Wash. Court of Appeals published opinion — D2 56466-1-II Published Opinion.pdf

Wheat.) 204, 227, 5 L. Ed. 242 (1821)).

A person who has been subpoenaed to testify at a deposition is guilty of perjury if, after

taking an oath to tell the truth, they “willfully and contrary to such oath” make a statement about

“any material matter” that they do “not believe to be true.” 18 U.S.C. § 1621(1). Perjury is a crime

because “the perpetration of perjury ‘well may affect the dearest concerns of the parties before a

tribunal.’” Bronston v. United States, 409 U.S. 352, 357, 93 S. Ct. 595, 34 L. Ed. 2d 568 (1973)

(quoting United States v. Norris, 300 U.S. 564, 574, 57 S. Ct. 535, 81 L. Ed. 808 (1937)).

A person who testifies in response to a subpoena performs a public obligation, but an

employee is not absolutely protected every time they testify in a legal proceeding. See Blinka v.

Wash. State Bar Ass’n, 109 Wn. App. 575, 586, 588, 36 P.3d 1094 (2001). In Blinka, Division One

stated that CR 45, the state equivalent of Federal Rule of Civil Procedure 45, and federal and state

laws against perjury “provide the foundation for a public policy prohibiting adverse employment

action for responding to a subpoena or refusing to give false testimony.” Id. at 585. Although

Division One declined to recognize this public policy “in light of the already-existing protections”

for Blinka’s conduct under the Law Against Discrimination, chapter 49.60 RCW, it recognized

that CR 45 “contains an implied obligation that the party in receipt of a properly issued subpoena

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No. 56466-1-II

comply with the order to appear.” Id. at 585-86. The Blinka court also recognized that “by

criminalizing false statements made under oath, the state and federal perjury statutes . . . inversely