of the scheduled hearing, he faxed a letter to the circuit court. Pastor Nussbaumer explained in his letter that he had been on vacation and had discovered that personal commitments had prevented his attorney from filing a motion for protective order as Pastor Nussbaumer had previously requested. Pastor Nussbaumer informed the circuit court that he requested "the Order of Protection as an Ordained Minister." He also enclosed a copy of his certificate of ordination. The circuit court issued a rule to show cause requiring Pastor Nussbaumer to appear before the court on September 19, 2003, and show cause why he should not be held in contempt of court. On September 19, 2003, Pastor Nussbaumer appeared before the court as directed. The circuit court adjudged Pastor Nussbaumer to be in contempt of court but withheld disposition pending a further hearing.

On October 29, 2003, the circuit court conducted an evidentiary hearing on Mr. Bloom's motion to quash and on the State's motion to compel compliance with its investigative subpoena. Although Mr. Bloom claimed the benefit of the psychotherapist-patient privilege in his motion to quash the subpoena, at the hearing he claimed that his communications with Pastor Nussbaumer were protected by the clergy communications privilege. This was consistent with Pastor Nussbaumer's previously stated position. Pastor Nussbaumer had maintained from his receipt of the State's initial subpoena that the applicable privilege was the clergy communications privilege, not the psychotherapist-patient privilege. The State made no objection based on the change in the defense theory.

Both Pastor Nussbaumer and Mr. Bloom testified at the hearing. On November 18, 2003, the circuit court entered an order that made the following findings of fact:

1. The communications between Joseph Nussbaumer and Defendant took place within a psychotherapist-patient relationship. In light of the fact that Defendant is charged with lewd molestation (pursuant to [section 800.04]), [section 39.204, Florida Statutes (2003)] abrogates the psychotherapist-patient privilege which was enacted pursuant to [section] 90.503. Therefore, the communications between Nussbaumer and Defendant are not protected by the psychotherapist-patient privilege.

2. The Court rejects Defendant's contention that his communications with Nussbaumer took place within a clergyman-penitent relationship. Therefore, the communications are not protected pursuant to the clergyman-penitent privilege ([section] 90.505).

Based on these findings, the circuit court denied Mr. Bloom's motion to quash the subpoena and granted the State's motion to compel compliance with its investigative subpoena. Once again, the circuit court deferred imposing any sanctions for contempt of court on Pastor Nussbaumer.

After the conclusion of the October 29 hearing, the State issued a third subpoena to Pastor Nussbaumer. The third subpoena directed him to appear personally at the State Attorney's office on December 3, 2003, and to produce the records concerning Mr. Bloom that had previously been subpoenaed. Pastor Nussbaumer then retained counsel and filed a motion for protective order and/or stay pending appeal. In this motion, Pastor Nussbaumer reasserted the clergy communications privilege and requested an order protecting him from being required to comply with the State's subpoena. On November 25, 2003, the circuit court found that there was no reason to recede from its previous order and entered the second order that denied the motion for a protective order. However, in order to give Pastor Nussbaumer an opportunity to seek review in this court, the circuit court granted the motion for stay pending review. Pastor Nussbaumer timely filed his petition for a writ of certiorari in this court.

THE AVAILABILITY OF RELIEF BY CERTIORARI

A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995). To determine whether a reviewing court has jurisdiction, the court must first decide whether the petitioner has demonstrated that the order complained of creates irreparable harm. Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001). In this case, Pastor Nussbaumer does not have an adequate remedy by appeal because he is not a party to the circuit court proceedings. As we stated in Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), the only way that a nonparty claiming privilege may test a court's order-other than by certiorari-is to risk a contempt citation and then to appeal if cited for contempt. However, this is "too great a price" to require Pastor Nussbaumer to pay. See id. at 266. Thus Pastor Nussbaumer has demonstrated that the challenged orders create the potential for irreparable harm. Because Pastor Nussbaumer has satisfied the jurisdictional threshold, our task is to determine whether there has been a departure from the essential requirements of the law. See City of Oldsmar v. Kimmins Contracting Corp., 805 So.2d 1091, 1092 (Fla. 2d DCA 2002). The entry of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. See Superior Ins. Co. v. Cano, 829 So.2d 991 (Fla. 2d DCA 2002) (trade secrets); Robichaud v. Kennedy, 711 So.2d 186 (Fla. 2d DCA 1998) (attorney-client privilege); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003) (psychotherapist-patient privilege).

THE IMPACT OF SECTION 39.204

With the exceptions of the attorney-client privilege and the clergy communications privilege, section 39.204 abrogates the various evidentiary privileges in cases involving child abuse, abandonment, or neglect. Section 39.204 provides as follows:

The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.

"Abuse" is defined in chapter 39 as "any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired." § 39.01(2). "Child" is defined as "any unmarried person under the age of 18 years who has not been emancipated by order of the court." § 39.01(12). Chapter 39 provides further: "`Harm' to a child's health or welfare can occur when any person ... [c]ommits, or allows to be committed, sexual battery as defined in chapter 794, or lewd or lascivious acts, as defined in chapter 800, against the child." § 39.01(30)(b). Based on our limited record, we assume for purposes of this review that the alleged...