Ex parte Coastal Training Institute

• Decision Date: 26 July 1991
• Citation: 583 So.2d 979
• Parties: 69 Ed. Law Rep. 644 Ex parte COASTAL TRAINING INSTITUTE, Elizabeth Kammer, and Joe Cameron. (Re Leslie SAWYER v. COASTAL TRAINING INSTITUTE, et al.) 1900850.
• Court: Alabama Supreme Court

Page 979

583 So.2d 979

69 Ed. Law Rep. 644

Ex parte COASTAL TRAINING INSTITUTE, Elizabeth Kammer, and Joe Cameron.

(Re Leslie SAWYER v. COASTAL TRAINING INSTITUTE, et al.)

1900850.

Supreme Court of Alabama.

July 26, 1991.

David A. Hamby, Jr. and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellants.

Marc E. Bradley, Mobile, for appellees.

MADDOX, Justice.

The issue presented in this petition for a writ of mandamus is whether, given the principles of the Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying the petitioners' motion for a stay of civil proceedings while there is a possibility of a criminal action being brought against them arising out of an ongoing investigation.

In February 1990, Leslie Sawyer was employed by Coastal Training Institute ("Coastal"). Elizabeth Kammer, a petitioner in this case, was the owner of Coastal and its president. Joe Cameron, another petitioner, was also an officer of Coastal.

Sawyer's complaint includes allegations that Coastal improperly withheld Pell grant refunds that belonged to the students. He allegedly notified the F.B.I., the inspector general of the Department of Education, SouthTrust Bank, and First American Savings of Longmont, Colorado, of these alleged improprieties. According to Sawyer, the petitioners engaged in various kinds of tortious conduct towards him when they learned that he had reported them to the authorities for the alleged improprieties in handling the Pell grant refunds.

Sawyer filed a civil action against the petitioners, alleging outrageous conduct, trespass, false imprisonment, and defamation, all arising out of an incident that allegedly occurred on the premises of Coastal in 1989. He sued Kammer individually and as agent of Coastal. He sued Cameron only as the agent of Coastal.

In October 1990, when Sawyer noticed the deposition of Kammer and Cameron, they filed a motion to quash the depositions and to stay the proceedings, asserting their Fifth Amendment privilege against self-incrimination. See U.S. Const., amend. V; Ala. Const.1901, art. I, § 6. They maintained that they were the target of an F.B.I. investigation, presumably based upon the report by Sawyer. The judge denied the motion. Two months later, Sawyer proceeded to take their depositions. Upon the advice of counsel, both Kammer and Cameron invoked the Fifth Amendment and refused to answer any questions concerning the substance of the case.

The attorney for the petitioners then filed a motion to reconsider the denial of the stay of proceedings. In that motion, the attorney contended that he could not present a defense to Sawyer's claims against his clients because his clients would be unable to testify at trial because of the alleged ongoing criminal investigation. The judge also denied this motion. The petitioners state that the trial judge indicated that his reason for denying their motion for a stay was that no actual criminal charges had been filed against them. This petition followed.

By order of this Court entered March 30, 1991, all proceedings in the trial court have been stayed pending a disposition of this petition.

The petitioners request a stay of discovery and all proceedings before the circuit judge in the civil action in which they are defendants. They contend that they cannot defend themselves against Sawyer's claims without surrendering their constitutionally protected privilege against self-incrimination. They contend that their privilege against self-incrimination will be violated unless this Court grants the relief requested.

In answer to the petitioners' arguments that the trial court's refusal to stay the proceedings violates their privilege against self-incrimination, Sawyer argues that the writ of mandamus should not issue because the trial court has not abused its discretion. He says:

"[T]he Petitioners have not attached any document either from the Office of the United States Attorney for the Southern District of Alabama, nor from the United States District Court for the Southern District of Alabama to indicate that a criminal investigation is ongoing or that criminal proceedings have actually been instituted against the Petitioners. In addition, there has been no factual showing by the petitioners that the stated criminal investigation actually involves or is related to the subject matter of the subject lawsuit."

The Fifth Amendment to the Constitution of the United States provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." We recognize that cases hold that the Fifth Amendment privilege also applies in civil proceedings, including depositions. See Ex parte Baugh, 530 So.2d 238 (Ala.1988) (citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th Cir.1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924)). Years ago, Justice Brandeis wrote:

"The government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant."

McCarthy v. Arndstein, 266 U.S. at 40, 45 S.Ct. at 17.

While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when "justice requires" that it do so "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c), Ala.R.Civ.P. The scope of discovery in a civil case is broad and requires nearly total mutual disclosure of each party's evidence before trial. See Rule 26. In contrast, criminal "discovery" is highly restricted. "The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in a criminal case." Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203 (Fed.Cir.1987). In Afro-Lecon, the court pointed out some of the dangers presented by this situation:

"Such unconstitutional uses may begin with the surreptitious planting of criminal investigators in civil depositions ... and end with passive abuses, such as when the civil party, who asserts fifth amendment rights, is compelled to refuse to answer questions individually, revealing his weak points to the criminal prosecutor. This point-by-point review of the civil case may lead to a 'link in the chain of evidence' that unconstitutionally contributes to the defendant's conviction. Hoffman v. United States, 341 U.S. 479, 486 [71 S.Ct. 814, 818, 95 L.Ed. 1118] (1951)."

In contrast to the opinion of the trial court and to Sawyer's contentions, the pendency of criminal charges is not necessary to the assertion of the privilege. It is a general rule that the petitioner need not be indicted to properly claim the Fifth Amendment privilege. Ex parte Baugh, 530 So.2d 238; Wehling, 608 F.2d 1084; Lefkowitz, 431 U.S. 801, 97 S.Ct. 2132; McCarthy, 266 U.S. 34, 45 S.Ct. 16; Savannah Sur. Associates, Inc. v. Master, 240 Ga. 438, 439, 241 S.E.2d 192, 193 (1978); In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir.1974).

This Court has adopted this general rule in several recent cases. In Baugh, Deborah Baugh failed to appear for her deposition and, instead, invoked her privilege against self-incrimination in light of a possible grand jury investigation against her. This Court held that the trial court abused its discretion by denying Baugh's motion for a protective order until the resolution of the potential criminal proceedings against her. The Court expressed the rule as follows:

"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."

Baugh at 240, n. 2, citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979).

In Ex parte White, 551 So.2d 923 (Ala.1989), this Court followed Baugh and again held that the privilege against self-incrimination required that the petitioner's civil action be stayed until the criminal process against him was completed. The Court noted that in balancing the interests of the parties, we must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding.

In urging us to hold that the trial court did not abuse its discretion by the terms of its order dated February 19, 1991, Sawyer correctly points out that under the rules of civil procedure, broad power is vested in the trial court to control the use of the discovery process. However, as we noted in Baugh, "[t]hese state-court procedural considerations must at all times...