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THE COURT OF APPEALS OF THE STATE OF ALASKA
THERRAN L. WALSTAD, )
) Court of Appeals No. A-3554
Appellant, ) Trial Court No. 4FA-S88-3592CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1165 - October 4, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Neisje J. Steinkruger, Judge.
Appearances: Kenneth L. Covell, Law Offices
of Dick L. Madson, Fairbanks, for Appellant.
Eric A. Johnson, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Therran L. Walstad entered a plea of no contest to a
single count of sexual abuse of a minor in the first degree,
reserving the right to appeal the superior court's denial of his
motion to suppress, in which Walstad challenged the state's
evidence as the unlawful fruit of a violation of the
psychotherapist-patient and communications with clergy
privileges. Walstad renews his challenge on appeal. We affirm
the superior court's order denying the suppression motion.
There is no significant dispute as to the facts of this
case. Walstad sexually molested a four-year-old child who had
been placed in his care for an evening. The child's parents
learned of the abuse and confronted Walstad. Walstad sought help
through counseling with William Webb, a minister and certified
counselor. After learning that Walstad had had sexual relations
with a child, Webb reported the abuse to the authorities. Webb
made his report to comply with AS 47.17.020(a)(1), which
requires:
(a) The following persons who, in the
performance of their occupational duties,
have cause to suspect that a child has
suffered harm as a result of child abuse or
neglect shall immediately report the harm to
the nearest office of the department
[Department of Health and Social Services]:
(1) Practitioners of the healing
arts[.]
Based on Webb's report, the Alaska State Troopers began an
investigation, which culminated in the charge against Walstad.
Walstad moved to suppress all of the evidence obtained
by the troopers in the course of their investigation, asserting
that Webb's report of sexual abuse violated the psychotherapist-
patient and communications with clergy privileges. According to
Walstad, because the troopers' investigation resulted entirely
from Webb's disclosure of privileged information, all of the
evidence against him was tainted and subject to suppression as a
fruit of the poisonous tree.
Superior Court Judge Neisje J. Steinkruger found that
Walstad's communications with Webb were covered by both the
psychotherapist-patient and communications to clergy privileges.
On that basis, the judge ruled that Webb could not be called as a
witness against Walstad. Judge Steinkruger further found,
however, that Webb's report was not itself inappropriate, because
the reporting requirement set forth in AS 47.17.020 amounted to a
limited abrogation of the psychotherapist-patient privilege.
Judge Steinkruger ruled that, in his role as counselor, Webb was
required to report the abuse, notwithstanding the communications
to clergy privilege. Finding no impropriety in the report, Judge
Steinkruger concluded that the fruits of the report were not
subject to suppression.
In claiming error on appeal, Walstad advances three
arguments. First, Walstad claims that the reporting statute does
not abrogate the psychotherapist-patient privilege. He relies
primarily on this court's decision in State v. R.H., 683 P.2d 269
(Alaska App. 1984), which held that AS 47.17.020 was not meant to
abrogate the privilege. Walstad further maintains that, even if
the reporting statute had been meant to abrogate the privilege,
it could not properly be held to accomplish this objective,
because the legislature failed to expressly state its intent to
do so. See Leege v. Martin, 379 P.2d 447 (Alaska 1963) (holding
that statutory changes to procedural rules promulgated by the
supreme court must be enacted by a two-thirds vote of the
legislature and accompanied by an express statement of
legislative intent to amend). Finally, Walstad asserts that,
even if AS 47.17.020 validly abrogated the psychotherapist-
patient privilege, Webb's report of abuse to the troopers was
still independently barred by the communications to clergy
privilege, Alaska Rule of Evidence 506, which remains unaffected
by the reporting statute.
None of Walstad's arguments have merit, since they all
proceed from a mistaken view of the scope of the two privileges
here at issue.
The psychotherapist-patient and communications to
clergy privileges are embodied in the Alaska Rules of Evidence,1
which were promulgated by the Alaska Supreme Court pursuant to
its constitutional authority to "make and promulgate rules
governing practice and procedure in civil and criminal cases . .
. ." Alaska Const., art. IV, 15.2 As creatures of the court's
procedural rulemaking authority, these privileges are of a
limited, testimonial nature: they are not intended to restrict
or govern communications between persons in general, but are
instead meant to regulate disclosures occurring in the context of
civil or criminal proceedings.3
The limited sphere within which the psychotherapist-
patient and communications to clergy privileges operate is
described at the outset of the Alaska Rules of Evidence: under
A.R.E. 101(a), the Rules of Evidence are generally applicable "in
all proceedings in the courts of the State of Alaska . . . ."
Under A.R.E. 101(b), however, rules of privilege are given
somewhat broader application; they are not confined to
proceedings "in the courts" but are instead applicable "at all
stages of all actions, cases, and proceedings." Though extending
the reach of the rules of privilege beyond the strict confines of
the courtroom, A.R.E. 101(b) still restricts privileges to the
sphere of "actions, cases, and proceedings." Id. The rule makes
no pretense of regulating the disclosure of information in other
contexts.
The same limits on the operative sphere of the
psychotherapist-patient and communications to clergy privileges
are implicit in the Alaska Constitution's provisions restricting
the supreme court's rulemaking authority to procedural matters,
as well as in its grant to the legislature of concomitant
authority to regulate matters of substantive policy. Just as the
"court should be wary of unwarranted extensions of the
legislature's power to create substantive rights which encroach
upon the procedural rules arena," Allred v. State, 554 P.2d 411,
427 (Alaska 1976) (Rabinowitz, J., concurring), so must it be
wary against unwarranted extensions of its own procedural powers
into the substantive arena of general human intercourse.4
In the present case, the superior court ruled that both
the psychotherapist-patient and communications to clergy
privileges applied to communications between Walstad and Webb
that occurred within their counseling relationship. On this
ground, the court barred any testimonial disclosure of the
confidential communications. The state has not challenged the
superior court's ruling.5 Walstad's claim on appeal thus deals
only with the admissibility of evidence gathered as a result of
Webb's nontestimonial report to the authorities.
In support of his claim that this evidence should be
suppressed, Walstad invokes the fruits of the poisonous tree
doctrine. That doctrine, however, presupposes a poisonous tree;
to prevail, Walstad must, at a minimum,6 establish some
impropriety in Webb's report to the authorities. It is
uncontroverted that Webb's report of sexual abuse was made in an
out-of-court statement that was unrelated to any action, case or
proceeding then pending. For this reason, although it divulged
confidential communications between Walstad and Webb, the report
did not amount to a violation of the psychotherapist-patient or
communications with clergy privileges. In the context in which
Webb's report was made, neither privilege attached. Because
Webb's report violated no privilege, the fruits of his report
were not tainted by the violation of a privilege.
Nor was Webb's report improper in any other respect.
As a general matter, under AS 08.86.200(a), Webb was required to
keep his communications with Walstad confidential:
Confidentiality of communication. (a)
A psychologist or psychological associate may
not reveal to another person a communication
made to the psychologist or psychological
associate by a client about a matter
concerning which the client has employed the
psychologist or psychological associate in a
professional capacity. This section does not
apply to a case conference with other
psychologists, psychological associates or
with physicians and surgeons, or in the case
in which the client in writing authorized the
psychologist or psychological associate to
reveal a communication.
Subsection (b) of the same provision, however, carves out an
exception to this general rule of confidentiality:
Notwithstanding (a) of this section, a
psychologist or psychological associate shall
report incidents of child abuse or neglect as
required by AS 47.17.020.
It is undisputed that Webb's report of Walstad's sexual
abuse was mandated under AS 47.17.020(a). Walstad does not
challenge the validity of the reporting requirement, and this
court has upheld it in other contexts. See Strehl v. State, 722
P.2d 226 (Alaska App. 1986). Since Webb's report was made in
accordance with AS 47.17.020(a), it fell within the exception
stated in AS 08.86.200(b) and did not violate the general
statutory requirement of confidentiality.
As another basis for his suppression claim, Walstad
cites rule 511 of the Alaska Rules of Evidence:
Evidence of a statement or other
disclosure of privileged matter is not
admissible against the holder of the
privilege if the disclosure was (a) compelled
erroneously or (b) made without opportunity
to claim the privilege.
By its own terms, however, this rule deals only with
disclosures that were impermissible when originally made -- that
is, disclosures as to which a contemporaneous claim of privilege
would have succeeded but for an erroneous ruling or the lack of
opportunity for objection.
Here, Webb's report of sexual abuse occurred outside
the sphere in which evidentiary privileges attach. Had Walstad
objected to the report when it occurred, neither the
psychotherapist-patient privilege nor the communications to
clergy privilege would have barred Webb from proceeding with the
disclosure. By the same token, to the extent that Webb may have
felt compelled to make his report, he was not "compelled
erroneously . . . ." Webb's report thus did not contravene
A.R.E. 511; that rule does not justify the suppression of
evidence resulting from the report.
In conclusion, Webb's report of sexual abuse violated
neither the psychotherapist-patient nor the communications to
clergy privilege. The results of the investigation triggered by
that report were untainted by any impropriety. Consequently, the
superior court did not err in denying Walstad's motion to
suppress evidence.
The order denying the motion to suppress evidence is
AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The psychotherapist-patient privilege is set forth in
Rule 504 of the Alaska Rules of Evidence, which provides, in
relevant part:
(b) General rule of privilege. 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 or emotional conditions,
including alcohol or drug addiction, among
himself, his physician or psychotherapist, or
persons who are participating in the
diagnosis or treatment under the direction of
the physician or psychotherapist, including
members of the patient's family.
The communications to clergy privilege is set out in
A.R.E. 506, which provides, in relevant part:
(b) General rule of privilege. A
person has a privilege to refuse to disclose
and to prevent another from disclosing a
confidential communication by the person to a
clergyman in his professional character as
spiritual adviser.
2. It is important to note that neither of the privileges
at issue here has an independent basis apart from the Alaska
Rules of Evidence. The scope of a testimonial privilege arising
exclusively from a procedural rule of court may be considerably
narrower than that of a privilege such as the right against self-
incrimination, which is explicitly set out in the constitution,
U.S. Const. amend. V; Alaska Const. art. I, 9, or the lawyer-
client privilege, A.R.E. 503, which, though adopted as part of
the Alaska Rules of Evidence, is inextricably tied to the
constitutional right to counsel U.S. Const. amend. VI; Alaska
Const. art. I, 11. We emphasize that our opinion in this case
addresses only the two privileges currently before us.
3. In this regard, a useful distinction has been noted
between evidentiary privileges, which "bar the use, in court
proceedings, of certain information obtained by a professional
during the course of treatment," and nondisclosure laws, which
"apply both inside and outside court proceedings." R. Weisberg
and M. Wald, Confidentiality Laws and State Efforts to Protect
Abused or Neglected Children: The Need for Statutory Reform, 18
Family Law Quarterly 143, 145 (1984) (footnote omitted) (emphasis
in original).
4. As the state correctly notes in its brief, it appears
that both the Alaska Supreme Court and the Alaska Legislature
have implicitly recognized the distinction between substantive,
generally applicable confidentiality requirements and procedural
privileges that are of a limited, testimonial nature. For
instance, in A.R.E. 504(d)(5), the supreme court carved out an
exception to the psychotherapist-patient privilege for
information contained in mandatory reports when the reported
information is made open to the public:
(d) Exceptions. There is no
[psychotherapist-patient] privilege under
this rule:
. . .
(5) Required report. As to information
that the physician or psychotherapist or the
patient is required to report to a public
employee, or as to information required to be
recorded in a public office, if such report
or record is open to public inspection . . .
.
In carving out this limited exception, the supreme court
implicitly recognized that in some nontestimonial contexts, the
legislature can require disclosure of information which remains
privileged from disclosure in testimonial contexts.
The legislature, for its part, has implicitly
recognized the same type of distinction by specifying its intent
to alter court rules (in compliance with Leege v. Martin, 379
P.2d 447 (Alaska 1963)) when abrogating a testimonial privilege,
while omitting any statement of intent when enacting
nontestimonial exceptions to general confidentiality provisions
that parallel an established privilege. Compare, e.g., AS
08.86.200(b) (carving out exception to the general rule of
confidentiality as to psychotherapist-patient communications for
reports of abuse required under AS 47.17.020) with AS 47.17.060
(partially abrogating physician-patient privilege). For an
extensive discussion of the interplay between general
confidentiality statutes and procedural privileges, see Allred v.
State, 554 P.2d 411 (Alaska 1976).
5. In State v. R.H., 683 P.2d 269 (Alaska App. 1984), we
held that Alaska's mandatory child abuse reporting law did not
abrogate the psychotherapist-patient privilege in criminal
proceedings. In particular, we considered AS 47.17.060, which
provided:
Evidence not privileged. Neither the
physician-patient nor the husband-wife
privilege is a ground for excluding evidence
regarding a child's harm, or its cause, in a
judicial proceeding relating to a report made
under this chapter.
Our opinion in R.H. concluded that a criminal proceeding
resulting from a mandatory report of sexual abuse filed pursuant
to AS 47.17.020 did not amount to "a judicial proceeding relating
to a report made under this chapter." We construed the
statutory language abrogating the privilege as extending only to
child custody proceedings under Title 47.
In the present case, Judge Steinkruger relied on R.H.
in ruling that the state was barred from calling Webb as a
witness against Walstad at trial. Although the state has not
actually challenged Judge Steinkruger's ruling, both parties have
recognized that statutory amendments since R.H. raise questions
concerning the continuing validity of our decision. The parties
have thus devoted considerable attention to this issue in their
briefs. In light of our conclusion that the evidentiary
privileges at issue in this case apply only to disclosures made
at some stage of an action, case or proceeding, A.R.E. 101(b), we
need not consider the extent to which R.H. remains valid.
6. We note, moreover, that there seems to be considerable
doubt as to the extent to which the fruits of the poisonous tree
doctrine should apply in cases involving violations of
evidentiary privileges. The general purpose of the Rules of
Evidence is to facilitate the search for truth. See A.R.E. 102.
Rules of privilege work against this purpose: "rather than
facilitating the illumination of truth, they shut out the light."
McCormick on Evidence 72, at 171 (E. Cleary 3d ed. 1984). For
this reason, there appears to be little consensus as to the
extent to which the fruit of the poisonous tree doctrine should
be applied in cases involving violations of evidentiary
privileges. As Weinstein notes:
If the government was a party to the improper
breach and a constitutional privilege was
involved the legal fruits doctrine will
apply. In other instances the court has some
discretion. Generally it will admit, bearing
in mind the general policy in favor of truth
rather than exclusion.
2 J. Weinstein & M. Berger, Weinstein's Evidence 512 [02]
(1991) (footnote omitted) (emphasis in original).
