(dissenting).
{23} With reluctance, I respectfully dissent. In my mind, the majority opinion is wrong on the law, wrong on policy, and grossly unfair to this criminal Defendant.
{24} For thirty years now, since State ex rel. Anaya v. McBride, 88 N.M. 244, 539 P.2d 1006 (1975), and Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978), it has been settled law that this Court, and only this Court, may create a testimonial privilege. Unless authorized by the Constitution, the Legislature may not decide who may give testimony in a court of law. The decision to create a testimonial privilege remains a core function of the judiciary as a separate and equal branch of government. See Ammerman, 89 N.M. at 312, 551 P.2d at 1359.
{25} In no uncertain terms, this Court adopted a controlling rule, Rule 11-501 NMRA 2005, which provides: “Except as otherwise required by constitution, and except as provided in these rules or in other rules adopted by the supreme court, no person has a privilege to ... refuse to be a witness.” The language is straightforward. It does not say, “Except as the legislature may otherwise provide.... ” And it does not say, “Except as the legislature may provide, assuming we agree with what the legislature has done____” It says, “no person” can refuse to give testimony unless excused by the Constitution or this Court.
{26} For thirty years, we have said the same thing in our case law. In Ammerman, 89 N.M. at 312, 551 P.2d at 1359, we found a legislatively created privilege to be an unconstitutional incursion upon the doctrine of separation of powers. Our holding was unequivocal:
In view of our clear and unambiguous assertion in Rule 501 that no person has a privilege, except as provided by constitution or rule of this court — and no rule of this court grants a privilege to a journalist or newscaster — -and in view of our equally plain and unambiguous assertion in our opinion in State ex rel. Anaya v. McBride, supra, that under our Constitution the Legislature lacks power to prescribe by statute rules of evidence and procedure, this constitutional power is vested exclusively in this court, and statutes purporting to regulate practice and procedure in the courts cannot be binding, we are able to reach no conclusion other than that the privilege purportedly created by [the Legislature] is constitutionally invalid and cannot be relied upon or enforced in judicial proceedings.
Id. (emphasis added).
{27} I note the use of the word “exclusively.” The constitutional power to prescribe a testimonial privilege is vested “exclusively” in the courts. That means the power cannot simultaneously lie here and somewhere else, like the Legislature. When the majority states that Ammerman does not “categorically prohibits the Legislature from enacting legislation affecting practice or procedure,” see Maj. Op. ¶ 9, I do not understand the reasoning. To the contrary, we said exactly that in Ammerman, 89 N.M. at 312, 551 P.2d at 1359, we categorically prohibited the creation of testimonial privileges in our courts by legislation. We overturned the Legislature’s privilege, not because we disagreed with it or found it inconsistent, but because the legislature was overstepping its constitutional boundaries and intruding into an area in which power was vested “exclusively” in this Court. Id. In fact, we later adopted a news media-confidential source privilege similar to what we declared unconstitutional in Ammerman. See Rule 11-514 NMRA 2005. Our dispute with the Legislature in Ammerman was not about substance, it was very much about procedure and constitutional prerogative. With respect, I am compelled to conclude that the majority’s statement about Ammerman is mistaken.
{28} We said much the same thing in State ex rel. Attorney General v. First Judicial District Court, 96 N.M. 254, 260, 629 P.2d 330, 336 (1981), in which we noted how different New Mexico’s Rule 12-501 is from the more permissive federal rule. We concluded that, unlike practice elsewhere, New Mexico does not recognize those privileges rooted in the common law, unless required by the Constitution or provided in rules adopted by this Court. Id. This Court has never retracted either the language or the holdings of these two opinions, Ammerman and First Judicial District. We have been consistent in our solicitude regarding testimonial privilege.
{29} In other areas, we have not been so consistent. Accurately, the majority points out that at certain prescribed junctures our rules do permit a legislative voice in what might be called practice and procedure. In Rule 11-402 NMRA 2005, for example, we declared all relevant evidence is admissible, except as otherwise provided by constitution, by rule, or “by statute.” In Rule 11-502 NMRA 2005, we recognized that when the Legislature requires a person to file a return or report, it may condition that requirement with a guarantee of confidentiality, even to the point of creating a limited testimonial privilege with respect to the contents of that report. Rule 11-502 is a good example of what we meant in Ammerman, and what we said in Rule 11-501, that no person has a privilege to refuse testimony “except as provided in these rules or in other rules adopted by the supreme court.” We so “provided” in Rule 11-502.
{30} Unlike the privilege for statutory reports, however, this Court has never “provided” for a rape counselor privilege, nor has it ever “provided” for a statutory role in the creation of such a privilege. The case before us is not based on Rule 11-402; it is not based on Rule 11-502. It is not based on any other rule in which we have permitted the Legislature to act. It is based, instead, upon Rule 11-501, in which we have said unequivocally that the Legislature does not have authority to act.
{31} The majority relies heavily upon the Court of Appeals’ opinion in State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct.App.1978), but for reasons I cannot fathom. As is stated, the majority reads Ammerman, Herrera, and First Judicial District together to provide a new framework of analysis. Maj. Op. ¶ 11. Yet unlike Ammerman and First Judicial District, Herrera was not a testimonial privilege case. It involved nothing more than a statutorily created definition of relevant evidence, declaring a rape victim’s sexual history inadmissible under certain circumstances. Herrera, 92 N.M. at 7, 582 P.2d at 384. All the Legislature did with the statute at issue in Herrera was what we expressly allow it to do in Rule 11-402, and the statute was crafted so as to balance prejudice and probative value exactly as we direct in Rule 11-403 NMRA 2005. As an opinion of the Court of Appeals, Herrera made no pretense of modifying or limiting Ammerman and First Judicial District, opinions of this Court. In my mind, Herrera simply will not bear the weight the majority places upon it.
{32} As a matter of judicial policy it is, I suppose, a fair question whether we should change our precedent, overrule Ammerman, and enable the Legislature to create testimonial privileges by statute. Perhaps the better policy is that we should take a wait-and-see approach to legislation, as the majority suggests, leaving room for the Legislature to act unless we say it cannot. It may be, as some have suggested, that our policy has been too rigid, too confrontational. See Michael B. Browde & M.E. Occhialino, Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Constraints, 15 N.M. L.Rev. 407, 462-67 (1985).
{33} If we did decide to enable the Legislature to create testimonial privileges, there are several legitimate approaches we could take to do so. We could begin by amending Rule 11-501. A simple stroke of the pen would add “except as provided by statute” to the exceptions to the general rule prohibiting a person from refusing to be a witness. Or, we could codify a rape counselor privilege in our rules, much as this Court did in the aftermath of Ammerman with respect to the news media-confidential source privilege. The majority does neither, however, and concludes instead that its reasoning is somehow consistent with Rule 11-501 without the need for a new rule. I do not follow. If we do not amend Rule 11-501, or come up with a new rule, then we must change how we have interpreted Rule 11-501, and that means we must overrule Ammerman. Again, the majority declines, reasoning that its opinion is somehow consistent with Ammerman. Again, I do not follow.
{34} I believe there is something important in Ammerman that we should not disturb so easily. The decision to allow someone not to give testimony, and the balancing of policy considerations implicit in such a decision, goes to the heart of judicial authority. Courts are all about, seeking the truth, and towards that end everyone, rich and poor, the most powerful and the most humble, can be compelled to give testimony. If we do not have exclusive control over our own courts and that truth-seeking process, then by what right can we claim to be an equal and independent branch of government?
{35} In my experience bright line rules can sometimes be helpful. Litigants know well in advance that privileges are the exclusive province of this Court. Judge Blackmer below knew it, as did the attorneys from both sides, none of whom argued for the position taken by this opinion. Bright line rules can also be helpful to the Legislature. A bright line rule can explain why legislative action is inappropriate. Sometimes it helps for a coequal branch of government to clearly understand its limitations. The permissive rule presently envisioned by the majority provides no such protection for the judiciary. It simply provides an invitation to act; the Legislature loses nothing by enacting a privilege because we may eventually agree. And the Legislature will certainly advise us that it acts as always with a presumption of constitutionality.
{36} My troubles with the majority opinion do not end with its treatment of Ammerman and Rule 11-501. Even if Ammerman is no longer good law and our prior views about Rule 11-501 are inoperative, that does not end the inquiry. Assuming we adopt the majority’s new reasoning about a shared role between the Legislature and this Court, that does not explain how the rape counselor privilege, never recognized by this Court before today, can apply to this particular Defendant in this particular prosecution. See N.M. Const, art. IV, § 34 (“No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.”).
{37} Ironically, I might well favor the rape counselor privilege on its merits. But Judge Blackmer had it quite right when he said that such a decision would create a new rule with respect to this criminal prosecution, which neither this Court nor the Legislature can do consistent with our state Constitution. This particular Defendant has a right to be tried under the rules as they existed at the time of his arrest and prosecution. At that time there was no constitutional rule of privilege applicable to rape counselors because we had not provided for one in our rules, and until today we had not provided for one in our case law. To now suggest, as the majority does, that the statutory privilege was valid and effective when enacted, despite the clear injunction of Ammerman, because we now say it is not inconsistent with a totally different judicially created privilege for psychotherapists, seems all too concerned about result and not sufficiently concerned about how we get there.
{38} The correct answer to the Article IV, Section 34, dilemma should be to give effect to the new rape counselor privilege when this Court recognizes it as such, and decides that the statutory privilege is consistent with our own rules of privilege. That is how I understand the majority to argue that the judiciary retains its constitutional authority and control over rules of privilege: that we decide what is consistent or inconsistent with our own rules. But if the statutory privilege is not valid until we recognize it to be so, then it cannot apply retroactively to this Defendant’s criminal case. If, on the other hand, we are saying that the privilege was actually in effect and valid when enacted years ago by the Legislature, without any imprimatur from this Court, then we will have surrendered any pretense of control over testimonial privileges and the rules of practice and procedure that govern judicial proceedings.
{39} With great reluctance, the foregoing concerns impel me to register my dissent from the opinion of the majority.