Ex parte LSB

• Decision Date: 27 April 2001
• Citation: 800 So.2d 574
• Parties: Ex parte L.S.B. (Re A.J.C., by and through her mother and next friend, T.D.B. v. L.S.B.)
• Court: Alabama Supreme Court

800 So.2d 574

Ex parte L.S.B.

(Re A.J.C., by and through her mother and next friend, T.D.B. v. L.S.B.)

1991977.

Supreme Court of Alabama.

April 27, 2001.

Edward G. Bowron and David P. York of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for petitioner.

Rocky W. Eaton of Warhurst & Eaton, P.C., Mobile, for respondent.

SEE, Justice.

L.S.B., the defendant in a civil action pending in the Mobile Circuit Court, petitions this Court for a writ of mandamus directing the trial court to vacate its order that denied his motion for a protective order and directing the trial court to grant that motion. The issue presented by this petition is whether, in light of the Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying the motion for a protective order. We deny the writ.

I.

L.S.B. was indicted by a Mobile County Grand Jury for first-degree sexual abuse, a violation of § 13A-6-66, Ala.Code 1975, and first-degree sodomy, a violation of § 13A-6-63. The indictment charged as follows:

"[COUNT ONE:] [L.S.B.] being sixteen years of age or older, did knowingly subject [A.J.C.], who at the time was less than twelve years of age, to sexual contact, to-wit: by fondling her vagina with his hands, in violation of § 13A-6-66 of the Code of Alabama, against the peace and dignity of the State of Alabama.

"[COUNT TWO:] [L.S.B.] did engage in deviate sexual intercourse, to-wit: by placing [his] mouth ... onto the vagina of [A.J.C.], the said [A.J.C.] being less than twelve years of age, and the said [L.S.B.], being sixteen years old or older, in violation of § 13A-6-63 of the Code of Alabama."

During L.S.B.'s criminal trial, the court allowed the State to introduce evidence of a pattern of abuse by L.S.B. against A.J.C. that extended over several years. A.J.C. testified that she had been sexually abused by L.S.B. numerous times at many different locations. L.S.B. objected, arguing that "[t]he indictment only charges one offense in each count, so [evidence of] more than one [instance of sexual abuse] would be impermissible." The trial court overruled the objection.¹ L.S.B. was convicted and sentenced on both counts.

Thereafter, A.J.C., acting through T.D.B.,² sued L.S.B., making various claims arising from L.S.B.'s alleged sexual abuse of A.J.C. on numerous occasions from 1988 to 1999. T.D.B. filed interrogatories and a request for production, seeking to elicit information relevant to the allegations in A.J.C.'s complaint. L.S.B. moved the trial court for a protective order, pursuant to Rule 26(c), Ala. R. Civ. P.,³ arguing that the Fifth Amendment privilege against self-incrimination shields him from having to reply to T.D.B.'s interrogatories and her request for production. See U.S. Const., amend. V.; Ala. Const. 1901, art. I, § 6. He argued that his conviction was based on only one incident of sexual abuse and that, if he were to disclose any information regarding other alleged instances of sexual abuse, he would be subjecting himself to further criminal charges. After conducting a hearing, the trial court denied the motion. L.S.B. now petitions this Court for a writ of mandamus directing the trial court to vacate its order denying his motion for a protective order and directing the trial court to grant that motion.

II.

"A writ of mandamus is an extraordinary remedy, and one petitioning for it must show: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1115 (Ala. 2000). T.D.B. argues that L.S.B. cannot meet the third requirement, because "another adequate remedy ... existed at the time the petition was filed." Specifically, she contends that L.S.B. could have filed a timely petition, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the interlocutory order denying L.S.B.'s motion for a protective order. See Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)("A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal."). In Ex parte Spears, 621 So.2d 1255, 1256 (Ala.1993), this Court discussed its "`liberal enlargement of the use of the writ'" of mandamus, stating that "`[t]he test, as to whether mandamus will be issued, now seems to depend on whether the remedy by appeal is adequate to prevent undue injury rather than the availability merely of [a] remedy by appeal.'" Id. at 1256 (quoting Ex parte Weissinger, 247 Ala. 113, 118, 22 So.2d 510, 515 (1945)). We further stated:

"It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent `undue injury.' See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991)(mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988)(mandamus proper to enforce a trial court's compliance with this Court's mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982)(mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, supra (mandamus proper to vacate certain interlocutory rulings in divorce cases); see also Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein."

Spears, 621 So.2d at 1256.

L.S.B. notes that this Court has consistently held that "[a] petition for the writ of mandamus is the proper means for obtaining review of the question `whether a trial court has abused its discretion ... in resolving discovery matters, and in issuing discovery orders.'" Ex parte Water Works & Sewer Bd. of the City of Birmingham, 723 So.2d 41, 42 (Ala.1998)(quoting Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala.1996)); see also Ex parte Compass Bank, 686 So.2d at 1137; Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Other jurisdictions have recognized this exception under certain circumstances as well. See, e.g., Glenmede Trust Co. v. Thompson, 56 F.3d 476, 482-83 (3d Cir. 1995); Smith v. BIC Corp., 869 F.2d 194, 198 (3d Cir.1989); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 374-75 (Tex.1998); State ex rel. FirsTier Bank, N.A. v. Mullen, 248 Neb. 384, 534 N.W.2d 575 (1995); Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex.1992); Anderson v. Miller, 320 Or. 316, 882 P.2d 1109, 1112-13 (1994). This Court continues to adhere to the well-established exception that "[a] petition for the writ of mandamus is the proper means for obtaining review of the question `whether a trial court has abused its discretion ... in resolving discovery matters, and in issuing discovery orders.'" Ex parte Water Works, 723 So.2d at 42.

"Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion." Ex parte Compass Bank, 686 So.2d at 1137. "`The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief,'" and "`[t]he writ will not issue where the right in question is doubtful.'" Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala. 1981)).

III.

L.S.B. argues that his conviction was based on only one incident of sexual abuse and that if he were required to disclose information regarding any other alleged instances of sexual abuse of A.J.C., then he would subject himself to further criminal prosecution. Therefore, he argues, the privilege against self-incrimination applies and the trial court abused its discretion in denying his motion for a protective order.

The self-incrimination clause of the Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be compelled in any criminal case to be a witness against himself." U.S. Const., amend. 5, cl. 3. That protection extends to witnesses and parties in civil actions. Ex parte Weems, 711 So.2d 1011, 1013 (Ala.1998)(citing Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977)). The application of the privilege to a witness or party in a civil action is not dependent on whether a criminal charge has been filed. Ex parte Coastal Training Inst., 583 So.2d 979 (Ala. 1991). This Court has stated:

"`If a party reasonably apprehends a risk of self-incrimination, he may claim the Fifth Amendment privilege although no criminal charges are pending against him and even if the risk of prosecution is remote.'"

Id. at 981 (quoting Ex parte Baugh, 530 So.2d 238, 240, n. 2 (Ala.1988)). Thus, when a party in a civil action "reasonably apprehends a risk of self-incrimination," he may assert his Fifth Amendment right to remain silent. The party's mere assertion of the privilege, however, is not determinative. The trial court is required to determine whether the privilege applies, under the circumstances of the case. The United States Supreme Court has stated:

"It is for the court to say whether [the party's] silence is justified, and to require him to answer if `it clearly appears to the court that he is mistaken.' ... To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious

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