State ex rel. Nothum v. Walsh

• Decision Date: 31 July 2012
• Docket Number: No. SC 92268.,SC 92268.
• Citation: 380 S.W.3d 557
• Parties: STATE of Missouri ex rel. David M. NOTHUM and Glenette Nothum, Relators, v. The Honorable Joseph L. WALSH III, Circuit Judge, St. Louis County Circuit Court, Respondent.
• Court: Missouri Supreme Court

380 S.W.3d 557

STATE of Missouri ex rel. David M. NOTHUM and Glenette Nothum, Relators,

v.The Honorable Joseph L. WALSH III, Circuit Judge, St. Louis County Circuit Court, Respondent.

No. SC 92268.

Supreme Court of Missouri,

En Banc.

July 31, 2012.

Norman W. Pressman, Kathryn M. Koch and Benjamin K. Westbrook, Goldstein & Pressman PC, St. Louis, and Donald R. Carmody and John E. Hilton, Carmody MacDonald PC, Clayton, for Relators.

Jeffrey T. McPherson and Christopher R. LaRose, Armstrong Teasdale LLP, St. Louis, for Respondent.

LAURA DENVIR STITH, Judge.

David and Glenette Nothum seek a writ prohibiting the circuit court from compelling them to testify in a judgment debtor's examination conducted pursuant to section 513.380.¹ The court ordered the Nothums to testify despite their assertion of the privilege against self-incrimination and held them in contempt when they refused to do so, finding that the immunity granted to the Nothums pursuant to section 513.380.2 was coextensive with their constitutional privilege.

The trial court abused its discretion in ordering the Nothums to testify. To supplant the constitutional privilege against compulsory self-incrimination, the scope of immunity granted must be coextensive with the scope of the constitutional privilege, which the United States Supreme Court has held includes both use immunity and derivative use immunity. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Here, the Nothums received immunity pursuant to section 513.380.2, which authorizes a prosecutor only to provide “use immunity” to “a judgment debtor for any statement made at a judgment debtor's examination.” § 513.380.2 . A prosecutor has no inherent authority to provide immunity beyond the authority granted the prosecutor by Missouri statutes. The prosecutor here, in accordance with the statute, said he granted use immunity. Such use immunity did not include derivative use immunity and, so, was not coextensive with the Nothums' constitutional privilege. The trial court abused its discretion in compelling the Nothums to testify. Accordingly, this Court issues its permanent writ of prohibition.²

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2009, Arizona Bank and Trust obtained a judgment issued by an Arizona state court against David and Glenette Nothum. The bank subsequently registered its judgment in several Missouri counties, including St. Louis County, and unsuccessfully sought to execute on it. The bank then obtained an order under section 513.380 directing the Nothums, as judgment debtors, to undergo examination under oath regarding their ability and means to satisfy the judgment.

Prior to the scheduled debtor's examination, the St. Louis County prosecuting attorney's office issued a letter, pursuant to the authority granted it by section 513.380.2, entitled “Grant of Use Immunity,” signed by an assistant prosecuting attorney. The letter stated that it provided “use immunity to [the Nothums] ... for any statement made at any judgment debtors examination conducted pursuant to Section 513.380 ... when such statement is reasonably related to any question directed to the existence and location of any assets, liabilities, or sources of income of David M. Nothum and Glenette Nothum.” The letter further stated, “Said use immunity will protect [the Nothums] from prosecution for any offense related to the contents of [their] statement[s] so made at a judgment debtors examination.”

At the examination, Mr. Nothum took the stand and invoked his privilege against self-incrimination. Although Ms. Nothum never was sworn in and did not testify, her attorney represented to the court that she too intended to assert her privilege against self-incrimination. The bank then produced the letter from the St. Louis County prosecuting attorney's office granting the Nothums use immunity. In light of this grant of immunity, the trial court ordered the Nothums to respond to the bank's inquiries. They continued to invoke the privilege. The trial court found them both in contempt and ordered them to be jailed in lieu of bond in the amount of the bank's judgment but stayed his order for 10 days to permit the Nothums to seek extraordinary relief.

The court of appeals issued a writ, holding in State ex rel. Nothum v. Kintz, 333 S.W.3d 512 (Mo.App.2011) (Nothum I ), that the trial judge exceeded his authority because he: (1) “failed to make a finding, as a matter of law, that Mr. Nothum's responses to the questions put to him could not possibly tend to incriminate him,” and (2) failed to swear Ms. Nothum in as a witness and make findings, as a matter of law, that her responses could not possibly tend to incriminate her. Id. at 516.

After Nothum I, the bank scheduled a second judgment debtor's examination before the circuit judge.³ Before the Nothums were questioned, the court heard arguments related to the scope of the immunity provision in section 513.380.2. Based on those arguments, the judge determined that section 513.380.2 grants more than use immunity, stating in his order, “While the statute denominates the immunity as the limited ‘use immunity,’ the court concludes that the legislature intended to grant a judgment debtor the broader ‘transactional immunity’ by expressly shielding such individual from ‘any offense related to the content of the statements made.’ ” Accordingly, he held that the immunity provided to the Nothums was “coextensive with the Missouri and Federal constitutional privileges against self-incrimination and removes any possibility that statements made by [them] in response to any questions posed by [the bank] during [their] judgment debtor examination can be used to prosecute [them].” The court, therefore, ordered the Nothums to appear for the examination and answer questions posed by the bank.

The Nothums appeared but continued to assert their privilege against self-incrimination.At that point, the court entered orders of contempt against them but then stayed these orders for 30 days to allow the Nothums time to seek extraordinary relief from his orders directing them to answer the bank's questions. The court of appeals issued a preliminary order of prohibition, but transferred the case to this Court after opinion pursuant to Rule 83.02. This Court directs a permanent writ to issue.⁴

II. STANDARD OF REVIEW

“The extraordinary remedy of a writ of prohibition is appropriate in one of three circumstances: (1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy [an] excess of jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not made available in response to the trial court's order.” State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 776 (Mo. banc 2003). Missouri courts often have issued writs of prohibition to prevent an abuse of discretion in ordering a witness to testify over the witness' proper invocation of the privilege against self-incrimination.⁵See, e.g., Hill v. Kendrick, 192 S.W.3d 719 (Mo.App.2006); State ex rel. Heidelberg v. Holden, 98 S.W.3d 116 (Mo.App.2003); State ex rel. Long v. Askren, 874 S.W.2d 466 (Mo.App.1994). Significantly, both Heidelberg and Askren, as here, involved cases in which writs of prohibition were granted because trial courts abused their discretion by improperly ordering witnesses to testify before judgment debtor's examinations. A writ of prohibition in these circumstances is especially appropriate, as “[t]he court in a judgment debtor's examination ... lacks authority to issue any kind of order or judgment” and one may not “appeal from examination.” Askren, 874 S.W.2d at 477.

Where, as here, the question of whether an abuse of discretion has been committed “depends on the interpretation of a statute, this Court reviews the statute's meaning de novo.' ” State ex rel. C.F. White Family P'ship v. Roldan, 271 S.W.3d 569, 572 (Mo. banc 2008).

III. THE NOTHUMS' IMMUNITY WAS NOT COEXTENSIVE WITH THE PRIVILEGE AGAINST SELF–INCRIMINATIONA. The Privilege Against Self-incrimination

The Fifth Amendment to the United States Constitution, which is “fully applicable to the States through the Fourteenth Amendment,” Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 53, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), provides, “No person shall ... be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Missouri Constitution similarly states that “no person shall be compelled to testify against himself in a criminal case.” Mo. Const. art. I, § 19. “The principles to be followed in applying these two provisions are consistent.” State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 767 (Mo. banc 1987). Both embody a privilege that “reflects many of our fundamental values and most noble aspirations,” including “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.” Murphy, 378 U.S. at 55, 84 S.Ct. 1594.

Accordingly, the privilege “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The right to invoke the privilege against self-incrimination “extends not only to answers which would in themselves support a conviction of a crime but likewise embraces those answers which would simply furnish a link in the chain of evidence needed to convict the witness.” Munn, 733 S.W.2d at 768.

But the privilege against compulsory self-incrimination is not absolute. When a witness is granted testimonial immunity that fully supplants her constitutional rights, for...