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M. R. S. v. State (6/9/95), 897 P 2d 63
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, (907)264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-6208
) Court of Appeals No. A-4624
) Superior Court No.
) 3AN-S89-455 CP
STATE OF ALASKA, ) O P I N I O N
Respondent. ) [No. 4219, June 9, 1995]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Alaska, John Reese, Judge.
Appearances: Margi Mock, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Petitioner. Nancy
R. Simel, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
MOORE, Chief Justice, with whom
EASTAUGH, Justice, joins, dissenting.
In 1992 the State of Alaska (State) filed a delinquency
petition alleging that M.R.S., a juvenile nearing his eighteenth
birthday, had robbed and stabbed a taxicab driver. After a
juvenile waiver hearing, the superior court ruled that M.R.S. was
not amenable to treatment as a minor, and authorized the State to
proceed against him as an adult. The superior court's finding
was based in part on a psychotherapist's testimony regarding his
1990 psychological examination of M.R.S., which had been ordered
by the children's court in the disposition phase of an earlier,
unrelated delinquency proceeding.
M.R.S. appealed the decision to the court of appeals,
arguing that the admission of this evidence violated his
constitutional privilege against self-incrimination and his
evidentiary psychotherapist-patient privilege. The court of
appeals held that admission of the evidence did not violate
either privilege. M.R.S. v. State, 867 P.2d 836, 844 (Alaska
App. 1994). M.R.S. petitioned this court for hearing. See
Appellate Rule 302 (a)(1). We granted M.R.S.'s petition on a
single issue: Was admission of the 1990 court-ordered
psychological examination at the 1992 waiver hearing a violation
of M.R.S.'s psychotherapist-patient privilege? See Alaska R.
Evid. 504. We hold that it was.
II. FACTS AND PROCEEDINGS
In January 1992 M.R.S., an individual with a history of
delinquent conduct who was two months short of his eighteenth
birthday, was charged with robbing and repeatedly stabbing a
Pursuant to AS 47.10.060,1 the State petitioned the
superior court to waive children's court jurisdiction over M.R.S.
The State alleged that there was probable cause to believe that
M.R.S. was delinquent and that he was not amenable to treatment
as a juvenile.
Prior to the waiver hearing, M.R.S. moved for a
protective order prohibiting the State from introducing into
evidence his prior juvenile records, which included a 1990 court-
ordered psychological examination performed by Dr. Larry Bissey.
Dr. Bissey had conducted this examination in 1990 in conjunction
with the disposition phase of a delinquency proceeding against
M.R.S. On the same day the examination was conducted, Dr. Bissey
submitted to the children's court a seven-page report in which he
summarized his findings. He recommended that M.R.S. be
institutionalized in an in-patient substance abuse program.
Since that time, Dr. Bissey has conducted no further examination
of M.R.S. M.R.S. asserted that admission of this evidence would
violate his constitutional privilege against self-incrimination
and his evidentiary psychotherapist-patient privilege. The
superior court summarily denied M.R.S.'s motion.
At the 1992 waiver hearing, Dr. Bissey expressed doubt
that M.R.S. could be successfully rehabilitated before reaching
his twentieth birthday. Dr. Bissey based this opinion on his
1990 examination of M.R.S. A forensic psychologist confirmed Dr.
Bissey's conclusion that M.R.S. was not amenable to treatment as
a minor. The psychologist based his conclusion on his review of
M.R.S.'s juvenile records, which included Dr. Bissey's 1990
After considering the evidence, the superior court
found probable cause to believe that M.R.S. was delinquent, and
concluded that he was not amenable to treatment as a minor. The
court, giving significant weight to the two doctors' testimony,
ordered the juvenile proceeding closed. The State was thus
authorized to proceed against M.R.S. as an adult.
M.R.S. appealed this decision to the court of appeals,
arguing that the superior court had erred in admitting evidence
derived from the 1990 court-ordered psychological examination by
Dr. Bissey. M.R.S. v. State, 867 P.2d 836 (Alaska App. 1994).
The court concluded that the privilege against self-incrimination
did not attach to the statements made by M.R.S. during the 1990
court-ordered psychological examination. Id. at 838-41.
Further, the court held that the admission of the statements
would not violate the psychotherapist-patient privilege set forth
in Evidence Rule 504(b). Id. at 844. This provision states:
(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
the patient's physical, mental or emotional
conditions, including alcohol or drug
addiction, between or among the patient, the
patient's 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.
Alaska R. Evid. 504(b).
Subsection (a)(4) of the Rule provides further elaboration:
A communication is confidential if not
intended to be disclosed to third persons
other than those present to further the
interest of the patient in the consultation,
examination, or interview, or persons
reasonably necessary for the transmission of
the communication, or persons who are
participating in the diagnosis and treatment
under the direction of the physician or
psychotherapist, including members of the
Alaska R. Evid. 504(a)(4). Additionally, subsection (d)(6) of
the Rule provides an exception relating to judicially ordered
(d) Exceptions. There is no privilege
under this rule:
. . . .
(6) Examination by order of Judge. As
to communications made in the course of an
examination ordered by the court of the
physical, mental or emotional condition of
the patient, with respect to the particular
purpose for which the examination is ordered
unless the judge orders otherwise. This
exception does not apply where the
examination is by order of the court upon the
request of the lawyer for the defendant in a
criminal proceeding in order to provide the
lawyer with information needed so that the
lawyer may advise the defendant whether to
enter a plea based on insanity or to present
a defense based on the defendant's mental or
Alaska R. Evid. 504(d)(6).
Reasoning that communications made to a psychologist in
a court-ordered examination are not intended to be confidential,
the court of appeals concluded that such communications do not
fall within the scope of the privilege.
[T]he circumstances involved in the 1990
children's court proceedings make it
abundantly clear that M.R.S. and his counsel
understood that M.R.S.'s communications with
Bissey would be disclosed to the court and to
other participants associated with the
scheduled disposition hearing. Indeed,
M.R.S. has never claimed that he did not
intend such disclosure to occur. For this
reason, the statements M.R.S. made to Bissey
in the course of the psychological evaluation
were not confidential communications under
[Alaska Rule of Evidence] 504(a)(4).
M.R.S., 867 P.2d at 843.
The court of appeals recognized that its construction
of the rule effectively exempted court-ordered examinations from
a claim of privilege in almost all circumstances and noted:
At first blush . . . this interpretation
. . . might appear to render superfluous the
exception for court-ordered psychiatric
examinations stated in [Alaska Rule of
Evidence] 504(d)(6), which more narrowly
exempts court-ordered examinations from a
claim of privilege when disclosure is sought
for 'the particular purpose for which the
examination is ordered.'
Id. at 843 n.5.
However, the court identified three circumstances in
which subsection (d)(6) would still apply and concluded that its
reading of the Rule did not render this provision superfluous.
First, the court observed that subsection (d)(6) would apply in
cases where a court orders an examination by a psychotherapist
who has already established a therapeutic relationship with the
[O]n some occasions, courts may order
psychological evaluations prepared by
psychotherapists who have already rendered
services to the patient and who will thus be
placed in a position of disclosing to the
court psychotherapist-patient statements that
pre-date the court order. In such
circumstances, subsection (d)(6) would be
necessary to assure full disclosure, since
the pre-order statements would not have been
made in contemplation of disclosure to the
Id. at 843 n.5. Second, the court suggested that in cases where
court-ordered examinations take place "without any subjective
awareness on the patient's part that disclosure to the court or
to other participants in the court proceedings is contemplated .
. . , subsection (d)(6) would authorize limited disclosure
regardless of the patient's intent." Id. at 844 n.5. Finally,
the court observed that subsection (d)(6) serves to clarify the
scope of the privilege in a situation where a psychotherapist is
testifying when the patient is unavailable. By making it clear
that the privilege does not apply when the examination was
ordered by the court and the disclosure is being sought for the
purpose the examination was ordered, the Rule provides guidance
to psychotherapists who might otherwise seek to invoke the
privilege on the patient's behalf. Id.
M.R.S. then petitioned this court for hearing.
"The admissibility of evidence is largely within the
trial court's discretion and its rulings will not be overturned
on appeal in the absence of an abuse of discretion." Hawley v.
State, 614 P.2d 1349, 1361 (Alaska 1980). However, this court
reviews de novo questions of law presented by the court's
evidentiary rulings. See In re D.D.S., 869 P.2d 160, 162 (Alaska
1994). In interpreting a statute or rule, this court will adopt
"the rule of law which is most persuasive in light of precedent,
reason and policy." See Hernandez-Robaina v. State, 849 P.2d
783, 785 n.2 (Alaska 1993).
As the court of appeals recognized, basic principles of
statutory construction provide guidance in interpreting this
Rule. See M.R.S., 867 P.2d at 843 n.5. These principles
militate against interpreting a statute or rule in a manner that
renders other provisions meaningless.
It is an established principle of
statutory construction that all sections of
an act are to be construed together so that
all have meaning and no section conflicts
with another. Further, where one section
deals with a subject in general terms and
another deals with a part of the same subject
in a more detailed way, the two should be
harmonized, if possible; but if there is a
conflict, the specific section will control
over the general.
In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978); see also In
re E.A.O., 816 P.2d 1352, 1357 (Alaska 1991) (holding that
apparent contradictions in a statute should be harmonized, if
possible, rather than read to make one provision negate the
other). M.R.S. asserts that the court of appeals' reading of the
confidentiality requirement violates these principles because it
renders virtually superfluous the specific exception for court-
ordered psychological examinations set forth in subsection
(d)(6). We agree.
On its face, subsection (d)(6) purports to apply to all
court-ordered examinations. The scope of this exception is
specifically limited to include only those communications made
during the court-ordered examination and only in so far as they
are used for "the particular purpose for which the examination is
ordered unless the judge orders otherwise." Alaska R. Evid.
The court of appeals held that communications made in
the course of a court-ordered examination do not qualify as
"confidential communications"because disclosure to the court is
always contemplated. See M.R.S. 867 P.2d at 842-43. This
interpretation of the Rule is too narrow. It directly
contradicts the principle that
where one section deals with a subject
in general terms and another deals with a
part of the same subject in a more detailed
way, the two should be harmonized, if
possible; but if there is a conflict, the
specific section will control over the
In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978). The court
of appeals has allowed the general to prevail over the specific.
The exception noted in subsection (d)(6) clearly articulates the
situation under which court-ordered examination results may be
admitted into evidence, but the court of appeals' interpretation
effectively expands this exception. By the court of appeals' own
admission, its reading removes the bulk of court-ordered
examinations from the protection of the privilege by excluding
such examinations from the definition of "confidential
communications." M.R.S., 867 P.2d at 843 n.5. Ironically, to
achieve this result it was necessary for the court of appeals to
give a more narrow reading to subsection (d)(6), limiting it to a
few hypothetical applications. Id. at 843 n.5.
Strong policy considerations weigh in favor of
including these types of court ordered examinations in the Rule's
definition of "confidential communications." This is
particularly so in the context of juvenile proceedings. Justice
Bistline of the Idaho Supreme Court has argued in favor of
protecting from future disclosure information revealed in a court-
ordered psychological evaluation.2 Allowing disclosure would
"place . . . children in a Catch-22 by discouraging them from
being honest and forthright with those who have their best
interest at heart for fear that their confidences will be
automatically accessible to those who may later seek to punish
them." State v. Brown, 825 P.2d 482, 492 (Idaho 1992) (Bistline,
J., concurring). In light of the rehabilitative purposes of
Alaska's juvenile delinquency laws,3 the better policy is to
minimize the impediments to full disclosure by the delinquent
child.4 In this way, the chances are maximized of obtaining an
accurate psychological evaluation of the child, and thus
assignment to an appropriate remediation program.5
We conclude that the psychotherapist-patient privilege
contained in Evidence Rule 504(b) should have prevented Dr.
Bissey's examination from being utilized as evidence or a source
of evidence in this proceeding.
The decision of the court of appeals is REVERSED. The
court of appeals is directed to REMAND the case to the superior
court for proceedings consistent with this opinion.
MOORE, Justice, with whom EASTAUGH, Justice, joins,
The court of appeals correctly held that the challenged
evidence in this case did not violate the psychotherapist-patient
privilege. I would, therefore, affirm the decision of the court
of appeals. M.R.S. v. State, 869 P.2d 836, 841-44 (Alaska App.
1Alaska Statute 47.10.060 provides:
Waiver of Jurisdiction. (a) If the
court finds at a hearing on a petition that
there is probable cause for believing that a
minor is delinquent and finds that the minor
is not amenable to treatment under this
chapter, it shall order the case closed.
After a case is closed under this subsection,
the minor may be prosecuted as an adult.
. . . .
(d) A minor is unamenable to
treatment under this chapter if the minor
probably cannot be rehabilitated by treatment
under this chapter before reaching 20 years
of age. In determining whether a minor is
unamenable to treatment, the court may
consider the seriousness of the offense the
minor is alleged to have committed, the
minor's history of delinquency, the probable
cause of the minor's delinquent behavior, and
the facilities available to the division of
youth and adult authority for treating the
2 Although Justice Bistline advocated protection of the
information under the rubric of an Idaho statute making records
of juvenile proceedings confidential, State v. Brown, 825 P.2d
482, 492 (Idaho 1992) (Bistline, J., concurring), his arguments
are equally compelling as a justification for preventing
disclosure via the psychotherapist-patient privilege as enacted
in Alaska Evidence Rule 504.
3 Alaska Statute 47.10.082 states that in making its
dispositional order in juvenile delinquency proceedings, the
court shall consider both "the best interests of the child and
the public." A.S. 47.10.082 (emphasis added).
4 Justice Bistline is correct that if this information
was subject to disclosure, defense counsel for the delinquent
child would be under an obligation to warn the child not to
disclose information that might be prejudicial in future
proceedings. Brown, 825 P.2d at 492 (Bistline, J., concurring).
5 Although our discussion of the policy considerations is
limited here to the juvenile context, the policies discussed are
equally applicable to the use of psychological evaluations in
adult criminal proceedings.