State v. Strauch

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:05:56 2015.03.30

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-009

Filing Date: March 9, 2015

Docket No. 34,435

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

JASON STRAUCH,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Jacqueline D. Flores, District Judge

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

for Petitioner

Theresa Duncan
Albuquerque, NM

for Respondent

New Mexico Children, Youth and Families Department
Jennifer Jo Saavedra
Santa Fe, NM

for Amicus Curiae
New Mexico Children, Youth and Families Department

OPINION

DANIELS, Justice.

{1} The child abuse reporting requirement of the Abuse and Neglect Act in the New

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Mexico Children’s Code mandates that

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

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

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

I. BACKGROUND

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

{4} Defendant was charged with four counts of criminal sexual contact of a minor in the
second degree, contrary to NMSA 1978, Section 30-9-13(A)-(B) (2003), which provides
enhanced penalties when the victim is under the age of thirteen. After the State filed a notice
of intent to call Mr. Stearns as a prosecution witness and attempted to obtain records of the
counseling sessions, Defendant filed a motion in the district court for a protective order,
arguing that the communications with Mr. Stearns were protected from disclosure both by
statute, particularly NMSA 1978, § 61-31-24(B) (1989) (providing under the Social Work
Practice Act that “[n]o licensed social worker may disclose any information he has acquired

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from a person consulting him in his professional capacity” unless any of four limited
exceptions apply), and by evidentiary privilege, particularly Rule 11-504(A)(4), (B)-(D)
(establishing under the New Mexico Rules of Evidence that a patient’s confidential
communications with a licensed social worker “made for the purpose of diagnosis or
treatment of the patient’s physical, mental, or emotional condition” are privileged from
disclosure in a court proceeding unless any of four limited exceptions apply), see Rule 11-
1101(C) NMRA (“The rules on privilege apply to all stages of a case or proceeding.”).1

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

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

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

{8} The majority held as well that Mr. Stearns was statutorily relieved of reporting child

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

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

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

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

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

II. DISCUSSION

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

A. Standard of Review

{13} This case requires us to construe both legislative enactments and court rules. We
review issues of statutory interpretation de novo. State v. Almanzar, 2014-NMSC-001, ¶ 9,
316 P.3d 183. Our “primary goal when interpreting statutes is to further legislative intent.”
Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 N.M. 162, 245 P.3d 1214. Although
the first guide to statutory interpretation is the actual wording of the statute, we have
recognized that where the meaning of the facial language of a statute is in doubt, the plain
language approach may not lead to a correct interpretation of true legislative intent. See
Benavides v. Eastern New Mexico Medical Center, 2014-NMSC-037, ¶ 24, 338 P.3d 1265.
In interpreting statutory language as well as in much of the other work courts are called on

4
to perform, it is necessary to think thoughts and not words. See State v. Office of Pub,
Defender ex rel. Muqqddin, 2012-NMSC-029, ¶ 54, 285 P.3d 622. We have repeatedly
cautioned that despite the “‘beguiling simplicity’” of parsing the words on the face of a
statute, we must take care to avoid adoption of a construction that would render the statute’s
application absurd or unreasonable or lead to injustice or contradiction. State ex rel.
Children, Youth & Families Dep’t v. Maurice H. (In re Grace H.), 2014-NMSC-034, ¶ 34,
335 P.3d 746 (citation omitted); State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218
P.3d 868.

{14} We therefore must “examine the plain language of the statute as well as the context
in which it was promulgated, including the history of the statute and the object and purpose
the Legislature sought to accomplish.” Maes v. Audubon Indem. Ins. Grp., 2007-NMSC-046,
¶ 11, 142 N.M. 235, 164 P.3d 934; see also State Bd. of Educ. v. Bd. of Educ. of Alamogordo
Pub. Sch. Dist. No. 1, 1981-NMSC-031, ¶ 14, 95 N.M. 588, 624 P.2d 530 (“In ascertaining
the legislative intent, we look not only to the language used in [a] statute, but also to the
object sought to be accomplished and the wrong to be remedied.”).

B. Reporting Requirements of the Abuse and Neglect Act

{15} Despite the fact that the statutory analysis in this case focuses primarily on the single
sentence in Section 32A-4-3(A) describing the reporting requirements, the apparent
simplicity of that sentence has proved to be deceptive. We appreciate the difficulties the
parties and the courts below have had in interpreting the current facial language of the Abuse
and Neglect Act because we also have not found satisfactory answers by just looking at the
words in the current version of a statute that has been repeatedly amended over the course
of the half century since the first version was enacted in 1965. See 1965 N.M. Laws, ch. 157.
(For the reader’s convenience, the appendix to this opinion is a chronology of all versions
of the statutory reporting language from 1965 to the present.) Simply parsing words in the
current version of the statute and attempting to discern legislative intent from isolated
grammatical analyses raises more difficult questions than it provides definitive answers.

{16} For example, if the Legislature had meant to impose a reporting requirement on only
the professionals specifically mentioned in the statute, why did it include the words, “[e]very
person, including” immediately before identifying those professions? Conversely, if the
Legislature had meant to impose a reporting requirement on every person, why did it then
specifically mention some occupations and not others? Why did the Legislature amend the
statute in 2003 to omit the language “but not limited to” between the words “[e]very person,
including” and the listing of identified professionals that followed? Compare 2005 N.M.
Laws, ch. 189, § 38(A), with 2003 N.M. Laws, ch. 189, § 1(A). Why would the Legislature
have imposed a mandatory reporting requirement on a social worker providing counseling
services while employed by a public school or other government agency and not on a social
worker providing the same kind of counseling while employed by a private school or
business or while self-employed? If the Legislature really intended “official capacity” to
make such a distinction, why would it not apply the same distinction to the physicians and

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teachers and other occupations mentioned in the statute? More globally, what is the
relationship between the reporting requirements of the statute and the evidentiary privileges
in the New Mexico Rules of Evidence? And why would the judiciary’s evidentiary privilege
rules protect the confidentiality of counseling sessions with a privately paid social worker
and not the same kind of counseling with a government-salaried social worker? In this
opinion, we seek to find a principled resolution that furthers the legislative purpose while
either answering those questions or putting them to rest as irrelevant.

{17} As we have found with other unclear statutory provisions in the past, “the statutory
history provides us with guidance as to the legislative intent,” allowing us to “‘promote the
legislature’s accomplishment of its purpose.’” Ortiz v. Overland Express, 2010-NMSC-021,
¶¶ 19, 21, 148 N.M. 405, 237 P.3d 707 (citation omitted) (interpreting a statute to achieve
its apparent purpose where amendments had inadvertently led to an unintended textual
interpretation). In order to fully appreciate where we are, we need to understand how we got
here.

1. Statutory Origins

{18} New Mexico did not enact its child abuse reporting statute in a vacuum. Our statute
was part of a national movement that was spurred in 1962 by publication of a seminal article,
The Battered-Child Syndrome, in the Journal of the American Medical Association. See
Leonard G. Brown, III & Kevin Gallagher, Mandatory Reporting of Abuse: A Historical
Perspective on the Evolution of States’ Current Mandatory Reporting Laws with a Review
of the Laws in the Commonwealth of Pennsylvania, 59 Vill. L. Rev. Tolle Lege 37, 37 & n.4
(2013). Prior to the article’s publication, no state had enacted a child abuse reporting law,
but within just the next four years, all fifty states had done so. Id. at 37.

{19} Following publication of The Battered-Child Syndrome, which “worked to galvanize
the American public to take action,” Brown & Gallagher, supra, at 39, a number of medical
and legal professionals published articles about the problem of child abuse and the need for
protective statutes, particularly including reporting laws. See, e.g., Allan H. McCoid, The
Battered Child and Other Assaults Upon the Family: Part One, 50 Minn. L. Rev. 1, 3-19
(1965). The Children’s Bureau of the United States Department of Health, Education, and
Welfare2, the Council of State Governments, the American Humane Association, and the
American Medical Association all drafted model statutes to “offer various alternatives to the
state legislators [considering enactment of reporting legislation] on the issue of who should
be required to report.” Monrad G. Paulsen, Child Abuse Reporting Laws: The Shape of the
Legislation, 67 Colum. L. Rev. 1, 2 & n.4, 3 (1967). Throughout the United States, “child

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

6
abuse reporting laws were passed quickly, perhaps even hastily.” Brown & Gallagher, supra,
at 39.

{20} The 1963 Children’s Bureau proposal, initially followed by twenty-two states, would
have imposed a reporting duty only on physicians, on the theory that physicians would be
in the best position to learn of child abuse. Paulsen, supra, at 2 n.4, 3-4, 6; see John B.
Reinhart & Elizabeth Elmer, The Abused Child[:] Mandatory Reporting Legislation, 188 J.
Am. Med. Ass’n, Apr. 27, 1964, at 358 (discussing advantages and disadvantages of the
1963 Children’s Bureau proposal for the model legislation). An advisory committee of the
American Humane Association proposed in 1963 to broaden the class of reporters to include
all medical practitioners and hospital personnel. Paulsen, supra, at 2 n.6, 4. In 1965, the
Council of State Governments added registered nurses to its list of required reporters. Id. at
2 n.5, 5.

{21} The “American Medical Association (AMA) objected to physicians’ being singled
out for a special reporting duty” and proposed adding schoolteachers and social workers to
those under a duty to report, extending the reporting requirement in its 1965 proposed
legislation to “‘any doctor of medicine, resident or intern[,] . . . any registered nurse, any
visiting nurse, any school teacher or any social worker acting in his or her official capacity.’”
Paulsen, supra, at 3 n.7, 5 (omission in original) (quoting the 1965 AMA proposed
legislation); see Office of the General Counsel, AMA, Editorial, Battered Child Legislation,
188 J. Am. Med. Ass’n, Apr. 27, 1964, at 386 (recommending that mandatory reporting of
child abuse extend beyond physicians to other professions, including social workers).

{22} In 1965, the New Mexico Legislature enacted the first predecessor to our current law,
a permissive statute providing that “[a]ny 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” was permitted, but not required,
to report suspected child abuse without risk of a lawsuit. 1965 N.M. Laws, ch. 157, § 2. The
“official capacity” language has been a feature of the reporting statute in every version from
1965 to the present, and to understand its significance it is important to understand its
history.

2. The “Official Capacity” Language

{23} In the 1965 New Mexico act, terminology identifying occupations of listed reporters
tracked the language of the AMA model statute, including use of the qualifying phrase
“acting in his or her official capacity” after the listed occupations; but this original New
Mexico act added the language, “any ordained minister of an established church,” at the end
of the listing instead of inserting it at an earlier point in the listing before the phrase “acting
in his or her official capacity.” 1965 N.M. Laws, ch. 157, § 2.

{24} The phrase “acting in his or her official capacity” in the original New Mexico statute

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was identical in wording and placement to the same phrase contained in the AMA proposed
legislation. This phrase followed the entire list of AMA-suggested occupations, and there
is nothing in grammar or reason to indicate that it was meant to apply only to the final
occupation in the list, social workers. The other states that have adopted the “official
capacity” language from the AMA proposal have variously placed the language at the
beginning of the listing of occupations, at the end of the listing as in the AMA model, or in
a separate paragraph applicable to all categories. See, e.g., N.Y. Consol. Laws ch. 55, art. 6,
§ 413(1)(a) (McKinney 2015) (providing that “[t]he following persons and officials are
required to report . . . when they have reasonable cause to suspect that a child coming before
them in their professional or official capacity is an abused or maltreated child,” followed by
a lengthy listing of occupations, including mental health counselors and social workers); 325
Ill. Comp. Stat. Ann. 5/4 (West 2014) (imposing a reporting requirement on an extensive list
of occupations and relationships, including social workers, and ending the list with “or any
other foster parent, homemaker or child care worker having reasonable cause to believe a
child known to them in their professional or official capacity may be an abused child or a
neglected child”); Ohio Rev. Code Ann. § 2151.421(A)(1)(a) (West 2014) (“No person
described [in the extensive listing of occupations] in division (A)(1)(b) of this section who
is acting in an official or professional capacity and knows, or has reasonable cause to suspect
. . . that a child [has been abused] shall fail to immediately report . . . .”).

{25} New Mexico’s placement of the “official capacity” qualification before the last-listed
occupation, ordained ministers, appears to be nothing more than a historical anomaly
resulting from the Legislature’s tacking on ordained ministers at the end of the language
taken from the AMA model act. Compare 1965 N.M. Laws, ch. 157, § 2 (indicating at the
end of the listing of permissive reporters “, 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 . . .”), with Paulsen, supra, at 5 (indicating at the end of the listing
of required reporters “‘, any registered nurse, any visiting nurse, any school teacher or any
social worker acting in his or her official capacity. . . .’” (quoting the 1965 AMA proposed
legislation)).

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

8
2(A) of New Mexico Laws of 1997 to “; 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” in Chapter 189, Section 1(A) of New Mexico Laws of 2003.

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

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

Yates v. Mansfield Bd. of Educ., 2004-Ohio-2491, ¶ 30, 808 N.E.2d 861 (citations omitted).
“The duty is to report knowledge or suspicion of abuse or neglect that the designated persons
encounter while doing their ordinary work. . . . What the statute requires is actually quite
minimal: when teachers, or others who are required to report, encounter suspected abuse or
neglect in their official capacity, they must report it.” State v. Clark, 2013-Ohio-4731, ¶¶ 83,
85, 999 N.E.2d 592 (O’Connor, C.J., dissenting on an issue unrelated to the reporting
requirement), cert. granted, ___ U.S. ___, 135 S. Ct. 43 (2014). Our research has found no
case from any other jurisdiction that discerned a distinction between professionals receiving
their compensation from the government and those receiving their compensation from
private individuals or organizations.

{28} The “official capacity” language had more significance in New Mexico’s original
version of the reporting statute applicable only to the named occupations, a limitation that
changed in just a few years with statutory amendments that expanded the list of reporters
from certain described occupations to all persons learning of abuse and changed the
reporting from discretionary to mandatory.

3. The “Every Person” Language

{29} Following the initial adoption of child abuse legislation by New Mexico and other

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states, the American Humane Association in 1966 endorsed legislation proposing to place
a reporting duty on all persons rather than only on identified categories, on the theory that
alerting authorities to child abuse was a “‘universal obligation of all responsible citizens and
all community agencies.’” Paulsen, supra, at 5 & n.17 (quoting 1966 American Humane
Association recommendations for legislation).

{30} Initially, three states, Nebraska, Tennessee, and Utah, adopted universal reporting
by either “requiring all adults to report while also enumerating certain professional groups
or simply requiring all adults to report.” Brown & Gallagher, supra, at 40 & n.25. Indiana
followed suit in 1971, amending its designated reporter statute to one “that would
subsequently be mimicked by fifteen other states.” Id. at 42. The Indiana statute “enumerated
certain categories of professionals that were required to report while also putting the duty
on all persons in the state.” Id.

{31} In 1973, New Mexico became one of those states by amending its reporting statute
(1) to broaden the class of reporters by substituting the language “or any other person having
reason to believe [a child has been abused]” in Chapter 360, Section 2(A) of New Mexico
Laws of 1973 for the language “or any ordained minister of an established church, having
reason to believe [a child has been abused]” in Chapter 157, Section 2 of New Mexico Laws
of 1965 after the designated occupations listing that ended with “school teacher or social
worker acting in his or her official capacity,” and (2) to make reporting mandatory (“shall
report”) instead of simply permissive (“may report”).

{32} Also in 1973, the federal government passed the Child Abuse Prevention and
Treatment and Adoption Reform Act, see 42 U.S.C. §§ 5101-5107 (2012), which required
every state to enact mandatory, rather than permissive, child abuse reporting statutes in order
to be eligible for federal funding. Brown & Gallagher, supra, at 43 & n.41, 45. The
Children’s Bureau reported that as of November 2013 all states had mandatory reporting
statutes, the majority limiting the duty to identified categories but eighteen states placing all
persons under a duty to report. See United States Department of Health and Human Services,
Children’s Bureau, Mandatory Reporters of Child Abuse and Neglect, at 1-2 & n.9 (2013),
available at https://library.childwelfare.gov/cwig/ws/library/docs/gateway/Record?w=
NATIVE%28%27SIMPLE_SRCH+ph+is+%27%27Mandatory+Reporters+of+Child+Ab
use+and+Neglect%27%27%27%29&upp=0&order=native%28%27year%2FDescend%2
7%29&rpp=25&r=1&m=2& (last visited March 6, 2015).

{33} Sixteen of the eighteen states that impose reporting duties on everyone, including
New Mexico, “specify certain professionals who must report but also require all persons to
report suspected abuse or neglect, regardless of profession.” Id. at 2 & n.9, 15-57 (naming
New Mexico and the fifteen other states and citing and summarizing the reporting statutes
of these states). This combination of identified occupations and broadly inclusive language
has been widely recognized as imposing universal reporting requirements.

The broadest category of mandated reporters are those indicated by

10
 provisions that specify “any person, including but not limited to . . .”
followed by a listing of specified professions required to report, or that begin
with a listing of professions that must report, then conclude with the phrase,
“or any other person . . . .”

United States Department of Health and Human Services, Children’s Bureau Issue Paper,
Current Trends in Child Maltreatment Reporting Laws, at 3 & n.9 (September 2002),
available at https://library.childwelfare.gov/cwig/ws/library/docs/gateway/Record?w=
NATIVE%28%27SIMPLE_SRCH+ph+is+%27%27Current+Trends+in+Child+Maltreat
ment+Reporting+Laws%27%27%27%29&upp=0&order=native%28%27year%2FDesce
nd%27%29&rpp=25&r=1&m=1& (last visited March 6, 2015) (citing New Mexico as one
of the eighteen states whose statutes impose a duty on “any person who suspects child abuse
or neglect”); see also Brown & Gallagher, supra, at 42 & n.34 (listing New Mexico among
the states that followed Indiana’s lead in combining identified occupations with “any person”
or “any other person” language to impose duties to report child abuse on all persons and not
just those identified); Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting
Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. L. Rev.
723, 729 (1987) (“[M]any statutes, in addition to or instead of listing those persons required
to report, simply impose the duty to report on ‘any person’ who suspects child abuse.”
(footnote omitted)).

{34} It is helpful to consider the persuasive interpretations of similar statutory schemes
by authorities in other jurisdictions. See Sec. Ins. Co. of Hartford v. Chapman,
1975-NMSC-052, ¶ 19, 88 N.M. 292, 540 P.2d 222 (“Of course, the decisions of other states,
if any, which have statutory provisions comparable to ours, with which we are here
concerned, are persuasive but not binding on us.”). Florida, Idaho, Kentucky, New
Hampshire, and Texas are among the sixteen states with child abuse reporting laws similar
to the New Mexico law, identifying specific professionals while simultaneously requiring
“any other person” or “any person” or “other person” to report. See Fla. Stat. Ann. §
39.201(1)(a), (d) (West 2014) (“Any person who . . . has reasonable cause to suspect[] that
a child is abused . . . shall report such knowledge[,] . . . [and r]eporters in the [listed]
occupation categories are required to provide their names . . . .”); Idaho Code Ann. § 16-
1605(1) (West 2005) (“Any physician, . . . social worker, or other person having reason to
believe that a child . . . has been abused . . . shall report . . . .”); Ky. Rev. Stat. Ann. §
620.030(1) (West 2013) (“Any person who . . . has reasonable cause to believe that a child
is . . . abused shall immediately . . . report . . . .”); N.H. Rev. Stat. Ann. § 169-C:29 (West
1979) (“Any physician, . . . social worker, . . . or rabbi or any other person having reason to
suspect that a child has been abused . . . shall report . . . .”); Tex. Fam. Code Ann. §
261.101(a)-(b) (West 2013) (“A person having cause to believe that a child’s . . . health or
welfare has been adversely affected by abuse . . . shall immediately make a report . . . and
. . . [any listed] professional shall make [the] report not later than the 48th hour after the hour
the professional first suspects [the abuse].”). Idaho, Kentucky, and Texas courts and the
Florida Attorney General have interpreted the scope of the duty to report under their
similarly worded statutes to extend to all persons. See Quiring v. Quiring, 944 P.2d 695, 702

11
(Idaho 1997) (relying on the prior enumeration of the mandatory reporting statute, Idaho
Code Ann. § 16-1619(a) (1989), to conclude that a wife was obligated to report her
husband’s sexual abuses of their child despite an alleged agreement between the two to
refrain from reporting); Norton Hosps., Inc. v. Peyton, 381 S.W.3d 286, 289, 291-92 (Ky.
2012) (relying on the mandatory reporting statute, Ky. Rev. Stat. Ann. § 620.030, in holding
a hospital immune from liability for mistakenly overreporting the blood alcohol content of
a mother giving birth); Rodriguez v. State, 47 S.W.3d 86, 88-89 (Tex. Ct. App. 2001)
(relying on the Texas Family Code Annotated, Section 261.101, in requiring adults to report
abuse of a child by the child’s mother); Fla. Att’y Gen. Op. 2004-57 (2004) (recognizing that
the Florida Statutes Annotated, Section 39.201(1) (2003) “has led to confusion as to the
persons actually considered mandated reporters, i.e., all persons or just the list of
professions” and concluding that the Florida statute “imposes a responsibility on any person
who knows of or has reasonable cause to suspect child abuse . . . to report such abuse”).

{35} Our research has found no published judicial opinion in any other state that has
construed its combined specific and general statutes as imposing obligations only on the
identified occupations. And we see no reason to construe New Mexico’s statute in such a
manner, particularly in light of its history. We have been presented with no persuasive
argument that, when the Legislature followed the lead of other states in 1973 in adding “or
any other person” at the end of the list of previously described reporters, it meant anything
other than “any other person.” Interpreted otherwise, the amendment would have been
meaningless. As has been observed elsewhere, we believe that “[s]pecific mention of various
professional groups, but inclusion of ‘anyone,’ is a feature of [a reporting statute] that tends
to focus the requirement of reporting on the specific groups, while retaining the advantages
of a broad reporting class.” Donald Stuart, Mandatory Reporting of Child Abuse in
Nebraska, 8 Creighton L. Rev. 791, 793-94 (1975) (footnote omitted) (discussing the
Nebraska statute that was one of the first to combine specific occupational listings with a
universal requirement to report child abuse).

{36} Subsequent amendments have consistently maintained the broad scope of the 1973
expansion of the New Mexico statute. In the course of making other amendments in 1993,
the Legislature placed the inclusive language at the beginning instead of the end of the listed
occupations and emphasized that the list that followed was not exclusive. Compare 1993
N.M. Laws, ch. 77, § 97(A) (“Every person, including but not limited to a licensed physician
[and other listed occupations] . . . shall report [child abuse].”), with 1973 N.M. Laws, ch.
360, § 2(A) (“Any licensed physician [and other listed occupations] or any other person . . .
shall report [child abuse].”).

{37} The 2003 deletion of “but not limited to” following “[e]very person, including” does
not change our analysis. See 2003 N.M. Laws, ch. 189, § 1(A). Chapter 189 of New Mexico
Laws of 2003 was titled, “Relating to the Children’s Code: Clarifying a Member of the
Clergy’s Duty to Report Child Abuse.” Its significant effect was to add at the end of the
occupational listing the language “or a member of the clergy who has information that is not
privileged as a matter of law,” clarifying that clergy were not required to disclose protected

12
communications. See 2003 N.M. Laws, ch. 189, § 1(A). In the process of achieving that sole
objective in 2003, the 2003 act made some routine clerical cleanups, such as replacing the
commas in the occupational listing with semicolons and deleting the “but not limited to”
language, in accordance with the New Mexico Legislative Council Service’s Legislative
Drafting Manual 31 (2000, amended 2008) (“There is no need to write ‘includes but is not
limited to’; the word ‘includes’ implies an incomplete listing. Put another way, ‘includes’
includes the concept of ‘not limited to’.”). There is absolutely no indication in the legislative
history that by complying with its own technical drafting manual, the Legislature intended
to make an unannounced policy change from the universal reporting requirement that had
existed for thirty years to a sharply limited requirement.

{38} Accordingly, we conclude that the social worker in this case was a mandated reporter
under the Abuse and Neglect Act. Because this case is not an enforcement proceeding under
the act but is instead a proceeding to compel discovery and testimony in our courts, we must
now address the matter of evidentiary privileges applicable in judicial proceedings.

C. Application of Evidentiary Privileges

1. Evidentiary Privileges and Separation of Powers

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

{40} We turn now to an analysis of those rules.

2. Social Worker Privilege in the New Mexico Rules of Evidence

Rule 11-501 NMRA of the New Mexico Rules of Evidence provides that,

[u]nless required by the constitution, these rules, or other rules adopted by

13
 the supreme court, no person has a privilege to . . . refuse to be a witness; . . .
refuse to disclose any matter; . . . refuse to produce any object or writing; or
. . . prevent another from being a witness, disclosing any matter, or producing
any object or writing.

{41} We have been presented with no argument that a constitutional provision prohibits
court-ordered disclosure of the counseling communications in this case, nor is there an
argument that any nonevidentiary rule of this Court protects communications with a social
worker from disclosure, such as might arise with officers of the court subject to the
regulatory authority of the Supreme Court. Cf. Rule 16-106 NMRA (providing that no
attorney may disclose protected information concerning a client, whether in or out of court,
except in accordance with the rule).

{42} The only remaining issue is whether the communications are protected from
court-ordered disclosure by Rule 11-504 of the New Mexico Rules of Evidence, providing
a specific privilege for a person’s professional communications with physicians and mental
health counselors, specifically including licensed social workers.

{43} The basic privilege applicable to communications with physical and mental health
professionals provides that “[a] patient has a privilege to refuse to disclose, or to prevent any
other person from disclosing, a confidential communication made for the purpose of
diagnosis or treatment of the patient’s physical, mental, or emotional condition . . . .” Rule
11-504(B). The privilege generally seeks to ensure that a patient can communicate fully with
a mental health professional without the risk that the information will be used against the
patient in a court proceeding. See Blackmer, 2005-NMSC-032, ¶ 15 (recognizing as well that
such uninhibited communication “serves the public interest by facilitating the administration
of appropriate treatment”).

{44} Privileges often have limits, particularly where there are conflicting interests that
may outweigh the interests of confidentiality. See, e.g., Rule 11-503(D) NMRA (defining
exceptions to the lawyer-client privilege, including where the client is obtaining counsel in
“[f]urtherance of crime or fraud”); Rule 11-505(D) NMRA (defining exceptions to the
spousal privilege, including when one spouse is charged with a crime against the child of
either spouse). A privilege exception that was specifically added to the rule for health
professionals in 1990 provided,

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

Rule 11-504(D)(4).

{45} Before the 1990 amendment of Rule 11-504, there was a potential conflict between

14
our privilege rules and a provision, now encoded in NMSA 1978, Section 32A-4-5 (2009)
of the Abuse and Neglect Act, that purported to legislate an exception to any applicable
“physician-patient privilege or similar privilege or rule against disclosure” relating to
required child abuse reporting matters “in any proceeding.” See § 32A-4-5(A); 1965 N.M.
Laws, ch. 157, § 5 (original enactment of this provision). This statutory exception to health
care worker privileges was a feature of the Children’s Bureau 1963 model act for reporting
child abuse and has been adopted in most, if not all, jurisdictions. See Brown & Gallagher,
supra, at 39, 67-68 & n.154; Paulsen, supra, at 36-37. Providing a privilege exception in the
model statutes was understandable because in most states the legislative branch regulates
evidentiary privileges, unlike in New Mexico and other states with similar constitutional
structures where regulation of court practice and procedure is under judicial branch
authority. See, e.g., State v. Sypult, 800 S.W.2d 402, 406 (Ark. 1990) (Newbern, J.,
concurring) (noting that “the Supreme Court of New Mexico relied on almost identical
language in the New Mexico constitution as authority for” its adoption of rules of evidence
and that the “step has been taken not only in New Mexico . . . but also in Florida, in
Montana, and in Wisconsin” (internal quotation marks and citation omitted)). The Arkansas
Supreme Court held that a court’s “deference to legislation involving rules of evidence and
procedure will be given only to the extent the legislation is compatible with [that court’s]
established rules.” Sypult, 800 S.W.2d at 405.

{46} By adopting the 1990 privilege exception for our own court rules furthering the
disclosure purposes underlying New Mexico’s reporting statute, we ensured that our
“physician-patient privilege or similar privilege,” specifically Rule 11-504, the privilege rule
relating to physical and mental health professionals, did not prevent mandated in-court
disclosure of what otherwise would have been protected communications.

{47} Because Mr. Stearns was a mandated reporter under the Abuse and Neglect Act, and
because the social worker communications provisions in the New Mexico Rules of Evidence
deny protection from in-court disclosure of matters that are required by law to be reported
out of court, the communications between Defendant and Mr. Stearns are not shielded from
compelled disclosure by evidentiary privilege.

III. CONCLUSION

{48} We reverse the decisions of the courts below and remand to the district court for
proceedings in accordance with this opinion.

{49} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Justice

WE CONCUR:

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____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
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.

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.

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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
residing in Indian country.

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