State v. Pelley
| Decision Date | 19 December 2003 |
| Docket Number | No. 71A03-0305-CR-163.,71A03-0305-CR-163. |
| Citation | 800 N.E.2d 630 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Robert Jeffrey PELLEY, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
George E. Horn, Jr., Jesse M. Barrett, Barnes & Thornburg, South Bend, IN, Attorneys for Appellee.
Robert Pelley, his father ("Reverend Pelley"), and stepmother ("Dawn") engaged in counseling sessions from 1988 to 1989. In 1989, Reverend Pelley, Dawn, and Pelley's two sisters were murdered and Pelley was charged with four counts of murder. The State subpoenaed all counseling records from the Pelley family's counseling sessions. The counseling center refused. Following a hearing, the trial court quashed the subpoena. The State appeals the quash. We affirm.
The State raises two issues for our review which we restate as follows:
1. Whether the trial court properly found that the social worker/client privilege retroactively applied to communications made before its enactment; and
2. Whether the communications fell within any of the exceptions to the social worker/client privilege.
From May 20, 1988, through April 27, 1989, Pelley, Reverend Pelley, and Dawn engaged in counseling services at Family and Children's Center (the "Center") in South Bend. The Pelleys met individually and collectively with personnel at the Center on at least twelve occasions. Social worker Mabel Davis compiled progress notes from the sessions with the Pelleys.
On April 29, 1989, Reverend Pelley, Dawn, and their two daughters were murdered in their home. Pelley was charged with four counts of murder on August 7, 2002. On August 22, 2002, the State issued a subpoena duces tecum to the Center for "[a]ny and all counseling records from the Rev. Robert J. Pelley family from 1986-1989." Appellant's Appendix at 30(a). On February 26, 2003, the Center filed a motion to quash the subpoena, alleging that the counseling records were privileged under Indiana Code section 25-23.6-6-1, the social worker/client privilege. The Center also argued that the communications did not fall within the "homicide exception" to the privilege codified at Indiana Code section 25-23.6-6-1(1).
The State objected to the motion to quash, arguing that the statute creating the social worker/client privilege was not retroactive and therefore, did not extend to communications made to Davis by members of the Pelley family prior to the enactment of the statute. Alternatively, the State argued that, even if the statute was retroactive, the communications fell within the "homicide exception." Following a hearing and an in camera review of the documents, the trial court quashed the subpoena, finding that the statute applied to the communications made by the Pelley family to Davis between 1986 and 1989 and that the communications did not relate directly to the fact or immediate circumstances of said homicide. This interlocutory appeal ensued.
The grant or denial of a discovery motion is within the trial court's discretion and will be overturned only for an abuse of discretion. Andreatta v. Hunley, 714 N.E.2d 1154, 1156 (Ind.Ct.App.1999), trans. denied. An abuse of discretion in this context occurs only if the order is unreasonable in light of all the attendant circumstances and is prejudicial to a party's rights. Id.
The social worker/client privilege is codified at Indiana Code section 25-23.6-6-1, which provides, in pertinent part:
Matters communicated to a counselor in the counselor's official capacity by a client are privileged information and may not be disclosed by the counselor to any person....
The effective date of the statute was July 1, 1990. The statute is silent regarding its application to communications made before the effective date.
The State contends that, because the communications from the Pelley family to Davis occurred before the statute was enacted, the statute does not cover the communications. In other words, they are requesting that this court not apply the statute retroactively to cover earlier communications.
The Center, however, contends that the date of the communication is not the defining date under the statute, but rather the date of discovery request. As the State did not request the communications from the Center until 2002, the Center contends that the statute need not be applied retroactively to cover the communications. Because this question arises before the question of retroactivity, we must decide first which date is the determinative date for a discovery request.
The common law recognized no privilege for confidential communication between social workers and their clients. Indiana created the privilege through its enactment of Indiana Code section 25-23.6-6-1. Evidentiary privileges are generally looked upon with disfavor by the courts and commentators. Ernst & Ernst v. Underwriters Nat'l Assurance Co., 178 Ind.App. 77, 381 N.E.2d 897, 901 (1978). Moreover, certain specific privileges, which were unknown at common law, are particularly disfavored and are therefore strictly construed in order to limit their application. Id.
If a statute is unambiguous, we may not interpret it, but must give the statute its clear and plain meaning. Autobanc Corp. v. Hodges Towing Serv., 793 N.E.2d 248, 251 (Ind.Ct.App.2003) (citing Bolin v. Wingert, 764 N.E.2d 201, 204 (Ind.2002)). In examining the specific language of the statute, we note that the statute provides that communications made to a social worker by a client are privileged and "may not be disclosed by the social worker or clinical social worker to any person." The strict interpretation of the statute suggests that it is precluding the disclosure by the social worker to any other person rather than merely protecting the communication between the social worker and the client. This would lead us to believe that the date of disclosure is the determinative date for discovery requests regarding privileges.
The Center directs our attention to other jurisdictions which have held that the date of the discovery request is the defining date. For example, in Doe v. Amer. Nat'l Red Cross, 790 F.Supp. 590 (D.S.C. 1992), the widow of a patient who received a transfusion of HIV-contaminated blood sued the hospital that performed the transfusion. The plaintiff sought discovery regarding the infected donor. After the transfusion, but before the lawsuit, South Carolina adopted a regulation making privileged the identity of an HIV-infected blood donor. Although the parties argued the issue of retroactivity, the court held that the appropriate time was not when the agency released the identity of the donor to the defendant, but rather the date the plaintiff sought to gain access to the donor's identity. Id. at 591. The court noted that the statute was not in effect when the defendant learned of the identity of the donor, but that the statute currently prevented the defendant from divulging such information. Id. at 592. Therefore, the court held that the communications were privileged and could not be divulged. Id. at 594.
The Doe court relied on Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga.1976). In Scott, the court considered a statute making certain hospital records confidential. The plaintiff sought discovery of records prepared before the statute was passed. The court denied the discovery, holding that the "applicability and availability of a privilege should be governed by the current law in force at the time of trial and not at the time the alleged confidential communication took place." Id. at 573.
We find Doe and Scott to be persuasive. As in those cases, the statute creating the social worker/client privilege in Indiana was not in existence at the time of the communication. However, once it was enacted, it affected discovery requests which were issued after the date the statute became effective. As the State did not request the information until after the privilege was created, the statute prevented the Center from providing the State with the communication records.
Notwithstanding our above determination that the date of disclosure is the determinative date, we believe it also necessary to address the State's arguments regarding the retroactivity of the privilege. Because the statute on social worker/client privilege is in derogation of the common law, it is strictly construed. Matter of C.P., 563 N.E.2d 1275, 1277 (Ind. 1990) (). For this reason, and because laws creating privileges "prohibit the ascertainment of truth in many controversies," the courts do not extend the scope of the privilege by implication. Id. (citing Alder v. State, 239 Ind. 68, 74, 154 N.E.2d 716, 719 (1958)). This approach is consistent with the U.S. Supreme Court's rule that privileges "are not lightly created nor expansively construed, for they are in derogation of the search for truth." Id. (citing United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974)).
Section 25-23.6-6-1 restricts the evidence that can be discovered in a judicial proceeding. "Rules and laws with respect to privileges apply at all stages of all actions, cases, and proceedings." Ind. Evidence Rule 101(b). In conjunction with the Indiana Rules of Evidence, evidentiary privileges—whether existing at common law or created by statute—limit the evidence a party can obtain and present to support its case. See Rocca v. S. Hills Counseling Center, Inc., 671 N.E.2d 913, 917-18 (Ind.Ct.App.1996) ().
In this regard, common law or...
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