johnson/psychological v. Hon. o'connor/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SAMUEL C. JOHNSON, III, Petitioner,
v.
THE HONORABLE KAREN L. O’CONNOR, Judge
of the SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA, Respondent Judge,
STATE OF ARIZONA, Real Party in Interest.
___________________________________________
PSYCHOLOGICAL COUNSELING SERVICES, LTD., Petitioner,
v.
THE HONORABLE KAREN L. O’CONNOR, Judge
of the SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA, Respondent Judge,
STATE OF ARIZONA, Real Party in Interest.
Nos. 1 CA-SA 14-0035; 1 CA-SA 14-0036 (Consolidated)
FILED 06-06-2014
Petition for Special Action from the Superior Court in Maricopa County
No. CR2013-004928-001
The Honorable Karen L. O’Connor, Judge
JURISDICTION ACCEPTED; RELIEF DENIED; REMANDED
COUNSEL
Piccarreta Davis, PC, Tucson
By Michael L. Piccarreta, Jefferson Keenan
Counsel for Petitioner
Osborn Maledon, PA, Phoenix
By Larry A. Hammond, Anne M. Chapman, Anna H. Finn
Snell & Wilmer, LLP, Phoenix
By Brett W. Johnson, Sara J. Agne
Counsel for Petitioner Psychological Counseling Services, LTD.
Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch, Andrea L. Kever
Counsel for Real Party in Interest
OPINION
Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge John C. Gemmill specially concurred and Judge Kent E.
Cattani concurred in part, dissented in part.
H O W E, Judge
¶1 Psychological Counseling Services, Ltd., (“PCS”) located in
Arizona, provided counseling to Samuel C. Johnson. The Maricopa
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 A.R.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
2
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
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 A.R.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 Johnsons 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 A.R.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 ordered PCS to outline the medical records at issue and
any privilege concerns for an in camera review. The court later declared
the issue moot, however, 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
3
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
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
4
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
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 standing 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
directing 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.
MOOTNESS
¶13 Because the summons was issued for a March 26 hearing
and that date has since passed, whether the superior court erred in issuing
it is moot. This Court will nevertheless consider moot issues when they
have great public importance or are capable of repetition yet evade
review. Slade v. Schneider, 212 Ariz. 176, 179 ¶ 15, 129 P.3d 465, 468 (App.
2006). The Uniform Act’s application to medical and psychological records
is an issue of great public importance. It is also likely to recur in future
cases, even in the litigation of this case. This Court learned after argument
that Johnson’s criminal trial is scheduled for July 14, 2014, and the Racine
County Circuit Court may again request the records through the Uniform
Act. This Court will therefore consider the issues presented and provide
guidance.
JURISDICTION
¶14 We accept special action jurisdiction. PCS and Johnson have
no adequate remedy by appeal because the custodian is ordered to
produce documents regarding a client’s medical records. Special action
5
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
review is appropriate when a party is ordered to disclose what it believes
is privileged information. Blazek v. Superior Court, 177 Ariz. 535, 536, 869
P.2d 509, 510 (App. 1994).
DISCUSSION
¶15 Johnson and PCS present several arguments that the
superior court erred in issuing a summons for PCS’s custodian to appear
before the Wisconsin court. Because these arguments involve questions of
statutory interpretation and application, we review them de novo.
Obregon v. Indus. Comm’n, 217 Ariz. 612, 614 ¶ 9, 177 P.3d 873, 875 (App.
2008).
¶16 Arizona adopted the Uniform Act in 1937. Tracy, 168 Ariz. at
29, 810 P.2d at 1036. Because the Uniform Act is codified under Title 13 of
the Arizona Revised Statutes—Arizona’s Criminal Code—the Act must be
interpreted “in a manner that will further effective criminal prosecution.”
Id. at 35, 810 P.2d at 1042. The Uniform Act also must be “so interpreted
and construed as to effectuate its general purpose to make uniform the
law of the states which enact it.” A.R.S. § 13–4095.
¶17 The Uniform Act provides in relevant part that if a judge of a
court of record in another state “certifies under the seal of such court that
there is a criminal prosecution pending in such court . . . that a person
being within this state is a material witness in such prosecution . . . and
that his presence will be required,” then a superior court judge in the
Arizona county in which the person resides “shall fix a time and place for
a hearing, and shall make an order directing the witness to appear at a
time and place certain for a hearing.” A.R.S. § 13–4092(A). At the hearing,
the superior court shall accept the certificate as “prima facie evidence of
all the facts stated therein” and determine whether (1) the witness is
material and necessary, (2) no undue hardship results to the witness by
attending and testifying in the prosecution or grand jury investigation,
and (3) the laws of the state in which the prosecution is pending will give
the witness protection from arrest and the service of civil and criminal
process. A.R.S. § 13-4092(B). If those requirements are satisfied, the court
shall issue a summons directing the witness to attend and testify in the
court where the prosecution is pending. Id.
¶18 Here, the superior court followed this procedure. A judge of
a Wisconsin court of record certified that a criminal prosecution was
pending and that the testimony of the custodian was material and his
presence required, and the superior court consequently held a hearing
6
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
pursuant to § 13–4092(A). At the hearing, the superior court determined
that the custodian was a material witness, no undue hardship would
result from the custodian traveling to Wisconsin to appear and testify,
and the custodian would have protection from arrest and service of
process. Based on these findings, the superior court issued a summons
requiring the custodian to appear before the Wisconsin court or to
produce the requested records in lieu of attendance.
¶19 Many of the issues the petitioners raise are easily resolved.
Although the parties argued about whether the March 26, 2014, hearing
would occur and whether the Wisconsin Supreme Court’s consideration
of the criminal proceedings removed the circuit court’s jurisdiction to
conduct the hearing, the Wisconsin circuit court reaffirmed the hearing
date after the Wisconsin Supreme Court’s review. At the time the superior
court considered the certification, the Wisconsin court had set a hearing
for March 26, 2014, and that order remained in force.
¶20 We also reject the argument that the superior court was
collaterally estopped from considering the December 17, 2013, certification
because it had previously found that Wisconsin’s February 2012
certification was moot for lack of a trial date. Collateral estoppel—or issue
preclusion—precludes a party from “relitigating an issue identical to one
he has previously litigated to a determination on the merits in another
action.” State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication
Comm’n, 224 Ariz. 230, 244 ¶ 33, 229 P.3d 242, 256 (App. 2010) (quoting
Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995)). The
issues in the two proceedings are not identical, however. The issue in the
first proceeding was whether the February 2012 certification was sufficient
when no trial date or hearing had been set in Wisconsin. The issue in the
current proceeding is whether the December 17, 2013, certification was
sufficient when a hearing date of March 26, 2014, had been specified. The
superior court’s ruling that the February certification was moot for lack of
a trial date did not mean that the superior court could not consider a
future certification when—as happened here—the Wisconsin court set
another date for trial or hearing. The superior court thus was not estopped
from considering the December 17 certification. 1
1 Johnson and PCS also argue that the “law of the case” doctrine bars
the superior court from considering the December 17 certification. But that
doctrine is inapplicable for the same reason: the question at issue and the
7
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
¶21 Petitioners also argue the superior court could not issue a
summons that also served as a subpoena for the production of documents.
The Uniform Act makes no mention of producing documents; it only
addresses the use of a summons to order witnesses in one state to testify
in another state. A.R.S. § 13–4091(3) (Summons is defined as “a subpoena,
order, or other notice requiring the appearance of a witness.”). All of the
states that have confronted this issue—except one—have held that in view
of the Uniform Act’s purpose and the broad construction of the word
“subpoena,” the Uniform Act authorizes the issuance of a subpoena duces
tecum—a subpoena only for documents. See Ex parte Simmons, 668 So.2d
901 (Ala. Crim. App. 1995); CMI, Inc. v. Ulloa, 73 So.3d 787 (Fla. Dist. Ct.
App. 2011); Davenport v. State, 711 S.E.2d 699, 701 (Ga. 2011); Application of
a Grand Jury of State of New York, 397 N.E.2d 686, 688 (Mass. App. Ct. 1979);
In re Grand Jury Investigation, 471 A.2d 1141, 1147 (Md. Ct. Spec. App.
1989); Wyman v. State, 217 P.3d 572, 605 (Nev. 2009); but see In re Grothe,
208 N.E.2d 581, 586 (Ill. App. 1965) (holding that the Uniform Act did not
permit production of documents) (overruling by state statute recognized
in Grand Jury Investigation, 471 A.2d at 1147). No Arizona court has
considered this issue. But given the Legislature’s direction in § 13–4095
that the Uniform Act should be interpreted uniformly with the same law
enacted in other states, and the statutory overruling of the only authority
holding that the Uniform Act does not permit a subpoena for the
production of documents, we agree the Uniform Act allows such a
subpoena.
¶22 The central issue in this case, however, is whether the
superior court should have considered the arguments that the records
were protected under Arizona’s medical records privacy laws and
psychologist-client privilege before issuing the subpoena. A review of the
applicable statutes and precedent shows that the records may be disclosed
without violating Arizona’s medical records privacy laws and that
whether the records are privileged is for the Wisconsin courts to
determine.
¶23 PCS argues that Arizona’s medical records privacy statute,
A.R.S. § 12–2292, precludes the disclosure of medical records that may be
subpoenaed under the Uniform Act. This is not accurate. Of course § 12–
2292(A) deems all medical records and payment records privileged and
facts are not the same in both proceedings. See State v. Johnson, 229 Ariz.
475, 482 ¶ 22, 276 P.3d 544, 551 (App. 2012).
8
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
confidential, but also allows disclosure “as authorized by state or federal
law.” Certain Arizona statutes do require disclosure. Section 12-2294(A)
requires a health care provider to disclose medical records or payment
records and “the information contained in medical records or payment
records . . . when ordered by a court or tribunal of competent
jurisdiction,” even without the patient’s authorization. Section 12–2294.01
requires a health care provider to release medical records pursuant to a
subpoena if it is accompanied by a court or tribunal order requiring the
release of the records to a third party.
¶24 Under these statutes, PCS is required to disclose the records
that pertain to its treatment of Johnson when ordered by a court of
competent jurisdiction and must respond to a subpoena requiring the
release of the records. The Maricopa County Superior Court is a “court of
competent jurisdiction,” and the court issued the necessary subpoena
under the Uniform Act. Nothing in these privacy statutes precludes PCS
from disclosing the medical records.
¶25 Johnson and PCS also maintain that the records are
protected from disclosure under A.R.S. § 32–2085(A), which provides that
a psychologist may not divulge information that is received “by reason of
the confidential nature of the psychologist’s practice.” The confidential
relations and communication between a client and a psychologist are
protected on the same basis as relations and communications between a
client and an attorney. Id. The superior court correctly declined to
consider the applicability of the privilege to the records, however, because
that is a question for the Wisconsin court to resolve.
¶26 The Arizona Supreme Court considered in Tracy whether the
Arizona court must determine if evidence sought under the Uniform Act
is protected under a constitutional or statutory privilege before issuing a
subpoena. 168 Ariz. at 27, 43, 810 P.2d at 1034, 1050. Tracy, who was
involved in a land transaction in the Navajo Nation, challenged a superior
court order under the Uniform Act to appear and testify before the district
court of the Navajo Nation in a criminal trial. Id. at 25, 810 P.2d at 1032.
Tracy claimed that his testimony would not be material under the
Uniform Act because he would invoke his constitutional right against self-
incrimination. Id. at 27, 810 P.2d at 1034. Accountants and attorneys
involved in the matter argued that compelling their attendance before the
Navajo court would be an undue hardship because that court “might not
recognize the Arizona statutory privileges for attorney-client and
accountant-client relationships.” Id. at 43, 810 P.2d at 1050.
9
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
¶27 Our supreme court rejected these arguments. The court held
that a witness could not circumvent the Uniform Act by claiming an intent
to invoke the privilege against self-incrimination, but must invoke the
privilege in the proceeding when called to testify because “the privilege is
a matter to be ruled on by the court conducting the trial.” Id. at 27, 810
P.2d at 1034. The same rule applied to the statutory professional
privileges: “Quite simply, the professional privileges are a matter for the
requesting jurisdiction to rule on and are not appropriately addressed to
the state court issuing the subpoena.” Id. at 43, 810 P.2d at 1050. The court
recognized that the professional privileges are not constitutionally
mandated and that “the laws of each jurisdiction may appropriately
vary.” Id. The court further noted that professional privileges “contravene
the fundamental principle that ‘the public has a right to every man’s
evidence,’ and they are therefore strictly construed and weighed against
other policy considerations.” Id. (quoting Trammel v. United States, 445 U.S.
40, 50 (1980)). For that reason, the supreme court held that “we need not
consider whether the courts of the Navajo Nation recognize the attorney-
client or accountant-client privileges as those privileges exist in Arizona.”
Id.¶28 Based on the supreme court’s clear directive in Tracy, the
superior court understandably—and correctly—held that whether
Johnson’s treatment records are protected under the psychologist-client
privilege should be resolved in the Wisconsin court and that Johnson
consequently had no standing to object to the issuance of the summons.
The psychologist-client privilege is a statutorily created professional
privilege, just like the attorney-client and accountant-client privileges. See
Ulibarri v. Superior Court, 184 Ariz. 382, 387, 909 P.2d 449, 454 (App. 1995).
The superior court was bound to apply Tracy, and this Court is likewise
bound. See State v. Sullivan, 205 Ariz. 285, 288 ¶ 15, 69 P.3d 1006, 1009
(App. 2003) (“[W]e are constrained by the decisions of our supreme court
and are not permitted ‘to overrule, modify, or disregard them.’”) (quoting
City of Phoenix v. Leroy Liquors, 177 Ariz. 375, 378, 868 P.2d 958, 961
(App.1993)).
¶29 PCS argues that Tracy is not controlling because it did not
address privileges and privacy laws pertaining to medical records.
Although the physician-patient and related privileges are undoubtedly
important, nothing distinguishes those privileges from the professional
privileges Tracy addressed. The physician-patient privilege is not
constitutionally required and it did not exist at common law. Benton v.
Superior Court, 182 Ariz. 466, 469, 897 P.2d 1352, 1355 (App. 1994). It has
never been an absolute privilege, and it must be strictly construed. Id. The
10
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
public policy of apprehending and prosecuting criminals often trumps the
policy of the privilege. See A.R.S. § 13–3620(A) (any of the listed healthcare
professionals (including psychologist) must report injury or abuse of
minor to appropriate authorities); A.R.S. § 13–3620(K)(1) (no privilege
except attorney-client privilege applies in any “[c]ivil or criminal litigation
or administrative proceeding in which a minor’s neglect, dependency,
abuse, child abuse, physical injury or abandonment is an issue”); State ex
rel. Udall v. Superior Court, 183 Ariz. 462, 466, 904 P.2d 1286, 1290 (App.
1995) (holding that the physician-patient privilege did not shield the
medical records of a mother charged with murdering her infant); Benton,
182 Ariz. at 468, 897 P.2d at 1354 (“We conclude that the privilege does not
apply under the circumstances of this case because the public’s interest in
protecting victims outweighs the privacy interest reflected in the
physician-patient privilege.”). This is in keeping with Tracy’s recognition
that professional privileges are strictly construed and weighed
unfavorably against other policy considerations. 168 Ariz. at 43, 810 P.2d
at 1050. Tracy applies with full force to the psychologist-client privilege.
¶30 Even were Tracy not controlling authority, however, it states
the correct rule, for several reasons. First, Tracy’s holding is consistent
with the Uniform Act’s purposes. The Uniform Act was enacted to
“require[] reciprocal cooperation among jurisdictions for the enforcement
of witness attendance orders,” and it must be interpreted to “further
effective criminal prosecution.” Id. at 35, 810 P.2d at 1042. Reserving the
resolution of privilege issues for the requesting state reduces the
procedural hurdles in obtaining a witness or evidence from another state,
which increases cooperation among the states and furthers criminal
prosecutions.
¶31 Second, Tracy’s holding is consistent by analogy with other
uniform law statutes. Under the Uniform Criminal Extradition Act,
codified in A.R.S. §§ 13–3841 to –3870.02, when a state submits the proper
documentation for the extradition of a criminal suspect who resides in
Arizona, the documentation “becomes prima facie evidence that the
constitutional and statutory requirements for extradition have been met,”
and the Arizona courts can review only whether (1) the documents on
their face are in order, (2) the person has been charged with a crime in the
requesting state, (3) the person residing in Arizona is the person named in
the documentation, and (4) the person is a fugitive. Golden v. Dupnik, 151
Ariz. 227, 229, 726 P.2d 1096, 1098 (App. 1986). Arizona courts cannot
inquire into the person’s guilt or innocence. A.R.S. § 13–3860.
11
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
¶32 The same principles apply to the Uniform Act. Once the
requesting state presents the proper documentation under § 13–4092(A),
which an Arizona court must accept as “prima facie evidence of all the
facts stated therein,” the court is limited to determining whether the
requirements of § 13–4092(B) are met. The court has no interest in whether
and to what extent the testimony or evidence in question is admissible in
the requesting state court.
¶33 Third, Tracy’s holding is consistent with conflict of laws
principles that apply to privileges. The Restatement (Second) of Conflicts
of Laws § 139(2) (1971) provides that the admission of evidence will be
governed by the privilege law of the jurisdiction trying a matter, and not
by the privilege law of the state that “has the most significant
relationship” with the evidence, “unless there is some special reason why
the forum policy favoring admission should not be given effect.” Under
this principle, the admission of Johnson’s treatment records should be
governed by Wisconsin—not Arizona—privilege law.
¶34 This does not mean that Johnson’s treatment records are not
privileged or should be admitted in evidence. This means only that
whether and the extent to which the records are privileged is for the
Wisconsin court to determine under Wisconsin law. Johnson and PCS will
be free to contest that issue in that forum. 2 But Arizona has no authority
2 The dissent expresses concern that once the superior court issues
the summons and the medical records are sent to Wisconsin, the records
are disclosed and “the information cannot be recalled,” which will
necessarily defeat any privilege Johnson or the other group therapy
patients may have in the medical records. (Dissent, ¶ 48.) But the issuance
of the summons does not necessarily disclose the records in a way that
vitiates their privilege. The purpose of the March 26, 2014, hearing was for
the Racine County Circuit Court to review the records in camera to
determine their admissibility. If the court had determined that the records
were privileged under Wisconsin law, the records would not have been
disclosed, and Johnson’s and the other patients’ interest in the privacy of
those records would have been maintained. Moreover, because the
records as they pertain to Johnson’s fellow group therapy patients are
likely irrelevant to the issues in Johnson’s criminal trial, the risk to the
fellow group therapy patients that their records would have been
disclosed and admitted was likely nonexistent. See Wis. Stat. § 904.02(“Evidence which is not relevant is not admissible.”). Moreover, if a health
care provider is concerned that medical records will be disclosed merely
12
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Opinion of the Court
under the Uniform Act to withhold the records because they may be
privileged under Arizona law.
¶35 Other state courts have considered whether states issuing
summons under the Uniform Act can decide privilege issues. Some agree
with Tracy. See, e.g., Codey v. Capital Cities, Am. Broadcasting Corp.,
626 N.E.2d 636, 642 (N.Y. 1993) (“[T]he courts of the demanding
jurisdiction are better qualified [to determine privilege questions], both
because of their superior familiarity with local law and because of their
direct access to the parties or the facts in the underlying controversy.”); In
re Rhode Island Grand Jury Subpoena, 605 N.E.2d 840, 845 (Mass. 1993)
(expressly agreeing with Tracy). Two do not. Holmes v. Winter, 3 N.E.3d
694, 703–05 (N.Y. 2013); People v. Marcy, 283 N.W.2d 754, 757 & n.4 (Mich.
App. 1979). But the courts that do not agree do so because they believe
that the strength of the privileges involved in those cases outweigh any
other interest. See Holmes, 3 N.E.3d at 703–05 (a divided court held that
New York’s interest in its journalist shield law overrode the general rule
that privilege issues should be decided by the requesting state); Marcy, 283
N.W.2d at 757 & n.4 (polygrapher’s privilege is Michigan policy that
Michigan courts are bound to enforce; polygrapher may lose
polygrapher’s license if forced to testify in requesting state). PCS and
Johnson make a similar argument, maintaining that Arizona has a strong
policy interest in enforcement of its psychologist-client privilege statute
because the privilege encourages clients to be honest with their
psychologists, which furthers treatment. If the privilege is not honored,
PCS and Johnson argue, clients will be deterred from disclosing the
information necessary for successful treatment.
¶36 But weighty as this interest is, the Arizona Legislature and
appellate courts have determined that the need to protect the victims of
crime—particularly minor victims of physical or sexual abuse—weighs
even more heavily. See A.R.S. § 13–3620; Benton, 182 Ariz. at 468, 897 P.2d
at 1354. Thus, nothing argues against applying the accepted rule
recognized in Tracy that privilege issues should be decided in the state
that has requested the evidence.
by complying with a summons issued under the Uniform Act, it may ask
the superior court to seal the records until the receiving state determines
whether the records are privileged.
13
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Gemmill, J., Specially Concurring
¶37 Johnson and PCS can nevertheless argue to the Wisconsin
court that it should honor Arizona’s privilege because Johnson and PCS
relied on the confidentiality of that privilege in seeking and providing
treatment. Although conflict of law principles provide that the privilege
law of the state trying a matter controls, a court may deviate from that
principle if “countervailing considerations” exist. Restatement (Second) of
Conflict of Laws § 139, cmt. d (1971). A court “will be more inclined to
give effect to a privilege if it was probably relied on by the parties.” Id.
Johnson and PCS will have authority to argue that Wisconsin should
apply Arizona law in deciding whether the treatment records are
privileged from disclosure. But the resolution of that argument is for the
Wisconsin court.
¶38 The superior court did not err in declining to consider
whether the treatment records were privileged under Arizona law in
determining whether to issue the summons under the Uniform Act. The
superior court made no other error and properly issued the summons.
CONCLUSION
¶39 For these reasons, we accept jurisdiction but deny relief. The
stay previously entered in this case is lifted, and we remand this matter to
the superior court for further proceedings consistent with this opinion.
G E M M I L L, Judge, Specially Concurring:
¶40 Because I conclude that the Arizona Supreme Court’s
opinion in Tracy v. Superior Court (Navajo Nation), 168 Ariz. 23, 810 P.2d
1030 (1991), controls our decision in this case, I concur in the denial of
special action relief and agree substantially with the reasoning of Judge
Howe’s opinion.
C A T T A N I, Judge, Concurring in Part, Dissenting in Part:
¶41 I agree that the superior court had authority to issue a
summons that also served as a subpoena for producing documents. I
respectfully disagree, however, with the majority’s conclusion that the
superior court properly ordered disclosure of records—including group
therapy documents—without first determining whether PCS’s client
14
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
records are privileged or confidential under Arizona law. See A.R.S. § 12-
2292(A) (“Unless otherwise provided by law, all medical records . . . and
the information contained in medical records . . . are privileged and
confidential.”). In my view, communications that take place in Arizona are
subject to Arizona law, and Arizona courts should apply that law before
ordering the release of privileged or confidential documents sought for
use in a prosecution in another jurisdiction.
¶42 The Uniform Act to Secure the Attendance of Witnesses
From Without a State in Criminal Proceedings, as codified in Arizona in
A.R.S. §§ 13-4091 to -4096, does not by its terms require disclosure of
privileged or confidential communications without first determining
whether the law of the jurisdiction in which the communications occurred
precludes disclosure. As noted in the majority opinion, other states have
in fact chosen to undertake such an analysis before ordering disclosure
under the Uniform Act, and there has been no suggestion that this
approach violates any provision of the Act.
¶43 Implicitly acknowledging that the Act does not preclude the
requested privilege/confidentiality review, the majority bases its ruling
on an interpretation of the Arizona Supreme Court’s decision in Tracy v.
Superior Court, 168 Ariz. 23, 810 P.2d 1030 (1991), which the majority
concludes has provided a “clear directive” mandating that the question of
whether Johnson’s treatment records are confidential or protected under
the psychologist–client privilege is an issue to be resolved in the
Wisconsin courts. But Tracy involved only a request under the Act that
witnesses be ordered to testify in a foreign jurisdiction notwithstanding
their stated intent to assert privileges against self-incrimination or relating
to the attorney–client or accountant–client relationship were they to be
called to testify in the foreign jurisdiction. Id. at 26–27, 810 P.2d at 1033–34.
Tracy did not involve a request for production of records, and it did not
address whether records of communications that took place in one
jurisdiction should be reviewed for privilege or other confidentiality
concerns under the laws of that jurisdiction before being sent to another
jurisdiction. See id.¶44 In Tracy, the Navajo Nation prosecuted its former Chairman
and his son for an alleged conspiracy with several non-Indian
businessmen to buy land and then sell it to the Navajo Nation at a profit.
Id. at 26, 810 P.2d at 1033. Prior to filing a complaint, a special prosecutor
recommended that the Navajo Tribal Council enact the Uniform Act,
which the Council did. Id. A tribal court thereafter issued certificates
under the Act seeking to compel the attendance of Tracy and other
15
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
Maricopa County residents to testify at trial. Id. Tracy was a principal in
Tracy Oil & Gas Co., which had optioned a ranch in Northern Arizona for
$26,250,000, then sold the ranch several months later to the Navajo Nation
for $33,400,000. Id.¶45 After a Maricopa County Superior Court judge signed
orders compelling Tracy and the others to appear in tribal court, they
sought special action relief. Id. at 26–27, 810 P.2d at 1033–34. After this
court declined to accept jurisdiction, the Arizona Supreme Court granted
review to address, among other issues, whether the Navajo Nation is a
state or territory within the meaning of the Uniform Act, and whether
Tracy and the other petitioners would face hardship under A.R.S. § 13-
4092(B) because “they [intended to] claim privileges that will not be
recognized by the Navajo District Court and hence will risk being jailed
unless they ‘waive those rights.’” Id. at 27, 810 P.2d at 1034.
¶46 The Arizona Supreme Court concluded after extensive
analysis that the Navajo Nation is a qualifying “territory” under the
Uniform Act. Id. at 27–39, 810 P.2d at 1034–46. The court also addressed
Tracy’s claim that he would sacrifice his Fifth Amendment privilege
against self-incrimination if haled into tribal court because that
constitutional provision does not bind Indian tribes. Our supreme court
reasoned that “[a] witness cannot circumvent the Uniform Act by claiming
his intent to assert the privilege [against self-incrimination] before the
questions are actually posed in the proceeding to which the privilege will
pertain.” Id. at 27, 810 P.2d at 1034. The court further stated its belief that
“when testifying in tribal court, Tracy will enjoy a federally imposed
privilege against self-incrimination that is substantially coextensive with
the fifth amendment privilege.” Id. at 41, 810 P.2d at 1048.
¶47 Finally, the court addressed the other petitioners’ assertion
that they (lawyers and accountants to the parties involved in the land
transaction) should not be required to testify because “the Navajo District
Court might not recognize the Arizona statutory privileges for attorney–
client and accountant–client relationships.” Id. at 43 & n.20, 810 P.2d at1050 & n.20. Citing a Maryland case, In re Cal. Grand Jury Investigation, 471
A.2d 1141, 1145 (Md. Ct. Spec. App. 1984), the court stated that, “[q]uite
simply, the professional privileges are a matter for the requesting
jurisdiction to rule on and are not appropriately addressed to the state
court issuing the subpoena.” Tracy, 168 Ariz. at 43, 810 P.2d at 1050. The
court further noted that professional privileges “are not based on any
constitutional mandate, [and] the laws of each jurisdiction may
appropriately vary,” and concluded that “[w]e do not believe that
16
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
petitioners face any undue hardship by having the Navajo District Court
rule on the merits of their privilege arguments at the time the testimony is
sought.” Id. at 43–44, 810 P.2d at 1050–51. 3
¶48 The majority urges that the above-quoted language from
Tracy regarding professional privileges encompasses the issues raised in
this case. But that discussion only addresses in-court testimony, and not
the production of documents. See id. at 26–27, 810 P.2d at 1033–34. That
distinction is important because, if a witness is ordered to appear in court,
the witness retains the right and ability to disclose or decline to disclose
information, and can choose to invoke a privilege and remain silent, albeit
at the risk of being found in contempt. In contrast, if a court orders that
documents be disclosed, once the documents are released, the information
cannot be recalled, and the holder of a privilege does not have the option
of “remaining silent.” That distinction is particularly important in this
case, where privileged and confidential communications include
information from third parties who participated in group therapy sessions
with Johnson, and whose confidential communications run the risk of
disclosure without any opportunity to assert a right to “remain silent.”
¶49 Furthermore, Tracy’s holding did not specifically address
whether communications that occurred in Arizona are subject to
disclosure if the “foreign” jurisdiction’s privilege and confidentiality laws
differ from Arizona’s. Although Tracy noted broadly that the “laws
[relating to professional privileges] of each jurisdiction may appropriately
vary,” id. at 43, 810 P.2d at 1050, it is not clear whether the
communications or activities at issue in that case took place in Arizona
(outside of tribal land), and the opinion in fact can be read to suggest that
Tracy’s conduct took place on the Navajo reservation. See id. at 26, 810
P.2d at 1033 (“The Navajo District Court does not have jurisdiction to
prosecute non-members of the Navajo tribe, even for crimes committed in
Indian Country, so Tracy is not the subject of any pending or prospective
tribal prosecution.” (emphasis added)). Assuming Tracy’s conduct took
3 The Arizona Supreme Court also quoted this court’s order
declining jurisdiction, which noted that, although the Navajo Nation
might not have initially been an intended participant in the Uniform Act,
“a majority of this court considers the Navajo Tribal Courts to now
provide those safeguards and procedures recognized by courts of other
states, including the constitutional protection against self-incrimination
and the statutory privilege associated with attorney/accountant/client
communication.” Tracy, 168 Ariz. at 27, 810 P.2d at 1034 (citation omitted).
17
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
place on the reservation, the Arizona Supreme Court’s broad statement
regarding professional privileges suggests only that Arizona citizens are
not entitled to the protections of Arizona law for activity that occurred on
tribal land.
¶50 Unlike Tracy, in the instant case, there is no question that the
communications at issue took place in Arizona and not in the requesting
state (Wisconsin). Accordingly, we are faced with issues not specifically
addressed in Tracy: does the law of the state in which the communications
took place govern whether the communications are privileged or
confidential, and if so, which state should determine how to apply that
law?
¶51 As to the issue of which state’s law governs whether the
communications are privileged or confidential, the Maryland case on
which the Arizona Supreme Court relied in Tracy in its discussion of
professional privileges is instructive and compels the conclusion that the
site of the communication is dispositive. See id. at 43, 810 P.2d at 1050. In
In re California Grand Jury Investigation, a Maryland court responded to a
request from a California court seeking a subpoena to require a Maryland
reporter to testify in a California proceeding. 471 A.2d at 1142–43. The
Maryland court issued the subpoena after rejecting the reporter’s assertion
that the Maryland Press Shield Law should be applied to protect from
disclosure the reporter’s discussions with an informant. Id. at 1145. But the
Maryland court rejected the reporter’s assertion not because the court was
willing to defer interpretation of Maryland law to the California court, but
rather because the communications at issue took place in California and
not in Maryland. Id. (holding that the reporter “will have to look to
California law for protection, because whatever occurred between [the
reporter] and [his source] took place in California, not Maryland”).
Applying that same logic here dictates that the law of the jurisdiction in
which the communications took place determines whether the
communication is privileged and/or confidential.
¶52 Because the law of the jurisdiction where the
communications took place governs, courts from that jurisdiction are best
situated to address whether the communications are privileged and/or
confidential under the law of that jurisdiction. In fact, to leave the analysis
to another jurisdiction could lead to inconsistent interpretations and
applications of the law of the jurisdiction where the communications took
place.
18
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
¶53 Here, Arizona courts are the appropriate forum in which to
apply and interpret Arizona law governing psychotherapist–patient
privilege and confidentiality. Accordingly, the superior court should have
reviewed the documents sought by subpoena to determine whether they
include privileged and/or confidential information, and if so, whether the
documents should be redacted before being sent to the requesting
jurisdiction.
¶54 Although my colleagues acknowledge a “weighty” interest
in enforcing Arizona’s psychologist–client privilege statute, they
nevertheless assert that the Arizona Legislature and appellate courts have
determined that the need to protect the victims of crime—particularly
minor victims of physical or sexual abuse—weighs even more heavily. But
to the extent legislative pronouncements regarding privilege and
confidentiality issues are seen to conflict with legislative pronouncements
under the Uniform Act, the more specific privilege and confidentiality
provisions control, rather than the general provisions of the Act. See Lange
v. Lotzer, 151 Ariz. 260, 261, 727 P.2d 38, 39 (App. 1986). Moreover, the
majority’s position reads too much into the Legislature’s adoption of the
Uniform Act, since the Act itself does not require a state to ignore its
privilege/confidentiality concerns. And the Act obviously does not
change the degree to which victims of crime are protected in cases
involving crimes committed in Arizona. The majority points to nothing in
the Act or its legislative history that would suggest that the Legislature
intended greater protections for victims of crimes committed in other
states than for victims of crimes committed in Arizona.
¶55 Requiring the superior court to undertake a
privilege/confidentiality review before sending documents to another
state would simply ensure that Arizona-specific provisions (as adopted by
the Legislature or by Arizona courts) relating to privilege and
confidentiality are applied to communications that take place in Arizona.
In contrast, the majority’s position abrogates the responsibility to interpret
Arizona legislative and judicial pronouncements regarding privilege and
confidentiality to courts of another state, which may or may not apply
Arizona law, and even if the foreign state chooses to apply Arizona law,
the foreign state may or may not interpret it in the same way that Arizona
courts would interpret it.
¶56 The Wisconsin trial judge who will review the records after
they are sent from Arizona has indicated that “the information requested
from Arizona, if relevant and compliant with Wisconsin evidentiary rules,
is admissible at the trial in this matter.” That statement does not indicate,
19
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
however, whether Wisconsin evidentiary rules require application of the
law of the jurisdiction where communications took place in addressing
privilege/confidentiality issues. But regardless whether the Wisconsin
court intends to apply Arizona law, and regardless whether Wisconsin
law regarding patient/client privilege is substantially similar to Arizona
law, in my view, the documents memorializing communications that took
place in Arizona are subject to Arizona law, which should be interpreted
by Arizona courts.
¶57 Furthermore, leaving to a foreign jurisdiction the decision
whether and how to apply Arizona privilege and confidentiality concerns
places Arizona patients and treating professionals in an untenable
position in which there is uncertainty as to what types of communications
are protected from disclosure. Patients and treating professionals who
engage in communications in Arizona should not be required to know the
laws and rules regarding disclosure of confidential information in
jurisdictions outside Arizona. See Restatement (Second) of Conflict of
Laws § 139(2) cmt. d (1971) (courts should consider “fairness to the
parties”—particularly reliance on local privilege or strict confidence—in
determining whether law of the state where the communication took place
should trump forum law). Leaving unanswered the question of what law
governs the scope of confidentiality is unfair to patients and treating
professionals—and could in fact discourage patients from seeking
counseling. State v. Wilson, 200 Ariz. 390, 393, ¶ 5, 26 P.3d 1161, 1164 (App.
2001) (noting that a major purpose behind the Arizona Legislature’s
enactments furthering patient privacy and extending testimonial
privileges to written medical records is to “encourag[e] full and frank
disclosure of medical history and symptoms by a patient to his doctor”).
¶58 Finally, there is no inherent unfairness in having an Arizona
court review documents relating to Arizona communications for privilege
and confidentiality concerns under Arizona law before ordering
disclosure of the documents to another jurisdiction. Significantly, the
communications at issue would have remained private but for a provision
in Arizona law (A.R.S. § 13-3620) that imposes a duty on certain categories
of individuals (including mental health professionals) to immediately
report to law enforcement instances of child abuse of which they become
aware. But that provision does not eliminate other privilege and
confidentiality concerns that may require that information in records
detailing alleged child abuse be redacted before the records are
disseminated or otherwise made public. See Wilson, 200 Ariz. at 395, ¶ 11,
26 P.3d at 1166 (declining to carve out a broad “crime–fraud exception” to
a defendant’s right to assert the physician–patient privilege); Benton v.
20
JOHNSON/PSYCHOLOGICAL v. HON. O’CONNOR/STATE
Cattani, J., Concurring in Part, Dissenting in Part.
Superior Court, 182 Ariz. 466, 468, 897 P.2d 1352, 1354 (App. 1994) (holding
that before medical records may be disclosed without the patient’s consent
in a criminal case, the court must balance “the public’s interest in
protecting victims” with “the privacy interest reflected in the physician–
patient privilege”). In sum, when Arizona law is used to obtain otherwise
confidential information, the parameters set forth under Arizona law for
disclosure of that confidential information should also be applied.
¶59 In my view, the request for disclosure of documents
reflecting communications that took place in Arizona should be treated
the same as if the request were made by Arizona prosecutors seeking
disclosure of documents in an Arizona case. I would thus accept
jurisdiction and reverse the superior court’s finding that the court is not
required to undertake a privilege/confidentiality review before ordering
that the documents at issue be disclosed for use in a Wisconsin
prosecution.
:gsh
21