Young, J.c.c., Temporarily Assigned.
This opinion supplements the opinion reported at 140 N.J. Super. 582 (Law Div. 1976), setting forth the reasons for denial of the motion of Roland Reed, Ph.D., marriage counselor, to quash subpoena, served upon him. Dr. Reed's application for reargument was granted, at which time the American Association of Marriage and Family Counsellors and the New Jersey Association of Marriage and Family Counsellors were granted leave to intervene as amicus curiae. Reargument was directed to the issue of the constitutionality of the statute which conferred a privilege to marriage counselors, N.J.S.A. 45:8B-29, as the provisions of that statute were applicable to the circumstances of this criminal proceeding.
A recapitulation of the procedural context of the hearing on reargument will serve to preface an analysis of the contentions argued. In advance of a hearing (mandated by N.J.S.A. 2A:162-2) into defendant's competency to stand trial, Dr. Reed moved to quash a subpoena duces tecum served upon him by the defendant, and a subpoena ad testificandum served by the prosecutor. Dr. Reed, a licensed New Jersey marriage counselor, resisted the compulsory process, invoking the statutory privilege provided by N.J.S.A. 45:8B-29. New Jersey has adopted the privilege as a rule of evidence. Evid. R. 28A-1. In a holding expressly confined by the circumstances presented, this court refused to recognize the privilege.
This court concluded that to deny enforcement of the State's subpoena would deprive the State of due process of law and impede the administration of justice; to deny enforcement
of defendant's subpoena would violate both due process as well as rights under the Sixth Amendment of the Constitution of the United States.
Initially, amicus raise the equal protection aspect. The Equal Protection Clause did not form any part of the basis of the court's opinion of March 17, 1976. That constitutional principle had not been raised previously, nor does it appear to have any direct bearing on the resolution of any issues submitted.
In passing, it should be pointed out that when a fundamental constitutional interest is at stake -- here the rights of the defendant derived from the Sixth and Fourteenth Amendments -- the standard of review to be applied to an equal protection case is the "strict scrutiny" test rather than the "rational basis" test. Reliance by amicus upon various "economic due process" decisions as a buttress to the argument relating to the applicable standard of review is, this court suggests, misplaced.
At the rehearing the prosecutor iterated his contention that the marriage counselor does not enjoy an independent right to assert the privilege as conferred by N.J.S.A. 45:8B-29. The prosecutor submits the opinion in Touma v. Touma , 140 N.J. Super. 544 (Ch. Div. 1976), to support his contention. Apart from noting the matrimonial forum of the case cited, some additional distinctions from the pending criminal litigation may be drawn.
Thomas Roma stands charged with the brutal slaying of his wife and infant son on August 16, 1975. In his affidavit Dr. Reed states that "During the months of March through August, 1975, I was a licensed marriage counselor and as such rendered marriage counseling to Thomas Roma, and his deceased wife, Jean Roma." At the rehearing counsel for Roma stated that defendant was discharged from a hospital in March 1975 after receiving psychiatric treatment, and that Dr. Reed commenced counseling the parties immediately thereafter, which relationship continued within days of the homicides alleged.
The position of the prosecutor is that the privilege is not personal to the marriage counselor, and further, that the privilege may be waived either jointly by husband and wife, or by one spouse when the other is deceased. That position was vigorously disputed by counsel for the very professional associations which were draftsmen of the language of the statute under review.
The interpretation of the statute advanced by the prosecutor would require this court to torture its clear language and to voyage into terra incognita in a search for "legislative intent." In contrast to the State's argument, counsel for the amicus argues that the statute was intended by its draftsmen to accord the marriage ...