-- Paul E. Padilla

Last week, I went to trial for a family law case. The trail was based on an emergency motion to restrict parenting time (under C.R.S. § 14-10-129 (4)). While the main issue of the case involved whether a parent posed imminent harm to the children, a major development in the case was based on an evidentiary ruling by the court.

In Colorado, there is a statutorily created psychologist-patient privilege, which means that a psychologist or other professional counselor cannot testify in court without the permission of the patient. This privilege is codified by C.R.S. § 13-90-107(g).

In this case, the patient was a child, so the privilege was held by the parent. Prior to trial, I filed a motion in limine to prevent the counselors from testifying based on the parent’s privilege. However, the court ruled against my motion and allowed the counselors to testify over the objection of the parent.

Despite significant case law in our favor, the court ruled that because the parent had given the child’s elementary school express permission to communicate with and turn the children over to the children's grandparent, the grandparent also held the psychologist-patient privilege for the school counselors. Therefore, once the grandmother consented to the testimony, the parent could not stop it.

This means that if a parent gives a school permission to speak to and release children to a grandparent, the parent may also waive the doctor-patient privilege for the school counselors without realizing it. While there is not a published case on the subject yet, it is important for lawyers to recognize this interpretation of existing case law, and anticipate its consequences.

For attorneys trying to get around the doctor-patient privilege, this may be a persuasive argument. But, for attorneys who are confident in their ability to keep a counselor off of the witness stand, this may serve as fair warning.



Evidence, Family Law, School Counselors, Grandparents, Physical Care, Doctor-patient privilege, Psychologist-patient privilege, Waiver

-- Paul Padilla

Recently, the New Mexico Court of Appeals held that a commercial business that refuses service to potential customers based on sexual orientation is in violation of the New Mexico Human Rights Commission.

In the case of Elane Photography, LLC v. Willock, the court held that a photography studio violated the NMHRC by refusing to photograph the same-sex commitment ceremony of two women. The studio argued that its refusal to photograph the event was protected by Freedom of Religion, because same-sex marriage was against the owner’s religious beliefs, and was also protected by Freedom of Speech, because photography is an artistic and creative process. However, the court did not agree.

The NMHRC prohibits “any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services…to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation[,] or physical or mental handicap.”

The NMHRC defines a “public accommodation” as “any establishment that provides or offers its services…to the public, but does not included a[n] establishment that is by its nature and use distinctly private.”  This definition makes a clear distinction between ordinary businesses and private clubs or groups.

While the court must decide whether a business is a “public accommodation” on a case-by-case basis, the court’s decision essentially makes every retail and commercial business that advertises online and through the phonebook a public accommodation, and therefore subject to the NMHRC. The court stated that “once [a business] offers a service publicly, [it] must do so without impermissible exception.”

The court held that the Freedom of Speech did not apply, because there is an element of art and creativity in almost every business, and since the studio offered its services for hire, it is predominantly a service business and may not limit which activities it is willing to photograph (specifically those activities protected by the NMHRC).

Also, the court held that Freedom of Religion did not apply, because Elane Photography is free to express its religious beliefs, but may not discriminate against customers in doing so. It can state that it believes same-sex marriage is immoral, but cannot refuse services based on that belief.

This case will be reviewed by the New Mexico Supreme Court, so there is a chance it will be overturned, but for the time being it seems to create new law.

Especially in the midst of the 2012 presidential election, where the population is polarized more than ever on issues such as religion, gay rights, and abortion, this case makes it clear that if a business or individual offers products or services to the public, political and religious beliefs must take a back seat.