People ex rel. Public Utilities Commission v. Entrup

143 P.3d 1120, 2006 Colo. App. LEXIS 1205
CourtColorado Court of Appeals
DecidedJuly 27, 2006
DocketNo. 05CA0130
StatusPublished
Cited by3 cases

This text of 143 P.3d 1120 (People ex rel. Public Utilities Commission v. Entrup) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. Public Utilities Commission v. Entrup, 143 P.3d 1120, 2006 Colo. App. LEXIS 1205 (Colo. Ct. App. 2006).

Opinion

Opinion by

Judge RUSSEL.

Defendant, Robert Entrap, appeals the trial court’s judgment finding him in contempt of court and imposing sanctions. We affirm in part, vacate in part, and remand with directions.

I. Introduction

The Public Utilities Commission (PUC) alleged that Entrap and his business entities were operating as motor vehicle carriers in violation of statutes that required them to register and provide proof of liability insurance. Entrap responded, asserting, among other things, that he carried liability insurance in the required amounts.

As relevant here, the ensuing dispute yielded two separate orders imposing sanctions — one for a violation of the rules governing discovery and the other for contempt of court. We address each of these orders in turn.

II. Discovery Sanctions

Several weeks after the case was at issue, the PUC informed the trial court that Entr-up had failed to serve C.R.C.P. 26(a)(1) disclosures and therefore was in violation of C.R.C.P. 16(b)(5). The PUC later asked the court to compel disclosure of pertinent insurance policies, as well as an insurance card that Entrup’s attorney allegedly possessed. The PUC also asked the court to impose sanctions for Entrup’s failure to provide the pertinent material in a timely manner.

Entrap resisted the PUC’s request. He asserted, among other things, that his Fifth Amendment rights would be violated if he were compelled to produce the information that the PUC sought.

The trial court granted the motion to compel and ordered Entrap to “produce any insurance policy information” within six days. Later, as a sanction for the failure to comply with discovery rules, the court ordered Entr-up to pay $3075 in attorney fees.

A. No Fifth Amendment Violation

Entrap contends that the trial court violated his Fifth Amendment privilege against compelled selfincrimination when it ordered him to produce the insurance policy information. We disagree.

The Fifth Amendment protects a person from having to make statements that could, directly or indirectly, subject him to criminal liability. A person may invoke the privilege against compelled selfincrimination in criminal or civil proceedings. Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 139-40 (Colo.2004).

We conclude that Entrap could not properly invoke the privilege against compelled self-incrimination because the Fifth Amendment does not protect the information that the PUC requested.

The PUC sought documents that showed the amount of motor vehicle liability insurance that Entrap carried during the relevant times. Entrap could not avoid disclosing the content of these documents on Fifth Amendment grounds because the privilege against compelled selfincrimination does not protect the content of any voluntarily prepared business record. United States v. Doe, 465 U.S. 605, 610-11 n. 8, 104 S.Ct. 1237, 1240-41, 79 L.Ed.2d 552 (1984).

An individual may resist a request for documents on the ground that the act of production will itself be incriminating. See Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976) (act of producing evidence in response to a subpoena has communicative aspects wholly aside from the contents of the papers produced). For the following reasons, however, Entrap could not avoid producing the requested documents.

First, under the “collective entity” doctrine, an individual who acts as an agent for a corporation or other collective entity may not claim a Fifth Amendment privilege over documents that belong to the entity. See Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (partner [1123]*1123may not refuse to produce partnership documents). Thus, Entrup could not avoid producing a document that belonged to one of his business entities on the ground that the act of disclosure would incriminate him personally. See Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) (custodian of corporate records may not resist a subpoena on the ground that the act of production will be personally incriminating).

Second, even if the requested documents belonged to Entrup, the court could compel their production under the “required records” doctrine. This doctrine creates an exception to the Fifth Amendment privilege where the inquiry and the requested records meet three criteria: (1) the purpose of the government’s inquiry is regulatory, rather than criminal; (2) the records contain the type of information that the regulated party would ordinarily keep; and (3) the records have assumed public aspects rendering them analogous to public documents. In re Grand Jury Subpoena Duces Tecum (Underhill), 781 F.2d 64, 67 (6th Cir.1986) (citing Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713-14, 19 L.Ed.2d 906 (1968)).

Here, the necessary criteria are met:

1. Motor vehicle carriers are required by statute to maintain and file insurance policies to demonstrate that they have liability insurance in the required amounts. See §§ 4010110, 4016104(2), C.R.S.2005. Because the governing statutes are regulatory in nature, the PUC’s request was regulatory, not criminal. See In re Grand Jury Subpoena, 21 F.3d 226, 228 (8th Cir.1994) (first criterion is whether “the purpose of the recordkeeping is essentially regulatory”); In re Grand Jury Subpoena Duces Tecum (Underhill), supra, 781 F.2d at 67 (in determining the purpose of the government’s inquiry, the relevant question is whether the statute and regulations that require the records’ maintenance are regulatory in nature).
2. The PUC sought information that is routinely kept by those who operate motor vehicle carriers. By assuming control over an enterprise that is subject to the government’s noncriminal regulatory powers, Entrup effectively agreed to maintain the requested records and forfeited his ability to resist disclosure. See Baltimore City Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 558-59, 110 S.Ct. 900, 906-07, 107 L.Ed.2d 992 (1990) (by accepting care of child in need, custodian submitted to the routine operation of the regulatory system and accepted the obligation to permit inspection); Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 948-49 (Colo.1985) (law that requires merchants to record and report purchases of valuable articles does not violate Fifth Amendment privilege under the required records doctrine).

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Bluebook (online)
143 P.3d 1120, 2006 Colo. App. LEXIS 1205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-public-utilities-commission-v-entrup-coloctapp-2006.