Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, Inc.

• Decision Date: 17 December 1976
• Docket Number: No. 45539,45539
• Citation: 248 N.W.2d 733,311 Minn. 276
• Parties: MINNESOTA STATE BAR ASSOCIATION, Respondent, v. DIVORCE ASSISTANCE ASSOCIATION, INC., Defendant, Richard F. Doyle, Appellant.
• Court: Minnesota Supreme Court

Page 733

248 N.W.2d 733

311 Minn. 276

MINNESOTA STATE BAR ASSOCIATION, Respondent, v. DIVORCE ASSISTANCE ASSOCIATION, INC., Defendant Richard F. Doyle, Appellant.

No. 45539.

Supreme Court of Minnesota.

Dec. 17, 1976.

Syllabus by the Court

In the absence of a grant of immunity, criminal contempt proceedings against defendant for refusal to answer questions at a deposition and to produce subpoenaed documents must be reversed and remanded where, as to most items and on the record, the contemnor properly refused to comply with the court's orders on the Fifth Amendment ground that the information to be elicited either would directly tend to incriminate him or could constitute a 'link in the chain of evidence' tending to incriminate him and where, as to the few remaining unprivileged items and on the record, the refusal was neither plainly contumacious and in bad faith nor apparently the sole basis for the finding of contempt.

Arthur, Chapman, McDonough & Michaelson and Lindsay G. Arthur, Jr., Minneapolis, Thomas J. Burke, St. Paul, for appellant.

Collins & Buckley, Theodore J. Collins, and Morley Friedman, St. Paul, for respondent.

Randall D. B. Tigue and Larry Espel, Minneapolis, amicus curiae, for Minn. Civil Liberties Union, seeking reversal.

Considered and decided by the court en banc.

PETERSON, Justice.

Minnesota State Bar Association has instituted an action seeking an injunction to prohibit the activities of Divorce Assistance Association, Inc., ¹ and Richard F. Doyle, claiming that they are engaged in the unlawful practice of law, Minn.St. 481.02, subd. 1, and are unlawfully advertising for divorce business, Minn.St. 518.29. Doyle was held in contempt for refusing to obey a pretrial order that he respond to a subpoena duces tecum and answer questions asked at a deposition. This appeal followed. The main issue for decision is whether the Fifth Amendment privilege against compulsory self-incrimination justified Doyle's refusal to comply.

The facts are these. After commencing its action plaintiff served a subpoena duces tecum and a notice for the taking of a deposition. At the time of taking the deposition, on November 15, 1974, Doyle refused to answer certain questions put to him by plaintiff's attorney and refused to produce any of the documents sought by the subpoena. The taking of the deposition was consequently adjourned and resumed later that day in the presence of a district court judge. Doyle again refused to answer any of the 22 questions posed by plaintiff's attorney or to produce any of the subpoenaed records, in most instances invoking the Fifth Amendment privilege against compulsory self-incrimination. The court in each instance ordered Doyle to respond and in each instance Doyle refused to do so. The court then ordered Doyle held in contempt and sentenced him to 30 days in the work-house, staying execution for 10 days for Doyle to perfect an appeal.

A preliminary summary of the general principles of Fifth Amendment jurisprudence which govern analysis of the issues in this case may be stated at the outset. For purposes of cross- reference at subsequent points in the opinion, each principle will be numbered.

1. The Fifth Amendment privilege is available to a witness, including a party, at any stage in a civil proceeding (and not just to a defendant in a criminal proceeding). Among the numerous decisions of the United States Supreme Court, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). (Our own Rule 26.02, Rules of Civil Procedure, moreover, specifically provides that a party in a civil action may discover from another party only matters that are 'not privileged.')

2. The privilege is properly invoked when the testimony or papers sought would tend to incriminate the witness. He need only show that the testimony or papers would provide a 'link in the chain of evidence' required for prosecution and that a chance of prosecution exists. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); McCormick, Evidence (2 ed.) § 139.

3. The court and not the witness is the judge of whether there is a tendency to incriminate, but the United States Supreme Court has held that the court should reject an assertion of privilege only where it is "perfectly clear, from a careful consideration of all the circumstances in the case, that * * * the answer(s) Cannot possibly have such tendency' to incriminate.' Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118, 1125 (1951); citing Temple v. Commonwealth, 75 Va. 892, 898 (1881), cited with approval in Counselman v. Hitchcock, 142 U.S. 547, 579, 12 S.Ct. 195, 204, 35 L.Ed. 1110, 1120 (1892). In determining whether it is clear that the witness' assertion of privilege is improper, the court should not require that the witness explain why he cannot respond, if to do so could result in injurious disclosure. Hoffman v. United States, supra.

4. The privilege does not extend to a corporation or an incorporated association, thus a custodian of the records of a corporation or an association must produce subpoenaed records even though information in the records may incriminate him personally. The only exception to this rule is in the case of those unincorporated associations which are so personal in the scope of their membership and activities that they may be said 'to embody or respresent the purely private or personal interests' of their constituents. United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542, 1547 (1944); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). Although a custodian of corporate records may be required to produce and authenticate such records, he may not be required to testify as to the whereabouts of items not produced. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). A limitation on this principle is stated in Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 1580, 48 L.Ed.2d 39, 56 (1976), where the court held that implicitly admitting, by responding to questions as to location, the existence and possession of papers whose existence, location, and possession is a foregone conclusion and not in issue does not rise to the level of compelled testimony protected by the Fifth Amendment.

5. When the privilege is applicable, the witness may be compelled to testify or produce documents only if he is granted immunity from the subsequent use against him of both the information he gives and any fruits of that information, the so-called use and derivative use immunity. Before a court may hold a witness in contempt for refusing to answer questions that would otherwise be incriminating, the judge must make it clear to the witness that he is being offered immunity in exchange for his testimony. See, Maness v. Meyers, 419 U.S. 449, 472, 95 S.Ct. 584, 598, 42 L.Ed.2d 574, 591 (1975) (concurring opinion, White, J.). See, also, Stevens v. Marks, 383 U.S. 234, 246, 86 S.Ct. 788, 794, 15 L.Ed.2d 724, 732 (1966):

'* * * (T)he State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties.'

And, further 383 (U.S. 246, note 11, 86 S.Ct. 795, 15 L.Ed.2d 733):

'* * * A State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late.'

6. If the court does not offer immunity in exchange for testimony protected by the privilege, then the witness has the right to refuse to testify. See the concurring opinion of Mr. Justice White in Maness v. Meyers, supra. By doing so the witness subjects himself to a possible contempt order, but this contempt order is appealable, thus providing the witness with a means of securing precompliance review. Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 584. While a witness may choose to answer when ordered to do so and still preserve his right to object to the subsequent use of the evidence or its fruits in a prosecution, Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 (1973), the fact that the witness may follow this alternative procedure for pressing a Fifth Amendment claim does not preclude him from risking contempt instead. Maness v. Meyers, supra.

It is clear that Doyle had a right to follow the procedure of refusing to respond to the questions and subpoena, thus securing precompliance review of the trial court's rulings on his assertions of privilege. This conclusion follows from the facts that Doyle was neither protected by a statutory grant of immunity nor assured by the trial judge or prosecuting authorities that immunity would be granted to him, and from principles 5 and 6, above. Therefore, if the questions and subpoena were aimed in any part at eliciting information as to which the privilege could properly be asserted, see principles 2 to 4, above, the contempt order is invalid at least as to those questions and requests for documents.

We turn then to an examination of the validity of Doyle's assertion of privilege with respect to each question and each request for documents. The questions and requests can be broken down into several categories for purposes of this analysis. For simplification, the questions and requests for documents are reproduced in full in an appendix to this opinion, but will in the main be referred to in the body of the opinion by their numerical or alphatetical designations.

The first group of questions we consider seeks to elicit from Doyle testimony that could directly tend to incriminate him. For example, an...