State of WV ex rel. Wright v. Stucky, Judge
Annotate this CaseJanuary 1999 Term
___________
No. 25839
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STATE OF WEST VIRGINIA EX REL.
DAVID V. WRIGHT and CHRISTOPHER DAVID WRIGHT,
Petitioners,
v.
HONORABLE JAMES C. STUCKY, JUDGE OF THE
CIRCUIT COURT OF KANAWHA COUNTY, and
MARCELLA GHERKE, parent, next friend and legal
guardian of George Adam Smoot, a minor,
Respondents.
________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
________________________________________________________
Submitted: May 4, 1999
Filed: June 17, 1999
David W. Greear,
Esq.
Debra
C. Price, Esq.
Ellen R. Archibald,
Esq.
Charleston,
West Virginia
Kesner, Kesner &
Bramble
Attorney
for Respondent
Charleston, West
Virginia
Marcella
Gherke
Attorney for Petitioners
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "In
determining whether to grant a rule to show cause in prohibition when a court is not
acting in excess of its jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy of effort and money among
litigants, lawyers and courts; however, this Court will use prohibition in this
discretionary way to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common law mandate which may be
resolved independently of any disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error is not corrected in
advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744
(1979).
2. Neither the
statutory limitation created by W.Va. Code, 57-2-3 [1965], nor a protective order
under Rule 26(c) of the West Virginia Rules of Civil Procedure, provide the
"use immunity" protection that permits a court to require a person to answer
questions in civil discovery, over a constitutional objection based on the Fifth Amendment
to the United States Constitution and Article III, Section 5 of the West
Virginia Constitution, where the answers to the questions may be self-incriminating.
Starcher, Chief Justice:
In the instant case, we issue a writ of
prohibition barring the enforcement of an order by the Circuit Court of Kanawha County.
The order prohibited David and Christopher Wright from refusing to answer questions in a
civil deposition based on their constitutional right not to give self-incriminating
testimony.
I.
Facts and Background
George Smoot, a minor (by his mother
Marcella Gherke), filed a lawsuit against the petitioners David Wright and Christopher
Wright, for injuries that George Smoot allegedly sustained in an assault. Criminal charges
were also filed against the Wrights in connection with the alleged assault.
The Wrights agreed to respond to discovery
requests in the Smoot/Gherke civil case, on the condition that the Wrights' criminal case
was resolved by the time their discovery response in the civil case was due. When the
criminal case was not resolved by the due date for the discovery responses, the circuit
court (in the civil case) granted the Wrights a protective order, under Rule 26(c) of the West
Virginia Rules of Civil Procedure,[1998]See
footnote 1 1 excusing the Wrights from answering written discovery
requests, based on the Wrights' assertion of their constitutional protection against
compelled self- incrimination (we shall refer to this as their "self-incrimination
right").
However, the circuit court denied the
Wrights' request for a protective order with respect to their depositions. The circuit
court concluded that W.Va. Code, 57-2-3 [1965]See
footnote 2 2 would protect the Wrights' self-incrimination right in the
depositions -- and that therefore the Wrights could not refuse to answer questions posed
to them in their civil depositions based upon their self-incrimination right. The circuit
court also sealed and prohibited the distribution of the transcripts of the Wrights'
depositions, and prohibited the dissemination of information obtained in those
depositions.See footnote 3 3
The Wrights filed a writ of prohibition with this Court, seeking to prevent the enforcement of that portion of the circuit court's order that bars the Wrights from refusing to answer deposition questions based on their self-incrimination right.
II.
Standard of Review
This Court addressed the
standard for determining the appropriateness of a writ of prohibition in Syllabus Point 1
of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979):
In determining whether to grant a rule
to show cause in prohibition when a court is not acting in excess of its jurisdiction,
this Court will look to the adequacy of other available remedies such as appeal and to the
over-all economy of effort and money among litigants, lawyers and courts; however, this
Court will use prohibition in this discretionary way to correct only substantial,
clear-cut, legal errors plainly in contravention of a clear statutory, constitutional,
or common law mandate which may be resolved independently of any disputed facts and only
in cases where there is a high probability that the trial will be completely reversed if
the error is not corrected in advance.
(Emphasis added.)
Additionally, we stated in
Syllabus Points 2 and 3 of State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194
W.Va. 431, 460 S.E.2d 677 (1995):
2. "'A writ of prohibition is
available to correct a clear legal error resulting from a trial court's substantial abuse
of its discretion in regard to discovery orders.' Syllabus Point 1, State Farm Mutual
Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992)."
Syllabus Point 3, State ex rel. McCormick v. Zakaib, 189 W.Va. 258, 430 S.E.2d 316
(1993).
3. When a discovery order involves the
probable invasion of confidential materials that are exempted from discovery under Rule
26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this
Court's original jurisdiction is appropriate.
Our review of legal issues in a writ of
prohibition, of course, is de novo.
III.
Discussion
The Fifth Amendment to the United
States Constitution and Article III, Section 5 of the West Virginia Constitution
prohibit the compelling of self-incriminating testimony in both criminal and civil
proceedings -- unless neither the testimony nor its fruits are available in a criminal
proceeding. See Syllabus Point 1, State ex rel. Osburn v. Cole, 173 W.Va.
596, 319 S.E.2d 364 (1983). See also State v. Beard, 203 W.Va. 325, 507 S.E.2d 688
(1998); State ex rel. Palumbo v. Graley's Body Shop, Inc., 188 W.Va. 501, 425 S.E.2d 177 (1992).See footnote 4 4
This constitutionally-based limitation on
the use of compelled, self- incriminating testimony is commonly known as "use
immunity." Beard, supra.
A related, statutorily-based
limitation on the evidentiary use of certain self- incriminating statements is created by W.Va.
Code, 57-2-3 [1965]. This statute, which was relied upon by the circuit court in the
instant case, states:
In a criminal prosecution other than for
perjury or false swearing, evidence shall not be given against the accused of any
statement made by him as a witness upon a legal examination.
We have never held that the limitation on
the use of certain statements that is created by W.Va. Code, 57-2-3 [1965] is as
broad as or co-extensive with constitutionally- based "use immunity." The
language of W.Va. Code, 57-2-3 [1965] addresses only the admissibility of a
statement in court, and does not address a statement's possible "use" for other
purposes related to a criminal investigation or prosecution.See footnote 5 5
Similarly, while a circuit court under
Rule 26(c) has the power to grant a protective order limiting the use of a civil
deposition -- as the circuit court did in the instant case -- it does not appear that we
have ever held that such an order confers broad criminal "use immunity" with
respect to the contents of the statement. Nor have we held that such a protective order
necessarily binds or limits the rights of parties who are strangers to the litigation --
such as public criminal investigators and prosecutors.
Other courts addressing the issue have
consistently held that a civil protective order sealing a deposition does not
automatically bar the obtaining or use of the deposition in a criminal context. See,
e.g., In Re Grand Jury Subpoena, 836 F.2d 1468 (4th Cir. 1988), cert. denied,
487 U.S. 1240, 108 S. Ct. 2914, 101 L. Ed. 2d 945 (1988), where the court held that the
issuance of a Rule 26 protective order in a civil proceeding is not grounds to quash a
grand jury subpoena for the deposition transcript.See
footnote 6 6
In a statement that is particularly
pertinent to the instant case, the Fourth Circuit in In Re Grand Jury Subpoena said:
In contrast with a grant of immunity, the
government may not use a protective order to compel a witness to testify during a criminal
or civil proceeding. Absent a grant of immunity, the deponents were entitled, with or
without a protective order, to assert their fifth amendment privilege in answer to
potentially incriminating questions in a civil proceeding.
836 F.2d at 1471 (emphasis added).
We conclude from the foregoing discussion that neither the statutory limitation created by W.Va. Code, 57-2-3 [1965], nor a protective order under Rule 26(c) of the West Virginia Rules of Civil Procedure, provide the "use immunity" protection that permits a court to require a person to answer questions in civil discovery, over a constitutional objection based on the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution, where the answers to the questions may be self- incriminating.
In the instant case, the circuit
court's order that is challenged by the petitioners was premised on the court's conclusion
that the petitioners -- by virtue of the court's Rule 26(c) protective order and the
limitations imposed by W.Va. Code, 57-2-3 [1965] -- would have an immunity with
respect to their answers to deposition questions that was fully protective of their
constitutional self-incrimination right.
Because we have held that this legal
conclusion by the circuit court was erroneous, we must find that the circuit court erred
in issuing its order based upon such a premise. We therefore grant the requested writ and
prohibit the enforcement of the circuit court's order to the extent that the order
requires the petitioners to make discovery responses -- including the giving of answers to
questions at depositions -- over the petitioners' bona fide assertion of the
constitutional right to remain silent about information that might tend to be
self-incriminating.See footnote 7 7
Writ Granted as Moulded.
Footnote: 1 1Rule of Civil Procedure 26(c) [1998]
states in pertinent part:
the court . . . may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense . . .
Footnote: 2 2W.Va. Code, 57-2-3 [1965] states:
In a criminal prosecution other than for
perjury or false swearing, evidence shall not be given against the accused of any
statement made by him as a witness upon a legal examination.
Footnote: 3 3The
circuit court's order, in pertinent part, read as follows:
The Court, after hearing arguments of
counsel and after review of the record with respect to the Motion for Protective Order,
does find that the deposition testimony sought by the Plaintiff is protected under West
Virginia Code §57-2-3, and does, accordingly DENY the Defendants' Motion for a Protective
Order regarding the scheduled depositions of David and Christopher Wright. The Court,
further finds that the written discovery, which is currently outstanding to the
Defendants, is not protected by West Virginia Code §57-2-3 as a legal examination, and
does, accordingly GRANT the Defendants' Motion for a Protective Order with regard to the
outstanding written discovery requests.
The Court further Orders that the
transcripts of David and Christopher Wrights' deposition be used only in the context of
this civil action and further distribution and/or dissemination is strictly prohibited.
The only exception to this prohibition is for the limited purposes of providing copies of
the transcript to the Defendants' criminal attorney, Thomas Patrick Maroney. The Court
further Orders that all persons attending the deposition of the Defendants are prohibited
from discussing or disseminating any information gleaned from the Defendants at their
civil depositions outside of the context of prosecuting this civil action.
The Court further Orders that a civil
deposition does constitute a legal examination under West Virginia Code § 57-2-3, and
does thereby Order that the Defendants will not be permitted to assert their Fifth
Amendment right against self incrimination with respect to questions posed to them during
their civil depositions. The Court further Orders that the Defendants be required to fully
respond to all questions properly posed to them pursuant to the West Virginia Rules of
Civil Procedure, to which there are no valid objections.
Footnote: 4 4Additionally, compelled testimony in a criminal proceeding implicates "transactional immunity" with respect to the subject matter of the testimony. See W.Va. Code, 57-5-2 [1923].
Footnote: 5 5In State v. Price, 113 W.Va. 326, 328,
167 S.E. 862, 863 (1933), we stated:
This is a time-honored statutory
provision. We inherited it from the mother state. Code of Virginia 1860, chapter 199,
section 22. The rule is thus applied in State v. Hall, 31 W. Va. 505, 7 S. E. 422:
"No statement made by one accused of crime, while a witness testifying on his own
behalf before a justice on his preliminary examination, can be used against him on his
trial."
None of our cases appear to discuss how W.Va. Code, 57-2-3 [1965]
"interfaces" with constitutional self-incrimination jurisprudence -- but the
statute appears to arise out of the same principles that animate the constitutional
protection.
Footnote: 6 6The Ninth Circuit (In Re Grand Jury Subpoena, 62 F.3d 1222 (9th Cir. 1995)) and the Eleventh Circuit (In Re Grand Jury Proceedings (Williams) v. U.S., 995 F.2d 1013 (11th Cir. 1993)), take the same approach as the 4th Circuit, holding that Rule 26 protective orders may always be overcome by a grand jury subpoena. Taking an opposite approach, the Second Circuit requires the government to show a "compelling need" to enforce a grand jury subpoena for sealed civil discovery. Martindell v. ITT, 594 F.2d 291 (2d Cir. 1979). The First Circuit takes a middle-ground approach, placing the burden on the person seeking to avoid the subpoena to show that it should not be enforced. In Re Grand Jury Subpoena, 138 F.3d 442 (1st Cir. 1998).
Footnote: 7 7The
balancing of the self-incrimination right vis-a-vis other rights in civil proceedings is a
complex area of jurisprudence. A wide array of options are available to courts in
performing this balancing. See generally Osburn, supra, 173 W.Va. at 598 n.5, 319 S.E.2d
at 366 n.5; Wright and Miller, Federal Practice and Procedure, Chapter 6,
"Depositions and Discovery," Section 2018, "Privilege Against
Self-Incrimination;" Mark Youngelson, "The Use of 26(c) Protective Orders:
'Pleading the Fifth' Without Suffering Adverse Consequences," 1994 Ann.Surv.Am.L.
245; Gerald W. Heller, "Is 'Pleading the Fifth' a Civil Matter? How the
Constitution's Self-Incrimination Clause Presents Special Challenges for the Civil
Litigator," 42 Federal Lawyer 27 (September 1995).
Mindful that there are many permutations of this balancing act,
with varying equities in each permutation, in this opinion we deliberately go only as far
as is necessary to resolve the narrow issue before us. We express no opinion as to what
options may be properly employed by the circuit court in any balancing that is necessary
in the underlying lawsuit in the instant case.
We do, however, observe that not every question at a deposition --
or request for admission, or document request, or other discovery request -- will
necessarily require a response that in its entirety is potentially self-incriminating. It
would seem therefore that the self-incrimination right, if it is asserted, should
ordinarily be asserted in response to specific questions or other specific discovery
requests -- as opposed to a blanket objection to a form of discovery -- unless such a
procedure would be demonstrably futile.
Additionally, we observe that in some circumstances, a party may
permissibly be required to risk adverse consequences in civil proceedings, as a result of
their silence based on the assertion of their right against compelled self-incrimination.
See Syllabus Point 2, West Virginia Dept. of Health and Human Resources ex rel. Wright v.
Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996) (silence can lead to adverse inference in
child abuse and neglect proceedings); see generally Osburn, supra, and the discussion of
this issue in the other authorities noted supra in this footnote.
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