State v. Curtis

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-278


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      Addison Superior Court

Dennis R. Curtis                             April Term, 1989


Arthur J. O'Dea, J.

William T. Keefe, Addison County Deputy State's Attorney, Middlebury, for
  plaintiff-appellee

Charles S. Martin and Deborah Palmucci, Law Clerk (On the Brief), of Martin
  & Paolini, Barre, for defendant-appellant

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for amicus curiae Office of Attorney General


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ., and Barney, C.J.
          (Ret.), Specially Assigned


     ALLEN, C.J.   Defendant appeals from a trial court order quashing a
subpoena duces tecum that would have compelled a Department of Social and
Rehabilitation Services (SRS) worker to produce information from SRS files
about a juvenile sexual assault victim.  We reverse and remand.
     Defendant was charged with the attempted sexual assault of a 12-year-
old girl under 13 V.S.A. { 3252(a)(1).  Following the alleged attack, the
girl ran to a neighbor's home, and the police were called.  The police
could not locate the girl's parents, and she was placed in the temporary
custody of SRS, which then consented to the child's physical examination in
connection with the ensuing criminal investigation.  A deposition was
scheduled for the child, and a subpoena duces tecum was served on the SRS
social worker assigned to the case requiring her "to bring with her all SRS
files containing the name of [the child], and any documents in the
possession of SRS pertaining to [the child], including drawings, tape
recordings, pictures, audio/video tapes, etc."  The State moved to quash the
subpoena, arguing that these materials were not subject to release, (FN1) and
the trial court, after viewing them in camera and identifying the more
relevant of two files as "primarily the investigation of the alleged sexual
assault which is the subject of this proceeding," concluded that the
materials were protected from discovery "as confidential information under
the patient privilege."  The court sealed its own decision on the motion,
apparently in response to V.R.Cr.P. 16.2(f).  Defendant moved in the trial
court under V.R.A.P. 5 for interlocutory review of the quash order, and that
permission was granted. (FN2) The trial court certified the following question
for review by this Court:
           Does the court's decision denying access of the
         defendant to the records of the [Department of] Social
         and Rehabilitation Services and to the findings and
         conclusions of the court deny the defendant a fair trial
         and violate his confrontation rights contained in the
         Sixth and Fourteenth Amendments to the United States
         Constitution and Chapter I, Article Ten of the
         Constitution of the State of Vermont[?]

We subsequently granted defendant's motion to allow appellate counsel to
view the trial court's findings and conclusions. (FN3) also requested the
Attorney General to file a brief amicus curiae.
     We note at the outset that the question certified by the trial court
does not fully describe the issues now before us.  See State v. Dreibelbis,
147 Vt. 98, 99-100, 511 A.2d 307, 308 (1986) (trial court's statement of the
question under V.R.A.P. 5(b) is a landmark, not a boundary).  The certified
question raises issues under the Vermont and United States Constitutions
without first asking whether the trial court correctly concluded that the
SRS records were privileged and therefore protected from discovery.  Under
longstanding practice and precedent, we must not consider constitutional
questions unless the disposition of the case requires it.  In re Wildlife
Wonderland, Inc., 133 Vt. 507, 520, 346 A.2d 645, 653 (1975).  Statutory
claims are to be considered first, and if dispositive, we will not need to
reach the constitutional issues.  Goodemote v. Scripture, 140 Vt. 525, 528,
440 A.2d 150, 152 (1981).
     The burden is on the State in this case to prove that the material
sought to be protected is in fact privileged.  State v. Sweet, 142 Vt. 238,
239, 453 A.2d 1131, 1132 (1982).  The State's briefs give scant support to
the trial court's conclusion that the SRS records in this case were
protected from discovery by the patient's privilege.  The general rule of
this privilege is stated in V.R.E. 503(b):
         A patient has a privilege to refuse to disclose and to
         prevent any other person . . . from disclosing
         confidential communications made for the purpose of
         diagnosis or treatment of his physical, mental, dental,
         or emotional condition . . . among himself, his
         physician, dentist, nurse, or mental health professional
         . . . .

See also 12 V.S.A. { 1612(a).  The definition of "mental health pro-
fessional" includes "a physician, psychologist, social worker, or nurse
with professional training, experience, and demonstrated competence in the
treatment of mental illness."  V.R.E. 503(a)(5); see also 18 V.S.A. {
7101(13).
     The Vermont Legislature has not created a social worker privilege.
Cf. Commonwealth v. Collett, 387 Mass. 424, 439 N.E.2d 1223 (1982)
(interpreting statute expressly conferring privilege to communications made
to social workers acting in their professional capacity).  See generally 8
J. Wigmore, Wigmore on Evidence { 2286, at 160 n.27 (J. McNaughton rev. ed.
Supp. 1991) (compiling jurisdictions which have a statutory social worker
privilege); Annotation, Communications to Social Worker as Privileged, 50
A.L.R.3d 563 (1973).  Communications to a social worker are privileged only
if they come within the patient's privilege.  For the privilege to exist the
social worker must, as a threshold matter, be qualified as a mental health
professional, or be reasonably believed by the patient to be so.  V.R.E.
503(a)(5).  Further, the communications must be made for the purpose of
diagnosis or treatment by a mental health professional.  If the social
worker is not acting in the capacity of a mental health professional,
communications to her cannot, by definition, be for this purpose.  It is not
enough that the social worker be acting in the capacity of a social worker,
as this would effectively create a social worker privilege.  Until such time
as the legislature provides for a social worker privilege, this Court is not
free to interpret the patient's privilege as creating one.
     Here, the trial court summarily concluded that "[t]he authors of the
subject material are clearly mental health professionals as that term is
defined."  Yet the court's decision contains no findings on the authors'
"professional training, experience, and demonstrated competence in the
treatment of mental illness."  V.R.E. 503(a)(5).  We reiterate that a social
worker privilege does not exist in Vermont.  A higher degree of
qualification is required and must be shown.  Further, there is no evidence
in this case that the authors of the subject material were reasonably
believed by the patient to be mental health professionals.
     The more difficult issue in this case lies in discerning when
communications to an SRS caseworker are made for the purpose of diagnosis or
treatment by a mental health professional.  When an SRS caseworker is
performing an investigative function, communications made to that caseworker
are not for the purpose of diagnosis or treatment by a mental health
professional within the meaning of the patient's privilege.  Rather, those
communications are made for the purpose of investigation, so as to enable
the state to take appropriate protective measures.  Such communications do
not fall within the patient's privilege.  Cf. In re Pitts, 44 Ill. App. 3d
46, 48-49, 357 N.E.2d 872, 874 (1976) (social worker privilege did not apply
to social workers engaged in investigation of cases of possible child abuse
because it would impermissibly interfere with the reporting of an
investigation's results).  It is only when an SRS caseworker ceases to
perform an investigative function that the patient's privilege may attach. (FN4)
     Here the trial court described the file central to this appeal as
"primarily an investigation of the alleged sexual assault which is the
subject of this proceeding."  Yet the court held that whole file was
protected by the patient's privilege.  This determination must be
reconsidered in light of the principles we have announced today.
     On appeal the State asserts that even if the material fell outside the
patient's privilege, the order to quash was correct under 33 V.S.A. {
111(a) (formerly 33 V.S.A. { 2551(a)) and { 306 (formerly 33 V.S.A. { 2596),
also cited by the trial court.  But our opinion issued today in the
consolidated cases of In re F.E.F. and State v. Cameron, Nos. 89-228 & 89-
296, slip op. at 12-14 (Vt. May 17, 1991) makes clear that the
confidentiality provisions of {{ 111(a) and 306 do not create evidentiary
privileges. (FN5)
     Because the court decided that all of the materials were protected from
discovery under the patient's privilege, its review necessarily omitted any
analysis of which materials might come within the scope of V.R.Cr.P. 16.
Consequently, the court on remand, in addition to reexamining its privilege
determination, must also review the materials under the criteria set forth
in Rule 16.  In F.E.F. and Cameron the requests were quite specific, asking
the State to provide SRS investigation files "as to this matter" (F.E.F) and
for SRS records and reports "concerning the alleged sexual abuse" of the
victim (Cameron).  We noted:
         Thus, we are dealing with documents that clearly come
         within the scope of discovery as defined in V.R.Cr.P.
         16(a)(2)(C), (D), & (G).  In fact, it does not appear
         that the State has argued that the requested documents
         are outside the normal scope of discovery for a criminal
         or juvenile delinquency case.

Slip op. at 7-8.  The subpoena duces tecum in the case before us required
the SRS worker "to bring with her all SRS files containing the name of [the
child], and any documents in the possession of SRS pertaining to [the
child], including drawings, tape recordings, pictures, audio/visual tapes,
etc."  This request is considerably broader than that in either F.E.F. or
Cameron.  Whether or not this request comes within the scope of Rule 16 will
be a question for the trial court in the first instance.  We simply note
here that our holding in those cases presumed that the relevancy
requirements of V.R.Cr.P. 16 had been met, and the decision should not be
read as blanket permission for a party in discovery to roam through SRS
files, which, if not within the reach of discovery, are under a clear
statutory mantle of protection from disclosure.
     Additional issues posed in the certified question might arise again
when the trial court completes its in camera review and issues its order,
but they are still theoretical and premature in this interlocutory appeal,
and we need not address them now.
     The order quashing defendant's subpoena duces tecum is vacated, and the
matter remanded for further proceedings consistent with this opinion.

                                        FOR THE COURT:




                                        Chief Justice




FN1.   The State relied initially on 33 V.S.A. { 5536 (formerly 33 V.S.A. {
663), which bars public disclosure of law enforcement records of juveniles.
On appeal, the State does not make this argument.

FN2.   We do not generally grant interlocutory review of questions
concerning pretrial discovery.  Castle v. Sherburne Corp., 141 Vt. 157, 164,
446 A.2d 350, 353 (1982).  Nor does the trial court's grant of permission to
appeal necessarily imply a different policy, as this Court may dismiss such
appeals under V.R.A.P. 5(b)(3).  In the present case the need to clarify the
law and procedure in this difficult area persuades us to leave the trial
court's grant of interlocutory review undisturbed.

FN3.    We have already ordered release of the trial court's findings and
conclusions, and the issue of their release is no longer before us.

FN4.    The nature of the information gathered is not alone determinative of
whether the privilege attaches.  The court found that the SRS caseworker was
"gathering the information that was needed to unify and maintain this
family." Yet the fact that the information gathered is necessary for
diagnosis or treatment does not make communication of it for the purpose of
diagnosis or treatment.  For instance, a child's recounting of reported
abuse or neglect to an SRS caseworker investigating that report would
contain information necessary for the diagnosis or treatment of the child.
Yet the nature of this information would not change the fact that the SRS
caseworker was acting as an investigator.  Such communications would be for
the purpose of investigation, not for the purpose of diagnosis or
treatment.  See 12 V.S.A. { 1612(a) (for patient's privilege to attach, the
information acquired must not only be necessary to enable the mental health
professional to act in a professional capacity, but it must also be
acquired while the mental health professional is attending the patient in a
professional capacity).

FN5.    We also held that no evidentiary privilege exists under 33 V.S.A. {
4916(d), limiting disclosure of records in the SRS commissioner's registry
of child abuse and neglect investigations.  That provision has not been
asserted in the present case.