State ex rel. Osburn v. Cole

• Decision Date: 14 December 1983
• Docket Number: No. 15787,15787
• Citation: 173 W.Va. 596,319 S.E.2d 364
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Rhonda L. OSBURN v. Phyllis Jean COLE, Clerk, etc., et al. and Fairmont General Hospital.

Page 364

319 S.E.2d 364

173 W.Va. 596

STATE ex rel. Rhonda L. OSBURN v. Phyllis Jean COLE, Clerk, etc., et al. and Fairmont General Hospital.

No. 15787.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Concurring Opinion March 6, 1984.

Syllabus by the Court

1. The Fifth Amendment privilege against self-incrimination is not limited to the context of criminal trials but can be claimed in any proceeding, whether it is criminal or civil, administrative or judicial, investigatory or adjudicatory.

2. The Fifth Amendment privilege against self-incrimination is not violated by information required to be furnished under State mandatory self-reporting systems which are essential to the fulfillment of a regulatory statute where (1) the information sought is facially neutral; (2) the information required is directed at the public at large and not to a selective group inherently suspect of criminal activities; (3) the area of inquiry is essentially noncriminal and regulatory and not permeated with criminal statutes; and (4) the possibility of incrimination is not substantial.

James A. Esposito, Roger D. Curry, Fairmont, for petitioner.

No Appearance, for respondents.

MILLER, Justice:

This case involves an issue relating to the assertion of the Fifth Amendment privilege against self-incrimination in the context of a claim for unemployment compensation. ¹ The petitioner, Rhonda L. Osburn, was declared ineligible to receive unemployment compensation benefits because of her failure to furnish certain information to the Commissioner of Employment Security as she is required to by regulations promulgated under W.Va.Code, 21A-7-1. ²

Ms. Osburn was employed as a registered surgical nurse at Fairmont General Hospital prior to January, 1980. After leaving her employment, she filed for, and was ruled eligible to receive, unemployment compensation benefits. In September, 1980, Ms. Osburn was instructed to file a "Fact Finding Report" with the Commissioner of Employment Security concerning casual employment during July, 1980. Ms. Osburn indicated in the Fact Finding Report that for a period of four days, from July 28 to August 1, 1980, she was employed outside of the State of West Virginia and earned wages totaling $80.00. She declined to reveal the name or the location of her employer, as required by the form.

At the time, Ms. Osburn was under investigation by the West Virginia Department of Public Safety and the Office of the Prosecuting Attorney of Marion County with regard to an indictment which had been returned against her. A part of the investigation concerned a telephone call from an out-of-state location to a State Trooper at the Fairmont Detachment from an individual identifying herself as "Rhonda Osburn." The caller led the trooper to believe that she had been involved in the crime charged in the indictment.

When the Fact Finding Report was required to be filed, the police were attempting to trace Ms. Osburn to a specific out-of-state location. Ms. Osburn asserted that to reveal her employer's name and out-of-state address might result in incriminating evidence with regard to the pending criminal charges. She, therefore, asserted her privilege against answering incriminating questions and refused to state the precise location of her casual job. ³

The Department of Employment Security suspended her unemployment benefits indefinitely, but did not disqualify her. The trial examiner, the Board of Review of the Department of Employment Security, and the Circuit Court of Kanawha County have each affirmed the suspension of her benefits.

The petitioner essentially is arguing that even though all of the required information was not provided, she should still be allowed to receive her benefits. She claims that to deny her benefits penalizes her for exercising a constitutional right. The petitioner would have an exception carved out of the general rule that the claimant has the burden of proving eligibility for benefits ⁴ when the claimant's failure to carry that burden is a result of the exercise of the privilege against self-incrimination. We decline to create such an exception.

There can be little doubt that the Fifth Amendment privilege against self-incrimination is not limited to the context of criminal trials but "can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory." In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527, 557 (1967). See also Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965) (administrative proceeding); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955) (legislative hearing); United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943) (grand jury); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924) (civil case). ⁵

Two rather distinct lines of United States Supreme Court cases have emerged in the self-incrimination area. One line of cases involves reporting systems in which classes of citizens or taxpayers have been required to provide information to the government under its regulatory or taxing powers. The other line of cases involves specific investigations of individuals who have a special relationship with the government, such as government contractors or public employees.

The first significant "reporting" case decided by the Supreme Court was United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), in which the defendant was convicted of willfully refusing to file an income tax return. The Court recognized that the defendant could have exercised the Fifth Amendment privilege by raising specific objections to certain questions, but could not completely refuse to file a return. "It would be an extreme if not an extravagant application of the 5th Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime." 274 U.S. at 263-64, 47 S.Ct. at 607, 71 L.Ed. at 1040.

In Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194 15 L.Ed.2d 165 (1965), suspected members of the Communist Party of the United States had been ordered by the Board to register themselves as party members. The Court noted that "an admission of membership may be used to prosecute the registrant" under at least two federal statutes and this fact "presents sufficient threat of prosecution to support a claim of the privilege." 382 U.S. at 77, 86 S.Ct. at 198, 15 L.Ed.2d at 171. The Government argued that under United States v. Sullivan, supra, it would be possible to exercise the privilege against self-incrimination as to some questions but that Sullivan would not support the failure to file the form at all. The Court in rejecting this argument made this distinction:

"In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form's questions in context might involve the petitioners in the admission of a crucial element of a crime." 382 U.S. at 79, 86 S.Ct. at 199, 15 L.Ed.2d at 172.

Subsequently, the United States Supreme Court, citing Albertson, decided three cases on the same day, all of which involved reporting requirements. In the first case, Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the defendant was convicted of willfully failing to register and to pay an occupational tax for engaging in the business of accepting wagers. The defendant, asserting his privilege against self-incrimination, refused to register and pay the tax because the information could be used in a separate proceeding to prosecute him for gambling. Although the Court did not declare the tax unconstitutional, it held "that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for their failure to comply with their requirements." Marchetti, 390 U.S. at 61, 88 S.Ct. at 709, 19 L.Ed.2d at 905.

The Court reached the same conclusion in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Grosso was convicted of willful failure to pay the excise tax imposed on wagering because he asserted that payment would have obliged him to incriminate himself in violation of the Fifth Amendment privilege. The Court concluded that since it was reasonable to expect the tax payment information to be given to state and federal prosecutors, the defendant could not be compelled to provide information which would ultimately be incriminating in another forum. The Supreme Court noted that these reporting requirements are aimed at individuals in " 'an area permeated with criminal statutes,' where [they are] 'inherently suspect of criminal activities.' Albertson v. SACB, 382 U.S. 70, 79 [86 S.Ct. 194, 199, 15 L.Ed.2d 165]." 390 U.S. at 64, 88 S.Ct. at 712, 19 L.Ed.2d at 910.

Finally, in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Court again allowed the defendant to successfully assert his Fifth Amendment privilege by withholding information. The defendant was convicted of knowingly possessing an unregistered sawed-off shotgun in violation of federal gun registration requirements. The defendant argued that if he registered the gun, it would have subjected him to prosecution for violation of other provisions of federal gun laws. The Court reversed his conviction largely because the registration requirement was "unfair." ⁶ The Court noted in Haynes that not everyone who possessed a firearm must have it registered. Instead, the registration requirement is aimed at those who have already violated some other...