State v. Pelley

MATHIAS, Judge,

dissenting in part and concurring in part.

I respectfully dissent in part. I disagree with the majority's conclusion that the communication between Pelley and the social worker is privileged because the State sought disclosure of that communication after the social worker-client privilege was established by Indiana Code section 25-23.6-6-1. See Op. at 683-634. The purpose of section 25-283.6-6-1 is clearly to protect a client's communications with his or her social worker. As the State observes in its Reply Brief, " '[plrivileges exist for the protection of communications that society has deemed worthy of 2a shroud of secrecy, rather than for advancement of truth.'" Reply Br. of Appellant at 2 (quoting 12 Ind. Practice § 501.101 at 559). See also Matter of C.P., 563 N.E.2d 1275, 1278 (Ind.1990) ("The [physician-patient] privilege is intended to inspire full and complete communication by patients so as to further trustful and successful treatment."); Ley v. Blose, 698 N.E.2d 381, 383-84 (Ind.Ct.App.1998) (quoting Green v. State, 257 Ind. 244, 255, 274 N.E.2d 267, 273 (1971)) ("By safeguarding the confidentiality of communications, the physician-patient privilege seeks 'to inspire fall and complete disclosure of knowledge pertinent and necessary to a trustful and proper relationship[.] ")2

Preventing disclosure is the only means to protect the communication between a social worker and a client. Consequently, because the overriding interest in establishing the social worker-client privilege is protection of that communication, the date on which the communication took place should be the determinative date to determine whether the privilege exists.

However, because I agree that section 25-28.6-6-1 should be applied retroactively, the date on which the communication took place is not dispositive of whether the privilege exists. It appears that section 25-23.6-6-1 was enacted in response to *639our court's 1989 decision in Matter of C.P., 543 N.E.2d 410 (Ind.Ct.App.1989), aff'd, 563 N.E.2d 1275 (Ind.1990). The close temporal proximity of our opinion, which was handed down in September, 1989, and the enactment of section 25-28.6-6-1, which became effective in July, 1990, certainly supports the conclusion that the statute was intended to be remedial, and therefore, retroactive.3 See Martin v. State, 774 N.E.2d 43, 45 (Ind.2002) (concluding that the General Assembly's amendments to statutes, which provided credit for time served on home detention, were remedial in nature because the amendments were "apparently" enacted in response to a Court of Appeals decision).

Although I disagree with the conclusion that the determinative date is the date of the discovery request, I agree that the statute creating the social worker-client privilege is remedial in nature and should be applied retroactively. Therefore, I concur as to all remaining issues.

. See also Lahr v. State, 731 N.E.2d 479, 482 (Ind.Ct.App.2000) (citations omitted) ("The [attorney-client] privilege is intended to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice' Furthermore, the privilege allows both the attorney and the client to give complete and confidential information, so that both may be fully advised regarding the attorney's services to the client, and the client is assured that confidences are not violated.").

. See also Darnell v. State, 674 N.E.2d 19, 21 n. 3 (Ind.Ct.App.1996) ("After Matter of C.P. was decided, the legislature enacted [Indiana Code section} 25-23.6-6-1 which makes communications between a social worker and a client privileged when the communications are made to the social worker in his or her official capacity.").