Parker v. HENNEPIN CTY. DIST. CT., 4TH JUD. DIST.
| Citation | 285 NW 2d 81 |
| Decision Date | 05 October 1979 |
| Docket Number | No. 49399.,49399. |
| Parties | Evangeline G. PARKER and Donald L. Parker, Petitioners, v. HENNEPIN COUNTY DISTRICT COURT, FOURTH JUDICIAL DISTRICT, Respondent. |
| Court | Minnesota Supreme Court |
Collins & Buckley and Mark W. Gehan, Jr., St. Paul, Segal & Roston and David G. Roston, Minneapolis, for petitioners.
Carlsen, Greiner & Law, Robert P. Christensen, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
This appeal arises from a petition for mandamus to compel the Hennepin County District Court, Fourth Judicial District, to vacate its order of September 12, 1978. By that order, the district court deemed admitted requests for admission which petitioners refused to answer on Fifth Amendment grounds. We deny the petition for mandamus and affirm the order of the district court.
Respondent Adolfson & Peterson, Inc. (A & P) sued petitioners Evangeline and Donald Parker (the Parkers) for the conversion of approximately $100,000 during the period Evangeline Parker was employed by A & P as a payroll clerk. A & P, in preparing for the lawsuit from which this appeal originates, sought to depose orally the Parkers. The Parkers refused to cooperate, claiming the Fifth Amendment privilege against self-incrimination. A & P next filed a motion in the district court to compel discovery but failed to elicit that court's support. A & P then served upon the Parkers extensive requests for admission. Following the Parkers' refusal to answer the requests for admission, the district court granted A & P's motion to deem the requests admitted. The Parkers now petition the court to vacate by writ of mandamus the order deeming the unanswered requests admitted.
The Parkers base their Fifth Amendment claim upon the threat that a collateral federal tax fraud prosecution could be fueled by the admissions. The Internal Revenue Service has audited the Parkers, and an IRS agent has contacted them concerning possible criminal tax fraud violations.
The Parkers have been requested to admit that Mrs. Parker issued checks to companies not creditors of A & P to satisfy personal obligations that she and her husband incurred in improving property belonging to them. Although the effect of the admissions in prompting a tax fraud prosecution is speculative, counsel for Mrs. Parker asserts by affidavit his belief that answering the admissions would provide a significant link in a chain of evidence that would increase the likelihood of her prosecution. By affidavit, her husband's counsel indicates that Mrs. Parker has been advised of her rights as per Miranda v. Arizona. Although the IRS has been noncommittal about a prosecution of Mr. Parker, according to his attorney, such a prosecution is likely.
It is our opinion that a court order which deems admitted allegations in a request for admission does not violate the Fifth Amendment rights of the party upon whom the request was served, nor Article I, Section 7 of the Minnesota Constitution.
It is well-settled that the Fifth Amendment right against self-incrimination may be invoked in civil as well as criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); see also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), applying that right to the states through the Fourteenth Amendment of the United States Constitution. In Minnesota, this court has had particular occasion to acknowledge its availability in any stage of a state civil proceeding. Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, 311 Minn. 276, 248 N.W.2d 733 (1976).
In civil cases, the right to plead the Fifth Amendment is not absolute. The availability of the right is delineated by the Fifth Amendment's prohibition against compulsed testimony in criminal cases. The Fifth Amendment, therefore, may only be invoked when testimony in a civil case would enhance the threat of criminal prosecution such that reasonable grounds exist to apprehend its danger. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950).
The interdiction of this constitutional safeguard in civil cases must be balanced against the purposes and policies supporting the discovery rules. Minn.R.Civ.P. 26.02 provides that parties may only obtain discovery regarding matters not constitutionally privileged (Advisory Comm. Note (1):1975), but Rule 26.02 is not intended to allow the exploitation of the Fifth Amendment to unfairly prejudice an adversary in a civil case. This court will not permit a plaintiff to use the judicial forum to make allegations only to later insulate himself by invoking the Fifth Amendment as a shield from cross-examination. See, e. g., Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, supra. As we have previously stated: "* * * a person ought not to be permitted to divulge only that part of the story favorable to his or her position and thus present a distorted and misleading picture of what has really happened." Christenson v. Christenson, 281 Minn. 507, 520, 162 N.W.2d 194, 202 (1968).
Invocation of the Fifth Amendment by a civil defendant, however, requires a more subtle response because of the involuntary nature of a defendant's participation in a lawsuit, and the appearance of compulsion. Nevertheless, courts have been able to safeguard the constitutional foundation of the privilege "without permitting the civil defendant to gain an unfair advantage — especially since, in private civil litigation, the plaintiff's only source of evidence is frequently the defendant himself, and since the type of case where the privilege is most frequently asserted * * * involves intentional and often malicious conduct." Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation: A Critical Analysis, 39 Brooklyn L.Rev. 121, 149 (1972). Thus, in some situations where a civil defendant has refused...
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