{ "id": 4077809, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. JASON STRAUCH, Defendant-Appellee", "name_abbreviation": "State v. Strauch", "decision_date": "2014-01-10", "docket_number": "No. 34,435; Docket No. 32,425", "first_page": "421", "last_page": "433", "citations": [ { "type": "official", "cite": "2014-NMCA-020" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "303 P.3d 830", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334028 ], "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0333-01" ] }, { "cite": "69 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791632 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0036-01" ] }, { "cite": "1961-NMSC-100", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "288 P.3d 902", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188744 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0682-01" ] }, { "cite": "2010-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246487 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0761-01" ] }, { "cite": "2002-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260680 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0124-01" ] }, { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "1994-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0 }, { "cite": "297 U.S. 124", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3929620 ], "year": 1936, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/us/297/0124-01" ] }, { "cite": "2009-NMSC-049", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246461 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0177-01" ] }, { "cite": "686 A.2d 801", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 466661, 7355070 ], "year": 1996, "pin_cites": [ { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/pa/546/0463-01", "/a2d/686/0801-01" ] }, { "cite": "2009-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245434 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 18-19" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0182-01" ] }, { "cite": "2010-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247246 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 37" }, { "parenthetical": "alteration, internal quotation marks, and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0747-01" ] }, { "cite": "121 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566662 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0764-01" ] }, { "cite": "1996-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671093 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0299-01" ] }, { "cite": "2006-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543188 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0354-01" ] }, { "cite": "Fla. Stat. Ann. \u00a7 39.205", "category": "laws:leg_statute", "reporter": "Fla. Stat. Ann.", "year": 2013, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 1 }, { "cite": "Tex. Family Code Ann. \u00a7 261.109", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "year": 2013, "opinion_index": 1 }, { "cite": "285 P.3d 622", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 1 }, { "cite": "2012-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188995 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6\u00b6 29-31" }, { "page": "\u00b6 31" } ], "opinion_index": 1, "case_paths": [ "/nm-app/2/0433-01" ] }, { "cite": "Fla. Stat. Ann. \u00a7 415.504", "category": "laws:leg_statute", "reporter": "Fla. Stat. Ann.", "pin_cites": [ { "page": "(a)(1989)" } ], "opinion_index": 1 }, { "cite": "605 So. 2d 926", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7487511 ], "year": 1992, "pin_cites": [ { "page": "927", "parenthetical": "interpreting Fla. Stat. Ann. \u00a7 415.504(a)(1989), now renumbered as Section 39.201, and concluding that \"[i]t appears that the legislature, in order to assure that the abuse is reported, has determined that everyone who has knowledge of [abuse] should report it\"" } ], "opinion_index": 1, "case_paths": [ "/so2d/605/0926-01" ] }, { "cite": "47 S.W.3d 86", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11085526 ], "year": 2001, "pin_cites": [ { "page": "89", "parenthetical": "concluding that those living in the same apartment with an abused child and had witnessed the abuse but failed to report it fell within the requirements of the mandatory reporting statute" } ], "opinion_index": 1, "case_paths": [ "/sw3d/47/0086-01" ] }, { "cite": "Fla. Stat. Ann. \u00a7 39", "category": "laws:leg_statute", "reporter": "Fla. Stat. Ann.", "opinion_index": 1 }, { "cite": "Tex. Family Code Ann. \u00a7 261.101", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "year": 2013, "pin_cites": [ { "page": "(a)", "parenthetical": "\"A person having cause to believe that a child's physical or mental health or-welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.\" (emphasis added)" } ], "opinion_index": 1 }, { "cite": "2000-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106549 ], "weight": 5, "pin_cites": [ { "page": "\u00b6\u00b6 35-36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 1, "case_paths": [ "/nm/128/0813-01" ] }, { "cite": "2010-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245031 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 1, "case_paths": [ "/nm/147/0512-01" ] }, { "cite": "2010-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247427 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 13" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0426-01" ] }, { "cite": "2012-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188744 ], "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 1, "case_paths": [ "/nm-app/2/0682-01" ] }, { "cite": "2010-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246487 ], "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0761-01" ] }, { "cite": "1994-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 25-26" } ], "opinion_index": 1 }, { "cite": "2010-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247246 ], "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0747-01" ] } ], "analysis": { "cardinality": 1278, "char_count": 38782, "ocr_confidence": 0.767, "pagerank": { "raw": 6.173274113081918e-08, "percentile": 0.38325361826114185 }, "sha256": "bca7cac26d65caeed42fda77f23e251c21c408c1bc1b3c9ee8c567307c0c6e30", "simhash": "1:f843e756bdae62d6", "word_count": 6127 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LINDA M. VANZI, Judge", "CYNTHIA A. FRY, Judge", "J. MILES HANISEE, Judge (dissenting)", "J. MILES HANISEE, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. JASON STRAUCH, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} The State of New Mexico appeals from the district court\u2019s order granting Defendant\u2019s motion for a protective order. The question presented is whether Defendant has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications he made to a licensed social worker for the purpose of diagnosis and treatment. We conclude that Defendant has this privilege pursuant to Rule 11-504 NMRA and can thus prevent both his social worker and his ex-wife from disclosing information he communicated during counseling sessions. In arriving at this result, we conclude that, even if they reasonably suspected that a child was being abused, neither Defendant\u2019s social worker nor Defendant\u2019s ex-wife was subject to the mandatory reporting requirement set forth in NMSA 1978, Section 32A-4-3(A) (2005) of the Abuse and Neglect Act, because the requirement does not apply to every person and because a social worker providing private counseling is not \u201cacting in an official capacity\u201d within the meaning of Section 32A-4-3(A). Accordingly, we affirm.\nBACKGROUND\n{2} Defendant was charged with four counts of criminal sexual contact of a minor in the second degree based on allegations that he had sexually assaulted his daughter. The State filed a notice of intent to call witnesses, in which it stated it intended to call Frederick Stearns, a licensed social worker who provided counseling to Defendant. Defendant filed a motion for a protective order seeking to bar the State from obtaining, and Stearns from disclosing, confidential communications made by Defendant to Stearns for the purpose of diagnosis and treatment. The State filed a response to Defendant\u2019s motion, along with a motion to compel the disclosure of Defendant\u2019s counseling records.\n{3} The district court granted Defendant\u2019s motion following a hearing. The district court found that: (1) Defendant\u2019s communications with Stearns are privileged under Rule 11-504; (2) the participation of Defendant\u2019s ex-wife, Karen Solomon-Strauch, in some of the counseling sessions did not waive Defendant\u2019s privilege; (3) there is no evidence that Defendant otherwise waived his privilege; (4) Stearns is not a mandatory reporter under Section 32A-4-3(A); and (5) because Stearns is not a mandatory reporter under Section 32A-4-3(A), the exception to the privilege set forth in Rule 11-504(D)(4) does not apply.\n{4} The State filed a motion to reconsider or, in the alternative, to clarify the order granting Defendant\u2019s motion for a protective order. Following a hearing, the district court issued an order denying the State\u2019s motion to reconsider and partially granting its motion to clarify. The district court ordered that Defendant\u2019s ex-wife may testify that Defendant obtained counseling during a specific period of time, but she \u201cis barred from testifying regarding the reasons ... Defendant sought counseling, the contents of any communications made during counseling sessions in which she was a participant, and the contents of any communications she and . . . Defendant had related to those sessions.\u201d This appeal followed.\nDISCUSSION\n{5} The State contends that the district court erred in granting Defendant\u2019s motion for a protective order because Defendant in this case may not invoke the privilege set forth in Rule 11-504(B). Rule 11-504(B) provides, in pertinent part, that \u201c[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment.\u201d That privilege, however, does not apply to \u201ccommunications relevant to any information that the physician, psychotherapist or patient is required by statute to report to a public employee or state agency.\u201d Rule 11-504(D)(4).\n{6} Relying on Rule ll-504(D)(4)\u2019s exception to the privilege rule, the State first argues that Defendant cannot invoke the general rule of privilege to prevent Defendant\u2019s social worker and his ex-wife from disclosing confidential communications because both the social worker and his ex-wife were subject to the mandatory reporting requirement set forth in Section 32A-4-3(A). The State next argues that Defendant cannot invoke the privilege with respect to his social worker because the Legislature intended to exclude from Rule 11-504(D)(4) any information that a social worker may obtain regarding child abuse.\n{7} We first consider whether Defendant\u2019s social worker and Defendant\u2019s ex-wife were subject to the mandatory reporting requirement set forth at Section 32A-4-3(A) of the Abuse and Neglect Act. We conclude that neither was subject to the mandatory reporting requirement and that, therefore, the exception set forth at Rule 11-5 04(D)(4) is inapplicable. We next consider whether the Legislature intended to exclude from the Rule 11-504(B) privilege any information that a social worker may obtain regarding child abuse. We conclude that it did not.\n{8} In analyzing these issues, our review is de novo. See State v. Ryan, 2006-NMCA-044, \u00b6 41, 139 N.M. 354, 132 P.3d 1040 (\u201cThe application of Rule 11-504 and the law to the facts is reviewed de novo.\u201d); see State v. Romero, 2006-NMSC-039, \u00b6 6, 140 N.M. 299, 142 P.3d 887 (\u201cStatutory construction is a question of law that is reviewed de novo.\u201d).\nA. The Mandatory Reporting Requirement Set Forth in Section 32A-4-3(A) Does Not Apply to Defendant\u2019s Social Worker and Defendant\u2019s Ex-Wife\n{9} Section 32A-4-3(A) of the Abuse and Neglect Act states:\nEvery person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school[]teacher; a school official; a social worker acting in an official capacity, or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:\n(1) a local law enforcement agency;\n(2) the department; or\n(3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.\n(Emphasis added.) The State makes two arguments. First, it argues that both Defendant\u2019s social worker and Defendant\u2019s ex-wife were subject to the mandatory reporting requirement set forth in this statute because it applies to \u201cevery person.\u201d Second, the State argues that even if the mandatory reporting requirement does not apply to every person, Defendant\u2019s social worker was still subject to the requirement because he was \u201cacting in an official capacity\u201d when he provided counseling to Defendant. We consider each argument in turn.\n1. The Mandatory Reporting Requirement Does Not Apply to Every Person\n{10} The State contends that the words \u201cevery person\u201d mean what they say \u2014 that every person is required to report suspected child abuse. According to the State, because both Defendant\u2019s social worker and Defendant\u2019s ex-wife are people who presumably had a reasonable suspicion that a child was being.abused, they were required to report their suspicions pursuant to Section 32A-4-3(A). Defendant, on the other hand, argues that the words \u201cevery person\u201d do not actually mean every person, but mean the professionals specifically identified in Section 32A-4-3(A) and others like them. For the reasons that follow, we agree with Defendant.\n{11} In interpreting a statute, \u201c[w]e are to read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.\u201d Key v. Chrysler Motors Corp., 1996-NMSC-038, \u00b6 14, 121 N.M. 764, 918 P.2d 350. Our \u201cprincipal command\u201d is that we should \u201cdetermine and effectuate the intent of the [Legislature using the plain language of the statute as the primary indicator of legislative intent.\u201d State v. Juan, 2010-NMSC-041, \u00b6 37, 148 N.M. 747, 242 P.3d 314 (internal quotation marks and citation omitted). \u201cThe words of a statute should be given their ordinary meaning, absent clear and express legislative intention to the contrary, as long as the ordinary meaning does not render the statute\u2019s application absurd, unreasonable, or unjust.\u201d Id. (alteration, internal quotation marks, and citation omitted).\n{12} Reading the statute in its entirety, we do not believe that the Legislature intended for every person to be subject to the mandatory reporting requirement of the Abuse and Neglect Act and, as a result, we do not give the words \u201cevery person\u201d their ordinary meaning. Section 32A-4-3(A) specifically identifies ten categories of people who are subject to the mandatory reporting requirement:\n\u2022 licensed physician\n\u2022 resident or intern examining, attending or treating a child\n\u2022 law enforcement officer\n\u2022 judge presiding during a proceeding\n\u2022 registered nurse\n\u2022 visiting nurse\n\u2022 schoolteacher\n\u2022 school official\n\u2022 social worker acting in an official capacity\n\u2022 member of the clergy who has information that is not privileged as a matter of law\nThe above list appears to include those professionals who are most likely to come into contact with \u2014 and can effectively identify \u2014 abused and neglected children during the course of their professional work. We apply the principle of ejusdem generis to this statute, and conclude that, despite the use of the words \u201cevery person,\u201d the Legislature intended to impose an affirmative duty to report child abuse or neglect only on these professionals and others like them. To do otherwise would render the inclusion of these specific categories ofprofessionals essentially meaningless.\n{13} As our Supreme Court has explained, \u201cNew Mexico courts have long recognized the ejusdem generis principle of statutory construction, that where general words follow words of a more specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.\u201d State v. Nick R., 2009-NMSC-050, \u00b6 21, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted). While it is less common, we agree with Defendant that this principle is applicable where the specific words follow the general, not just where the general words follow the specific. See, e.g., McClellan v. Health Maint. Org. of Pa., 686 A.2d 801, 806 (Pa. 1996) (\u201cWhere the opposite sequence is found, i.e., specific words following general ones, the U.S. Supreme Court and the courts from several other jurisdictions recognize that the doctrine is equally applicable, and restricts application of the general term to things that are similar to those enumerated.\u201d).\n{14} We recognize that the principle of ejusdem generis \u201cis only an instrumentality for ascertaining the correct meaning of words when there is uncertainty\u201d and that the principle \u201cmay not be used to defeat the obvious purpose of legislation.\u201d State v. Johnson, 2009-NMSC-049, \u00b6 20, 147 N.M. 177, 218 P.3d 863 (quoting Gooch v. United States, 297 U.S. 124, 128 (1936)). We do not believe that our reading defeats the obvious purpose of Section 32A-4-3(A), which is to protect children.\n{15} The reporting requirement, which was not originally mandatory, first appeared in 1965, when the Legislature enacted the Act Relating to the Protection of Children (the Act). 1965 N.M. Laws, ch. 157. The Act provided that certain categories of professionals \u201cmay report\u201d to the district attorney their suspicions of child abuse, neglect, or starvation. 1965 N.M. Laws, ch. 157, \u00a7 2. The purpose of the Act was \u201cto provide for the protection of children who have had physical injury inflicted upon them and who, in the absence of appropriate reports concerning their condition and circumstances, may be further threatened by the conduct of those responsible for their care and protection.\u201d 1965 N.M. Laws, ch. 157, \u00a7 1. Though the purpose is stated broadly, in our view the Legislature intended to strike a balance, imposing a duty on only those people who were most likely to encounter abused and neglected children in their professional capacities. In that vein, we note that Section 32A-4-3(A) does not prohibit anyone from reporting their suspicions but simply does not place upon them an affirmative duty.\n{16} Our reading of the mandatory reporting requirement is supported by the fact that the statute imposes criminal penalties on those who are subject to the reporting requirement and fail to report. See \u00a7 32A-4-3(F) (stating that a person who violates Section 32A-4-3(A) is guilty of a misdemeanor). Because this statute is defining criminal conduct \u2014 the failure to report a reasonable suspicion of child abuse or neglect \u2014 we construe any doubts about its applicability in favor of lenity. See State v. Ogden, 1994-NMSC-029, \u00b6 25, 118 N.M. 234, 880 P.2d 845 (\u201cStatutes defining criminal conduct should be strictly construed, and doubts about construction of criminal statutes are resolved in favor of lenity.\u201d). In any event, we note that this statute does not give a clear and unequivocal warning to everyone that they could be exposed to criminal penalties for failing to report a reasonable suspicion of child abuse or neglect. See In re Gabriel M., 2002-NMCA-047, \u00b6 20, 132 N.M. 124, 45 P.3d 64 (noting the rule of lenity \u201crequires us to narrowly construe a penal statute to give clear and unequivocal warning in language that people generally would understand concerning actions that would expose them to penalties\u201d).\n{17} In support of its broad reading of the words \u201cevery person,\u201d the State cites State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, and Wilcox v. New Mexico Board of Acupuncture & Oriental Medicine, 2012-NMCA-106, 288 P.3d 902. We are not persuaded by the application of either case here. In Mendez, our Supreme Court noted in a parenthetical that Section 32A-4-3(A) \u201crequires] every person, including medical professionals, who suspect that a child has been abused or neglected to immediately report the matter to authorities.\u201d Mendez, 2010-NMSC-044, \u00b6 37. The Court did not discuss Section 32A-4-3(A) in any meaningful way, let alone in depth, and we will not read the parenthetical as an authoritative interpretation supporting the State\u2019s view. See Rocky Mountain Life Ins. Co. v. Reidy, 1961-NMSC-100, \u00b6 17, 69 N.M. 36, 363 P.2d 1031 (noting that language unnecessary to resolution of issues is dictum and \u201cnot binding as a rule of law\u201d),\n{18} In Wilcox, we noted that \u201c[i]t is true that a statute which uses the word \u2018including\u2019 ... is not limited in meaning to that included\u201d and cited a New Mexico Supreme Court opinion for the proposition that \u201cthe use of the word \u2018includes\u2019 to connect a general clause to a list of enumerated examples demonstrates a legislative intent to provide an incomplete list of activities.\u201d 2012-NMCA-106, \u00b6 13 (alterations, internal quotation marks, and citations omitted). However, in that case, we went on to state that \u201cthe doctrine of ejusdem generis holds that where general words follow words of a more specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.\u201d Id. (internal quotation marks and citation omitted). That is the principle of statutory construction applicable here, and as discussed above, it is in accordance with legislative intent.\n{19} Consequently, we conclude that neither Defendant\u2019s social worker nor Defendant\u2019s ex-wife was subject to the mandatory reporting requirement set forth in Section 32A-4-3(A). The statutory requirement does not apply to every person, but instead applies to the ten categories of people listed and other professionals or government officials who are likely to come into contact with abused and neglected children during the course of their professional work.\n2. Defendant\u2019s Social Worker Was Not Acting in an Official Capacity\n{20} The State next argues that even if the mandatory reporting requirement does not apply to every person, Defendant\u2019s social worker was still subject to the requirement because he was \u201ca social worker acting in his official capacity\u201d when he provided counseling to Defendant. The State claims that a social worker is acting in an official capacity within the meaning of Section 32A-4-3(A) \u201cwhen he is working as a counselor or in his capacity as a professional.\u201d Defendant counters that his social worker was not acting in an official capacity when he provided counseling to Defendant because the phrase \u201cofficial capacity\u201d is intended to include only social workers acting as government employees or contractors. Once again, we agree with Defendant.\n{21} The term \u201cofficial capacity\u201d is not defined in the Abuse and Neglect Act. See NMSA 1978, \u00a7 32A-4-2 (2009). We thus look to the dictionary definition for guidance. See State v. Boyse, 2013-NMSC-024, \u00b6 9, 303 P.3d 830 (\u201cUnder the rules of statutory construction, we first turn to the plain meaning of the words at issue, often using the dictionary for guidance.\u201d); see also Nick R., 2009-NMSC-050, \u00b6\u00b6 18-19 (interpreting the word \u201cweapons\u201d by consulting dictionaries).\n{22} Black\u2019s Law Dictionary defines \u201cofficial\u201d as \u201c[o]f or relating to an office or position of trust or authority\u201d or \u201c[ajuthorized or approved by a proper authority.\u201d Black\u2019s Law Dictionary 1195 (9th ed. 2009). Similarly, the New Oxford American Dictionary defines \u201cofficial\u201d as \u201cof or relating to an authority or public body and its duties, actions, and responsibilities!)]\u201d New Oxford Am. Dictionary 1217 (3d ed. 2010). These definitions suggest that the word \u201cofficial\u201d does not have the equivalent meaning of the word \u201cprofessional,\u201d as the State contends. Instead, unlike \u201cprofessional,\u201d the word \u201cofficial\u201d includes apublic element, connoting a certain authority.\n{23} This reading is supported by the Legislature\u2019s use of the word \u201cprofessional\u201d rather than \u201cofficial\u201d in other statutes. For example, in NMSA 1978, Section 61-31-24 (1989), which is part of the Social Work Practice Act, the Legislature sets forth the circumstances under which a social worker \u201cmay disclose any information he has acquired from a person consulting him in his professional capacity.\u201d Section 61-31-24(B) (emphasis added); seeNMSA 1978, \u00a7 61-31-1 (2006) (short title); see also NMSA 1978, \u00a7 61-9-18 (1989) (describing the privilege afforded to communications made to licensed psychologists or psychologist associates \u201cin the course of [their] professional employment\u201d).\n{24} Our conclusion that the words \u201cofficial\u201d and \u201cprofessional\u201d are not synonymous in this case is also supported by the history and background of Section 32A-4-3(A), which we may consider in determining legislative intent. See In re Gabriel M., 2002-NMCA-047, \u00b6 15 (comparing current version of a statute with earlier versions to help determine legislative intent). As discussed above, the reporting requirement first appeared in 1965, when the Legislature enacted the Act Relating to the Protection of Children. 1965 N.M. Laws, ch. 157. The Act provided that certain categories of people \u201cmay report\u201d to the district attorney their suspicions of child abuse, neglect, or starvation. 1965 N.M. Laws, ch. 157, \u00a7 2. The listed categories of people included \u201cany school teacher or social worker acting in his or her official capacity.\u201d Id.\n{25} In 1973, the Legislature repealed the reporting requirement in the 1965 Act and enacted a different reporting requirement in the newly created Children\u2019s Code. 1972 N.M. Laws, ch. 97. This new reporting requirement, now mandatory, stated, in pertinent part:\nAny licensed physician, resident or intern examining, attending, or treating a child, any law enforcement officer, registered nurse, visiting nurse, school teacher or social worker acting in his or her official capacity, or any other person having reason to believe that serious injury or injuries have been inflicted upon a child as a result of abuse, neglect or starvation, shall report the matter immediately[.]\n1973 N.M. Laws, ch. 360, \u00a7 2(A) (emphasis added). The Children\u2019s Code further made the failure to report suspected child abuse a misdemeanor. 1973 N.M. Laws, ch. 360, \u00a7 2(C).\n{26} In 1993, the Legislature once again repealed the reporting requirement and enacted a new reporting requirement in the newly created Child Abuse and Neglect Act. 1993 N.M. Laws, ch. 77, \u00a7 97. The new reporting requirement applied to \u201c[ejvery person, including but not limited to ... a school official or social worker acting in an official capacity.\u201d 1993 N.M. Laws, ch. 77, \u00a7 97(A). In 2003, the Legislature made various changes, including deleting the words \u201cnot limited to\u201d after \u201cincluding.\u201d 2003 N.M. Laws, ch. 189, \u00a7 1.\n{27} A review of the legislative history above supports our conclusion that the mandatory reporting requirement was intended to apply to social workers working in school and other government settings only. To view it any other way would make little sense. We note, for example, that the mandatory reporting requirement does not list other professionals who provide therapy and counseling, such as psychologists or psychotherapists who may be privy to confidential communications about abuse and which are made for the purpose of diagnosis and treatment. And while the list does include clergy, who do provide counseling, their duty to report is expressly limited to \u201cinformation that is not privileged as a matter of law.\u201d Section 32A-4-3(A).\n{28} We conclude that the mandatory reporting requirement set forth in Section 32A-4-3(A) was intended to apply principally to social workers in school and other government settings, and we discern no basis for expanding the provision to apply to social workers working in a professional capacity as a mental health care provider. We thus agree with Defendant that the social worker from whom he obtained counseling is not subject to the mandatory reporting requirement.\nB. The Legislature Did Not Intend to Exclude From the Rule 11-504 Privilege Any Information That a Social Worker May Obtain Regarding Child Abuse\n{29} The State next argues that Defendant cannot invoke the privilege set forth at Rule 11-5 04(B) to prevent disclosure of confidential communications by his social worker because the Legislature intended to exclude from this privilege any information that a social worker may obtain regarding child abuse. The State relies on two statutes in support of this argument, Section 61-31 -24(C) and NMSA 1978, Section 32A-4-5 (2009). Defendant contends that these two statutory provisions are not applicable to criminal proceedings, and we agree.\n{30} Section 61-31-24(B) sets forth the circumstances under which a social worker \u201cmay disclose ... information he has acquired from a person consulting him in his professional capacity.\u201d Section 61-31-24(C) states:\nNothing in this section shall be construed to prohibit a licensed social worker from disclosing information in court hearings concerning matters of adoption, child abuse, child neglect or other matters pertaining to the welfare of children as stipulated in the Children\u2019s Code or to those matters pertaining to citizens protected under the Adult Protective Services Act.\n(Citations omitted.) The State contends that this exception is applicable here because \u201c[t]he present case involves a court hearing concerning child abuse,\u201d The State\u2019s argument ignores the plain language of this statute, which limits the exception to court hearings arising under the Children\u2019s Code or the Adult Protective Services Act, neither of which is at issue here. We therefore will not depart from the plain language of Section 61-31-24(C), and we decline to accept the State\u2019s invitation to interpret the Social Work Practice Act to apply to criminal proceedings.\n{31} The State also relies on Section 32A-4-5 of the Abuse and Neglect Act, which governs the admissibility of reports into evidence and provides, in pertinent part:\nIn any proceeding alleging neglect or abuse under the Children\u2019s Code resulting from a report required by Section 32A-4-3 ... or in any proceeding in which that report or any of its contents are sought to be introduced in evidence, the report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.\nSection 32A-4-5(A) (citation omitted). The above provision makes clear that it applies in two types of proceedings: (1) proceedings alleging neglect or abuse under the Children\u2019s Code that result from a report filed pursuant to Section 32A-4-3, and (2) proceedings in which a report filed pursuant to Section 32A-4-3 or any of its contents are sought to be introduced into evidence. As we have noted with respect to the Social Work Practice Act, this provision does not apply because this is a criminal case. It is not a case arising under the Children\u2019s Code, and it is undisputed that Defendant\u2019s social worker did not file a report pursuant to Section 32A-4-3.\nCONCLUSION\n{32} For the reasons discussed above, we conclude that Defendant has a privilege to refuse to disclose and to prevent his licensed social worker and ex-wife from disclosing confidential communications he made to his social worker for the purpose of diagnosis and treatment. The exception set forth in Rule 11-504(D)(4) does not prevent Defendant from invoking the privilege because neither Defendant\u2019s social worker nor his ex-wife was subject to the reporting requirement set forth in Section 32A-4-3(A). We affirm the district court\u2019s grant of Defendant\u2019s motion for a protective order.\n{33} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nI CONCUR:\nCYNTHIA A. FRY, Judge\nJ. MILES HANISEE, Judge (dissenting)\nThe State does not argue on appeal that the district court erred in barring Defendant\u2019s ex-wife from testifying with respect to communications she had with Defendant outside of counseling sessions, and we thus do not consider the issue.\nThe State does not argue on appeal that Defendant cannot claim the privilege set forth in Rule 11-504(B) because he received counseling from a licensed social worker, not a physician or a psychotherapist. Consequently, we do not consider whether a person who is receiving treatment from a licensed social worker can invoke the privilege set forth in Rule 11 -504(B).", "type": "majority", "author": "VANZI, Judge." }, { "text": "HANISEE, Judge\n(dissenting).\n{34} I consider the term \u201cevery person,\u201d as articulated in Section 32A-4-3(A), to mean any person who is aware of or reasonably suspects that a child is being abused. Under the statute\u2019s plain directive, all such persons are duty-bound to report the ill-treatment of children to law enforcement or child protection authorities. The majority having concluded otherwise, I respectfully dissent.\n{35} Initially, I note that the language of the statute itself seems unmistakable. When there exists clarity of legislative intent, New Mexico caselaw compels a statute\u2019s effectuation in a manner that avoids unnecessary interpretation and gives effect to language that is simple and unambiguous. See United Rentals Nw., Inc. v. Yearout Mech., 2010-NMSC-030, \u00b6 9, 148 N.M. 426, 237 P.3d 728 (\u201cThe first guiding principle in statutory construction dictates that we look to the wording of the statute and attempt to apply the plain meaning rule[.]\u201d (internal quotation marks and citation omitted)). As the Majority Opinion points out, \u201c[t]he words of a statute should be given their ordinary meaning, absent clear and express legislative intention to the contrary, as long as the ordinary meaning does not render the statute\u2019s application absurd, unreasonable, or unjust.\u201d Juan, 2010-NMSC-041, \u00b6 37 (alteration, internal quotation marks, and citation omitted). Thus, in following the plain meaning rale, we will not read into a statute language that isn\u2019t there, \u201cespecially when it makes sense as it is written.\u201d Reule Sun Corp. v. Valles, 2010-NMSC-004, \u00b6 15, 147 N.M. 512, 226 P.3d 611 (internal quotation marks and citation omitted).\n{36} Section32A-4-3(A) commences with the chosen phrase \u201cEvery person[.]\u201d It then identifies and imposes upon a limited subset of such an otherwise unlimited grouping \u2014 those aware of crimes perpetrated upon a child \u2014 the responsibility to notify public officials that are authorized to stop the commission of, and protect victims from, such uniquely pernicious offenses. See id. No provision within the statute directly excludes any individual from the responsibility of mandated reporting. See \u00a7 32A-4-3. Nevertheless, the Legislature chose to emphasize the reporting responsibilities of certain categories of individuals by expressly announcing their inclusion within the general statutory directive. It is my view that this expression emphasized the breadth of, and does not impliedly constrict, the statute\u2019s sphere of enforceability.\n{37} The Majority Opinion stumbles on what I perceive to be an ancillary and purposefully incomplete list of persons whose duty to report exists despite their employment in specified professions. By directly identifying some, but not all, to whom Section 32A-4-3 applies, the Legislature intended to make clear the statute\u2019s application to people who may not otherwise be understood to fall within the broader penumbra of \u201cevery person.\u201d It is telling that the professional responsibilities of each such specifically identified person may more frequently render them privy to information regarding child abuse, or would, in some instances, bestow a conflicting legal privilege or responsibility of confidentiality. Yet, like anyone else, they too are required to report known or reasonably suspected instances of child abuse. With the lone exception of legally privileged communications made to members of the clergy, there is simply no indication of exemption to be found within Section 32A-4-3(A). Based on established principles of statutory construction, and considering the nature of the occupations expressly required to comply with this section of the Abuse and Neglect Act, I conclude that the language \u201cevery person\u201d in fact means everyone, as would ordinarily be understood.\n{38} Indeed, my approach is consistent with our own past observation regarding the breadth of the reporting requirement of this very statute. In In re Candice Y., 2000-NMCA-035, \u00b6\u00b6 35-36, 128 N.M. 813, 999 P.2d 1045, we held that aperson employed as a counselor cannot be prohibited from disclosing information regarding child abuse pursuant to NMSA 1978, Section 61-9A-27(C) (1993). In so ruling, we cited Section 32A-4-3, which we observed to \u201cappear to require [a] counselor to report abuse or neglect to an appropriate authority and to remove any privilege that might otherwise apply here.\u201d In re Candice Y., 2000-NMCA-035, \u00b6 36. Notably, the Rule 11-504 privilege we determined to be \u201cremoved\u201d by application of Section 61-9A-27(C), seeln re Candice Y., 2000-NMCA-035, \u00b6 36, is the same privilege the majority determines today to be unaffected by Section 32A-4-3. See also Mendez, 2010-NMSC-044, \u00b6 37 (noting without deciding that Section 32A-4-3(A) \u201crequir[es] every person, including medical professionals ... to immediately report [child abuse] to authorities\u201d).\n{39} My view is also reinforced by the fact that, like New Mexico, other states have enacted and interpreted similarly inclusive language in this context to apply to everyone. Both Texas and Florida have promulgated similar statutes that mandate all individuals, whether professional or layperson, to report crimes of child abuse or neglect to appropriate authorities. See Tex. Family Code Ann. \u00a7 261.101(a) (West 2013) (\u201cA person having cause to believe that a child\u2019s physical or mental health or-welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.\u201d (emphasis added)); Fla. Stat. Ann. \u00a7 39.20l(l)(a-c) (West2013) (\u201cAny person who knows or has reasonable cause to suspect that a child is abused, abandoned, or neglected . . . shall report such knowledge or suspicion to the department in the manner prescribed.\u201d (emphasis added)). Courts of both states have interpreted their legislatures\u2019 own broadly inclusive language to straightforwardly mean that people \u2014 any people \u2014 aware of child abuse are required to report it. See Rodriguez v. State, 47 S.W.3d 86, 89 (Tex. Ct. App. 2001) (concluding that those living in the same apartment with an abused child and had witnessed the abuse but failed to report it fell within the requirements of the mandatory reporting statute); Jett v. State, 605 So. 2d 926, 927 (Fla. Dist. Ct. App. 1992) (interpreting Fla. Stat. Ann. \u00a7 415.504(a)(1989), now renumbered as Section 39.201, and concluding that \u201c[i]t appears that the legislature, in order to assure that the abuse is reported, has determined that everyone who has knowledge of [abuse] should report it\u201d). Like in Texas and Florida, the \u201cevery person\u201d language in our statute manifests our Legislature\u2019s express intent to create an affirmative duty on all persons to report child abuse or neglect to appropriate authorities.\n{40} As well, I note that the Majority Opinion\u2019s reliance on the doctrine of ejusdem generis is misplaced. Ejusdem generis instructs that \u201cwhere general words follow an enumeration of persons or things of a particular and specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.\u201d State v. Office of Pub. Defender ex rel. Muqqddin, 2012-NMSC-029, \u00b6 29, 285 P.3d 622 (emphasis added) (internal quotation marks and citation omitted). Black\u2019s Law Dictionary provides a simple example to illustrate this doctrine, using the phrase \u201chorses, cattle, sheep, pigs, goats, or any other farm animals}.]\u201d Black\u2019s Law Dictionary 594 (9th ed. 2009). The entry notes that despite the seeming breadth of the category of \u201cany other farm animals,\u201d this phrase would likely include only \u201cfour-legged hoofed mammals typically found on farms, and thus would exclude chickens\u201d because \u201cthe general word or phrase will be interpreted to include only items of the same class as those listed.\u201d Id.\n{41} This entry is in accord with our Supreme Court\u2019s interpretation ofthe burglary statute in Muqqddin. See Muqqddin, 2012-NMSC-029, \u00b6\u00b6 29-31. That statute contains a string of specific listings followed by a general term: \u201cBurglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling},] orother structure}.]\u201dNMSA 1978, \u00a7 30-16-3 (1971). By limiting the meaning of the word \u201cstructure\u201d to \u201cother, similarly situated words in that same statute},]\u201d our Supreme Court rejected a prior interpretation that failed to properly apply ejusdem generis. See Muqqddin, 2012-NMSC-029, \u00b6 31.\n{42} But the statute at issue in this case is constructed differently than the burglary statute or other statutes to which ejusdem generis is intended to apply. Section 32A-4-3(A) is not a statute where general words follow the enumeration of words with a specific meaning. Rather, it first invokes a general term, \u201cevery person,\u201d followed by the list of specific professionals. Id. Thus, this statute is not one that structurally falls within the purview of those to which ejusdem generis should be applied. Because our Supreme Court has recognized that \u201cthe use ofthe word \u2018includes\u2019 to connect a general clause to a list of enumerated examples demonstrates a legislative intent to provide an incomplete list of activities[,]\u201d United Rentals Nw., 2010-NMSC-030, \u00b6 13, we should decline to interpret the reporting statute as applying to anything other than its preceding generally defined category: \u201cevery personf.]\u201d\n{43} Lastly, assuming without agreeing that the principle of ejusdem generis applies to this statute, the Majority Opinion\u2019s reliance on Wilcox lends no meaningful support to its conclusion. Wilcox states that \u201c[w]e have previously looked to a dictionary definition of the word that precedes \u2018including\u2019 to characterize the types of examples consistent with that key word.\u201d 2012-NMCA-106, \u00b6 13. However, in this case, if we look to the word that precedes \u201cincluding,\u201d we find the word \u201cperson.\u201d If we then follow the Wilcox illustration and define \u201cperson\u201d as set forth in Black\u2019s Law Dictionary, we are informed that each is \u201ca human being\u201d and are provided with examples. Black's Law Dictionary 1257 (9th ed. 2009). Therefore,.even were we to apply the doctrine of ejusdem generis, as in Wilcox, we would still reach the same conclusion that the statutory language of \u201cevery person\u201d applies to all people.\n{44} On the heels of its ejusdem generis analysis, the Majority Opinion evokes the rule of lenity to conclude that because the reporting requirement is enforced by application of criminal liability, the statute\u2019s directive does not constitute an affirmative duty applicable to all. However, like New Mexico, Texas penalizes all non-reporters on the misdemeanor level. See Tex. Family Code Ann. \u00a7 261.109 (West 2013). Even more rigidly, Florida imposes criminal penalties on any person who fails to report at the felony level. See Fla. Stat. Ann. \u00a7 39.205(1) (West 2013). I do not agree that the fact that \u00e1 non-reporter in New Mexico may be subjected to amisdemeanorpenalty provides support to the Majority Opinion\u2019s constrictive reading of the statute. As well, our Supreme Court has cautioned that the rule of lenity applies only to statutory language in which \u201cinsurmountable ambiguity persists regarding the intended scope of a criminal statute.\u201d Ogden, 1994-NMSC-029, \u00b6\u00b6 25-26 (stating also that \u201c[a] criminal statute is not ambiguous for purposes of lenity merely because it is possible to articulate a construction more narrow than that urged by the Government\u201d (emphasis, alteration, internal quotation marks, and citation omitted)). Here, it is the Majority Opinion itself that creates ambiguity by its use of the inapplicable principle of ejusdem generis to unnecessarily deconstruct the phrase \u201cevery person.\u201d\nCONCLUSION\n{45} For the foregoing reasons, I would reverse the district court\u2019s order.\nJ. MILES HANISEE, Judge", "type": "dissent", "author": "HANISEE, Judge" } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellant", "Duncan Earnest LLC Theresa M. Duncan Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Granted, No. 34,435,\nJanuary 10, 2014\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-020\nFiling Date: October 28, 2013\nDocket No. 32,425\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. JASON STRAUCH, Defendant-Appellee.\nGary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellant\nDuncan Earnest LLC Theresa M. Duncan Albuquerque, NM for Appellee" }, "file_name": "0421-01", "first_page_order": 437, "last_page_order": 449 }