DocketNumber： 940175
Judges： Russon, Howe, Durham, Zimmerman, Stewart
Filed Date： 2/1/1995
Status： Precedential
Modified Date： 10/19/2024
dissenting:
The majority purports to analyze the statute at issue under the plain meaning rule of statutory construction. While the plain meaning rule is a basic rule of statutory construction, an equally basic rule of statutory construction is that a statute should be construed as a whole, with all of its provisions construed to be harmonious with each other and with the overall legislative objective of the statute. Utah State Road Comm’n v. Friberg, 687 P.2d 821, 831 (Utah 1984); Reagan Outdoor Advertising, Inc. v. Utah Dep’t of Transp., 589 P.2d 782, 783 (Utah 1979); see Amax Magnesium Corp. v. Utah State Tax Comm’n, 796 P.2d 1256,1258 (Utah 1990).
The majority focuses on the opening paragraph of Utah Code Ann. § 58-39-10 (1994). That section provides:
Any communication between a marriage and family therapist and the person treated is privileged and confidential. Its secrecy shall always be preserved and this privilege is not subject to waiver, except:
(1)A marriage and family therapist may communicate orally about any person being treated with another member of his profession or of a related profession who is also working with or has worked with the person being treated. However, he may make no written communication with other professional persons, about the communications from the person being treated, unless the person being treated consents in writing.
(2) A marriage and family therapist, to whom a person has been referred by a court or by a conciliation department working under the supervision of a court, may submit to the appropriate court a written evaluation of the prospects or prognosis of a particular marriage without divulging facts or revealing confidential disclosures.
(3) If the marriage and family therapist is a party defendant in a civil, criminal, or disciplinary action arising from that therapy, in which case the privilege is waived, but the waiver is limited to that action.
(4) A marriage and family therapist shall not treat as confidential a communication that reveals the contemplation or commission of a crime.
Utah Code Ann. § 58-39-10 (1994).
Reading the statute literally, as the majority does, compels absurd results. If, indeed, “any communication between the marriage and family therapist and the person treated” is privileged except for only the four stated exceptions, as the majority holds, then the conversation between a therapist and a patient in an elevator or at a cocktail party with a number of other people in hearing range would be privileged absolutely, irrespective of the subject matter of the conversation, because such conversations would fall within the literal, plain meaning of the statutory language. Certainly the Legislature did not intend such absurd results. Applying the plain meaning rule in such a fashion as the majority does distorts and seriously undermines the legislative intent. Reading the statute as a whole, however, makes clear the legislative intent and purpose.
The language in the opening paragraph that a communication between a marriage and family therapist and a client shall be held confidential must be read in light of the purpose and language of the entire statute. Contrary to the general rule that a professional may not waive a patient’s or a client’s privilege, the four subsections establish exceptions allowing a therapist to disclose the contents of communications to third persons.
Every stated exception to the confidentiality established by the opening paragraph is an exception for a communication made by the therapist to a third person. It is absurd, however, to construe the statute to mean that a client cannot disclose to third persons communications he or she made to a therapist. If that were correct, a client would never be able to disclose the content of prior communications with a therapist to a new therapist in the course of therapy. Nor could a client disclose such communications to a lawyer for the purpose of obtaining legal redress for malpractice by a therapist, even though the statute itself permits the therapist to disclose such communications in case of a malpractice action. Nor, indeed, could a client disclose a communication to a spouse when attempting a marital reconciliation.
In truth, the marriage and family therapist privilege is like every other evidentiary privilege that the courts deal with on a frequent basis. The person making a confidential communication has always had the unfettered right to speak freely about any such communication, even though the professional who received the confidential communication had no such concomitant right. Suggesting that a client, a patient, or a parishioner cannot disclose his or her communications to a therapist, a physician, an attorney, personal friends and family, or to anyone else is not only highly novel, but would raise serious First Amendment issues.
The majority opinion notwithstanding, Clausen v. Clausen, 675 P.2d 562 (Utah 1988), simply does not govern this case. In Clausen, the issue had to do with the division of the marital assets between two persons who had divorced. Over the ex-husband’s objection, a marriage and family counselor who had counseled the husband and wife prior to their separation was allowed to testify regarding the ex-wife’s emotional state during counseling. This Court ruled that it was error for the trial court to have admitted the testimony of the marriage and family counselor. Id. at 565.
That ruling is patently distinguishable from the present ease. Marriage and family counselors often counsel husbands and wives together during the same session. The confidentiality necessary to make such counseling effective must perforce attach to the communications of both the husband and the wife. Obviously, therefore, one spouse cannot be allowed to waive the privilege in a judicial proceeding involving the other spouse with respect to such communications. That was the case in Clausen. The Court held that an ex-spouse could not waive the privilege to obtain damaging admissions made by a former spouse in a counseling session. Had the Court ruled otherwise, marriage counseling of spouses on the verge of a divorce would provide a trap for the unwary and a deceitful strategy for a disingenuous spouse.
Here, Mary Moriarty seeks disclosure of communications she made concerning herself to a marriage and family counselor. There is no indication whatsoever that those communications were made in the presence of either a spouse or any other third person who had a legitimate interest in barring disclosure, and no person with a legitimate interest objects to the disclosure of the communication. The Clinic, which has no interest whatsoever in the confidentiality of those communications, seeks to bar the disclosure. Had the same disclosure been made to a licensed clinical social worker or a psychologist who also does marriage counseling, there would be no doubt that a court could compel such a per
By bringing a personal injury action, Mary Moriarty placed her physical and mental condition in evidence and was deemed under the law to have waived her privilege with respect to her physical and mental condition insofar as it was pertinent to her action for damages. For that reason, the trial judge directed her to execute a release so that her records could be obtained for Harper Excavating, but the Salt Lake Child and Family Therapy Clinic, Inc., refused to produce the record. Allowing the Clinic to hold the information sought confidential does not benefit the Clinic in any way, and it gives Mary Moriarty an unfair advantage in her litigation.
Because the Legislature repealed Utah Code Ann. § 58-39-10 and replaced it with a new section, Utah Code Ann. § 58-60-114, effective July 1,1994, this case has no significance beyond the merits of the dispute between the parties here. But the new statutory revision makes clear that there is nothing unique about the marriage and family counselors’ privilege and that it should be applied as similar privileges are applied. Construing the old provision as the majority does not only fails to construe the statute correctly, but it will prejudice Harper Excavating in presenting a true and accurate picture of relevant facts upon which this dispute should be decided.
The Legislature expects the courts to apply statutes, which necessarily are written in generalities, with some degree of common sense to particular situations. The Legislature does not expect the courts to effectuate what they think is good policy, but rather to enforce legislative intent. In the end, the only truly reliable canon of statutory construction is to ascertain and apply the law the Legislature intended or would have intended had it turned its mind to the issue. Incanting the word “plain meaning” while ignoring other evidence of legislative purpose and intent does not serve that purpose, as this case illustrates. Significantly, the majority does not even suggest a rational policy that sustains its plain meaning analysis. Indeed, it is totally unconcerned about the irrationality of the result and the potential constitutional issues it raises.