2008-615, STATE OF NH v. RAYMOND K. FOURNIER

away or impair[ing] a vested right, acquired under existing laws 23 of the New Hampshire Constitution by retrospectively “tak[ing]

release of confidential and privileged material) violate Part I, Article

certain communications) and RSA 135-E:15 (authorizing the

Do the provisions of RSA 135-E:10 (abrogating the privilege of

J.) submits for our resolution the following question: question of law without ruling. See Sup. Ct. R. 9. The Superior Court (Barry, HICKS, J. This matter comes before us on an interlocutory transfer of a

the defendant. Mark A. Larsen, public defender, of Concord, on the brief and orally, for

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney be reported by E-mail at the following address: order that corrections may be made before the opinion goes to press. Errors may Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in Opinion Issued: January 8, 2009 Argued: November 19, 2008

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: THE STATE OF NEW HAMPSHIRE

No. 2008-615 Hillsborough-northern judicial district are requested to notify the Reporter, Supreme Court of New Hampshire, One ___________________________

Opinions are available on the Internet by 9:00 a.m. on the morning of their

as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well proceedings.

p. 2 sexually violent predator and ordered him detained pending further

sexual violence” and that long term, specialized treatment is thus required. found that such predators are likely to “engag[e] in repeat acts of predatory treatment under RSA 135-C.” RSA 135-E:1 (Supp. 2008). The General Court

found probable cause to believe that the respondent met the definition of a court for civil commitment pursuant to RSA chapter 135-E. The trial court definition of a sexually violent predator. The State petitioned the superior

confidentiality.

admission under RSA 135-C or RSA 171-B.” RSA 135-E:2, XII (Supp. 2008). have a mental disease or defect that renders them appropriate for involuntary term control, care, and treatment; and . . . [i]s not eligible for involuntary engage in acts of sexual violence if not confined in a secure facility for long-

medical records, the multidisciplinary team concluded that he met the

acknowledging the confidential nature of the program and a limited waiver of

but extremely dangerous number of sexually violent predators . . . who do not E. RSA chapter 135-E is intended to address the social ill posed by “a small mental abnormality or personality disorder that makes the person likely to that he would be evaluated for civil commitment pursuant to RSA chapter 135-

confidential department of correction files, mental health treatment and other pursuant to RSA 135-E:3, IV (Supp. 2008), including police reports, After obtaining and reviewing various documents and information offender treatment program (SOTP) in 2003 after signing a treatment contract

who . . . [h]as been convicted of a sexually violent offense; . . . [s]uffers from a health and human services (DHHS) notified the respondent in January 2008 violent predator,” id. A “sexually violent predator” is defined as “any person 2008), to evaluate whether the respondent met “the definition of a sexually DHHS assembled “a multidisciplinary team,” RSA 135-E:3, I (Supp.

confidentiality agreements. The respondent also participated in the sexual the respondent received mental health treatment after signing limited fifteen years in the New Hampshire State Prison (NHSP). While at the NHSP,

With his sentence set to expire on June 16, 2008, the department of

counts of aggravated felonious sexual assault and was sentenced to five to The respondent, Raymond K. Fournier, pled guilty in 1994 to seven

We respond in the negative and remand.

Matter of Goldman and Elliot[t], 151 N.H. 770 (2005). . . . .” Woart v. Winnick, 3 N.H. 473, 479 (1826). See also In the pending its disposition.

p. 3 because of the significance of the issues raised and stayed the other cases

sexually violent predator.

consented to its release. We accepted this interlocutory transfer without ruling 3 seeks is both privileged and confidential and that the respondent has not State does not dispute that some or all of the testimony and other evidence it

chapter and determining whether a person is or continues to be a general for the purpose of meeting the notice requirements of this multidisciplinary team, or to the county attorney or attorney

constitutional prohibition on retrospective laws.

commitment proceedings in response to the State’s motions to compel. The civil causes, or the punishment of offenses. No such laws, therefore, should be made, either for the decision of Retrospective laws are highly injurious, oppressive, and unjust.

health practice’s professional ethics rules. Baines v. N.H. Senate President privileged shall be released to the agency with jurisdiction, to a, 152 N.H. 124, 133 (2005). A statute’s constitutionality is a question of law which we decide de novo. See

We are asked whether these two provisions offend the state

RSA 135-E:15, I (Supp. 2008). chapter 135-E].

five persons objecting and asserting a testimonial privilege during civil

social worker subject to both RSA 330-A:32 (2004) and the board of mental relevant information and records that are otherwise confidential or release from the patient or a court order, because she was a licensed clinical chapter 135-E proceeding declined to answer deposition questions, absent a RSA 135-E:10, I. RSA 135-E:15, I, provides, in relevant part, that

statutes or rules shall not apply in proceedings under [RSA communications pursuant to RSA 330-A:32, or other similar E:10, I (Supp. 2008) of certain testimonial privileges. The respondent is one of the doctor-patient privilege under RSA 329:26, privileged

RSA 135-E:10, I, provides, in relevant part, that

compel these individuals’ testimony after a health provider in a separate RSA

The State’s motion to compel relies upon the abrogation by RSA 135-

respondent’s NHSP mental health treatment providers. The State moved to The State’s preliminary list of trial witnesses includes many or all of the each in turn.

criminal proceeding.”

transactions or considerations already past.” obligation, impose[] a new duty, or attach[] a new disability, in respect to confidentiality he enjoyed with the department of corrections. We consider

constitution.”

mentally deranged, emotionally or mentally ill . . . [as] a civil rather than a

impair[] vested rights, acquired under existing laws, or create[] a new privilege; a right to medical confidentiality; and a contractual right to impermissibly vitiate three of his vested rights: a right to assert testimonial The respondent asserts that RSA 135-E:10, I, and RSA 135-E:15, I,

sexually violent offense.” Id. at 773 (quotation and citation omitted). to assess whether its application to a particular matter offends the Id. Ultimately, “we . . . discern the nature of the rights affected by the . . . act “the care, treatment and indeterminate commitment of persons who are insane, [or whether they] solely affect procedures or remedies enforcing those rights.” confidences and testimonial privileges retroactively. guidepost, we inquire whether they “affect substantive rights and liabilities . . .

Our inquiry is therefore limited to whether the statutes “take[] away or analysis to determine if it is unconstitutionally retrospective. intent for retroactive application. See Goldman, 151 N.H. at 772.

to all persons in custody as of [January 1, 2007,] who have been convicted of a 2008). Indeed, RSA 135-E:19 provides that “this chapter applies retroactively

application is constitutionally permissible. See id. apply retroactively. See id. If so, we then inquire whether such retroactive 151 N.H. at 772. First, we discern whether the legislature intended the law to

punishment of offences.” In testing legislation against Part I, Article 23, we conduct a two-part

concerned only with the former type of proscribed retrospective laws, those “for respondent has not asserted the Ex Post Facto Clause and here we are (quotation omitted); see also State v. Matthews, 157 N.H. p. 4 415, 418 (2008). The punishment upon the person who has committed [a crime.]” Id. at 475 are commonly referred to as ex post facto laws and generally “inflict[] a

retrospective laws: those “for the decision of civil causes[;] and [those] for the N.H. CONST. pt. I, art. 23. Part I, Article 23 enumerates two types of guidance in other circumstances where such limited waivers may not exist. p. 5 respect to his asserted contractual rights, we address this argument for assertion is belied by his limited waivers of confidentiality discussed below with

of the acknowledged powers of every government.

team, which cannot be taken away by legislative fiat.” Although any such

a rule for the admission of existing evidence therein — an exercise regulation of the proceeding for enforcing remedies, by prescribing 5 violates no vested rights of the parties thereto, but is a mere

elimination by the legislature.

[constitutional] right to maintain the confidences he shared with his treatment

establishes no new rule for the decision of those causes, and

E:10, I, are creatures of public policy and subject to retrospective alteration or

429 U.S. 589 (1977), the respondent asserts that he “has a vested Citing Goodrow v. Perrin, 119 N.H. 483, 485 (1979), and Whalen v. Roe,

II. Confidentiality

unconstitutional as being retrospective . . . inasmuch as it operation, competent witnesses on the trial thereof, . . . is not See Goldman, 151 N.H. at 773-74.

the statutory and other similar evidentiary privileges abrogated by RSA 135- Little, 39 N.H. at 509. Thus, we affirm our prior holdings and conclude that

[An act] mak[ing] the parties to pending suits, not excepted from its

Rich, 39 N.H. at 336. In Little we said: one can have a vested right in the testimony of any particular witness . . . .” communication and treatment. given that witness privileges exist as rules of evidence, see N.H. R. Ev. 501. “[N]o Maplewood Garage, 84 N.H. 241 (1930); Little v. Gibson, 39 N.H. 505 (1859), N.H. 304, 323 (1859), overruled in part on other grounds by Caswell v. evidentiary privilege as constitutionally permissible, see Rich v. Flanders, 39 Our jurisprudence generally classifies the legislative abrogation of an

(1989), superseded in part on other grounds by RSA 329:26 (Supp. 2008). the disclosure of information is essential.” State v. Elwell, 132 N.H. 599, 605 not absolute and we have recognized that certain privileges must “yield when 664 (2005). The therapist-client privilege, like most testimonial privileges, is

physician-patient privilege” given the need for complete trust to facilitate public policy “may be even more compelling than that behind the usual animated by broad and varied public policy. We have observed that such The respondent correctly recognizes that the therapist-client privilege is

I. Testimonial Privilege incidental injury occasioned by change in the law. p. 6 obligation on the part of the State to protect its citizens against

that he has a vested right to maintain confidences. amendment or repeal by the legislature; nor is there any implied independent existence.”). Accordingly, we reject the respondent’s assertion law or the statute under which it was acquired for its assertion, but has an

medical confidence. administrative or common law, we cannot say that he acquired a vested right to

articulated sufficient need. vested interest in the existing laws of the State as precludes their

(Colo. 1993) (“A right is only vested when it is not dependent upon the common

respondent’s records is purely dependent upon the existence of statutory, law of torts such as those relating to an invasion of privacy, Id. at 773 (quotation omitted). Because the confidential status of the be said to exist by virtue of statute, administrative regulation or the common

acknowledge that it must yield when waived or when the government has [T]he individual citizen, with all his rights to protection, has no

law.” Goldman, 151 N.H. at 774 (quotation omitted). that there is “no general right to the continuance even of prior substantive such right. Remsburg v. Docusearch, 149 N.H. 148, 156 (2003). We have clearly stated

records”); Accordingly, any clear right to medical confidentiality in prisons can only

Cir. 1999). exist, it would not be absolute. See Powell v. Schriver, 175 F.3d 107, 112-13 (2d unjustified intrusion upon their personal security”). Even if such a right did certain fundamental liberty interests” such as the “right to be free from (E.D. Va. 1995). Even those federal courts recognizing such a right F.3d 733, 740 (6th Cir. 1994); Adams v. Drew, 906 F. Supp. 1050, 1057-58 infringements of bodily integrity”); Anderson v. Romero, 72 F.3d 518, 522-23 (7th Cir. 1995); Doe v. Wigginton, 21

See Tokar v. Armontrout, 97 F.3d 1078, 1084 (8th Cir. 1996);

There is ample federal authority discussing the lack of recognition of any

see also Whalen, 429 U.S. at 601-04.

three circumstances supporting “disclosure of privileged and relevant medical Subpoena (Medical Records of Payne), 150 N.H. 436, 440-41 (2004) (describing

(1983) (recognizing that State Constitution provides mentally ill persons “with

right of individual privacy “that . . . may be asserted to prevent unwanted But cf. In re Caulk, 125 N.H. 226, 230 (1984) (recognizing state constitutional information on behalf of incarcerated persons and we decline to do so now. We have never recognized a constitutional right to the privacy of medical individual’s record are accessible to courts.”

p. 7 they state that “[u]nder certain restricted conditions the contents of an

rights that the respondent asserts. proceedings.” Thus, we do not see how either statute impairs the contractual [SOTP]” and that this summary “may be released to the courts during any legal

respondent that the communications may ultimately be placed in his record, confidence, but not complete confidence.” In addition to informing the 7 2000 provide that communications with his therapist “will be held in

“Discharge Summary will be prepared upon termination or completion of the

concurred.

“Limits of Confidentiality Advisor[ies]” that the respondent signed in 1994 and

Waiver” upon entering the SOTP in 2003. The writing informed him that a

BRODERICK, C.J.