Mo. SC allows debtors to plead the Fifth

Jessica M. Karmasek Aug. 23, 2012, 3:00pm



JEFFERSON CITY, Mo. (Legal Newsline) - The Missouri Supreme Court said in a ruling last month that a trial court was wrong in forcing two debtors to reveal their assets.

The debtors, David and Glenette Nothum, asked the state's high court for a writ prohibiting the St. Louis County Circuit Court from compelling them to testify in a judgment debtor's "examination."

The circuit court had ordered the Nothums, who were sued by Arizona Bank and Trust, to testify despite their assertion of the privilege against self-incrimination -- i.e. the Fifth Amendment.

The court held them in contempt when they refused to do so, finding the immunity granted to the couple "coextensive" with their constitutional privilege.

In its July 31 ruling, the state Supreme Court said the lower 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," Judge Laura Denvir Stith wrote for the majority.

"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.'"

A prosecutor, Stith explained in the 20-page ruling, 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 judge wrote.

Judge Zel M. Fischer, in a dissenting opinion, said prohibition is not appropriate because civil contempt cases are subject to appeal.

In this case, an appeal bond has already been set by the circuit court, he noted.

"There is no question that the proper review of a judgment of civil contempt is through an appeal of the judgment and not through seeking and obtaining an extraordinary writ of prohibition," Fischer wrote.

He continued, "Requiring judgment debtors to make the choice between answering questions posed to them at an examination or appealing the order once the threat of incarceration for contempt has been carried out preserves the circuit court's 'right to resort to means competent to compel the production of... testimony,' without which the purpose and effectiveness of judgment debtor's examinations is greatly reduced."

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