State v. Sypult

¶1dissenting. I disagree with the majority court for two reasons.

¶2First, the result reached by the majority assumes there is a conflict between Ark. Code Ann. § 12-12-511(a) (1987 andSupp. 1989) — the General Assembly’s provision that disallows any privilege in a child sex abuse case for a person who confesses to or is counseled by a physician — and A.R.E. Rule 503 — this court’s general rule, providing for a psycho-therapist-patient privilege. The history behind § 12-12-511(a) and Rule 503 reveals no such conflict.

¶3The General Assembly enacted § 12-12-511(a) in 1975 and in an extended session adopted Rule 503, which was contained in the Uniform Rules of Evidence. See Act 1143 of 1975 (Extended Session 1976); Ark. Stat. Ann. § 28-1001 (Repl. 1979). Of course, in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), this court held the Uniform Rules of Evidence were not validly adopted because the General Assembly was in an unlawfully extended session at the time. To avoid a host of problems that could result from having no lawfully enacted rules of evidence, this court, citing its inherent power to do so, merely adopted Rule 503 and the other Uniform Rules of Evidence as court rules. Nevertheless, the point is quite clear that it was the General Assembly that originally enacted both § 12-12-511(a) and Rule 503.

¶4Recently, we considered § 12-12-511 (a) and whether it was controlling in a situation where the social worker privilege law, Ark. Code Ann. § 17-39-107 (1987), had been invoked by a defendant charged with a sex abuse crime. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). We held § 12-12-511(a) controlled, and the trial court correctly allowed the social worker to testify. In doing so, we referred to the settled rule that a general statute (§ 17-39-107) did not apply when there was a specific statute (§ 12-12-511(a)) covering a particular subject matter.

¶5The instant case bears the same scrutiny and analysis. Here, Rule 503 provides a general privilege when the psychotherapist-patient relationship exists, but § 12-12- 511 (a) prohibits any such privilege in child sex abuse cases. The only distinction between the situation in Cozad and the one here is that this court in Ricarte adopted the General Assembly’s Rule 503 and other evidentiary rules as rules of the court. In adopting those rules, this court was not ignorant of § 12-12-511, and other statutory provisions like it. Significantly, the court never indicated that it would place a different construction on these rules of evidence than that which had been previously intended by the General Assembly. Contrary to the majority court’s suggestion, this is not a situation where this court and the General Assembly have adopted a rule and a statute, concerning a procedural or evidentiary matter, that serve cross purposes. Instead, Rule 503 and § 12-12-511 (a) originated from the same source — the General Assembly — and as a consequence, should be harmonized as was done in Cozad.

¶6My second and most serious point of departure concerns the majority’s expansive view of this court’s holding in Ricarte. With its decision today, the majority concludes that the court’s inherent authority preempts any evidentiary law enacted by the General Assembly that conflicts with this court’s rules even if that law is substantive, and not procedural, in nature. In this respect, the majority extends its role and power too far.

¶7Common law failed to recognize physician-patient and related privileges. S. Stone and R. Liebman, Testimonial Privileges § 7.02 (1983); Allred v. State, 554 P.2d 411 (Alaska 1976). The reluctance of the common law to protect physician-patient communications may well have stemmed from a view that such protection was not sufficiently necessary or important. R. Stone and R. Liebman, Testimonial Privileges § 7.02 (1983). However, even in states where such a privilege is recognized, that privilege in numerous states has been determined inapplicable in criminal cases, id. at § 7.24, because of the state’s countervailing interest in uncovering and proving crime.

¶8In a paper prepared for the Michigan Procedural Revision Committee, Charles W. Joiner and Oscar J. Miller emphasized the distinction between rules of evidence that they characterized as involving only procedure or “the orderly dispatch of judicial business” from those they say involve policy decisions that should be enacted by the legislature. See Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623, 651 (1957). We adopted such a distinction in our recent cases. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtisv. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Today, the majority decision abandons this distinction, and I believe mistakenly so.

¶9Most states either by legislation, constitution or court decision have recognized that a court cannot by its rule-making authority, abrogate or modify substantive law. See D. Pugh, C. Korbakes, J. Alfine and C. Grau, Judicial Rulemaking, A Compendium (1984) (See in particular states Alaska, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Minnesota, Nebraska, Nevada, New Jersey, Ohio, Oregon, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, Wyoming.)1 From my research, the supreme courts of Arizona, North Dakota and New Mexico are the only jurisdictions that have extended their rule-making power to promulgate all rules of evidence, whether they affect procedural or substantive rights, as does the majority court in today’s decision. State v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984); Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976); State v. Vetsch, 368 N.W.2d 547 (N.D. 1985).

¶10In sum, I have no problem with this court’s decisions where it has exercised its inherent power to control an area of procedure or practice, especially when it has preempted that area of procedural law. See Lyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); May v. Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990). However, when extending its inherent power to include evidentiary matters that contain both procedural and substantive rights. I believe the court goes too far. In fact, the majority court’s opinion makes no mention of or distinction between procedural and substantive rights. Of course, if the majority had done so, it would have required reversal of the trial court’s ruling since the psychotherapist-patient privilege is a rule that clearly vests in a person a substantive right that never existed at common law or until the legislature provided for it by statutory law.

¶11While it may be argued that this court’s expertise in both procedural and evidentiary matters should be superior to the legislature’s, this court simply has not exercised its authority in drafting and promulgating evidentiary rules — independent of the General Assembly — except to avoid the problems discussed in Ricarte2 This court has far more than it can do now in trying to keep up with its case load and other committee work.3 Now, the court will independently be required to add another committee to study and to keep abreast of what changes need to be made regarding the uniform rules of evidence. Until now, that task has been a cooperative venture with the General Assembly. I believe not only the law but also practicalities warrant that cooperative venture to continue — at least in areas where evidentiary rules affect substantive rights, as they do in the instant case.

¶12For the reasons above, I would uphold the validity of § 12-12-511(a) and reverse this case.