# Bauer v. Stern Finance Company > Supreme Court of Iowa · July 24, 1969 · 169 N.W.2d 850 URL: https://www.frixlaw.com/law-library/cases/9857837 ## Case - **Full name:** Herman BAUER, Appellant, v. STERN FINANCE COMPANY, Ben Stern, Don W. Sweeten and Arthur Camenzind, Appellees - **Court:** Supreme Court of Iowa - **Decided:** July 24, 1969 - **Citations:** 169 N.W.2d 850; 1969 Iowa Sup. LEXIS 852 - **Precedential status:** Published - **Opinion:** Dissent by Rawlings - **Judges:** Legrand, Rawlings, Becker - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857837 ## Opinion text RAWLINGS, Justice (dissenting in part). I concede correctness of a reversal with regard to Count II of plaintiff’s petition but cannot agree with the reasoning in Divisions I, II and III of the majority opinion or result there reached, and upon that basis alone respectfully dissent. The penalty authorized under rule 237, Rules of Civil Procedure, as applied by the majority, makes it clear to me plaintiff was here confronted with the dilemma of surrendering his right to refuse to answer interrogatories propounded on the ground of self-incrimination, or assert such privilege and thereby .subject himself to loss of right to proceed with trial of the case against Stern Finance Co. and Ben Stern under Count I of his petition. Plaintiff elected to stand on his rights under the Fifth Amendment, and what is in effect a resultant summary penalty is now espoused by the majority. That may at one time have been deemed proper, but in my humble opinion it is now clearly contrary to recent holdings in Gardner v. Broderick, 392 U.S. 273 , 88 S.Ct. 1913 , 20 L.Ed.2d 1082 ; Application of Gault, 387 U.S. 1, 42-50 , 87 S.Ct. 1428, 1451-1455 , 18 L.Ed.2d 527 ; Spevack v. Klein, 385 U.S. 511 , 87 S.Ct. 625 , 17 L.Ed.2d 574 ; Garrity v. State of New Jersey, 385 U.S. 493 , 87 S.Ct. 616 , 17 L.Ed.2d 562 ; Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 ; and Murphy v. Waterfront Commission, 378 U.S. 52 , 84 S.Ct. 1594 , 12 L.Ed.2d 678 . See also Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 . An examination of these cases reveals the Fifth Amendment is today applicable to any federal or state proceeding, be it criminal, civil administrative, judicial, investigatory, or accusatory in nature, and must be held to afford the mandated protection without penalty. In this vein the court declared, in Spevack v. Klein, supra, at 385 U.S. 514—515, 87 S.Ct. 628 : “We said in Malloy v. Hogan [supra] : “ ‘The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * for such silence.’ 378 U.S., at 8, 84 S.Ct., at 1493. “In this context ‘penalty’ is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 , the imposition of any sanction which makes assertion of the Fifth Amendment privilege ‘costly.’ Id., 380 U.S. at 614, 85 S.Ct., at 1233 . We held in that case that the Fifth Amendment, operating through the Fourteenth, ‘forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’ Id., 380 U.S. at 615, *859 85 S.Ct. at 1233 . What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-635 , 6 S.Ct. 524, 534-535 , 29 L.Ed. 746 , where compulsory production of books and papers of the owner of goods sought to be forfeited was held to be compelling him to be a witness against himself. “ ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; hut illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half of their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’ 116 U.S., at 635 , 6 S.Ct., at 535 .” (Emphasis supplied) And as stated in Gardner v. Broderick, supra, loc. cit., 392 U.S. 276 , 88 S.Ct. 1915 : “The privilege [Fifth Amendment] may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, 142 U.S. 547 at 585-586 , 12 S.Ct. 195 at 206-207 , 35 L.Ed. 1110 ; Murphy v. Waterfront Commission, supra, 378 U.S. at 79 , 84 S.Ct. at 1609 .” See also Amana Society v. Selzer, 250 Iowa 380, 384 , 94 N.W.2d 337 . Additionally section 622.14, code, 1966, provides: “When the matter sought to be elicited would tend to render a witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as otherwise provided.” But plaintiff in the case at bar did not waive his privilege. Futhermore the majority refers to no statute or rule which would have afforded plaintiff coextensive immunity from any criminal consequences had he answered the questions asked of him, and I find none. Most assuredly the threatened loss of right to proceed with civil litigation to trial of a case on its merits, regardless of ultimate result, is a powerful form of compulsion to make a litigant speak, to relinquish his constitutional right to remain .silent when by speaking he would provide a link in the chain which might be used to prove criminality. It is to me evident plaintiff is here subj ected to a costly price for having exercised his privilege against self-incrimination. And it is of no consequence that our Rules of Civil Procedure permit imposition of sanctions for failure or refusal to comply with them. Neither they nor any statute can override, nullify or transcend constitutionally guaranteed rights, privileges or immunities. See in this regard Article VI, United States Constitution; Iowa Motor Vehicle Association v. Board of Railroad Commissioners, 207 Iowa 461, 466 , 221 N.W. 364 , 75 A.L.R. 1 ; 16 C.J.S. Constitutional Law § 50, page 151; and 16 Am.Jur.2d, Constitutional Law, section 50, page 221. Actually the question presented in the case before us is not whether the penalizing result reached is authorized by the rules. Rather, it is whether the sanction here applied, as approved by the majority, violates, in effect if not in fact, plaintiff’s privilege to stand on his Fifth Amendment rights. I submit the majority errs in holding, as it does, a summary judgment could properly be entered against plaintiff upon the basis of an exercise of his constitutional privilege against self-incrimination. In *860 support hereof see also Zonver v. Superior Court, Cal.App., 76 Cal.Rptr. 10 ; Simkins v. Simkins, Fla.App., 219 So.2d 724 ; Allred v. Graves, 261 N.C. 31 , 134 S.E.2d 186, 189-190 ; 98 C.J.S. Witnesses §§ 431-433, pages 240-246; and 58 Am.Jur., Witnesses, section 45, page 49. Upon the basis of the foregoing I would reverse and remand for trial on the merits of plaintiff’s entire action against Stern Finance Co. and Ben Stern. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857837. Public record. Not legal advice.