431 U.S. 801 (1977), 76-260, Lefkowitz v. Cunningham

Docket Nº:No. 76-260
Citation:431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1
Party Name:Lefkowitz v. Cunningham
Case Date:June 13, 1977
Court:United States Supreme Court

Page 801

431 U.S. 801 (1977)

97 S.Ct. 2132, 53 L.Ed.2d 1




No. 76-260

United States Supreme Court

June 13, 1977

Argued February 28-March 1, 1977




A New York statute provides that, if an officer of a political party subpoenaed by a grand jury or other authorized tribunal to testify concerning the conduct of his office refuses to testify or to waive immunity against subsequent criminal prosecution, his term of office shall terminate and he shall be disqualified from holding any other party or public office for five years. Appellee, an attorney, was divested of his state political party offices pursuant to this statute when, in response to a subpoena, he appeared before a grand jury and refused to waive his constitutional immunity. He then brought suit in Federal District Court, which granted him declaratory and injunctive relief against enforcement of the statute on the ground that it violated his Fifth and Fourteenth Amendment rights.

Held: The statute violated appellee's right to be free of compelled self-incrimination under the Fifth Amendment. Pp. 804-809.

(a) Government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony that has not been immunized. Pp. 804-806.

(b) The statute was coercive against appellee because it threatened him with loss of powerful offices and because the compelled forfeiture of those offices would diminish his general reputation in the community, [97 S.Ct. 2134] would, as economic consequences, harm his professional standing as a practicing lawyer and bar him from holding any other party or public office for five years, and would impinge on his First Amendment right to participate in private, voluntary political associations. Pp. 807-808.

(c) The State's overriding interest in preserving public confidence in the integrity of its political process is insufficient to justify forcing its citizens to incriminate themselves. P. 808.

(d) The State's dilemma in being forced to choose between an accounting from, and a prosecution of, a party officer is created by its own transactional immunity law, whereas the more limited use immunity required by the Fifth Amendment would permit the State to compel

Page 802

testimony without forfeiting the opportunity to prosecute the witness on the basis of evidence derived from other sources. Pp. 808-809.

420 F.Supp. 1004, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in all but Part (4) of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part, in which MARSHALL, J., joined, post, p. 809. STEVENS, J., filed a dissenting opinion, post, p. 810. REHNQUIST, J., took no part in the consideration or decision of the case.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This appeal presents the question whether a political party officer can be removed from his position by the State of New York and barred for five years from holding any other party or public office because he has refused to waive his constitutional privilege against compelled self-incrimination.


Under § 22 of the New York Election Law,1 an officer of a

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political party may be subpoenaed by a grand jury or other authorized tribunal and required to testify concerning his conduct of the party office he occupies. If the officer refuses to answer any question, or if he declines to waive immunity from the use of his testimony against him in a later prosecution, the statute immediately terminates his party office and prohibits him from holding any other party or public office for a period of five years.

In December, 1975, appellee Patrick J. Cunningham (hereafter appellee) was subpoenaed pursuant to § 22 to appear and testify before a special grand jury authorized to investigate his conduct in the political offices he then held, which consisted of four unsalaried elective positions in the Democratic Party of the State of New York.2 Appellee moved to quash the subpoena in the state courts, arguing in art that § 22 violated his federal constitutional right to be free of compelled self-incrimination; his motion was denied. In re Cunningham v. Nadjari, 51 App.Div.2d 927, 383 N.Y.S.2d 311, aff'd, 39 N.Y.2d 314, 347 N.E.2d 915 (1976). On April 12, 1976, he appeared before the grand jury in response to the subpoena. Appellee refused to sign a waiver of immunity form which would have waived his [97 S.Ct. 2135] constitutional right not to be compelled to incriminate himself.3 Because § 22 is self-executing, appellee's

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refusal to waive his constitutional immunity automatically divested him of all his party offices and activated the five-year ban on holding any public or party office.

The following day, appellee commenced this action in the United States District Court for the Southern District of New York. After hearing, the District Judge entered a temporary restraining order against enforcement of § 22. A three-judge court was then convened, and that court granted appellee declaratory and permanent injunctive relief against enforcement of § 22 on the ground that it violated appellee's Fifth and Fourteenth Amendment rights. We noted probable jurisdiction, 429 U.S. 893 (1976). We affirm.


We begin with the proposition that the Fifth Amendment privilege against compelled self-incrimination protects grand

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jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding. See, e.g., United States v. Washington, ante at 186-187. Moreover, since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution. Malloy v. Hogan, 378 U.S. 1, 11 (1964). In either situation, the witness may

refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.

Lefkowitz v. Turley, 414 U.S. 70, 78 (1973).

Thus, when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution. In Garrity v. New Jersey, 385 U.S. 493 (1967), for example, police officers under investigation were told that, if they declined to answer potentially incriminating questions, they would be removed from office, but that any answers they did give could be used against them in a criminal prosecution. We held that statements given under such circumstances were made involuntarily, and could not be used to convict the officers of crime.

Similarly, our cases have established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to [97 S.Ct. 2136] give incriminating testimony against himself. In Gardner v. Broderick, 392 U.S. 273 (1968), a police officer appearing before a grand jury investigating official corruption was subject to discharge if he did not waive his Fifth Amendment privilege and answer, without immunity, all questions asked of him. When he refused, and his employment was terminated, this Court held that the officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment; the privilege against compelled self-incrimination

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could not abide any "attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment." Id. at 279. Accord, Sanitation Men v. Sanitation Comm'r, 392 U.S. 280 (1968). At the same time, the Court provided for effectuation of the important public interest in securing from public employees an accounting of their public trust. Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. Gardner, supra at 278-279.

We affirmed the teaching of Gardner more recently in Lefkowitz v. Turley, supra, where two architects who did occasional work for the State of New York refused to waive their Fifth Amendment privilege before a grand jury investigating corruption in public contracting practices. State law provided that, if a contractor refused to surrender his constitutional privilege before a grand jury, his existing state contracts would be canceled and he would be barred from future contracts with the State for five years. The Court saw no constitutional distinction between discharging a public employee and depriving an independent contractor of the opportunity to secure public contracts; in both cases, the State had sought to compel testimony by imposing a sanction as the price of invoking the Fifth Amendment right.

These cases settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized. It is true, as appellant points out, that our earlier cases were concerned with penalties having a substantial economic impact. But the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids.

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Section 22 confronted appellee with grave consequences solely because he refused to waive immunity from prosecution and give self-incriminating testimony. Section 22 is...

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