State ex rel. Nothum v. Walsh

ZEL M. FISCHER, Judge,

dissenting.

The majority opinion holds that § 513.380, RSMo 2000, provides only “use immunity” and that “there is no evidence that the Missouri legislature intended by its use to convert the statute’s express grant of authority to provide use immunity into an implied grant of authority to provide transactional immunity,” “nor does the statute use the language other state and federal statutes utilize in providing for derivative use immunity.” Op. at 565-66, 569.

I respectfully dissent because I would look at every word in the sentence defining the immunity to determine the scope of the immunity the legislature actually intended to authorize, and further, I believe the plain language of § 513.380.2 reflects the legislature’s intent to create what the circuit court specifically categorized as the “broadest immunity possible.” Further, the phrase “use immunity” generally is understood by standard and reliable sources to include what the majority opinion separately categorizes as “derivative use immunity.”

A letter signed by an assistant prosecuting attorney, pursuant- to the authority granted by § 513.380.2, purported to give David M. Nothum and Glenette Nothum “use immunity for any statement made at any judgment debtor’s 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.” Mr. Nothum asserted his privilege against self-incrimination under the United States and Missouri constitutions, and Mrs. Nothum’s attorney represented to the court that she also intended to assert her privilege against self-incrimination.

The letter from the assistant prosecutor was produced, and the circuit court ordered the Nothums to respond to the inquiries of Arizona Bank and Trust, which had a judgment against the Nothums in the amount of $3,117,160.52. A writ was issued by the court of appeals prohibiting the circuit court from enforcing its order. State ex rel. Nothum v. Kintz, 333 S.W.3d 512 (Mo.App.2011). Subsequently the circuit court determined, in what it denoted as an order, that “[wjhile 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.’ ” In what the circuit court denoted the actual “Order[s] of Contempt,” the circuit court determined § 513.380 “provides the broadest immunity possible and protects [Nothums] from the possibility [they] could incriminate [themselves].”

*571The circuit court again ordered the Not-hums to answer the questions posed by the bank to locate assets to satisfy the lawful judgment. The Nothums continued to assert their privilege against self-incrimination. The circuit court entered orders of contempt against the Nothums as authorized by § 513.380, which allows a circuit court to hold a judgment debtor in contempt if he or she continues to refuse to answer questions related to the collection of the judgment after a grant of immunity from prosecution. The court of appeals issued a preliminary writ of prohibition and transferred the case to this Court after opinion pursuant to Rule 83.02.

Standard of Review

A writ of prohibition prevents “usurpation of judicial power.” State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382 (Mo. banc 1980). It is neither a substitute for appeal nor “a remedy for all legal difficulties.” Id. “Prohibition will not be granted except when usurpation of a jurisdiction or an act in excess of the same is clearly evident.” Id.

Prohibition is Not Appropriate in This Case

Prohibition is not appropriate because civil contempt cases are subject to appeal, and, in this case, an appeal bond has already been set by the circuit court. 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. Carothers v. Carothers, 337 S.W.3d 21, 25 (Mo. banc 2011). In Carothers, the majority of this Court even departed from the traditional rule that the time to appeal does not begin to run until the judgment of contempt is enforced by incarceration of the contemnor. Id.; id. at 27-28 (Fischer, J. concurring).

In this case, the circuit court entered two orders and two orders of contempt on October 4, 2011.1 The orders, in pertinent part, provide as follows:

Order of Contempt, October 4, 2011:

1. After finding that the immunity granted by the St. Louis Countfy] Prosecuting Attorney under the provisions of Section 513.380 of the Revised Statutes of Missouri provides the broadest immunity possible and protects [the Nothums] from the possibility that [they] could incriminate [themselves] in response to the questions posed by Arizona Bank seeking information regarding [their] assets, and after being advised by counsel for [the Nothums] and [the Nothums] that [they] nevertheless still refusef ] to answer those questions, the Court finds [the Nothums] in contempt of court and issues a writ of attachment against [the Nothums].
Order, October 4, 2011:
5. This Court finds that the grant of immunity provided [the Nothums] protects [them] from any offense related to the content of the statement [they] may make during [their] judgment debtor examination. Section 513.380(2) R.S.Mo. expressly provides that:
Any prosecuting attorney or circuit attorney may grant use immunity from prosecution to a judgment debt- or for any statement made at a judgment debtor’s examination conducted pursuant to subsection 1 of this section. Such use immunity from prosecution shall protect such person from prosecution for any offense related *572to the content of the statements made. [Emphasis added].
While the statute denominates the immunity as the limited “use immunity,” the court concludes that the legislature intended to grant such a judgment debt- or the broader “transactional immunity” by expressly shielding such individual from any “offense related to the content of the statements made.” Id.
6. Accordingly, the court determines that the grant of immunity extended to [the Nothums] by the Office of the St. Louis County Prosecuting Attorney pursuant to § 513.380 R.S.Mo. is coextensive with the Missouri and Federal constitutional privileges against self-incrimination and removes any possibility that statements made by [the Nothums] in response to any questions posed by Arizona Bank during [their] judgment debtor examination can be used to prosecute [them]. Both state and federal prosecutors are bound by this grant of immunity.
7. In light of the court’s holding, [the Nothums are] ordered to again appear for a debtor’s examination and answer the questions posed by counsel for Arizona Bank secure in the knowledge that the grant of immunity pursuant to § 513.380 R.S.Mo. is as broad as the law allows and, therefore, shields [them] from both federal and state prosecution for any criminal offense related to the content of [their] statements.

The circuit court set an appeal bond in the amount of the lawful, unsatisfied judgment obtained against the Nothums. Even if the circuit court misinterpreted the statute at issue in this case, which, in my view, it did not do, the proper remedy to review these orders is by filing an appeal. Carothers at 25; Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976). As Judge Breckenridge’s dissent in State ex rel. C.F. White Family Part. v. Roldan, 271 S.W.3d 569, 577 (Mo. banc 2008), articulates, in a case in which the circuit court misapplied a statute, a writ of prohibition will issue only when the “circumstances fit within one of three categories.” In my view, none of the three categories applies to this case. The majority opinion concludes that a writ is justified because the circuit court abused its discretion. Op. at 559-60.

The majority opinion relies solely on opinions of the court of appeals in support of its statement that a “writ of prohibition in these circumstances is especially appropriate [because] one may not appeal from [a judgment debtor’s] examination.” Op. at 561. The majority points out that it only addresses the special orders directing the Nothums to answer questions put to them at the judgment debtor’s examination, and not the orders of contempt. However, those special orders alone do not confront the Nothums with irreparable harm warranting an extraordinary writ until orders of civil contempt have been issued and executed. The cases relied on by the majority opinion from the court of appeals are not controlling, did not involve a circuit court’s interpretation of a statutory grant of immunity, and are distinguishable.

Hill v. Kendrick, 192 S.W.3d 719 (Mo. App.2006), did not deal with a debtor’s examination, and the witness had not been granted immunity. The court of appeals held that the State had failed to rebut the presumption that the answers would tend to incriminate the witness and pointed out “[t]he burden is on the petitioning party to show that the trial court exceeded its jurisdiction, and that burden includes overcoming the presumption in favor of the trial court’s ruling.” Id. at 720 (internal citation omitted).

State ex rel. Heidelberg v. Holden, 98 S.W.3d 116 (Mo.App.2003), involved the *573grant of immunity by the prosecuting attorney that was limited not only by scope but additionally by time. It did not involve the circuit court’s interpretation of § 513.380. “Because Plaintiff presented no evidence to rebut [the presumption that Relators’ answers would tend to incriminate them] and because the court did not make any findings that the answers could not possibly have the tendency to incriminate Relators, in the absence of the grant of immunity, the trial court exceeded its jurisdiction.” Id. at 120.

Likewise, State ex rel. Long v. Askren, 874 S.W.2d 466 (Mo.App.1994), did not deal with a circuit court’s interpretation of a statute. Instead, the court of appeals held that “[t]he creditors do not present specific questions which were asked Mr. Long at the debtor’s examination to which Mr. Long waived his constitutional privilege against self-incrimination and to which they were entitled to an answer.” Id. at 473. “The trial court could not have determined, as a matter of law, the impossibility of Mr. Long’s answers to the questions asked him during the debtor’s examination to tend to incriminate him.” Id.

While it is true that no appeal lies from a judgment debtor’s examination, this case involves this Court’s review of an order of civil contempt in which the sole issue to be determined is one of statutory interpretation. A circuit court’s determination that a grant of immunity is sufficient to overcome the privilege against self-incrimination does not warrant an extraordinary writ before it has resulted in an order of civil contempt. An appeal provides the appropriate remedy to address such an order of civil contempt before this Court in this case. 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. State ex rel. Rowland Group, Inc. v. Koehr, 831 S.W.2d 930, 932 (Mo. banc 1992).

The majority opinion merely construes the statute differently from the circuit court and then goes further to hold the circuit court’s construction of this fairly new statute, that has not been interpreted by the court of appeals, constitutes such an “abuse of discretion” to justify issuing a writ of prohibition. The fact that this case concerns the Fifth Amendment right against self-incrimination does not change the definition of “abuse of discretion.” A circuit court’s ruling is considered an “abuse of discretion” in the context of an extraordinary writ request “when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” In re Spencer, 123 S.W.3d 166, 167 (Mo. banc 2003). Even if the slim majority in this case is correct in its determination that the circuit court misinterpreted the statute, it certainly has not been demonstrated by the majority opinion to have been without careful consideration. Therefore, the Nothums should be required to proceed with the standard adequate remedy of appeal, particularly when an appeal bond has already been set.

The Statutory Immunity is Broad Enough to Compel Testimony

“The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” State ex rel. Burns v. Whitting-*574ton, 219 S.W.3d 224, 225 (Mo. banc 2007). It is a well-established principle that, “[i]n absence of a statutory definition, words will be given their plain and ordinary meaning as derived from the dictionary.” State v. Oliver, 293 S.W.3d 437, 446 (Mo.banc 2009).

Section 513.380.2 provides, in the relevant part:

2. Any prosecuting attorney or circuit attorney may grant use immunity from prosecution to a judgment debtor for any statement made at a judgment debt- or’s examination conducted pursuant to subsection 1 of this section. Such use immunity from prosecution shall protect such person from prosecution for any offense related to the content of the statements made.

(Emphasis added). The language of this statute does contain the phrase “use immunity,” but it also tracks the language this Court used to describe “transactional immunity” in State ex rel. Munn v. McKelvey, 733 S.W.2d 765 (Mo. banc 1987). “Transactional immunity is broader in that it is ‘full immunity from prosecution for the offense to which the compelled testimony relates.’ ” Id. at 769 n. 2 (quoting Kastigar v. United States, 406 U.S. 441, 452-53, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). This Court has also defined “use and derivative use immunity” as “immunity from the use of compelled testimony and evidence derived therefromf.]” Id.

The issue to be decided in this case is how to interpret the scope of the immunity authorized by § 513.380.2 when it contains the phrase “use immunity” and expressly provides a judgment debtor has “immunity from prosecution for any offense related to the content of the statement made” at the debtor’s examination.

“Use immunity” and what the majority opinion categorizes as “derivative use immunity” may not always protect a witness from prosecution for offenses related to the substance of the testimony in that they only protect that witness from the use of the testimony itself or evidence derived from that testimony in a criminal prosecution against that witness. See Munn, 733 S.W.2d at 769 n. 2 (citing Kastigar, 406 U.S. at 452-53, 92 S.Ct. 1653); see also Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 475-76, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). However, by its plain language, § 513.380.2 specifically provides broad protection against “prosecution for any offense related to the content of the statements made” at the judgment debtors examination. Section 513.380.2 expressly does not limit the scope of its immunity to merely “the content of the statements made” but, in fact, expressly expands the use immunity granted pursuant to this section by the prosecuting attorney to protect from the “prosecution for any offense related to” that testimony.

I agree with the majority that the granting of “use” and “derivative use” immunity may be sufficient to compel testimony over a claim of the privilege against self-incrimination. Op. at 562-63. The majority opinion dismisses the notion that “use immunity” as used in § 513.380.2 includes the so-called “derivative [use] immunity” because it found that Kastigar, in interpreting a federal immunity statute, and other statutes of “sister states” use the language “derivative” in the statute. Op. at 567. The majority claims, therefore, that if the Missouri legislature had wanted to grant the broader protections of “derivative immunity” in § 513.380.2, it could have mirrored the language of the federal statute as other states did. Id. The majority concedes, however, that such language is not required for the term “use immunity” to include “derivative [use] immunity.” Op. at 567 n. 10 (citing People v. Hunter, *57549 Cal.3d 957, 264 Cal.Rptr. 367, 782 P.2d 608 (1990), and Lucky v. State, 105 Nev. 807, 783 P.2d 457 (1989)). This Court in Munn lumped “use and derivative use” together in its definition, separating them only from “transactional immunity.” 733 S.W.2d at 769 n. 2. Further, absent a statutory definition, words are to be given their plain and ordinary meaning as derived from the dictionary. Oliver, 293 S.W.3d at 446.

If this Court were to presuppose a particular legal meaning for the phrase “use immunity,” a standard and reliable source for determining the meaning of legal terms is Black’s Law Dictionary. Black’s Law Dictionary, which includes 19 different types of immunity in its definition of “immunity,” does not include a separate definition of an immunity known as “derivative immunity.” See Black’s Law Dictionary 330-31 (2d pocket ed. 2009). The “immunity” definition of Black’s Law Dictionary separates the types of immunity into different sections. The section dealing with “criminal law” reads as follows:

3. Criminal law. Freedom from prosecution granted by the government in exchange for the person’s testimony. • By granting immunity, the government can compel testimony — despite the Fifth Amendment right against self-incrimination — because that testimony can no longer incriminate the witness.
pocket immunity. Immunity that results from the prosecutor’s decision not to prosecute, instead of from a formal grant of immunity.
testimonial immunity. Immunity from the use of compelled testimony against the witness. • Any information derived from that testimony, however, is generally admissible against the witness.
transactional immunity. Immunity from prosecution for any event or transaction described in the compelled testimony. • This is the broadest form of immunity.
use immunity. Immunity from the use of the compelled testimony (or any information derived from that testimony) in a future prosecution against the witness. • After granting use immunity, the government can still prosecute if it shows that its evidence comes from a legitimate independent source.

Id. Other standard reliable reference sources do not distinguish between “use” and “derivative use” immunity. See, e.g., 22 C.J.S. Criminal Law § 98 (“ ‘use immunity’ or ‘derivative use immunity’ describes an agreement not to utilize particular testimony, as well as evidence gathered as a result of that testimony, in any later prosecution of the witness.”).

No Missouri statute expressly differentiates between “use” and “derivative use” immunity. This Court has not previously determined that the phrase “use immunity” is not coextensive with the phrase “derivative use immunity.” The Court in Munn did not address the issue of whether a state statute purporting to grant “use immunity” involved the grant of a separate immunity categorized as “derivative use immunity.” See generally Munn, 733 S.W.2d 765. In Munn, this Court addressed three questions, none of which is applicable in this case. Id. The Court held that: 1) authority to grant immunity was not inherent in the office of Missouri prosecutors, but that authority was authorized by statute; 2) the doctrine of equitable immunity did not apply when there was no reliance on the promise of immunity and the witness refused to even accept the unauthorized offer of immunity; and 3) even if a federal prosecutor had inherent authority to grant federal immunity, federal immunity alone is insufficient to protect *576the witness’s privilege against self-incrimination in a state prosecution. Id.

The United States Supreme Court in Kastigar dealt with a federal immunity statute worded differently from the Missouri statute at issue in this case. 406 U.S. at 441, 92 S.Ct. 1653; 18 U.S.C.A. § 6002. Some federal courts, since Kasti-gar, have held “use immunity” and “derivative use immunity” indistinguishable from one another in federal law. See, e.g., United States v. Plummer, 941 F.2d 799, 805 (9th Cir.1991) (“We have found only one case that meaningfully distinguishes between use and derivative use in an informal immunity agreement between the government and a defendant.... Use immunity presumptively includes derivative use immunity, unless the government can demonstrate in a given case that, at the time the agreement was made, it expressly clarified that only direct use immunity was offered.”). Kastigar’s holding makes clear that, for a grant of immunity to adequately protect a witness’ privilege against self-incrimination, “[i]mmunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords” sufficient protection against a witness being “forced to give testimony leading to the infliction of penalties affixed to ... criminal acts.” 406 U.S. at 453, 92 S.Ct. 1653 (internal quotations and citations omitted).

“When interpreting statutes, courts do not presume that the legislature has enacted a meaningless provision.” Edwards v. Gerstein, 237 S.W.3d 580, 581 (Mo. banc 2007). Given that anything less than “use immunity,” as defined in Blacks Law Dictionary, that coextensively protects a witness from the use of compelled testimony or any information derived from that testimony, would not satisfy a witness’ privilege against self-incrimination and given the presumption that the legislature knows the existing law when enacting a piece of legislation, it does not seem reasonable for this - Court- to interpret the immunity authorized by § 513.380.2 in a manner that would not require a judgment debtor to respond to questions concerning the location of assets to collect the judgment. Further, interpreting § 513.380.2 to authorize so-called “derivative use immunity” does not require this Court to add the word “derivative” to the statute but rather merely requires it to consider all the words of the statute, which, in fact, grants immunity “from prosecution for any offense related to the content of the statement” or consider the legislature referred to a standard law dictionary in drafting the statute. Additionally, this interpretation of § 513.380.2 is totally consistent with the legislative purpose in providing for a judgment debtor examination.

“The principal purpose of a judgment debtor examination is to discover assets, to compel the defendant in the execution to disclose under oath all the assets of his estate, and, after discovery, to authorize the court to say whether or not the debtor has assets that may be levied on by execution in favor of the judgment debtor.” Rowland, 831 S.W.2d at 932. “A related purpose is to disclose fraudulently concealed property so that it may properly be subjected to the payment of a just debt.” Id. Section 513.380.2 does not limit its grant of immunity to “testimonial immunity” but provides for broader immunity, in fact so broad that if granted by a prosecuting attorney, it “shall protect such person from prosecution for any offense related to the content of the statements made.” “[A]ny offense related to the content” of the testimony demonstrates the legislature’s intent to make “such use immunity” broad enough to clearly include “derivative use immunity” and reasonably could be construed to include “transactional immunity.” To quote the circuit court, “[§] *577513.380 of the Revised Statutes of Missouri provides the broadest immunity possible and protects [the Nothums] from the possibility that [they] could incriminate [themselves] in response to the questions posed by Arizona Bank seeking information regarding [their] assets.... ”

When interpreting statutoi'y law, the Court must ascertain the intent of the legislature and give effect to that intent if possible. Greenlee v. Dukes Plastering Serv., 75 S.W.3d 273, 276 (Mo. banc 2002). “The construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes.” Lewis v. Gibbons, 80 S.W.3d 461, 465 (Mo. banc 2002). The majority opinion’s interpretation of § 513.380 eviscerates the use of a debtor’s examination. Simply because the legislature, in enacting § 513.380.2, did not mimic other state statutes specifically articulating derivative use immunity or transactional immunity as categories of immunity it authorized the prosecuting attorney to have the discretion to grant, this ought not to result in an interpretation of the statute that frustrates its purpose.

CONCLUSION

Because the ordinary appellate review of a contempt order is by appeal and because the request of an extraordinary writ is based on the premise that the circuit court’s statutory interpretation is an “abuse of discretion,” I would deny the request for a writ of prohibition in this case even if I thought the circuit court misinterpreted § 513.380.

However, the circuit court applied a reasonable interpretation based on the common definition of undefined terms used in the statute, which was consistent with the clear legislative intent to authorize sufficient immunity to require a judgment debtor to respond to questions to assist in the collection of a lawful debt. -In my view, the circuit court did not abuse its discretion when it held “that the immunity granted by the St. Louis Count[y] Prosecuting Attorney under the provisions of Section 513.380 of the Revised Statutes of Missouri provides the broadest immunity possible and protects [the Nothums] from the possibility that [they] could incriminate [themselves] in response to the questions posed by Arizona Bank seeking information regarding [their] assets.... ” Even if this issue of law were presented to this Court for review on appeal subject to de novo review, rather than a request for an extraordinary writ subject to abuse of discretion review, in my view, the scope of the immunity authorized is “the broadest immunity possible” and, therefore, sufficient to afford the protection of the right against self-incrimination. I would quash the preliminary writ of prohibition. •

. The orders and orders of contempt for David and Glenette Nothum contained identical language except for the names of the parties and, in fact, used the male pronoun in Glenette’s case.