Seventh Elect Church in Israel v. Rogers, 11429-8-I

Citation660 P.2d 294,34 Wn.App. 96
Decision Date28 February 1983
Docket NumberNo. 11429-8-I,11429-8-I
PartiesSEVENTH ELECT CHURCH IN ISRAEL, Arne Skogseth, and Ambrose Schwader, Respondents, v. Gerald L. ROGERS, Appellant, and the marital community composed of Gerald L. Rogers and Priscilla A. Rogers, Defendants.
CourtCourt of Appeals of Washington

Betts, Patterson & Mines, P.S., Jeffrey Grante, 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.

CALLOW, Judge.

Gerald Rogers appeals an order of the superior court which adjudged him in contempt of court and ordered him committed to jail for his refusal, based on his privilege against self-incrimination, to answer a question in proceedings supplemental to a judgment brought by the Seventh Elect Church in Israel, et al. See Seventh Elect Church v. First Seattle Dexter Horton Nat'l Bank, 167 Wash. 473, 10 P.2d 207 (1932); Seventh Elect Church v. First Seattle Dexter Horton Nat'l Bank, 162 Wash. 437, 299 P. 359 (1931) (historical background of the Seventh Elect Church in Israel). The issue presented is whether Gerald Rogers established a sufficient factual predicate to entitle him to assert his Fifth Amendment rights not to incriminate himself.

This appeal is one of three which have arisen out of examinations in supplemental proceedings in King County Superior Court. In January of 1981, the Seventh Elect Church of Israel, Arne Skogseth, and Ambrose Schwader (hereinafter collectively referred to as the Church), recovered a judgment against Gerald L. Rogers and the marital community composed of Gerald L. Rogers and Priscilla A. Rogers, jointly and severally. Unable to satisfy the judgment, it initiated supplemental proceedings pursuant to RCW 6.32.010 which provides in part that,

[a]t any time within ten years after entry of a judgment for the sum of twenty-five dollars or over upon application by the judgment creditor, such court or judge may, by an order, require the judgment debtor to appear ... to answer concerning the same ....

The examination of Gerald Rogers commenced on March 2, 1982. After stating his name and address, Gerald Rogers refused to answer the question, "How long have you resided there?", claiming a Fifth Amendment right to not incriminate himself. At that point, Gerald Rogers' counsel submitted to the trial court two affidavits which he asserted supported Gerald Rogers' claim to a Fifth Amendment privilege. These affidavits indicated that Gerald Rogers was the subject of several federal and state criminal investigations but that no criminal proceedings had yet commenced. Counsel further argued that the answer to the subject question might further implicate Gerald Rogers in the pending investigations and could subject him to criminal prosecution.

The trial court's response to the showing was to request that an in camera hearing be conducted so that the court could evaluate the validity of the claim of privilege. Counsel for Rogers declined the opportunity for an in camera hearing asserting that sufficient external circumstances had been shown to support the privilege claim. Finding that Rogers had not shown sufficient facts to sustain the claim of privilege, the trial court again offered counsel for Rogers an opportunity to make a further showing in camera which counsel declined.

The examination then proceeded and the subject question was again put to Gerald Rogers. The trial court found that the answer to the question could not incriminate Gerald Rogers in connection with any present or potential proceedings, and he was directed to answer the question. Rogers continued to assert the privilege. The court found Rogers in contempt and ordered him incarcerated until he answered the question, but stayed the order pending this appeal.

The sole issue is whether Gerald Rogers established sufficient facts to entitle him to assert his Fifth Amendment right to not incriminate himself.

Although RCW 6.32.200 1 grants a limited immunity to witnesses who testify in supplemental proceedings authorized by RCW 6.32, a witness may assert his or her Fifth Amendment privilege against self-incrimination notwithstanding the statutory grant of immunity. Eastham v. Arndt, 28 Wash.App. 524, 624 P.2d 1159 (1981).

The Fifth Amendment claim of the privilege against self-incrimination must be judged by the standards of Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The Hoffman court determined that the assertion of the privilege against self-incrimination "must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer." Hoffman, at 486, 71 S.Ct. at 818; see Eastham v. Arndt, supra. "Without this requirement, any judgment debtor could assert his Fifth Amendment privilege, and judgment creditors would be powerless to enforce their judgments." Compton v. Societe Eurosuisse, S.A., 494 F.Supp. 836, 838 (S.D.Fla.1980).

The courts cannot accept Fifth Amendment claims at face value, because that would allow witnesses to assert the privilege where the risk of self-incrimination was remote or even nonexistent, thus obstructing the functions of the courts.

United States v. Melchor Moreno, 536 F.2d 1042, 1046 (5th Cir.1976). "It is well established that the privilege protects against real dangers, not remote and speculative possibilities." Zicarelli v. New Jersey Comm'n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972).

However, the witness need not show that an answer would support a criminal conviction, but need only demonstrate that the answer would furnish a link in the chain of evidence needed to prosecute the witness for a crime. Hoffman, 341 U.S. at 486, 71 S.Ct. at 818. It is the court's function to determine whether silence is justified and must require the witness to answer if, based upon the particular facts of the case, it clearly appears that silence is not warranted. Hoffman, at 486-87, 71 S.Ct. at 818. Such determination is "vested in the trial court to be exercised in its sound discretion under all of the circumstances then present." State v. Parker, 79 Wash.2d 326, 332, 485 P.2d 60 (1971).

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence."

Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818.

The difficulty in this case arises because the incriminating nature of the answer to the subject question is not evident from the implication of the question. In other words, the question, "How long have you resided there?", would not seem to create any kind of criminal liability. This court has determined that in such cases " '[t]he only practicable solution is to be content with the door's being set a little ajar, and while at times this no doubt partially destroys the privilege, and at times it permits the suppression of competent evidence, nothing better is available.' " Eastham, 28 Wash.App. at 531, 624 P.2d 1159 (quoting United States v. Weisman, 111 F.2d 260, 262 (2d Cir.1940)). Thus, the judgment debtor " 'must establish a factual predicate from which the court can, by use of 'reasonable judicial imagination' (aided by suggestions of counsel), conceive of a sound basis for the claim.' " Eastham, 28 Wash.App. at 531-32, 624 P.2d 1159 (quoting Thoresen v. Superior Court, 11 Ariz.App. 62, 66, 461 P.2d 706 (1979)). In making such a showing, the Eastham court approved of a procedure in which the trial court could conduct an in camera hearing, 2 thereby preserving the confidences of the witness, where external circumstances do not support the privilege claim. Eastham, 28 Wash.App. at 533-34 n. 2, 624 P.2d 1159.

In such a case, the judge is simply providing the most favorable setting possible for the witness to "open the door a crack" where there is no other way for the witness to verify his claim. If, on the other hand, the court refuses to acknowledge the privilege and insists on in camera verification from the lips of the witness even though reasonable grounds for claiming the privilege appear in the surrounding circumstances, the court comes perilously close to doing what the fifth amendment forbids.

In re Brogna, 589 F.2d 24, 28 n. 5 (1st Cir.1978).

At the time of the assertion of the privilege by Gerald Rogers, the following showing was made based on affidavits submitted by his attorney:

1. Rogers was a defendant in two civil proceedings...

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  • State v. Olsen, 48294-1-II
    • United States
    • Court of Appeals of Washington
    • April 3, 2019
    ...in the chain of evidence needed to prosecute the witness for a crime.'" Hobble, 126 Wn.2d at 290 (quoting Seventh Elect Church v. Rogers, 34 Wn. App. 96, 100, 660 P.2d 294 (1983)). Thedetermination of whether a Fifth Amendment privilege applies to a witness is left to the trial court's disc......
  • State v. Olsen
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    ...... Hobble , 126 Wn.2d at 290 (quoting Seventh Elect. Church v. Rogers , 34 Wn.App. 96, ......
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