Dorfman v. Rombs

• Decision Date: 10 July 1963
• Docket Number: No. 63 C 333.,63 C 333.
• Citation: 218 F. Supp. 905
• Parties: Allen M. DORFMAN and Marilynne Dorfman, Plaintiffs, v. Vincent J. ROMBS, individually, and as a partner of a partnership doing business as Miller, Mandell & Company, Meldon J. Smith, Special Agent, Internal Revenue Service, and Eugene C. Coyle, Jr., District Director of Internal Revenue, Defendants.
• Court: U.S. District Court — Northern District of Illinois

218 F. Supp. 905

Allen M. DORFMAN and Marilynne Dorfman, Plaintiffs, v. Vincent J. ROMBS, individually, and as a partner of a partnership doing business as Miller, Mandell & Company, Meldon J. Smith, Special Agent, Internal Revenue Service, and Eugene C. Coyle, Jr., District Director of Internal Revenue, Defendants.

No. 63 C 333.

United States District Court N. D. Illinois, E. D.

July 10, 1963.

Ira M. Burman, Morton J. Harris, Chicago, Ill., for plaintiff.

James P. O'Brien, U. S. Atty., Chicago, Ill., Thompson, Raymond, Mayer & Jenner, Chicago, Ill., for defendants.

CAMPBELL, Chief Judge.

The plaintiffs have brought this action seeking an injunction against an accountant and Internal Revenue Service agents, to restrain the disclosure by the accountant to Internal Revenue Service, of material and information presently sought by an Internal Revenue Service subpoena.

The defendants have filed a motion to dismiss alleging failure to state a claim upon which relief can be granted.

The issues are solely legal in nature.

Plaintiff's complaint is based upon the following three contentions:

1) The information sought is privileged by virtue of the State (Illinois) Accountant privilege (Chapter 110½ § 51).

2) The information sought is protected by the 4th and 5th Amendments to the Constitution of the United States.

3) The Internal Revenue Service purpose is to obtain evidence for other pending litigation — and thus the information sought need not be turned over.

Considering these contentions in reverse order I find the following: —

Contention (3) is founded upon a reliance on Application of Myers, D.C., 202 F.Supp. 212, a 1962 case from the Eastern District of Pennsylvania. The factual situations are far from analogous — in Myers a criminal trial was scheduled. The government in issuing its summons was not interested in a proper administration of the revenue laws, but rather, sought to obtain otherwise unavailable pre-trial discovery. An evasion of the Federal Rules of Criminal Procedure was clear. Such is not the allegation or the apparent fact in this case.

Apparently related to this issue the government has sought to file an affidavit. I am of the opinion that this affidavit is unnecessary to a determination of this, or for that matter the other issues before me. Therefore, in order properly to consider this as a motion to dismiss the complaint for failure to state a cause of action and not as a motion for summary judgment, I exclude the government's affidavit.

Plaintiff's constitutional claims are equally without merit. The subpoena in question is addressed to a defendant in this action — not to the plaintiff who would now claim the privilege. The 5th Amendment privilege against self incrimination is personal in nature; it can only be claimed by an individual as to information or things sought from him. A person may not force another to claim the privilege in his behalf.

As to the 4th Amendment's prohibition against unreasonable search and seizure, assuming but not deciding that enforcement of the instant subpoena would constitute such unlawful search or seizure, still the claimant must be a "* * person aggrieved by an unlawful search and seizure * * *" properly to have "standing" for a claim of the Amendment's protection. (Rule 41, Federal Rules of Criminal Procedure.) Plaintiff has not claimed, nor on the basis of the facts before me can he claim, either an ownership or possessory right to the property sought.

As to plaintiff's claim of the Illinois Accountant privilege, plaintiff has cited and places prime reliance on the 9th Circuit's decision in Baird v. Koerner, 279 F.2d 623 (1960). The Court was there presented with an attorney client privilege claim — not an accountant privilege claim as I have here. As I read the Baird case the court did follow the law of the state relative to the attorney client privilege, reasoning that the status of attorneys was regulated and controlled by the state, and additionally, as the court observed, federal law also supported its decision. Assuming, for purposes of deciding this motion, the correctness of the Baird decision, it is in any event quite distinguishable from the instant action. We are not dealing here with the attorney client privilege, nor for that matter are we dealing with a privilege which is supported by federal law or the common law.

Plaintiff also cites our own 7th Circuit in Palmer v. Fisher, 228 F.2d 603 (1955). Plaintiff's brief accurately states that the court in Palmer recognized the Illinois accountant privilege — and permitted an accountant to claim the privilege in the federal court. I should observe, parenthetically, that plaintiff's brief is not quite as accurate...