Bethany Krajelis Aug. 1, 2013, 7:59am

St. Clair County Circuit Judge Stephen McGlynn erred when he denied the state’s request to stay proceedings in a forfeiture action, the Fifth District Appellate Court held.

In an unpublished order issued Tuesday, the appeals panel vacated McGlynn’s November 2012 order over a petition State’s attorney Brendan Kelly’s office filed seeking the forfeiture of a backhoe it claimed was used in the commission of a crime.

The office claimed that before the backhoe was seized by the state in May 2012, its owner, claimant Horatio Sumrall, used it to move and scrap one or more stolen semitrailers, thus making it subject to forfeiture under the state’s Vehicle Code.

Sumrall, who was charged with unlawful possession of a stolen or converted vehicle, denied he used the backhoe in the commission of any illegal activity in his response to the state’s petition.

After Kelly’s office filed a request for admission of facts and genuineness of documents, he then filed a motion for a protective order in an attempt to recuse himself from having to respond to discovery.

He argued that since he had been charged with a crime, he could invoke his Fifth Amendment right against self-incrimination and to refuse to respond to the state’s discovery request in the civil action.

Kelly’s office acknowledged that Sumrall could invoke his right against self-incrimination, but argued that if he did, the forfeiture action should be stayed until his criminal case was resolved.

It claimed that granting Sumrall’s request for a protective order would make the state move forward with the forfeiture action without the opportunity for meaningful discovery.

McGlynn, according to the appellate court order, stated that “[t]he rules that permit liberal discovery don't trump his Fifth Amendment rights," and determined that the state would not be prejudiced by moving forward without discovery.

Prior to trial, Kelly’s office asked McGlynn again to stay proceedings until Sumrall’s criminal case was over. He denied the request, saying “the problem” with staying the proceedings was that the state was “holding a piece of equipment that [Sumrall] uses to make a living.”

In his written order, McGlynn found that while the state “offered compelling evidence that [Sumrall] was engaged in the unlawful possession and destruction of a stolen trailer, …the evidence failed to establish that [the backhoe] was used in the commission of possessing and scrapping of the stolen trailer in question."

On appeal, the state argued that McGlynn erred in holding “the State to a higher burden than establishing by a preponderance of the evidence the backhoe was used in the commission of the crime,” and denying the State's motions to stay.

Writing for the appellate court, Justice Stephen Spomer explained that because the panel agreed with the state’s second argument over the denial of the motion to stay, it did not need to address its first contention.

“We agree with the State that the trial judge's denial of the State's motions to stay substantially prejudiced the State, and that in making his ruling, the trial judge ignored recognized principles of law,” Spomer wrote.

Justices Thomas Welch and Melissa Chapman concurred in the order.

Spomer further noted that McGlynn created "a false dichotomy" when he determined that “[t]he rules that permit liberal discovery” didn’t trump Sumrall’s Fifth Amendment rights.

“In fact, there was no need for either party's rights in this case to trump those of the other,” Spomer explained. “Clearly, a claimant in a forfeiture action has the right to invoke his or her Fifth Amendment privilege in the context of the forfeiture proceedings.”

Saying that discovery in a civil action intends to promote a fair settlement or trial, Spomer wrote that “there is little that is more egregious than forcing a party to go to trial without having had the opportunity to discover the truth.”

As such, the appellate court vacated McGlynn’s order and remanded the matter with directions to stay the forfeiture action until the resolution of Sumrall’s criminal case.

Once that matter is resolved, Spomer wrote that “the parties to this action are entitled to conduct discovery and are entitled to a new trial on the merits of the State's action against the defendant.”

The case is The People ex rel. Brendan F. Kelly v. One 2002 Yellow Case 580, VIN No. JJG0278627. Sumrall and H. Edwards Equipment are listed as the claimants-appellees.

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