Seventh Elect Church in Israel v. Rogers, 11414-0-I
| Decision Date | 28 February 1983 |
| Docket Number | No. 11414-0-I,11414-0-I |
| Citation | 660 P.2d 280,34 Wn.App. 105 |
| Parties | SEVENTH ELECT CHURCH IN ISRAEL, Arne Skogseth, and Ambrose Schwader, Respondents, v. Gerald L. ROGERS, and the marital community composed of Gerald L. Rogers and Priscilla A. Rogers, Defendants, and Gina F. Rogers, Appellant. |
| Court | Washington Court of Appeals |
Betts, Patterson & Mines, P.S., Jeffrey Grant, William Fite, Seattle, for appellant.
Perrinville Law Offices, Ralph Freese, Edmonds, Grant & Kosnett Law Corp., James V. Kosnett, Hollywood, Cal., Murphy & McGowan, Richard J. Moore, Seattle, for respondents.
This is one of three separate appeals which have arisen out of examinations conducted in proceedings supplemental to a judgment initiated by Seventh Elect Church in Israel, et al, against Gerald L. Rogers and his marital community. Specifically, this appeal is from a judgment which found Gina Rogers, the daughter of Gerald and Priscilla Rogers, in contempt and ordered her incarcerated for her refusal to answer certain questions in supplemental proceedings without demonstrating a sufficient basis for asserting the Fifth Amendment privilege against self-incrimination.
The following issues are presented:
1. Whether Gina Rogers was properly made a party to the supplemental proceedings pursuant to RCW 6.32.030.
2. Whether Gina Rogers established sufficient facts for her to claim the Fifth Amendment right against self-incrimination.
3. Whether the trial court erred in granting Gina Rogers only a temporary stay of execution of an order of contempt and commitment.
4. Whether the trial court erred in refusing to sign a written order of contempt, thereby denying Gina Rogers the right to seek immediate review of such order.
5. Whether the trial court erred in enjoining Gina Rogers from transferring title to her automobile.
6. Whether the trial court erred in requiring Gina Rogers' supersedeas bond to be made payable to the Church.
7. Whether the trial court deprived Gina Rogers of her right to counsel and to due process of law.
In January 1981, judgment for the plaintiffs, Seventh Elect Church in Israel, Arne Skogseth, and Ambrose Schwader (hereinafter collectively referred to as the Church), was entered against Gerald L. Rogers and the marital community composed of Gerald L. Rogers and Priscilla Rogers in King County Superior Court. Unable to satisfy its judgment, the Church subsequently moved, upon notice, for orders requiring Gina F. Rogers, Priscilla Rogers, and Gerald L. Rogers to appear for examinations in proceedings supplemental to a judgment pursuant to RCW 6.32.030.
On March 2, 1982, supplemental proceedings were held in which Gerald Rogers, Priscilla Rogers, and Gina Rogers were called to testify. After testifying to his name and address, Mr. Rogers asserted the privilege against self-incrimination. The trial court, finding no factual basis for the assertion of the privilege, entered a finding of contempt and an order of incarceration until Gerald Rogers agreed to testify. See Seventh Elect Church v. [Gerald] Rogers, 34 Wash.App. 96, 660 P.2d 294 (1983). Priscilla Rogers, Gerald Rogers' wife, also did not testify because Gerald Rogers invoked the marital privilege. This was likewise met with a finding of contempt and an order of incarceration. See Seventh Elect Church v. [Priscilla] Rogers, 34 Wash.App. 96, 660 P.2d 290 (1983).
When Gina Rogers was called to testify her counsel objected, asserting that the order requiring her to testify was ex parte and without an adequate factual basis. This objection was overruled by the trial court.
Upon taking the stand, Gina Rogers stated her name and residence. However, when asked how long she had lived at that address, her counsel asserted a Fifth Amendment claim, alleging that due to potential criminal liability, Gina Rogers would claim her constitutional privilege against self-incrimination. The trial court then requested some specific factual support for the claim so it could make an intelligent assessment of the validity of the claim. Gina Rogers' counsel offered certain speculations as to potential criminal liability and requested the trial court to use its reasonable judicial imagination in assessing the claim. Her counsel also referred to the showing made by Gina Rogers' father, Gerald Rogers, who had testified previously. Essentially, that showing was that certain investigations were being conducted by various federal and state agencies regarding criminal activity by Gerald Rogers. Gina Rogers' counsel asserted that Gina Rogers may have been involved with her father in some of the transactions under investigation.
The trial court found the showing to be an inadequate basis for asserting the claim of "privilege" and offered counsel an opportunity for an in camera hearing. This offer was declined and Gina Rogers' counsel advised the court that Gina Rogers would not answer the question previously asked, to-wit, "How long have you lived there?" The trial court then found Gina Rogers in contempt and ordered her incarcerated until such time as she answered the question. However, the trial court granted a temporary stay until the court of appeals could review the issue on an emergency basis. The stay was terminated by the court of appeals without prejudice to renewal of the motion following an in camera hearing and a further showing that there was a reasonable possibility that the answer to the question might be self-incriminating.
The proceedings were resumed in the trial court shortly thereafter and an in camera hearing was conducted in the absence of counsel for the Church. After the in camera hearing, the trial court indicated in open court that "there is nothing the court has received so far that we didn't already know in open court." Thereupon, a second in camera hearing was conducted. Following that hearing, the trial court again indicated that the court had only been furnished documents which had already been recited in open court. Moreover, the trial court stated:
[A]t the time the court proposed a question which would begin to touch on a basis which might enable the court to make a decision as to whether Miss Rogers has properly asserted her 5th Amendment privilege, she was advised not to answer.
Based upon this finding, the trial court executed its prior order of contempt and committed Gina Rogers to jail until she answered the question. At that point, Gina Rogers' counsel advised the court that Gina Rogers would answer the question, and she did.
Counsel for Gina Rogers then drafted a proposed order incorporating the trial court's decision regarding its finding of contempt so that the decision could be appealed. The trial court, however, refused to sign such order since Gina Rogers had answered the question and purged herself of the contempt.
Thereafter, Gina Rogers proceeded to answer questions. During the questioning, the Fifth Amendment claim was asserted several times, but each time was denied by the court and Gina Rogers was directed to answer. Based on the prior in camera hearings, the court refused to allow Gina Rogers to make a further showing, in camera, as to the basis of any claim of the privilege against self-incrimination.
At one point in the examination, Gina Rogers testified that a Datsun automobile was given to her by her parents in September of 1981. The Church then moved for and was granted an order enjoining Gina Rogers from transferring the automobile, pending a hearing to adjudicate title to the vehicle.
The next day, March 9, 1982, when the examination resumed, Gina Rogers answered several questions but asserted her Fifth Amendment right against self-incrimination in response to the following questions:
Miss Rogers, when you took the trip on the boat in the summer of 1979 ... [w]hich segment of the trip were you on, and from what location to what location did you travel on the boat?
....
Miss Rogers, during, the period of time that you were working at Nordstrom ..., what was your salary there?
....
Miss Rogers, on which day of the month are the automatic deposits made into your bank account at Rainier National Bank?
....
And what was your last date of employment at the Aurora Village Nordstrom?
....
Other than the trip on the OLD GLORY, also known as the HARTFORD QUALITY, which you took in the summer of 1979, have you taken any other trips or excursions on that ship?
....
Where are the records of Cadatagir located?
....
Miss Rogers, in relationship to the silver Rolls Royce, when did you first see that automobile?
....
Miss Rogers, when was the first time you saw the Clenay (phonetic) automobile?
....
Miss Rogers, what airplane trips have you taken with your father in the last three years?
....
Do you know who paid them [the Siversons]?
....
Are you familiar with an entity called Wall Street Investment Company S.A.?
....
Are you familiar with an entity called Wall Street Mortgage and Investment Company S.A.?
She was found in contempt of court and ordered incarcerated until she chose to answer the questions. The basis of this finding was that the trial court had no knowledge or information on which to base a finding that her answers would incriminate her. This order of contempt and commitment was incorporated into a written order and signed by the trial court on March 9, 1982.
An emergency appeal was immediately taken by Gina Rogers. The matter was remanded to the trial court for the fixing of a supersedeas bond staying execution of the order holding Gina Rogers in contempt, pending review. On remand, the trial court found that a $5,000 supersedeas bond was reasonable and that said sum would reasonably insure the appearance of Ms. Rogers and would further represent a potential fund available should the Church be harmed as a result of Gina Rogers' contempt.
The first issue is whether Gina Rogers was properly made a...
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