State v. Strauch

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: March 9, 2015 4 NO. 34,435 5 STATE OF NEW MEXICO, 6 Plaintiff-Petitioner, 7 v. 8 JASON STRAUCH, 9 Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI 11 Jacqueline D. Flores, District Judge

12 Hector H. Balderas, Attorney General 13 Ralph E. Trujillo, Assistant Attorney General 14 Santa Fe, NM

15 for Petitioner

16 Theresa Duncan 17 Albuquerque, NM

18 for Respondent

19 New Mexico Children, Youth and Families Department 20 Jennifer Jo Saavedra 21 Santa Fe, NM 1 for Amicus Curiae 2 New Mexico Children, Youth and Families Department 1 OPINION 2 DANIELS, Justice. 3 {1} The child abuse reporting requirement of the Abuse and Neglect Act in the 4 New Mexico Children’s Code mandates that

5 [e]very person, including a licensed physician; a resident or an intern 6 examining, attending or treating a child; a law enforcement officer; a 7 judge presiding during a proceeding; a registered nurse; a visiting nurse; 8 a schoolteacher; a school official; a social worker acting in an official 9 capacity; or a member of the clergy who has information that is not 10 privileged as a matter of law, who knows or has a reasonable suspicion 11 that a child is an abused or a neglected child shall report the matter

12 to specified authorities. NMSA 1978, § 32A-4-3(A) (2005). In this case, we consider 13 the scope of this statutory reporting requirement and its relationships to statutory 14 protection of confidential communications and to the privileged-communication 15 provisions of the New Mexico Rules of Evidence. 16 {2} We conclude that both privately and publicly employed social workers are 17 mandatory child abuse reporters, in light of the statutory history and the broadly 18 inclusive terms of the Abuse and Neglect Act. Consequently, statements made to a 19 social worker by an alleged child abuser in private counseling sessions are not 20 protected from disclosure in a court proceeding as a result of the specific exception 21 to the physician-patient and psychotherapist-patient evidentiary privilege in Rule 11- 22 504(D)(4) NMRA of the New Mexico Rules of Evidence, which provides, “No

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1 privilege shall apply for confidential communications concerning any material that 2 a [social worker] is required by law to report to a public employee or public agency.” 3 I. BACKGROUND 4 {3} Defendant Jason Strauch allegedly revealed to his wife that he had been 5 sexually abusing their minor daughter. Defendant moved out of the family home and 6 began attending counseling sessions as a patient of Frederick Stearns, a private- 7 practice social worker licensed by the State of New Mexico. The couple reconciled 8 and Defendant moved back home after several months of counseling. Defendant 9 continued to see Mr. Stearns, and Defendant’s wife attended several of these 10 counseling sessions each year over the next few years. When Defendant’s daughter 11 revealed to her mother that the sexual abuse had never stopped, his wife separated 12 from Defendant and reported the abuse. 13 {4} Defendant was charged with four counts of criminal sexual contact of a minor 14 in the second degree, contrary to NMSA 1978, Section 30-9-13(A)-(B) (2003), which 15 provides enhanced penalties when the victim is under the age of thirteen. After the 16 State filed a notice of intent to call Mr. Stearns as a prosecution witness and 17 attempted to obtain records of the counseling sessions, Defendant filed a motion in 18 the district court for a protective order, arguing that the communications with Mr.

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1 Stearns were protected from disclosure both by statute, particularly NMSA 1978, § 2 61-31-24(B) (1989) (providing under the Social Work Practice Act that “[n]o licensed 3 social worker may disclose any information he has acquired from a person consulting 4 him in his professional capacity” unless any of four limited exceptions apply), and by 5 evidentiary privilege, particularly Rule 11-504(A)(4), (B)-(D) (establishing under the 6 New Mexico Rules of Evidence that a patient’s confidential communications with a 7 licensed social worker “made for the purpose of diagnosis or treatment of the 8 patient’s physical, mental, or emotional condition” are privileged from disclosure in 9 a court proceeding unless any of four limited exceptions apply), see Rule 11-1101(C) 10 NMRA (“The rules on privilege apply to all stages of a case or proceeding.”).1 11 {5} The State argued that the statutes and evidentiary rules mandated disclosure, 12 pointing to the broadly inclusive term “[e]very person” in the Abuse and Neglect Act 13 reporting requirement, § 32A-4-3(A); to the Social Work Practice Act confidentiality 14 exception, § 61-31-24(C) (requiring disclosure of “information in court hearings 15 concerning matters of adoption, child abuse, child neglect or other matters pertaining

16 1 The New Mexico Rules of Evidence applicable in 2011 when this case was 17 filed in district court have since been amended “effective for all cases pending or filed 18 [as of various effective 2013 dates].” See, e.g., Rule 11-504 (indicating the effective 19 date provision of the Rules of Evidence). Because those amendments do not affect the 20 substance of the relevant rules or the outcome of this pending case, this opinion does 21 not distinguish between versions of the rules and quotes the current rules.

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1 to the welfare of children as stipulated in the Children’s Code”); and to the New 2 Mexico Rules of Evidence evidentiary privilege exception, Rule 11-504(D)(4) 3 (applying to “confidential communications concerning any material that a [social 4 worker] or patient is required by law to report to a public employee or public 5 agency”). 6 {6} On the issues now before this Court, the district court ruled that Mr. Stearns 7 was not a mandatory reporter under Section 32A-4-3(A) of the Abuse and Neglect 8 Act because his counseling sessions were conducted in his capacity as a private 9 therapist rather than, in the words of the statute, in an “official capacity”; that 10 Defendant’s communications with Mr. Stearns were privileged under Rule 11-504; 11 and that the Rule 11-504(D)(4) privilege exception did not apply to the 12 communications between Defendant and Mr. Stearns because Mr. Stearns was not 13 required by law to report what he learned in private counseling sessions. 14 {7} On interlocutory appeal by the State, a majority of the Court of Appeals panel 15 affirmed the district court’s protective order. State v. Strauch, 2014-NMCA-020, ¶¶ 16 1, 32, 317 P.3d 878. The two-judge majority held that the Abuse and Neglect Act did 17 not make Mr. Stearns a mandatory reporter because the statute does not actually 18 require “every person” to report child abuse but only those categories of persons the

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1 statute specifically identifies after the words, “every person, including,” id. ¶ 10, as 2 well as “other professionals or government officials who are likely to come into 3 contact with abused [or] neglected children during the course of their professional 4 work,” id. ¶ 19. 5 {8} The majority held as well that Mr. Stearns was statutorily relieved of reporting 6 child abuse because he had not been, in the words of the statute, “a social worker 7 acting in an official capacity.” Id. ¶ 20. The majority construed that phrase to mean 8 that the statute imposes a reporting requirement only when the social worker counsels 9 patients as a government employee or contractor and not in any other professional 10 capacity. Id. 11 {9} The majority opinion also held that the communications between Defendant 12 and Mr. Stearns were shielded from disclosure in the district court because Section 13 61-31-24 of the Social Work Practice Act created an evidentiary privilege with 14 exceptions for testimony about child abuse that applied neither in a criminal 15 proceeding, id. ¶ 30, nor in any case in which a social worker had not previously 16 reported the abuse, id. ¶ 31, and because the Rule 11-504 privilege exception did not 17 apply where a social worker was not acting as a government employee or contractor 18 and therefore was not a mandatory reporter under Section 32A-4-3(A) of the Abuse

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1 and Neglect Act, id. ¶ 20. 2 {10} The dissent would have reversed the district court’s protective order, 3 concluding that the language requiring “‘every person’” to report information of child 4 abuse “manifests our Legislature’s express intent to create an affirmative duty on all 5 persons to report child abuse.” Id. ¶ 39 (Hanisee, J., dissenting). 6 {11} We granted the State’s petition for writ of certiorari to address the important 7 precedential issues involved. See State v. Strauch, 2014-NMCERT-001. 8 II. DISCUSSION 9 {12} There are two related lines of analysis that determine the result in this case, one 10 of them construing the scope of the mandatory out-of-court child abuse reporting 11 provisions of a criminal statute and the other determining the applicability of in-court 12 evidentiary privileges. Because this controversy arose through an effort to mandate 13 in-court disclosure of arguably privileged communications rather than through a 14 criminal prosecution to punish a failure to report, the privilege rules ultimately are 15 dispositive. But in order to construe and apply privilege rules that depend in part on 16 statutory reporting requirements, it is necessary first to understand the scope of those 17 requirements. 18 A. Standard of Review

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1 {13} This case requires us to construe both legislative enactments and court rules. 2 We review issues of statutory interpretation de novo. State v. Almanzar, 3 2014-NMSC-001, ¶ 9, 316 P.3d 183. Our “primary goal when interpreting statutes is 4 to further legislative intent.” Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 5 N.M. 162, 245 P.3d 1214. Although the first guide to statutory interpretation is the 6 actual wording of the statute, we have recognized that where the meaning of the facial 7 language of a statute is in doubt, the plain language approach may not lead to a 8 correct interpretation of true legislative intent. See Benavides v. Eastern New Mexico 9 Medical Center, 2014-NMSC-037, ¶ 24, 338 P.3d 1265. In interpreting statutory 10 language as well as in much of the other work courts are called on to perform, it is 11 necessary to think thoughts and not words. See State v. Office of Pub, Defender ex rel. 12 Muqqddin, 2012-NMSC-029, ¶ 54, 285 P.3d 622. We have repeatedly cautioned that 13 despite the “‘beguiling simplicity’” of parsing the words on the face of a statute, we 14 must take care to avoid adoption of a construction that would render the statute’s 15 application absurd or unreasonable or lead to injustice or contradiction. State ex rel. 16 Children, Youth & Families Dep’t v. Maurice H. (In re Grace H.), 2014-NMSC-034, 17 ¶ 34, 335 P.3d 746 (citation omitted); State v. Nick R., 2009-NMSC-050, ¶ 11, 147 18 N.M. 182, 218 P.3d 868.

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1 {14} We therefore must “examine the plain language of the statute as well as the 2 context in which it was promulgated, including the history of the statute and the 3 object and purpose the Legislature sought to accomplish.” Maes v. Audubon Indem. 4 Ins. Grp., 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934; see also State Bd. of 5 Educ. v. Bd. of Educ. of Alamogordo Pub. Sch. Dist. No. 1, 1981-NMSC-031, ¶ 14, 6 95 N.M. 588, 624 P.2d 530 (“In ascertaining the legislative intent, we look not only 7 to the language used in [a] statute, but also to the object sought to be accomplished 8 and the wrong to be remedied.”). 9 B. Reporting Requirements of the Abuse and Neglect Act 10 {15} Despite the fact that the statutory analysis in this case focuses primarily on the 11 single sentence in Section 32A-4-3(A) describing the reporting requirements, the 12 apparent simplicity of that sentence has proved to be deceptive. We appreciate the 13 difficulties the parties and the courts below have had in interpreting the current facial 14 language of the Abuse and Neglect Act because we also have not found satisfactory 15 answers by just looking at the words in the current version of a statute that has been 16 repeatedly amended over the course of the half century since the first version was 17 enacted in 1965. See 1965 N.M. Laws, ch. 157. (For the reader’s convenience, the 18 appendix to this opinion is a chronology of all versions of the statutory reporting

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1 language from 1965 to the present.) Simply parsing words in the current version of 2 the statute and attempting to discern legislative intent from isolated grammatical 3 analyses raises more difficult questions than it provides definitive answers. 4 {16} For example, if the Legislature had meant to impose a reporting requirement 5 on only the professionals specifically mentioned in the statute, why did it include the 6 words, “[e]very person, including” immediately before identifying those professions? 7 Conversely, if the Legislature had meant to impose a reporting requirement on every 8 person, why did it then specifically mention some occupations and not others? Why 9 did the Legislature amend the statute in 2003 to omit the language “but not limited 10 to” between the words “[e]very person, including” and the listing of identified 11 professionals that followed? Compare 2005 N.M. Laws, ch. 189, § 38(A), with 2003 12 N.M. Laws, ch. 189, § 1(A). Why would the Legislature have imposed a mandatory 13 reporting requirement on a social worker providing counseling services while 14 employed by a public school or other government agency and not on a social worker 15 providing the same kind of counseling while employed by a private school or 16 business or while self-employed? If the Legislature really intended “official capacity” 17 to make such a distinction, why would it not apply the same distinction to the 18 physicians and teachers and other occupations mentioned in the statute? More

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1 globally, what is the relationship between the reporting requirements of the statute 2 and the evidentiary privileges in the New Mexico Rules of Evidence? And why would 3 the judiciary’s evidentiary privilege rules protect the confidentiality of counseling 4 sessions with a privately paid social worker and not the same kind of counseling with 5 a government-salaried social worker? In this opinion, we seek to find a principled 6 resolution that furthers the legislative purpose while either answering those questions 7 or putting them to rest as irrelevant. 8 {17} As we have found with other unclear statutory provisions in the past, “the 9 statutory history provides us with guidance as to the legislative intent,” allowing us 10 to “‘promote the legislature’s accomplishment of its purpose.’” Ortiz v. Overland 11 Express, 2010-NMSC-021, ¶¶ 19, 21, 148 N.M. 405, 237 P.3d 707 (citation omitted) 12 (interpreting a statute to achieve its apparent purpose where amendments had 13 inadvertently led to an unintended textual interpretation). In order to fully appreciate 14 where we are, we need to understand how we got here. 15 1. Statutory Origins 16 {18} New Mexico did not enact its child abuse reporting statute in a vacuum. Our 17 statute was part of a national movement that was spurred in 1962 by publication of 18 a seminal article, The Battered-Child Syndrome, in the Journal of the American

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1 Medical Association. See Leonard G. Brown, III & Kevin Gallagher, Mandatory 2 Reporting of Abuse: A Historical Perspective on the Evolution of States’ Current 3 Mandatory Reporting Laws with a Review of the Laws in the Commonwealth of 4 Pennsylvania, 59 Vill. L. Rev. Tolle Lege 37, 37 & n.4 (2013). Prior to the article’s 5 publication, no state had enacted a child abuse reporting law, but within just the next 6 four years, all fifty states had done so. Id. at 37. 7 {19} Following publication of The Battered-Child Syndrome, which “worked to 8 galvanize the American public to take action,” Brown & Gallagher, supra, at 39, a 9 number of medical and legal professionals published articles about the problem of 10 child abuse and the need for protective statutes, particularly including reporting laws. 11 See, e.g., Allan H. McCoid, The Battered Child and Other Assaults Upon the Family: 12 Part One, 50 Minn. L. Rev. 1, 3-19 (1965). The Children’s Bureau of the United 13 States Department of Health, Education, and Welfare2, the Council of State 14 Governments, the American Humane Association, and the American Medical 15 Association all drafted model statutes to “offer various alternatives to the state 16 legislators [considering enactment of reporting legislation] on the issue of who should

2 17 The United States Department of Health, Education, and Welfare became the 18 United States Department of Health and Human Services in 1979. As of 1979, the 19 Children’s Bureau is an office within a division of the department. See, e.g., 20 organizational information available at http://www.acf.hhs.gov/about/offices.

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1 be required to report.” Monrad G. Paulsen, Child Abuse Reporting Laws: The Shape 2 of the Legislation, 67 Colum. L. Rev. 1, 2 & n.4, 3 (1967). Throughout the United 3 States, “child abuse reporting laws were passed quickly, perhaps even hastily.” 4 Brown & Gallagher, supra, at 39. 5 {20} The 1963 Children’s Bureau proposal, initially followed by twenty-two states, 6 would have imposed a reporting duty only on physicians, on the theory that 7 physicians would be in the best position to learn of child abuse. Paulsen, supra, at 2 8 n.4, 3-4, 6; see John B. Reinhart & Elizabeth Elmer, The Abused Child[:] Mandatory 9 Reporting Legislation, 188 J. Am. Med. Ass’n, Apr. 27, 1964, at 358 (discussing 10 advantages and disadvantages of the 1963 Children’s Bureau proposal for the model 11 legislation). An advisory committee of the American Humane Association proposed 12 in 1963 to broaden the class of reporters to include all medical practitioners and 13 hospital personnel. Paulsen, supra, at 2 n.6, 4. In 1965, the Council of State 14 Governments added registered nurses to its list of required reporters. Id. at 2 n.5, 5. 15 {21} The “American Medical Association (AMA) objected to physicians’ being 16 singled out for a special reporting duty” and proposed adding schoolteachers and 17 social workers to those under a duty to report, extending the reporting requirement 18 in its 1965 proposed legislation to “‘any doctor of medicine, resident or intern[,] . . .

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1 any registered nurse, any visiting nurse, any school teacher or any social worker 2 acting in his or her official capacity.’” Paulsen, supra, at 3 n.7, 5 (omission in 3 original) (quoting the 1965 AMA proposed legislation); see Office of the General 4 Counsel, AMA, Editorial, Battered Child Legislation, 188 J. Am. Med. Ass’n, Apr. 5 27, 1964, at 386 (recommending that mandatory reporting of child abuse extend 6 beyond physicians to other professions, including social workers). 7 {22} In 1965, the New Mexico Legislature enacted the first predecessor to our 8 current law, a permissive statute providing that “[a]ny licensed practitioner of the 9 healing arts, resident, or intern, examining, attending, or treating a child under the age 10 of 16 years, any registered nurse, any visiting nurse, any school teacher or social 11 worker acting in his or her official capacity, or any ordained minister of an 12 established church” was permitted, but not required, to report suspected child abuse 13 without risk of a lawsuit. 1965 N.M. Laws, ch. 157, § 2. The “official capacity” 14 language has been a feature of the reporting statute in every version from 1965 to the 15 present, and to understand its significance it is important to understand its history. 16 2. The “Official Capacity” Language 17 {23} In the 1965 New Mexico act, terminology identifying occupations of listed 18 reporters tracked the language of the AMA model statute, including use of the

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1 qualifying phrase “acting in his or her official capacity” after the listed occupations; 2 but this original New Mexico act added the language, “any ordained minister of an 3 established church,” at the end of the listing instead of inserting it at an earlier point 4 in the listing before the phrase “acting in his or her official capacity.” 1965 N.M. 5 Laws, ch. 157, § 2. 6 {24} The phrase “acting in his or her official capacity” in the original New Mexico 7 statute was identical in wording and placement to the same phrase contained in the 8 AMA proposed legislation. This phrase followed the entire list of AMA-suggested 9 occupations, and there is nothing in grammar or reason to indicate that it was meant 10 to apply only to the final occupation in the list, social workers. The other states that 11 have adopted the “official capacity” language from the AMA proposal have variously 12 placed the language at the beginning of the listing of occupations, at the end of the 13 listing as in the AMA model, or in a separate paragraph applicable to all categories. 14 See, e.g., N.Y. Consol. Laws ch. 55, art. 6, § 413(1)(a) (McKinney 2015) (providing 15 that “[t]he following persons and officials are required to report . . . when they have 16 reasonable cause to suspect that a child coming before them in their professional or 17 official capacity is an abused or maltreated child,” followed by a lengthy listing of 18 occupations, including mental health counselors and social workers); 325 Ill. Comp.

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1 Stat. Ann. 5/4 (West 2014) (imposing a reporting requirement on an extensive list of 2 occupations and relationships, including social workers, and ending the list with “or 3 any other foster parent, homemaker or child care worker having reasonable cause to 4 believe a child known to them in their professional or official capacity may be an 5 abused child or a neglected child”); Ohio Rev. Code Ann. § 2151.421(A)(1)(a) (West 6 2014) (“No person described [in the extensive listing of occupations] in division 7 (A)(1)(b) of this section who is acting in an official or professional capacity and 8 knows, or has reasonable cause to suspect . . . that a child [has been abused] shall fail 9 to immediately report . . . .”). 10 {25} New Mexico’s placement of the “official capacity” qualification before the last- 11 listed occupation, ordained ministers, appears to be nothing more than a historical 12 anomaly resulting from the Legislature’s tacking on ordained ministers at the end of 13 the language taken from the AMA model act. Compare 1965 N.M. Laws, ch. 157, § 14 2 (indicating at the end of the listing of permissive reporters “, any registered nurse, 15 any visiting nurse, any school teacher or social worker acting in his or her official 16 capacity, or any ordained minister of an established church . . .”), with Paulsen, supra, 17 at 5 (indicating at the end of the listing of required reporters “‘, any registered nurse, 18 any visiting nurse, any school teacher or any social worker acting in his or her official

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1 capacity. . . .’” (quoting the 1965 AMA proposed legislation)). 2 {26} There is also no reason to find significance in the use of semicolons before and 3 after the language referring to social workers in the current statute. The language in 4 both the AMA model act and the original New Mexico enactment had no punctuation 5 separating the final two occupations listed: “any school teacher or [any] social worker 6 acting in his or her official capacity.” 1965 N.M. Laws, ch. 157, § 2. It was not until 7 thirty-eight years later that the semicolons appeared in a 2003 amendment aimed 8 solely at clarifying the clergy’s duty to report child abuse. See 2003 N.M. Laws, ch. 9 189, § 1 (amending the law in an act entitled “Relating to the Children’s Code: 10 Clarifying a Member of the Clergy’s Duty to Report Child Abuse”). In the 2003 11 amendment process concerned with the clergy’s required reporting of information not 12 learned through confidential communications, the commas that had separated all but 13 the last three reporter occupations were replaced with semicolons between all named 14 occupations, changing the relevant language at the time from “, a schoolteacher or a 15 school official or social worker acting in an official capacity” in Chapter 34, Section 16 2(A) of New Mexico Laws of 1997 to “; a schoolteacher; a school official; a social 17 worker acting in an official capacity; or a member of the clergy who has information 18 that is not privileged as a matter of law” in Chapter 189, Section 1(A) of New Mexico

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1 Laws of 2003. 2 {27} We have found nothing in our research to indicate that, by using the phrase 3 “acting in [‘his or her’ or ‘an’ or ‘their’] official capacity” at the end of the list of 4 covered occupations, either the AMA or the jurisdictions that used its suggested 5 language meant to distinguish between health care, education, and social work 6 professionals employed by government and those employed otherwise. In fact, the 7 few cases to construe the language at all use “official capacity” interchangeably with 8 “professional capacity,” interpreting the language to distinguish between child abuse 9 knowledge gained through activities in the listed occupations and knowledge gained 10 in other capacities. The rationale underlying the use of the modifiers “official” or 11 “professional” has been explained well by the Ohio Supreme Court:

12 Because abused and neglected children lack the ability to ameliorate 13 their own plight, [the Ohio reporting statute] imposes mandatory 14 reporting duties on “those with special relationships with children, such 15 as doctors and teachers.” These persons, when acting in their official or 16 professional capacity, hold unique positions in our society. They are not 17 only the most likely and qualified persons to encounter and identify 18 abused and neglected children, but they are often directly responsible for 19 the care, custody, or control of these children in one form or another.

20 Yates v. Mansfield Bd. of Educ., 2004-Ohio-2491, ¶ 30, 808 N.E.2d 861 (citations 21 omitted). “The duty is to report knowledge or suspicion of abuse or neglect that the 22 designated persons encounter while doing their ordinary work. . . . What the statute

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1 requires is actually quite minimal: when teachers, or others who are required to 2 report, encounter suspected abuse or neglect in their official capacity, they must 3 report it.” State v. Clark, 2013-Ohio-4731, ¶¶ 83, 85, 999 N.E.2d 592 (O’Connor, 4 C.J., dissenting on an issue unrelated to the reporting requirement), cert. granted, ___ 5 U.S. ___, 135 S. Ct. 43 (2014). Our research has found no case from any other 6 jurisdiction that discerned a distinction between professionals receiving their 7 compensation from the government and those receiving their compensation from 8 private individuals or organizations. 9 {28} The “official capacity” language had more significance in New Mexico’s 10 original version of the reporting statute applicable only to the named occupations, a 11 limitation that changed in just a few years with statutory amendments that expanded 12 the list of reporters from certain described occupations to all persons learning of 13 abuse and changed the reporting from discretionary to mandatory. 14 3. The “Every Person” Language 15 {29} Following the initial adoption of child abuse legislation by New Mexico and 16 other states, the American Humane Association in 1966 endorsed legislation 17 proposing to place a reporting duty on all persons rather than only on identified 18 categories, on the theory that alerting authorities to child abuse was a “‘universal

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1 obligation of all responsible citizens and all community agencies.’” Paulsen, supra, 2 at 5 & n.17 (quoting 1966 American Humane Association recommendations for 3 legislation). 4 {30} Initially, three states, Nebraska, Tennessee, and Utah, adopted universal 5 reporting by either “requiring all adults to report while also enumerating certain 6 professional groups or simply requiring all adults to report.” Brown & Gallagher, 7 supra, at 40 & n.25. Indiana followed suit in 1971, amending its designated reporter 8 statute to one “that would subsequently be mimicked by fifteen other states.” Id. at 9 42. The Indiana statute “enumerated certain categories of professionals that were 10 required to report while also putting the duty on all persons in the state.” Id. 11 {31} In 1973, New Mexico became one of those states by amending its reporting 12 statute (1) to broaden the class of reporters by substituting the language “or any other 13 person having reason to believe [a child has been abused]” in Chapter 360, Section 14 2(A) of New Mexico Laws of 1973 for the language “or any ordained minister of an 15 established church, having reason to believe [a child has been abused]” in Chapter 16 157, Section 2 of New Mexico Laws of 1965 after the designated occupations listing 17 that ended with “school teacher or social worker acting in his or her official capacity,” 18 and (2) to make reporting mandatory (“shall report”) instead of simply permissive

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1 (“may report”). 2 {32} Also in 1973, the federal government passed the Child Abuse Prevention and 3 Treatment and Adoption Reform Act, see 42 U.S.C. §§ 5101-5107 (2012), which 4 required every state to enact mandatory, rather than permissive, child abuse reporting 5 statutes in order to be eligible for federal funding. Brown & Gallagher, supra, at 43 6 & n.41, 45. The Children’s Bureau reported that as of November 2013 all states had 7 mandatory reporting statutes, the majority limiting the duty to identified categories 8 but eighteen states placing all persons under a duty to report. See United States 9 Department of Health and Human Services, Children’s Bureau, Mandatory Reporters 10 of Child Abuse and Neglect, at 1-2 & n.9 (2013), available at 11 https://library.childwelfare.gov/cwig/ws/library/docs/gateway/Record?w=NATIV 12 E%28%27SIMPLE_SRCH+ph+is+%27%27Mandatory+Reporters+of+Child+Ab 13 use+and+Neglect%27%27%27%29&upp=0&order=native%28%27year%2FDesc 14 end%27%29&rpp=25&r=1&m=2& (last visited March 6, 2015). 15 {33} Sixteen of the eighteen states that impose reporting duties on everyone, 16 including New Mexico, “specify certain professionals who must report but also 17 require all persons to report suspected abuse or neglect, regardless of profession.” Id. 18 at 2 & n.9, 15-57 (naming New Mexico and the fifteen other states and citing and

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1 summarizing the reporting statutes of these states). This combination of identified 2 occupations and broadly inclusive language has been widely recognized as imposing 3 universal reporting requirements.

4 The broadest category of mandated reporters are those indicated 5 by provisions that specify “any person, including but not limited to . . .” 6 followed by a listing of specified professions required to report, or that 7 begin with a listing of professions that must report, then conclude with 8 the phrase, “or any other person . . . .”

9 United States Department of Health and Human Services, Children’s Bureau Issue 10 Paper, Current Trends in Child Maltreatment Reporting Laws, at 3 & n.9 (September 11 2002), available at 12 https://library.childwelfare.gov/cwig/ws/library/docs/gateway/Record?w=NATIV 13 E%28%27SIMPLE_SRCH+ph+is+%27%27Current+Trends+in+Child+Maltreatm 14 ent+Reporting+Laws%27%27%27%29&upp=0&order=native%28%27year%2FD 15 escend%27%29&rpp=25&r=1&m=1& (last visited March 6, 2015) 16 (citing New Mexico as one of the eighteen states whose statutes impose a duty on 17 “any person who suspects child abuse or neglect”); see also Brown & Gallagher, 18 supra, at 42 & n.34 (listing New Mexico among the states that followed Indiana’s 19 lead in combining identified occupations with “any person” or “any other person” 20 language to impose duties to report child abuse on all persons and not just those

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1 identified); Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting 2 Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. 3 L. Rev. 723, 729 (1987) (“[M]any statutes, in addition to or instead of listing those 4 persons required to report, simply impose the duty to report on ‘any person’ who 5 suspects child abuse.” (footnote omitted)). 6 {34} It is helpful to consider the persuasive interpretations of similar statutory 7 schemes by authorities in other jurisdictions. See Sec. Ins. Co. of Hartford v. 8 Chapman, 1975-NMSC-052, ¶ 19, 88 N.M. 292, 540 P.2d 222 (“Of course, the 9 decisions of other states, if any, which have statutory provisions comparable to ours, 10 with which we are here concerned, are persuasive but not binding on us.”). Florida, 11 Idaho, Kentucky, New Hampshire, and Texas are among the sixteen states with child 12 abuse reporting laws similar to the New Mexico law, identifying specific 13 professionals while simultaneously requiring “any other person” or “any person” or 14 “other person” to report. See Fla. Stat. Ann. § 39.201(1)(a), (d) (West 2014) (“Any 15 person who . . . has reasonable cause to suspect[] that a child is abused . . . shall 16 report such knowledge[,] . . . [and r]eporters in the [listed] occupation categories are 17 required to provide their names . . . .”); Idaho Code Ann. § 16-1605(1) (West 2005) 18 (“Any physician, . . . social worker, or other person having reason to believe that a

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1 child . . . has been abused . . . shall report . . . .”); Ky. Rev. Stat. Ann. § 620.030(1) 2 (West 2013) (“Any person who . . . has reasonable cause to believe that a child is . . . 3 abused shall immediately . . . report . . . .”); N.H. Rev. Stat. Ann. § 169-C:29 (West 4 1979) (“Any physician, . . . social worker, . . . or rabbi or any other person having 5 reason to suspect that a child has been abused . . . shall report . . . .”); Tex. Fam. Code 6 Ann. § 261.101(a)-(b) (West 2013) (“A person having cause to believe that a child’s 7 . . . health or welfare has been adversely affected by abuse . . . shall immediately make 8 a report . . . and . . . [any listed] professional shall make [the] report not later than the 9 48th hour after the hour the professional first suspects [the abuse].”). Idaho, 10 Kentucky, and Texas courts and the Florida Attorney General have interpreted the 11 scope of the duty to report under their similarly worded statutes to extend to all 12 persons. See Quiring v. Quiring, 944 P.2d 695, 702 (Idaho 1997) (relying on the prior 13 enumeration of the mandatory reporting statute, Idaho Code Ann. § 16-1619(a) 14 (1989), to conclude that a wife was obligated to report her husband’s sexual abuses 15 of their child despite an alleged agreement between the two to refrain from reporting); 16 Norton Hosps., Inc. v. Peyton, 381 S.W.3d 286, 289, 291-92 (Ky. 2012) (relying on 17 the mandatory reporting statute, Ky. Rev. Stat. Ann. § 620.030, in holding a hospital 18 immune from liability for mistakenly overreporting the blood alcohol content of a

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1 mother giving birth); Rodriguez v. State, 47 S.W.3d 86, 88-89 (Tex. Ct. App. 2001) 2 (relying on the Texas Family Code Annotated, Section 261.101, in requiring adults 3 to report abuse of a child by the child’s mother); Fla. Att’y Gen. Op. 2004-57 (2004) 4 (recognizing that the Florida Statutes Annotated, Section 39.201(1) (2003) “has led 5 to confusion as to the persons actually considered mandated reporters, i.e., all persons 6 or just the list of professions” and concluding that the Florida statute “imposes a 7 responsibility on any person who knows of or has reasonable cause to suspect child 8 abuse . . . to report such abuse”). 9 {35} Our research has found no published judicial opinion in any other state that has 10 construed its combined specific and general statutes as imposing obligations only on 11 the identified occupations. And we see no reason to construe New Mexico’s statute 12 in such a manner, particularly in light of its history. We have been presented with no 13 persuasive argument that, when the Legislature followed the lead of other states in 14 1973 in adding “or any other person” at the end of the list of previously described 15 reporters, it meant anything other than “any other person.” Interpreted otherwise, the 16 amendment would have been meaningless. As has been observed elsewhere, we 17 believe that “[s]pecific mention of various professional groups, but inclusion of 18 ‘anyone,’ is a feature of [a reporting statute] that tends to focus the requirement of

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1 reporting on the specific groups, while retaining the advantages of a broad reporting 2 class.” Donald Stuart, Mandatory Reporting of Child Abuse in Nebraska, 8 Creighton 3 L. Rev. 791, 793-94 (1975) (footnote omitted) (discussing the Nebraska statute that 4 was one of the first to combine specific occupational listings with a universal 5 requirement to report child abuse). 6 {36} Subsequent amendments have consistently maintained the broad scope of the 7 1973 expansion of the New Mexico statute. In the course of making other 8 amendments in 1993, the Legislature placed the inclusive language at the beginning 9 instead of the end of the listed occupations and emphasized that the list that followed 10 was not exclusive. Compare 1993 N.M. Laws, ch. 77, § 97(A) (“Every person, 11 including but not limited to a licensed physician [and other listed occupations] . . . 12 shall report [child abuse].”), with 1973 N.M. Laws, ch. 360, § 2(A) (“Any licensed 13 physician [and other listed occupations] or any other person . . . shall report [child 14 abuse].”). 15 {37} The 2003 deletion of “but not limited to” following “[e]very person, including” 16 does not change our analysis. See 2003 N.M. Laws, ch. 189, § 1(A). Chapter 189 of 17 New Mexico Laws of 2003 was titled, “Relating to the Children’s Code: Clarifying 18 a Member of the Clergy’s Duty to Report Child Abuse.” Its significant effect was to

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1 add at the end of the occupational listing the language “or a member of the clergy 2 who has information that is not privileged as a matter of law,” clarifying that clergy 3 were not required to disclose protected communications. See 2003 N.M. Laws, ch. 4 189, § 1(A). In the process of achieving that sole objective in 2003, the 2003 act 5 made some routine clerical cleanups, such as replacing the commas in the 6 occupational listing with semicolons and deleting the “but not limited to” language, 7 in accordance with the New Mexico Legislative Council Service’s Legislative 8 Drafting Manual 31 (2000, amended 2008) (“There is no need to write ‘includes but 9 is not limited to’; the word ‘includes’ implies an incomplete listing. Put another way, 10 ‘includes’ includes the concept of ‘not limited to’.”). There is absolutely no indication 11 in the legislative history that by complying with its own technical drafting manual, 12 the Legislature intended to make an unannounced policy change from the universal 13 reporting requirement that had existed for thirty years to a sharply limited 14 requirement. 15 {38} Accordingly, we conclude that the social worker in this case was a mandated 16 reporter under the Abuse and Neglect Act. Because this case is not an enforcement 17 proceeding under the act but is instead a proceeding to compel discovery and 18 testimony in our courts, we must now address the matter of evidentiary privileges

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1 applicable in judicial proceedings. 2 C. Application of Evidentiary Privileges 3 1. Evidentiary Privileges and Separation of Powers 4 {39} When analyzing in-court evidentiary privileges, as opposed to out-of-court 5 confidentiality and reporting requirements, it is important to start with the recognition 6 that this Court’s “constitutional power . . . of superintending control over all inferior 7 courts carries with it the inherent power to regulate all pleading, practice and 8 procedure affecting the judicial branch of government.” State ex rel. Anaya v. 9 McBride, 1975-NMSC-032, ¶ 10, 88 N.M. 244, 539 P.2d 1006 (citing Article III, 10 Section 1 and Article VI, Section 3 of the New Mexico Constitution); see also 11 Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 5, 138 N.M. 398, 120 12 P.3d 820 (“[W]e have exercised our superintending control under Article VI, Section 13 3, to revoke or amend a statutory provision when the statutory provision conflicts 14 with an existing court rule.”). With respect to privileges in particular, if a statutory 15 privilege is not consistent with a rule of this Court, “the statutory privilege is not 16 given effect and the constitutional or court rule privilege prevails.” Blackmer, 2005- 17 NMSC-032, ¶ 11. Accordingly, the provisions of Section 61-31-24(A) that arguably 18 create social worker evidentiary privileges cannot prevent court-ordered disclosure

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1 of communications that would be mandated by the discovery and evidence rules of 2 this Court. 3 {40} We turn now to an analysis of those rules. 4 2. Social Worker Privilege in the New Mexico Rules of Evidence 5 Rule 11-501 NMRA of the New Mexico Rules of Evidence provides that,

6 [u]nless required by the constitution, these rules, or other rules adopted 7 by the supreme court, no person has a privilege to . . . refuse to be a 8 witness; . . . refuse to disclose any matter; . . . refuse to produce any 9 object or writing; or . . . prevent another from being a witness, disclosing 10 any matter, or producing any object or writing.

11 {41} We have been presented with no argument that a constitutional provision 12 prohibits court-ordered disclosure of the counseling communications in this case, nor 13 is there an argument that any nonevidentiary rule of this Court protects 14 communications with a social worker from disclosure, such as might arise with 15 officers of the court subject to the regulatory authority of the Supreme Court. Cf. Rule 16 16-106 NMRA (providing that no attorney may disclose protected information 17 concerning a client, whether in or out of court, except in accordance with the rule). 18 {42} The only remaining issue is whether the communications are protected from 19 court-ordered disclosure by Rule 11-504 of the New Mexico Rules of Evidence, 20 providing a specific privilege for a person’s professional communications with

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1 physicians and mental health counselors, specifically including licensed social 2 workers. 3 {43} The basic privilege applicable to communications with physical and mental 4 health professionals provides that “[a] patient has a privilege to refuse to disclose, or 5 to prevent any other person from disclosing, a confidential communication made for 6 the purpose of diagnosis or treatment of the patient’s physical, mental, or emotional 7 condition . . . .” Rule 11-504(B). The privilege generally seeks to ensure that a patient 8 can communicate fully with a mental health professional without the risk that the 9 information will be used against the patient in a court proceeding. See Blackmer, 10 2005-NMSC-032, ¶ 15 (recognizing as well that such uninhibited communication 11 “serves the public interest by facilitating the administration of appropriate 12 treatment”). 13 {44} Privileges often have limits, particularly where there are conflicting interests 14 that may outweigh the interests of confidentiality. See, e.g., Rule 11-503(D) NMRA 15 (defining exceptions to the lawyer-client privilege, including where the client is 16 obtaining counsel in “[f]urtherance of crime or fraud”); Rule 11-505(D) NMRA 17 (defining exceptions to the spousal privilege, including when one spouse is charged 18 with a crime against the child of either spouse). A privilege exception that was

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1 specifically added to the rule for health professionals in 1990 provided,

2 No privilege shall apply for confidential communications concerning 3 any material that a physician, psychotherapist, state or nationally 4 licensed mental-health therapist, or patient is required by law to report 5 to a public employee or public agency.

6 Rule 11-504(D)(4). 7 {45} Before the 1990 amendment of Rule 11-504, there was a potential conflict 8 between our privilege rules and a provision, now encoded in NMSA 1978, Section 9 32A-4-5 (2009) of the Abuse and Neglect Act, that purported to legislate an 10 exception to any applicable “physician-patient privilege or similar privilege or rule 11 against disclosure” relating to required child abuse reporting matters “in any 12 proceeding.” See § 32A-4-5(A); 1965 N.M. Laws, ch. 157, § 5 (original enactment 13 of this provision). This statutory exception to health care worker privileges was a 14 feature of the Children’s Bureau 1963 model act for reporting child abuse and has 15 been adopted in most, if not all, jurisdictions. See Brown & Gallagher, supra, at 39, 16 67-68 & n.154; Paulsen, supra, at 36-37. Providing a privilege exception in the model 17 statutes was understandable because in most states the legislative branch regulates 18 evidentiary privileges, unlike in New Mexico and other states with similar 19 constitutional structures where regulation of court practice and procedure is under 20 judicial branch authority. See, e.g., State v. Sypult, 800 S.W.2d 402, 406 (Ark. 1990)

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1 (Newbern, J., concurring) (noting that “the Supreme Court of New Mexico relied on 2 almost identical language in the New Mexico constitution as authority for” its 3 adoption of rules of evidence and that the “step has been taken not only in New 4 Mexico . . . but also in Florida, in Montana, and in Wisconsin” (internal quotation 5 marks and citationomitted)). The Arkansas Supreme Court held that a court’s 6 “deference to legislation involving rules of evidence and procedure will be given only 7 to the extent the legislation is compatible with [that court’s] established rules.” 8 Sypult, 800 S.W.2d at 405. 9 {46} By adopting the 1990 privilege exception for our own court rules furthering the 10 disclosure purposes underlying New Mexico’s reporting statute, we ensured that our 11 “physician-patient privilege or similar privilege,” specifically Rule 11-504, the 12 privilege rule relating to physical and mental health professionals, did not prevent 13 mandated in-court disclosure of what otherwise would have been protected 14 communications. 15 {47} Because Mr. Stearns was a mandated reporter under the Abuse and Neglect 16 Act, and because the social worker communications provisions in the New Mexico 17 Rules of Evidence deny protection from in-court disclosure of matters that are 18 required by law to be reported out of court, the communications between Defendant

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1 and Mr. Stearns are not shielded from compelled disclosure by evidentiary privilege. 2 III. CONCLUSION 3 {48} We reverse the decisions of the courts below and remand to the district court 4 for proceedings in accordance with this opinion. 5 {49} IT IS SO ORDERED.

6 __________________________________ 7 CHARLES W. DANIELS, Justice

8 WE CONCUR:

9 ___________________________________ 10 BARBARA J. VIGIL, Chief Justice

11 ___________________________________ 12 PETRA JIMENEZ MAES, Justice

13 ___________________________________ 14 RICHARD C. BOSSON, Justice

15 ___________________________________ 16 EDWARD L. CHÁVEZ, Justice

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APPENDIX

STATUTORY LANGUAGE DESCRIBING CHILD ABUSE REPORTERS, 1965–2015

1965 N.M. Laws, ch. 157, § 2 Any licensed practitioner of the healing arts, resident, or intern, examining, attending, or treating a child under the age of 16 years, any registered nurse, any visiting nurse, any school teacher or social worker acting in his or her official capacity, or any ordained minister of an established church, having reason to believe that a child has had serious injury or injuries inflicted upon him or her as a result of abuse, neglect or starvation, may report the matter promptly to the appropriate district attorney.

1973 N.M. Laws, ch. 360, § 2(A)

Any licensed physician, resident or intern examining, attending, or treating a child, any law enforcement officer, registered nurse, visiting nurse, school teacher or social worker acting in his or her official capacity, or any other person having reason to believe that serious injury or injuries have been inflicted upon a child as a result of abuse, neglect or starvation, shall report the matter immediately to:

(1) the county social services office of the health and social services department in the county where the child resides; or (2) the probation services office of the judicial district in which the child resides.

1993 N.M. Laws, ch. 77, § 97(A)

Every person, including but not limited to a licensed physician, a resident or an intern examining, attending or treating a child, a law enforcement officer, a judge presiding during any proceeding, a registered nurse, a visiting nurse, a schoolteacher, or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:

(1) a local law enforcement agency;

(2) the department office in the county where the child resides; or (3) tribal law enforcement or social services agencies for any Indian child residing in Indian country.

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1997 N.M. Laws, ch. 34, § 2(A)

Every person, including but not limited to a licensed physician, a resident or an intern examining, attending or treating a child, a law enforcement officer, a judge presiding during any proceeding, a registered nurse, a visiting nurse, a schoolteacher or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:

(1) a local law enforcement agency;

(2) the department office in the county where the child resides; or (3) tribal law enforcement or social services agencies for any Indian child residing in Indian country.

2003 N.M. Laws, ch. 189, § 1(A)

Every 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 immediately to:

(1) a local law enforcement agency;

(2) the department office in the county where the child resides; or (3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.

2005 N.M. Laws, ch. 189, § 38(A)

Every 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 immediately to:

(1) a local law enforcement agency;

(2) the department; or (3) a tribal law enforcement or social services agency for any Indian child

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residing in Indian country.