State v. Strauch

• Decision Date: 09 March 2015
• Docket Number: 34,435.
• Citation: 2015 NMSC 009,345 P.3d 317
• Parties: STATE of New Mexico, Plaintiff–Petitioner, v. Jason STRAUCH, Defendant–Respondent.
• Court: New Mexico Supreme Court

345 P.3d 317

2015 NMSC 009

STATE of New Mexico, Plaintiff–Petitioner

v.Jason STRAUCH, Defendant–Respondent.

34,435.

Supreme Court of New Mexico.

March 9, 2015.

Hector H. Balderas, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Theresa Duncan, Albuquerque, NM, for Respondent.

New Mexico Children, Youth and Families Department, Jennifer Jo Saavedra, Santa Fe, NM, for Amicus Curiae New Mexico Children, Youth and Families Department.

OPINION

DANIELS, Justice.

{1} The child abuse reporting requirement of the Abuse and Neglect Act in the New Mexico Children's Code mandates that

[e]very person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a schoolteacher; a school official; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter

to specified authorities. NMSA 1978, § 32A–4–3(A) (2005). In this case, we consider the scope of this statutory reporting requirement and its relationships to statutory protection of confidential communications and to the privileged-communication provisions of the New Mexico Rules of Evidence.

{2} We conclude that both privately and publicly employed social workers are mandatory child abuse reporters, in light of the statutory history and the broadly inclusive terms of the Abuse and Neglect Act. Consequently, statements made to a social worker by an alleged child abuser in private counseling sessions are not protected from disclosure in a court proceeding as a result of the specific exception to the physician-patient and psychotherapist-patient evidentiary privilege in Rule 11–504(D)(4) NMRA of the New Mexico Rules of Evidence, which provides, “No privilege shall apply for confidential communications concerning any material that a [social worker] is required by law to report to a public employee or public agency.”

I. BACKGROUND

{3} Defendant Jason Strauch allegedly revealed to his wife that he had been sexually abusing their minor daughter. Defendant moved out of the family home and began attending counseling sessions as a patient of Frederick Stearns, a private-practice social worker licensed by the State of New Mexico. The couple reconciled and Defendant moved back home after several months of counseling. Defendant continued to see Mr. Stearns, and Defendant's wife attended several of these counseling sessions each year over the next few years. When Defendant's daughter revealed to her mother that the sexual abuse had never stopped, his wife separated from Defendant and reported the abuse.

{4} Defendant was charged with four counts of criminal sexual contact of a minor in the second degree, contrary to NMSA 1978, Section 30–9–13(A)–(B) (2003), which provides enhanced penalties when the victim is under the age of thirteen. After the State filed a notice of intent to call Mr. Stearns as a prosecution witness and attempted to obtain records of the counseling sessions, Defendant filed a motion in the district court for a protective order, arguing that the communications with Mr. Stearns were protected from disclosure both by statute, particularly NMSA 1978, § 61–31–24(B) (1989) (providing under the Social Work Practice Act that “[n]o licensed social worker may disclose any information he has acquired from a person consulting him in his professional capacity” unless any of four limited exceptions apply), and by evidentiary privilege, particularly Rule 11–504(A)(4), (B)-(D) (establishing under the New Mexico Rules of Evidence that a patient's confidential communications with a licensed social worker “made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition” are privileged from disclosure in a court proceeding unless any of four limited exceptions apply), see Rule 11–1101(C) NMRA (“The rules on privilege apply to all stages of a case or proceeding.”).¹

{5} The State argued that the statutes and evidentiary rules mandated disclosure, pointing to the broadly inclusive term “[e]very person” in the Abuse and Neglect Act reporting requirement, § 32A–4–3(A) ; to the Social Work Practice Act confidentiality exception, § 61–31–24(C) (requiring disclosure of “information in court hearings concerning matters of adoption, child abuse, child neglect or other matters pertaining to the welfare of children as stipulated in the Children's Code”); and to the New Mexico Rules of Evidence evidentiary privilege exception, Rule 11–504(D)(4) (applying to “confidential communications concerning any material that a [social worker] or patient is required by law to report to a public employee or public agency”).

{6} On the issues now before this Court, the district court ruled that Mr. Stearns was not a mandatory reporter under Section 32A–4–3(A) of the Abuse and Neglect Act because his counseling sessions were conducted in his capacity as a private therapist rather than, in the words of the statute, in an “official capacity”; that Defendant's communications with Mr. Stearns were privileged under Rule 11–504 ; and that the Rule 11–504(D)(4) privilege exception did not apply to the communications between Defendant and Mr. Stearns because Mr. Stearns was not required by law to report what he learned in private counseling sessions.

{7} On interlocutory appeal by the State, a majority of the Court of Appeals panel affirmed the district court's protective order. State v. Strauch, 2014–NMCA–020, ¶¶ 1, 32, 317 P.3d 878. The two-judge majority held that the Abuse and Neglect Act did not make Mr. Stearns a mandatory reporter because the statute does not actually require “every person” to report child abuse but only those categories of persons the statute specifically identifies after the words, “every person, including,” id. ¶ 10, as well as “other professionals or government officials who are likely to come into contact with abused [or] neglected children during the course of their professional work,” id. ¶ 19.

{8} The majority held as well that Mr. Stearns was statutorily relieved of reporting child abuse because he had not been, in the words of the statute, “a social worker acting in an official capacity.” Id. ¶ 20. The majority construed that phrase to mean that the statute imposes a reporting requirement only when the social worker counsels patients as a government employee or contractor and not in any other professional capacity. Id.

{9} The majority opinion also held that the communications between Defendant and Mr. Stearns were shielded from disclosure in the district court because Section 61–31–24 of the Social Work Practice Act created an evidentiary privilege with exceptions for testimony about child abuse that applied neither in a criminal proceeding, id. ¶ 30, nor in any case in which a social worker had not previously reported the abuse, id. ¶ 31, and because the Rule 11–504 privilege exception did not apply where a social worker was not acting as a government employee or contractor and therefore was not a mandatory reporter under Section 32A–4–3(A) of the Abuse and Neglect Act, id. ¶ 20.

{10} The dissent would have reversed the district court's protective order, concluding that the language requiring “ ‘every person’ ” to report information of child abuse “manifests our Legislature's express intent to create an affirmative duty on all persons to report child abuse.” Id. ¶ 39 (Hanisee, J., dissenting).

{11} We granted the State's petition for writ of certiorari to address the important precedential issues involved. See State v. Strauch, 2014–NMCERT–001.

II. DISCUSSION

{12} There are two related lines of analysis that determine the result in this case, one of them construing the scope of the mandatory out-of-court child abuse reporting provisions of a criminal statute and the other determining the applicability of in-court evidentiary privileges. Because this controversy arose through an effort to mandate in-court disclosure of arguably privileged communications rather than through a criminal prosecution to punish a failure to report, the privilege rules ultimately are dispositive. But in order to construe and apply privilege rules that depend in part on statutory reporting requirements, it is necessary first to understand the scope of those requirements.

A. Standard of Review

{13} This case requires us to construe both legislative enactments and court rules. We review issues of statutory interpretation de novo. State v. Almanzar, 2014–NMSC–001, ¶ 9, 316 P.3d 183. Our “primary goal when interpreting statutes is to further legislative intent.” Jordan v. Allstate Ins. Co., 2010–NMSC–051, ¶ 15, 149 N.M. 162, 245 P.3d 1214. Although the first guide to statutory interpretation is the actual wording of the statute, we have recognized that where the meaning of the facial language of a statute is in doubt, the plain language approach may not lead to a correct interpretation of true legislative intent. See Benavides v. Eastern New Mexico Medical Center, 2014–NMSC–037, ¶ 24, 338 P.3d 1265. In interpreting statutory language as well as in much of the other work courts are called on to perform, it is necessary to think thoughts and not words. See State v. Office of Pub., Defender ex rel. Muqqddin, 2012–NMSC–029, ¶ 54, 285 P.3d 622. We have repeatedly cautioned that despite the “ ‘beguiling simplicity’ ” of parsing the words on the face of a statute, we must take care to avoid adoption of a construction that would render the statute's application absurd or unreasonable or lead to injustice or contradiction. State ex rel. Children, Youth & Families Dep't v. Maurice H. (In re Grace H.), 2014–NMSC–034, ¶ 34, 335 P.3d 746 (citation omitted); State v. Nick R., 2009–NMSC–050, ¶ 11, 147 N.M. 182, 218 P.3d 868.

{14} We...