NM Court of Appeals restricts scope of child abuse reporting statute

Last week, in State v. Strauch (Oct. 28, 2013), the Court of Appeals held that New Mexico’s child abuse reporting statute imposes obligations only on certain listed professionals, despite the statute’s language saying that it applies to “every person.” This decision sharply limits the scope of the statute, and I think the decision is mistaken.

The defendant was accused of sexually abusing his daughter, and the State sought to question a social worker from whom the defendant obtained counseling, and from the defendant’s wife, who attended some of the counseling sessions.

The defendant claimed that his discussions with the social worker were privileged under Rule of Evidence 11-504(B), which provides that a “patient” has a privilege not to disclose communications made for the purpose of “diagnosis and treatment,” but that privilege does not apply to communications “that the physician, psychotherapist or patient is required by statute to report to a public employee or state agency.”

New Mexico’s child abuse reporting statute, NMSA 1978, Sec. 32(A)-4-3(A), provides that “[e]very person, including a licensed physician” and several other categories of professionals, such as school teachers and law enforcement officers, has an obligation to report a “reasonable suspicion” of child abuse to the authorities.

The State argued that this case was very simple — because “every person” has an obligation to report child abuse, the privilege did not apply. Period, end of story. The Court of Appeals, however, did not agree.

Writing for the majority, Judge Linda Vanzi held that a principle of statutory construction called ejusdem generis applies.  This principle holds that where a list of specific categories in a statute is followed by general words, then the general words are not understood in their widest sense, but are understood as applying to the same class of things that were specifically mentioned. Thus, although the statute says it applies to “every person,” its meaning should be limited so that the statute applies only to the sort of professionals — teachers, police officers, etc. — mentioned by the Legislature.

I think this is an erroneous application of ejusdem generis. That principle applies where specific terms in a statute are followed by more general terms, but here precisely the opposite situation exists. The child abuse reporting statute begins with a general term (“every person”), and is followed by more specific terms (“including a licensed physician…”).

I agree with Judge Miles Hanisee’s dissent that the list of specific professionals to whom the statute applies is meant to emphasize the statute’s broad scope. Applying ejusdem generis to statutes that begin with a general term and are followed by a list of more specific terms makes it more difficult for the Legislature to write legislation.

Almost six months ago, I observed that the Court of Appeals made the same mistake in the dry ice bomb case, and offered the following explanation of why it is incorrect to apply ejusdem generis where a general word is followed by specific terms:

As Justice Antonin Scalia and Bryan Garner explain in Reading Law: The Interpretation of Legal Texts (Thomson/West 2012), at pp. 203-05, the canon of ejusdem generis does not apply when a general term is followed by a list of specific examples. The purpose of the canon is to limit the scope of a general term which follows a list of specific examples. Thus, for example, a prohibition against dumping “gravel, sand, earth, or other material” into a river would not include any conceivable “material,” such as wood or cheese, but only “material” similar in nature to “gravel,” “sand,” or “earth.”

By contrast, “[f]ollowing the general term with specifics can serve the function of making doubly sure that the broad (and intended-to-be-broad) general term is taken to include the specifics.” This is especially true when the list of specifics is prefaced with terms like “including” or “including without limitation.” Scalia & Garner, at p. 204.

Just as in that case, it is to be hoped that the Supreme Court will correct the result here.

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