Knapp, In re

• Decision Date: 14 December 1988
• Docket Number: No. M-2654,M-2654
• Citation: 536 So.2d 1330
• Parties: In re Gary A. KNAPP, Petitioner.
• Court: Mississippi Supreme Court

Page 1330

536 So.2d 1330

In re Gary A. KNAPP, Petitioner.

No. M-2654.

Supreme Court of Mississippi.

Dec. 14, 1988.

Dan W. Webb, Shuttleworth, Smith & Webb, Tupelo, for appellant.

John R. Reeves, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.

I.

ROBERTSON, Justice, for the Court:

Against the backdrop of soap operaish facts, a pastor, charged with indiscretions--and potentially much more--seeks extraordinary relief. He has been ordered jailed for refusal to answer at a deposition in a tort action in which he is the defendant. Eschewing the priest-penitent privilege, the pastor seeks higher authority and invokes the Fifth Amendment.

We hold that the pastor does indeed enjoy a constitutional privilege against self-incrimination which he may invoke in the proceedings below. That privilege is not so blanket as he has asserted. With an explanation we hope will be helpful, we deny the extraordinary writ.

II.

A.

Laura Muse Hutchins was last seen alive in early December, 1987, at her home in Jackson, Mississippi. Forty-one days later on January 26, 1988, Laura's body was found in the Pearl River near the Simpson-Copiah County line. The circumstances suggested homicide and immediately attracted great public attention. The Hinds County Grand Jury was convened to consider the matter but insofar as we have been made aware no indictment has been returned.

On October 21, 1987, prior to these happenings, Michael Lee Hutchins had brought a civil action in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Hutchins' complaint named as defendant Gary A. Knapp. Before answer Hutchins filed an amended complaint. See Rule 15(a), Miss.R.Civ.P. Hutchins' suit sounds in tort and charges Knapp with alienation of Laura's affections from him and with criminal conversation. The complaint further charges that at all relevant times Knapp was pastor of the Griffith Memorial Baptist Church in Jackson, of which Hutchins was a member. Hutchins alleges that he sought marital counseling services of and from Knapp and that Knapp in fact undertook to render such services at times when he was "simultaneously engaging in, or had engaged in an amorous affair with Laura Hutchins, wife of the plaintiff." The complaint sounds like a charge of professional malpractice as a marriage counselor.

On January 21, 1988, Knapp answered and asserted several defenses in law. Beyond that, Knapp denied the essential allegations of the complaint and alleged affirmatively that the alienation of Laura's affections from Hutchins were the result of Hutchins' own "mistreatment of his wife." Knapp alleged "that actions of Laura Hutchins toward him, if any, were voluntary." Significantly, in Paragraph VI of his answer, Knapp alleged.

Upon information and belief, the defendant [Knapp] affirmatively alleges that the plaintiff [Hutchins] has either personally procured or aided in procuring the disappearance of Laura Hutchins, the plaintiff's wife who has knowledge of relevant information related to these accusations in the complaint. Therefore, the plaintiff has procured the absence of a material witness to this action and obstructed the processes of this Court and, as such, this action should be barred.

Five days later Laura's body was recovered from the Pearl River. Great and furious pre-trial litigation has ensued the centerpiece of which has been Knapp's efforts to avoid discovery via his constitutional privilege against self-incrimination. Two other points have been vigorously debated: whether Knapp could be required to testify regarding matters which he may have presented to the Hinds County Grand Jury and, whether Knapp, a resident of Orange Park, Florida, may be compelled at his own expense to submit to deposition in the State of Mississippi. ¹

On January 30, 1988, Hutchins gave notice of the taking of Knapp's deposition in Hinds County, Mississippi. Several days thereafter, Knapp moved for a protective order asserting that he could not be compelled to attend a deposition in Hinds County unless Hutchins tendered to him the reasonable cost of transportation and lodging incident to his appearance in Jackson.

Hutchins originally propounded requests for admissions ² and interrogatories ³ which sought in substantial part to discover the basis for the denials and allegations made in Knapp's answer. Hutchins deemed Knapp's responses inadequate and moved to compel discovery under Rule 37, Miss.R.Civ.P., and for sanctions. On March 1, 1988, the Circuit Court ordered further supplementation of answers to nine interrogations but denied Hutchins' motion for sanctions. ⁴ Significantly, the Court in the same order denied Knapp's motion for a protective order and directed that Knapp

shall, upon proper notice, submit to a deposition in the First Judicial District of Hinds County, Mississippi.

On the morning of July 21, 1988, Knapp appeared in Jackson at the office of Hutchins' counsel for deposition. After a brief but acrimonious exchange between counsel, the parties and counsel retired to the Circuit Court for the proceedings that have given rise to today's application. Before the Circuit Court Knapp again pleaded his privilege against self-incrimination and his perceived statutory obligation not to discuss matters presented to the Hinds County Grand Jury. Following extensive arguments by counsel, Knapp took the witness stand in open court. After a few preliminary questions, counsel for Hutchins asked

Q. Mr. Knapp, did you testify before the Hinds County Grand Jury in 1988 for any purpose?

A. Upon advice of counsel, I invoke the Fifth Amendment.

The Circuit Court then directed Knapp

to answer the question with regard to whether or not you testified before the grand jury.

Knapp refused, whereupon the Circuit Court held him in contempt and ordered him committed to the custody of the Sheriff of Hinds County.

On the same day, July 21, 1988, Knapp filed with this Court his petition for extraordinary writ, for stay and for stay of execution of order of civil contempt. We ordered Knapp released from custody pending our consideration and decision of the issues presented in his petition.

III.

This Court is not about to become involved in the wholesale granting of interlocutory appeals of civil discovery disputes. Pre-trial discovery is governed by flexible rules well within the administrative capacities of our trial courts.

We have carved out a limited exception to this general principle for substantial questions of privilege, that is, for cases where correction of any error on appeal from a final judgment would be futile. If the matter thought privileged is ordered disclosed and is in fact disclosed, our later reversal would found on the Humpty Dumpty syndrome. ⁵ See Mississippi State Bar v. Attorney L, 511 So.2d 119 (Miss.1987); American Tobacco Co. v. Evans, 508 So.2d 1057 (Miss.1987).

We address on the merits two questions: Knapp's claim of his privilege against self-incrimination and his argument that he is prohibited by law from disclosing the content of grand jury proceedings. His points regarding where he may be deposed and who must pay, the trial court's ordering of discovery, summary judgment and other pre-trial proceedings, and his claim of "unequal access to the lower court", are of the sort we will not give the time of day when presented interlocutorily, though nothing said here should be seen as intimation of a view how these points ought be resolved if presented on appeal from a final judgment.

IV.

A.

We begin with the chapter on Depositions and Discovery in the Mississippi Rules of Civil Procedure. Rule 26(b)(1) provides that

parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party. [emphasis supplied]

Knapp makes no claim of lack of relevance. Instead, he says he has a privilege. He invokes generally his constitutionally secured privilege against self-incrimination. ⁶ Second, and more specifically, Knapp points to a statutory provision that witnesses before a grand jury may not disclose what transpired before the grand jury subject to certain time limitations. ⁷

Both federal and state varieties of the privilege against self-incrimination are available to witnesses in proceedings civil as well as criminal. Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 2991, 92 L.Ed.2d 296, 303-04 (1986); Lefkowitz v. Cunningham, 431 U.S. 801, 804-05, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 6-7 (1977); Mississippi State Bar v. Attorney L, 511 So.2d 119 (Miss.1987); Morgan v. United States Fidelity & Guaranty Co., 222 So.2d 820 (Miss.1969). The privilege is among those contemplated by Rule 26(b)(1) when that rule provides that parties may obtain discovery of relevant matters "not privileged ". Mississippi State Bar v. Attorney L, 511 So.2d at 123.

In a criminal prosecution the privilege provides that an individual may not be required to take the witness stand at all. Mississippi State Bar v. Attorney L, 511 So.2d at 123; Morgan v. United State Fidelity & Guaranty Co., 222 So.2d at 828. But this is because of the practical reality of juror prejudice and misunderstanding should the individual have to invoke his privilege on a question by question basis. Experience and common sense have taught that the only way the privilege may in fact be secured in a criminal prosecution is that the accused have the right, if he wishes to exercise it, not to take the witness stand at all. Such considerations have no application in civil proceedings, particularly where, as here, a party is merely being required to submit to deposition. Here we do proceed on a question by question basis.

An analogous question was before the Court in the Attorney L case. In Attorney L we first held that whether the answer to a question had self-incrimination potential was a judicial question to be answered according to an objective test. See Wright...