Johnson v. O'Connor

327 P.3d 218, 235 Ariz. 85
CourtCourt of Appeals of Arizona
DecidedJune 6, 2014
DocketNos. 1 CA-SA 14-0035, 1 CA-SA 14-0036
StatusPublished
Cited by12 cases

This text of 327 P.3d 218 (Johnson v. O'Connor) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. O'Connor, 327 P.3d 218, 235 Ariz. 85 (Ark. Ct. App. 2014).

Opinions

OPINION

HOWE, Judge.

¶ 1 Psychological Counseling Services, Ltd., (“PCS”) located in Arizona, provided counseling to Samuel C. Johnson. The Mari-copa County Superior Court has issued a summons under the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (“the Uniform Act” or “the Act”), codified in AR.S. §§ 13-4091 to -4096, ordering PCS’s custodian of records (“custodian”) to testify and to produce Johnson’s treatment records in a Wisconsin criminal proceeding against Johnson. PCS and Johnson seek review of the superior court’s order. They make various arguments that the superior court had no authority to issue the summons, but argue primarily that the superior court erred in issuing it without first determining whether the treatment records were protected from disclosure under Arizona’s medical records privacy statutes and psychologist-client privilege.

¶ 2 We hold that the superior court properly issued the summons and correctly declined to consider whether the treatment records are privileged or protected by medical record privacy laws. Whether evidence sought under the Uniform Act is privileged or protected from disclosure is a determination for the state court requesting the summons, not for the state court issuing the summons.

FACTS AND PROCEDURAL HISTORY

¶ 3 During Johnson’s treatment with PCS, Johnson made statements that led the treating psychologists to reasonably believe that a minor in Wisconsin had been abused. PCS reported those statements to authorities, as AR.S. § 13-3620 requires.

¶4 In February 2012, once criminal proceedings against Johnson had begun in Wisconsin, the Racine County Circuit Court for the State of Wisconsin issued a certification pursuant to the Uniform Act to secure documents and a witness for Johnson’s trial. The documents requested included Johnson’s medical records, including those records that involved group therapy sessions. On behalf of the Wisconsin court, the State of Arizona presented the certification to the Maricopa County Superior Court and asked it to issue a summons ordering PCS’s custodian to appear, testify, and produce documents in the Wisconsin court. The superior court ordered the custodian to appear before it and show cause why a summons should not issue. Under AR.S. § 13-4092(B), the superior court was required to issue the summons if it found after a hearing that the custodian was a “material and necessary” witness, that compelling his attendance and testimony would not cause an “undue hardship,” and that the laws of Wisconsin would protect the custodian from arrest or service of process. It also [88]*88ordered PCS to outline the medical records at issue and any privilege concerns for an in camera review. The court later declared the issue moot, howevei’, after finding no reason to send the records or custodian to Wisconsin because no hearing or trial date had been set.

¶ 5 On July 19, 2013, the circuit court sent a second certification stating that a criminal prosecution against Johnson was pending and again requesting that the custodian appear, testify, and produce documents for a trial set for January 6, 2014. The certification noted that PCS’s custodian could send Johnson’s treatment records in lieu of personally appearing. After receiving the certification, the superior court again issued an order to show cause. The superior court vacated its order, however after it learned that the January 6 trial date had been vacated.

¶ 6 On December 17, 2013, the circuit court issued a third certificate, repeating its request for the appearance of PCS’s custodian with Johnson’s treatment records — or the submission of the records in lieu of the custodian’s appearance — at a hearing scheduled for March 26, 2014. The hearing’s purpose was to review the records requested. The superior court issued a third order to show cause.

¶ 7 Johnson and PCS made several arguments why the court should not issue a summons. They argued that (1) the superior court was collaterally estopped from considering the certification because another superior court had denied the earlier certification for the lack of a trial date; (2) the current certification did not set forth a trial date and the case was currently pending review before the Wisconsin Supreme Court; and (3) the Uniform Act does not allow for subpoenas of documents. They also argued that, if the court issued the summons, the court must determine whether the requested records were protected under the psychologist-client privilege, because if the records were protected, the custodian would not be a material witness under the Uniform Act.

¶8 The State objected to Johnson’s involvement in the matter, arguing that Johnson had no standing to object to the issuance of the summons. The State noted that although Johnson could object to the admission of the records based on psychologist-client privilege, the venue to resolve that issue was Wisconsin.

¶ 9 The court applied the Uniform Act and found that PCS’s custodian was a material and necessary witness and that the custodian would be protected from arrest and service of process in Wisconsin. The court also found, however, sending the custodian to Wisconsin would be an undue hardship because the court was uncertain whether the hearing would occur, given that a proceeding was occurring in the Wisconsin Supreme Court.

¶ 10 The State moved for reconsideration, arguing that the March 26 hearing was still set to occur. The State attached a letter from a Wisconsin circuit court judge explaining that the March hearing would occur and that he would review the requested documents in camera. PCS and Johnson opposed this motion, arguing that because a trial date still had not been set, the request for the custodian did not comply with the Uniform Act. The State moved to strike Johnson’s pleading, repeating its argument that Johnson lacked standing in the proceeding.

¶ 11 The court granted the motion for reconsideration, finding that the certification satisfied the Uniform Act’s requirements. The court noted that it had already found that PCS’s custodian was a material and necessary witness and that the custodian would be protected from arrest and service of process, and stated that it would now find that sending the custodian to Wisconsin would not be an undue hardship because the hearing would occur. The court also granted the State’s motion to strike Johnson’s pleadings in the matter. The court recognized that the Arizona Supreme Court had held in Tracy v. Superior Court (Navajo Nation), 168 Ariz. 23, 43-44, 810 P.2d 1030, 1050-51 (1991), that matters of professional privileges should be resolved in the state requesting the summons, not in the state issuing the summons. Because Johnson had to pursue the privilege issue in the Wisconsin courts, the superior court ruled that he had no [89]*89standing to object to the issuance of the summons and that the court had no duty to review the records in camera to determine whether they were privileged. The superior court consequently issued a summons directs ing the custodian to produce the requested records and appear before the Wisconsin court at the hearing on March 26, 2014, or in lieu of personal appearance, to send the requested documents to the Wisconsin court.

¶ 12 PCS and Johnson separately petitioned for special action review of this order. This Court consolidated the special actions and stayed the order until further review. This Court heard oral argument on March 26, 2014.

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Cite This Page — Counsel Stack

Bluebook (online)
327 P.3d 218, 235 Ariz. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-oconnor-arizctapp-2014.