Thoresen v. Superior Court In and For Maricopa County, No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: HAIRE; EUBANK, P.J., and JACOBSON
• Citation: 11 Ariz.App. 62,461 P.2d 706
• Docket Number: CA-CIV,No. 1
• Decision Date: 03 December 1969
• Parties: William E. THORESEN, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR MARICOPA COUNTY; Honorable Morris Rozar, Judge of the Superior Court of the State of Arizona, in and for Maricopa County, and the real party in interest, Fred MILLER, Respondents. 1219.

Page 706

461 P.2d 706 11 Ariz.App. 62 William E. THORESEN, Petitioner,
v.
SUPERIOR COURT of the State of Arizona, IN AND FOR MARICOPA COUNTY; Honorable Morris Rozar, Judge of the Superior Court of the State of Arizona, in and for Maricopa County, and the real party in interest, Fred MILLER, Respondents. No. 1 CA-CIV 1219. Court of Appeals of Arizona, Division 1, Department B. Dec. 3, 1969.
Rehearing Denied Jan. 8, 1970.
Review Denied Feb. 10, 1970.

[11 Ariz.App. 63]

Page 707

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Westover, Phoenix, for petitioner.

Gust, Rosenfeld & Divelbess, by Robert T. Murphy, Phoenix, for respondents.

HAIRE, Judge.

The petitioner, William E. Thoresen, seeks issuance of an original writ of prohibition by this court prohibiting the enforcement of certain discovery orders made by the respondent trial judge in a civil action pending in the Superior Court, in which petitioner is the defendant and the respondent Fred Miller is the plaintiff. The petition has for its basis the privilege against self-incrimination.

The complaint filed by the plaintiff Miller alleges an assault and battery upon his person by Thoresen, and seeks 'general' damages in the amount of $5,000.00, and punitive damages in the amount of $50,000.00. The plaintiff in due course served upon Thoresen a set of interrogatories pursuant to Rule 33, Rules of Civil Procedure, 16 A.R.S. Nine of the interrogatories, numbers 1, 2, 5, 6, 7, 8, 9, 502 and 510, are in issue here. Six of these interrogatories seek to ascertain in detail the extent of petitioner's property, including all bank accounts, real property, securities, tangible personal property, and interests in insurance policies and trusts. Some of these six interrogatories also seek to learn the date of acquisition of such property, and all seek certain other data, relating to purchase prices, value, and the identity of other [11 Ariz.App. 64]

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persons having an interest in the property. The three other interrogatories in issue seek to learn petitioner's income for the first six months of 1969, his addresses during the past five years, and the nature of petitioner's involvement in any previous civil lawsuit.

Petitioner filed no objections to any of the interrogatories. After seeking and receiving from the plaintiff two extensions of the time in which to respond, petitioner filed his set of answers. With respect to each of the interrogatories here in issue, petitioner's only response was the statement, 'I refuse to answer on the grounds that it may tend to incriminate me.'

Shortly thereafter, the plaintiff filed a motion to compel answers to these interrogatories. He also filed at the same time, pursuant to Rule 34, a motion to compel production of each of petitioner's federal income tax returns for the preceding five years. The latter motion was accompanied by an affidavit of plaintiff's counsel and a memorandum of points and authorities to the effect that since punitive damages were claimed, production of the tax returns was essential so that plaintiff could have an accurate picture of the petitioner's wealth to present to the jury on that issue.

In response to these motions, petitioner made and filed an affidavit in support of his claim of '5th Amendment' privilege. No oral testimony was adduced at either of the hearings on the motions, so that this affidavit, dated October 24, 1969, furnishes the sole testimonial basis for petitioner's claim. It reads in substantive part as follows:

'This Defendant claims that to require him to produce such copies of the Federal Income Tax Returns may tend to incriminate him and this affidavit is made for the purpose of demonstrating the validity of the claim of the 5th Amendment privilege.

'The Internal Revenue Service of the United States of America is at present conducting an investigation with respect to your Affiant. There has been periodically an assignment of such investigation either to the San Francisco Division of the Internal Revenue Service or to the Phoenix Division of the Internal Revenue Service and both written and oral communications have taken place between representatives of the Internal Revenue Service and your Affiant with respect to such investigation. If your Affiant is compelled to produce copies of the Federal Income Tax Returns, then the Plaintiff will attempt to inquire into the facts giving rise to the information contained in the Federal Income Tax Returns and any such information elicited by the Plaintiff in this matter or his counsel may tend to assist the Internal Revenue Service in any action which it may propose to take against your Affiant. Thus, any exposure whatsoever of the information contained in the Income Tax Returns in this civil action may tend to incriminate your Affiant.

'Plaintiff in this action filed a criminal complaint against this Defendant in the Municipal Court of the City of Phoenix, State of Arizona. At the time of the trial upon such criminal complaint, one of the members of the firm of Plaintiff's counsel herein, Carl Schellenberg, sat at the counsel table for the City Attorney and assisted the City Attorney in prosecuting the criminal proceeding against this Defendant. It thus appears that information procured by Plaintiff's counsel from the income tax returns of this Defendant may well be used in a similar way by Plaintiff's counsel, namely in attempting to prosecute this Defendant in a criminal proceeding in which Plaintiff's counsel has no legitimate interest.

'A claim is now being asserted against this Defendant by the State of California whereby the State of California is claiming this Defendant has not paid taxes to the State of California. Your Affiant is reliably informed and believes that there are criminal penalties under the laws of the State of California applicable to certain factual situations in which taxes [11 Ariz.App. 65]

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have not been paid. Your Affiant alleges that information contained in his Federal Income Tax Returns may possibly tend to incriminate him under the laws of the State of California on the basis outlined above.

'Granting the order sought by the Plaintiff rquires the Defendant to answer whether or not he has filed Federal Income Tax Returns for the years in question. This disclosure alone may tend to incriminate him under the laws of the...