In re Verplank

• Decision Date: 14 July 1971
• Docket Number: Misc. No. 2814,2815.
• Citation: 329 F. Supp. 433
• Court: U.S. District Court — Central District of California
• Parties: In the Matter of Grand Jury Subpoena for Gordon VERPLANK. In the Matter of Grand Jury Subpoena for Martin S. WEG.

329 F. Supp. 433

In the Matter of Grand Jury Subpoena for Gordon VERPLANK In the Matter of Grand Jury Subpoena for Martin S. WEG.

Misc. Nos. 2814, 2815.

United States District Court, C. D. California.

July 14, 1971.

Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty., Chief, Crim. Div., Los Angeles, Cal., for United States.

Allen D. Lenard, Los Angeles, Cal., Michael Somers, Santa Monica, Cal., William G. Smith, Los Angeles, Cal., for Gordon Verplank.

Frank S. Pestana, Los Angeles, Cal., for Martin S. Weg.

MEMORANDUM OF DECISION AND ORDER

WILLIAM P. GRAY, District Judge.

The local federal grand jury has acknowledged that it is currently investigating alleged widespread violations of the selective service laws. It has indicated particular interest in the alleged practices of some draft counselors in referring selective service registrants to particular dentists, psychiatrists and other medical practitioners, purportedly for draft evasion purposes. The grand jury has caused to be served a subpoena duces tecum upon Reverend Gordon Verplank, who is an ordained minister of the United Presbyterian Church and director of the McAlister Draft Counseling Center, which is supported by that Church. He is also Chaplain of the Claremont Colleges, and in this capacity is officially responsible for all draft counseling services afforded by the Colleges.

The subpoena requires that the witness produce "all records and documents of every description relating in any way to: Dr. Bernard Bender; any person referred to Dr. Bernard Bender; and any and all physicians, dentists or psychiatrists to whom any draft counselee has been referred by personnel at the draft counseling center of the McAlister Center for Religious Activities, and all records of all counselees so referred."

Another subpoena was served upon Martin S. Weg, D.D.S., which directs that he produce "all records and documents of every description belonging to Bernard Bender, D.D.S., or pertaining in any way to dental patients treated by Dr. Bender." Dr. Weg was a professional associate of Dr. Bender for approximately seventeen years. This relationship terminated about a year ago, and Dr. Bender allegedly has left the jurisdiction of this court.

Both Rev. Verplank and Dr. Weg have moved for orders quashing their respective subpoenas; the matters have been extensively briefed on their behalf and on behalf of the Government, and were submitted after oral argument.

The Verplank Subpoena.

Rev. Verplank's principal contention is that the materials sought pursuant to the subpoena are inextricably mingled with confidential communications that are privileged. He first cites the clergyman-communicant privilege, pointing out that the confidential communications by registrants often are of a spiritual nature. He next urges that, inasmuch as the staff of the McAllister Center includes attorneys, the attorney-client privilege applies. Finally, the witness asks this court to recognize a counselor-counselee privilege covering confidential communications between the McAlister Center staff and the selective service registrants who come to it for advice.

In order to develop a uniform body of rules of evidence, Rule 26 of the Federal Rules of Criminal Procedure provides that the "* * * privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." The language of the rule, a paraphrase of a portion of the opinion in Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617 (1934), suggests that there is to be flexibility and development in the interpretation of the common law applied in federal criminal cases. The Supreme Court has reaffirmed the policy of development and adaptation to modern circumstances, as suggested by the rule. For example, in a case concerned with the scope of the marital privilege, the opinion stated that "the governing principles are not necessarily as they had existed at common law." Lutwak v. United States, 344 U.S. 604, 614, 73 S.Ct. 481, 487, 97 L.Ed. 593 (1953). Therefore, this court recognizes its obligation to consider the claims of privilege "in the light of reason and experience," rather than to apply slavishly a particular common law doctrine.

As the Government asserts, the clergyman-communicant privilege was not generally recognized at common law. Wigmore, 8 Evidence § 2394 (McNaughton rev. 1961). However, modern law, nurtured in a climate of religious freedom and tolerance, has given sanction to such a privilege. It has been established by statute in nearly two-thirds of the states and has also been recognized by court decision in Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 275 (1958). Of particular significance to the present trend in the law is the fact that such a privilege is contained in the revised draft of Proposed Rules of Evidence for United States Courts and Magistrates, 51 F.R.D. 315, 371 (1971). Rule 506(b), under the heading "Communications To Clergymen," provides that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor."

Professor Wigmore has listed four fundamental conditions that are recognized as necessary to establish the basis for a privilege against disclosure of communications. Wigmore, 8 Evidence § 2285 (McNaughton rev. 1961).¹ The Advisory Committee note to proposed Rule 506 adverts to these considerations and concludes that they "* * * seem strongly to favor a privilege for confidential communications to clergymen." 51 F.R.D. at 372.

This court is mindful of the broad investigatory powers of the grand jury. However, the spirit of Rule 26, coupled with the development of the common law principles evidenced by the proposed rules and Mullen, impel the conclusion that a clergyman-communicant privilege should be acknowledged in criminal matters in the federal courts.

Decisions as to the positions that a draft registrant will adopt in his relationships with the selective service laws and regulations often involve very deep and intimate spiritual and moral considerations. It is presumably for this reason that the board of trustees of the Claremont Colleges directed that the chaplain provide draft counseling services to the faculty and students of those institutions. It is the conclusion of this court that draft counseling services, when rendered by Rev. Verplank, are performed in the course of his function as a clergyman, and thus come within the privilege defined by Proposed Rule 506.

Originally, Rev. Verplank undertook to perform this function personally, and the creation and enlargement of a staff to assist him were made necessary by the rapid increase in the number of applicants for such counseling. It is recognized that all of the members of the counseling staff are not ordained ministers; however, the proposed rule does not require such an attainment in order for the privilege to apply. The Advisory Committee note states that "a fair construction of the language requires that the person to whom the status is sought to be attached be regularly engaged in activities conforming at least in a general way with those of * * * an established Protestant denomination, though not necessarily on a full-time basis." 51 F.R.D. at 372. Under the circumstances here concerned, it would appear that the activities of the other counselors at the McAlister Center conform "at least in a general way" with a significant portion of the activities of a minister of an established Protestant denomination, to the extent necessary to bring them within the privilege covering communications to clergymen.

Additionally, the relationship between Rev. Verplank and the other counselors at the Center appears to be closely akin to the relationships between a lawyer and the nonprofessional representatives that he engages to assist him in serving his clientele. It is clear, and proposed Rule 503, 51 F.R.D. at 361, specifically provides, that the lawyer-client privilege covers such representatives. According to Wigmore, the inclusion of such representatives stems from the fact that their assistance is indispensable to the work of the attorney. Wigmore, 8 Evidence § 2301 (McNaughton rev. 1961). It seems to me that this analogy is applicable here, and that the failure of the proposed Rule 506 to make reference to "a representative" of the clergyman is due to the fact that clergymen do not normally undertake counseling of this magnitude and thus do not employ such assistants.

On the basis of the foregoing, this court concludes that for Rev. Verplank to respond fully to the subpoena would necessarily entail revelation of protected confidences.

This court also believes that "reason and experience" would justify recognition of a draft counselor-counselee privilege akin to that of the attorney-client privilege. The historic reason for the protection of attorney-client confidences is that the client, and ultimately society, are best served if the client receives competent legal advice. Full disclosure of all facts, without fear, is regarded as a necessary adjunct to that advice. This principle would seem to apply with equal force to the paralegal draft counselor-counselee relationship.

The system that has been created to administer the selective service laws has no place for attorney participation on behalf of the registrant. ABA Comm. on Unauthorized Practice of Law, Inform. Op. A (April 1968). However, these laws and regulations are voluminous and inherently complex, and the normal registrant could hardly be expected to ascertain his rights and responsibilities without help. And yet, his encounter with his draft board may be one of the most significant experiences in his life. Under these...