State v. Pelley

• Decision Date: 14 June 2005
• Docket Number: No. 71S03-0403-CR-134.,71S03-0403-CR-134.
• Citation: 828 N.E.2d 915
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Robert Jeffrey PELLEY, Appellee (Defendant below).
• Court: Indiana Supreme Court

828 N.E.2d 915

STATE of Indiana, Appellant (Plaintiff below), v. Robert Jeffrey PELLEY, Appellee (Defendant below).

No. 71S03-0403-CR-134.

Supreme Court of Indiana.

June 14, 2005.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Indianapolis, for Appellant.

George E. Horn, Jr., Jesse M. Barrett, Barnes & Thornburg, South Bend, for Appellee.

RUCKER, Justice.

Because of a statutorily created privilege, communication to a social worker from the social worker's client is protected from disclosure. But the privilege does not extend to communication taking place before the statute was enacted.

Facts and Procedural History

In 2002, Robert Jeffrey Pelley ("Pelley") was charged with the April 29, 1989 slayings of his father—Reverend Robert Pelley, stepmother—Dawn Pelley, and two minor stepsisters—Janel Pelley and Jolene Pelley. From May 27, 1986 until April 27, 1989, two days before the murders, Pelley, his father, and his stepmother received group and individual counseling from the Family and Children's Center ("Center") located in South Bend. During the course of the counseling sessions, Center compiled and maintained various records. They included: intake records for Robert Pelley, Reverend Pelley and Dawn Pelley; progress notes from meetings with Robert Pelley, Reverend Pelley and Dawn Pelley; a psychological evaluation of Robert Pelley; and billing and payment records. The record is silent as to who compiled the intake, billing and payment records. However, Mabel Davis, a social worker then employed by Center, authored the progress notes. The psychological evaluation bears the signature of Jackson Turner, whose status is not revealed by the record, and Dr. A. Joseph Schwab, a psychologist.

On August 22, 2002, the State served a subpoena duces tecum on Center requesting "[a]ny and all counseling records from the ... Pelley family from 1986-1989." Appellant's App. at 30(a). Center responded with a motion to quash. At a hearing on the motion Center argued that the records authored by Mabel Davis were protected by the counselor/client privilege as codified in Indiana Code § 25-23.6-6-1; the psychological evaluation performed by Dr. Schwab was protected by the psychologist/patient privilege as codified in Indiana Code § 25-33-1-17; and none of the records fell within the "homicide exception" codified in both I.C. § 25-23.6-6-1 and I.C. § 25-33-1-17. Following the hearing, and after conducting an in camera inspection of the documents, the trial court granted Center's motion and quashed the subpoena.

The State pursued an interlocutory appeal arguing: (i) the statute creating the counselor/client privilege did not exist when the records were created and thus the statute does not extend to communications made to Mabel Davis by members of the Pelley family; (ii) the statute is not retroactive; and (iii) the requested documents may have come within the "homicide exception" to both the counselor/client and the psychologist/patient privileges. On this latter point, the State also complained that the trial court reviewed the documents in camera without affording the State the opportunity to review the documents for the purpose of determining whether the homicide exception was applicable.

Affirming the trial court, a divided panel of the Court of Appeals determined that: (1) although the statute conveying the counselor/client privilege did not exist at the time of the counseling sessions, the date of disclosure is the determinative date for discovery requests regarding privileges; (2) notwithstanding the foregoing determination, the statute applies retroactively; and (3) the trial court did not abuse its discretion in reviewing the requested documents in camera. State v. Pelley, 800 N.E.2d 630 (Ind.Ct.App.2003)

. Having previously granted transfer, we now affirm in part and reverse in part the judgment of the trial court.

Discussion

I. The Relevant Date: the Date of Communication or the Date of Disclosure.

Indiana Code section 25-23.6-6-1 provides in pertinent part:

Matters communicated to a counselor¹ in the counselor's official capacity by a client are privileged information and may not be disclosed by the counselor to any person, except under the following circumstances:

(1) In a criminal proceeding involving a homicide if the disclosure relates directly to the fact or immediate circumstances of the homicide.

This statute was enacted effective July 1, 1990. Center contends that because I.C. § 25-23.6-6-1 prohibits a counselor from disclosing communications, the critical time for determining the applicability of the statute is when the communications are sought to be disclosed, not when the communications are originally made. According to Center, because the communications made by Pelley and members of his family were sought to be disclosed well after the statute was enacted, the trial court correctly quashed the subpoena.

When construing a statute our main objective is to determine, give effect to, and implement the intent of the legislature. Melrose v. Capitol City Motor Lodge, Inc., 705 N.E.2d 985, 989 (Ind. 1998). This jurisdiction generally recognizes that privileges are statutory in nature and that it is within the power of the legislature to create them. Terre Haute Reg'l Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1360 (Ind.1992). Most privileges were unknown at common law and, as a result, are to be strictly construed to limit their application. Id.

In Matter of C.P., 563 N.E.2d 1275 (Ind. 1990), this Court interpreted the then current version of the statutorily created physician/patient privilege.² Noting that such a privilege did not exist at common law and therefore the statute was to be strictly construed, we determined among other things, "The privilege is intended to inspire full and complete communication by patients so as to further trustful and successful treatment. [T]his Court has long recognized that the privilege covers both physicians and those who aid physicians, other persons whose intervention is strictly necessary to enable the parties to communicate with each other." Id. at 1278 (emphasis added) (citation omitted); see also Ley v. Blose, 698 N.E.2d 381, 383-84 (Ind.Ct.App.1998)

("By safeguarding the confidentiality of communications, the physician-patient privilege seeks to inspire full and complete disclosure of knowledge pertinent and necessary to a trustful and proper relationship.") (emphasis added) (internal quotation omitted). In essence we have determined that the underlying purpose of the physician/patient privilege is to inspire full and complete communication. If that purpose is to be served, then the participants in a confidential conversation must be able to predict with some degree of certainty that the particular communications will be protected.

By enacting I.C. § 25-23.6-6-1 the Legislature extended to counselors the same privilege that exists for physicians. The intent and dominant purpose of the statute is to grant a privilege to protect confidential communication between a counselor and the counselor's client. It is of course true the counselor/client privilege speaks in terms of "disclosure" while the physician/patient privilege does not. Still, the focus of both privileges is the same, namely, protecting communication. Consequently, because the focus of the statute is on the underlying communications and not, as Center contends, on the ultimate disclosure of the communications, the statute only protects communications made after the effective date. To exclude communications made prior to this date would be, in effect, to apply the statute retroactively. That brings us to our next point.

II. The Retroactivity of Indiana Code section 25-23.6-6-1

The general rule of statutory construction is that unless there are strong and compelling reasons, statutes will not be applied retroactively. Martin v. State, 774 N.E.2d 43, 44 (Ind.2002). Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well. Bd. of Dental Examiners v. Judd, 554 N.E.2d 829, 832 (Ind.Ct.App.1990). There is an exception to this general rule for remedial statutes, that is, statutes intended to cure a defect or mischief that existed in a prior statute. Bourbon Mini-Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind.2003) (citing Martin, 774 N.E.2d at 44). Relying on our statement in Bourbon and Martin that "remedial statutes will be applied retroactively to carry out their legislative purpose unless to do so violates a vested or constitutional guaranty," (emphasis added), Center argues that I.C. § 25-23.6-6-1 was enacted to cure a defect in the physician/patient privilege statute and thus it is remedial and applies retroactively to bar disclosure of communications between Center's counselor and the Pelley family.

We first observe that it is not at all clear to us that the counselor/client privilege statute is remedial. It is true the statute was enacted following the Court of Appeals' decision in Matter of C.P., 543 N.E.2d 410 (Ind.Ct.App.1989), aff'd in part, 563 N.E.2d 1275 (Ind.1990),

which held that the physician/patient privilege did not protect communications between a counselor and a client. However, it is equally true, as the State points out, that the statute was enacted as part of a much broader scheme to regulate social workers as professionals. Public Law 186-1990 created Article 23.6, "Marriage and Family Therapists." This article created a credentialing board for social workers and marriage family therapists, and addressed certification, examinations, unlawful practices, privileged communications, and mandatory disclosures. See I.C. § 25-23.6. It is reasonably plausible that by creating Article 23.6 under Title 25, the Legislature intended to recognize social workers as mental health professionals who were afforded state recognition and subject to state regulation, much...