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IN RE: GARY A. KNAPP

DECEMBER 14, 1988

IN RE: GARY A. KNAPP, PETITIONER




BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

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. *fn1

 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 *fn2 and interrogatories *fn3 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. *fn4 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 ...


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