Donald Esslinger, et ux. v. Shawn Bass, et ux.

In an Idaho civil trespass case petitioners were denied a first-time continuance of a summary judgment hearing after they asserted their Fifth Amendment privilege against self-incrimination because of risk of conviction in a “parallel” criminal trespass case. The trial court failed to hold an in camera hearing balancing the harm to parties from a delay of the civil case versus the potential for a 6- month jail sentence to the petitioners as a result of criminal trespass citations issued by the respondents that blocked petitioners testimony in the civil case. This petition presents the following questions regarding the superiority of the 5th Amendment right to remain silent over procedural considerations in a civil case when criminal charges are pending in a “parallel” proceeding.

1. Whether in deciding a motion to continue a hearing on summary judgment after assertion of the right to remain silent to avoid self-incrimination in a parallel criminal case, it was necessary for the trial court to conduct an in camera hearing to determine if the harm caused by the delay of the civil proceeding would exceed the harm caused by denying the continuance.

2. Whether a state court’s procedural rule requiring 14-day’s advance notice for a motion to continue is preempted by a 5th Amendment claim that testimony would risk self-incrimination.