Wilson v. State, 011521 AKSC, S-17491

Docket Nº:S-17491
Opinion Judge:BOLGER, CHIEF JUSTICE
Party Name:DAVID WILSON, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Jon M. Choate and Mark C. Choate, Choate Law Firm LLC, Juneau, for Appellant. Kevin A. Higgins, Assistant Attorney General, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
Judge Panel:Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices. Borghesan, Justice, not participating.
Case Date:January 15, 2021
Court:Supreme Court of Alaska

DAVID WILSON, Appellant,

v.

STATE OF ALASKA, Appellee.

No. S-17491

Supreme Court of Alaska

January 15, 2021

Appeal from the Superior Court No. 1JU-16-00795 CI of the State of Alaska, First Judicial District, Juneau, Philip M. Pallenberg, Judge.

Jon M. Choate and Mark C. Choate, Choate Law Firm LLC, Juneau, for Appellant.

Kevin A. Higgins, Assistant Attorney General, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices.

Borghesan, Justice, not participating.

OPINION

BOLGER, CHIEF JUSTICE

I. INTRODUCTION

The Alaska Department of Corrections investigated its employee David Wilson for potentially criminal misconduct. It ordered him to answer questions from investigators but assured him that his answers and any evidence derived from those answers could not be used against him criminally. Wilson was terminated for refusing to answer and claims that the State violated his constitutional privilege against self- incrimination by failing to tell his lawyer that his answers to the investigator could not be used against him in a criminal proceeding.

We conclude that by terminating Wilson for refusing to answer those questions, the State of Alaska did not violate his privilege against self-incrimination, under either the U.S. Constitution or the Alaska Constitution. The State did notify Wilson that his answers could not be used against him criminally, and Wilson not only confirmed at the time that he understood this notification, but also in the subsequent court proceedings introduced no evidence to the contrary. We therefore affirm the superior court's grant of summary judgment against Wilson.

II. FACTS AND PROCEDURAL HISTORY A. Facts

In early March 2016 the Department of Corrections (DOC) received a complaint from one of Wilson's subordinates alleging, alongside other grievances, that Wilson had pressured a second subordinate to provide him with her prescribed "narcotic medications." When interviewed, the second subordinate confirmed she provided Wilson with Oxycodone and Methadone on seven or eight occasions between 2011 and 2014. She alleged that "on days when she had called in sick," Wilson "came to her house during work hours" and entered "without knocking." She believed Wilson "took advantage of [her] vulnerability by targeting his requests when he knew [she] would be medicating and compromised." In a later deposition, Wilson admitted he had asked for and accepted medication from his subordinate, explaining he "was challenged with pain issues" at the time, but he never fully adopted his subordinate's description of the alleged events.

On March 8 DOC investigator Terrence Shanigan called Wilson to request an "entirely voluntary" interview; Wilson retained counsel who spoke with Shanigan by phone later that day. Wilson's counsel asked whether the interview had "anything to do with any potential job discipline," and Shanigan replied, "No." Shanigan identified himself as "a commissioned officer" rather than "an HR person," and said: "I'm only interested in . . . anything that potentially has any criminal nexus to it." Shanigan said Wilson "was free to not answer any questions," and "if he came, he could leave at any time." DOC's initial plan was "to let the criminal case run, then [Shanigan] can decide if it passes muster to file"; only after that would DOC "move on the personnel matters." But DOC quickly changed its approach to pursuing "concurrent" criminal and administrative investigations.

On March 9 Wilson received written notice from DOC's human resources division that he was "required to report" to a March 14 interview "to discuss multiple allegations of misconduct." The key allegations were that he "coerce[d] one of [his] direct reports to share her prescription medication" and took said medication "[o]n at least one occasion."[1] Bold lettering stated that "[d]ue to the potentially criminal nature" of these allegations, Wilson was permitted to "choose not to answer specific questions," which would "not result in negative inferences made against [him]." But the notice also informed Wilson that DOC Standards of Conduct required him to "fully cooperate by providing all information that [he] may have concerning the matter under investigation," adding that "[f]ull cooperation involves responding to all questions truthfully and completely." The notice was silent on whether or not Wilson could have counsel present, stating only that Wilson had the option to arrange to "have a union representative present" in light of "the nature of this meeting." It is unclear whether Wilson ever asked to have counsel present, but DOC s human resources consultant, Greg Gendron, later confirmed such a request would have been denied.

In his first interview, DOC gave Wilson inconsistent signals on whether his answers to questions were compelled, prohibiting their use against him in a criminal proceeding. Human resources consultant Gendron and Investigator Shanigan interviewed Wilson on March 14 in the presence of Wilson's union representative Joel Hill. At the beginning of the interview, Gendron mentioned that "[d]ue to the fact that this matter is under criminal investigation," Wilson "may choose not to answer specific questions." Wilson's union representative Hill clarified that Wilson "will be forthright in answering all of your questions with the exception of, potentially, those related to medications," to which he might "take the Fifth." Gendron indicated that was acceptable and he would "identify specifically those questions" before asking them. Wilson proceeded to answer Gendron's questions, nearly all of which related to his job duties and the other, non-criminal allegations. When Gendron asked questions related to the allegation that Wilson took medication prescribed to his subordinate, Wilson declined to answer, citing the instructions of his attorney.

Midway through the interview, Investigator Shanigan asked Wilson: "Do you feel like this meeting is compelled ... or that you're voluntarily at this meeting"? Shanigan then attempted to articulate the difference between a compelled and voluntary statement. In so doing, Shanigan told Wilson that the encounter was "a compelled, compulsory interview and what's said in here by [Mr.] Wilson cannot be used in any kind of criminal way," but also that, despite "being in a compelled environment, [Wilson was] still not required to answer [some] questions." When Shanigan asked questions related to prescription medication, Wilson declined to answer, citing instructions from counsel. Shanigan responded: "Okay. And you don't have to answer any of these questions I'm asking you . . . ."

Wilson received a second notice on March 18, ordering him to report to a follow-up interview on March 21. In contrast to the first, the second notice advised Wilson that he "[would] be expected and compelled to answer all questions," and that "refusal to answer a question will be considered insubordination which is also grounds for discipline up to and including dismissal." The notice was silent about any criminal aspect of the allegations and contained no bolded notice that Wilson could decline to answer specific questions, but repeated the language from the first notice instructing Wilson to "fully cooperate" by "responding to all questions" and allowing him to "have a union representative present."

The second interview, on March 21, started with Shanigan reading Wilson a "statement of rights": You are hereby ordered to fully cooperate with the investigating officials. Your failure to cooperate will create an objective and subjective fear of termination You'll be asked questions specifically directed and narrowly related to the performance of your official duties. Statements made during any interviews may be used as evidence of misconduct or as the basis for seeking disciplinary action against you. Any statements made by you during these interviews cannot be used against you in any subsequent criminal proceeding nor can the fruits of any of your statements be used against you in any subsequent criminal proceeding.

If . . . you refuse to answer questions relating to the performance of your official duties, you'll be subject to dismissal.

Shanigan asked if Wilson "understood] each of these rights," to which Wilson responded, "Yes, sir." Shanigan then asked specifically if Wilson understood that failure to "answer all questions truthfully and completely" would be considered "dishonesty and "grounds for discipline including dismissal," to which Wilson again responded, "Yes." Shanigan then proceeded to ask whether Wilson had any prescriptions for medication. Wilson responded, "At the instruction of my attorney, I am . . . not going to respond to that question." Shanigan replied, "Okay," and began asking different questions about physical ailments, which Wilson answered. Over the remainder of the interview, Wilson refused, under "instruction from [his] attorney," to answer medication-related questions 24 more times.

On March 30 Wilson received a third notice, nearly identical to the second, requiring him to report for an interview the following day. It again referenced "additional questions to be asked regarding the allegations listed in the letter date[d] March 9, 2016," and again advised Wilson that he "[would] be ... compelled to answer all questions in this meeting" and that "refusal to answer a question [would] be considered insubordination which is also grounds for discipline up to and including dismissal."

Gendron began the third interview, held on March 31 with the same participants as the previous interviews, by reading a statement of the same rights enumerated in the second...

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