Childs v. McCord

• Decision Date: 29 September 1976
• Docket Number: Civ. No. H-75-498.
• Citation: 420 F. Supp. 428
• Parties: John C. CHILDS et al., Plaintiffs, v. Marshal McCORD, Chairman, et al., Defendants.
• Court: U.S. District Court — District of Maryland

420 F. Supp. 428

John C. CHILDS et al., Plaintiffs, v. Marshal McCORD, Chairman, et al., Defendants.

Civ. No. H-75-498.

United States District Court, D. Maryland.

September 29, 1976.

Paul F. Strain, Joseph H. H. Kaplan and Arnold M. Weiner, Baltimore, Md., for plaintiffs Childs, Matz, Wolff and Whiteford.

H. Russell Smouse, Baltimore, Md., for plaintiff Weigand.

Robert J. Aumiller and John J. Lucas, Special Asst. Attys. Gen. and Francis B. Burch, Atty. Gen., Baltimore, Md., for state defendants.

Barnet D. Skolnik and Ronald S. Liebman, Asst. U. S. Attys., Baltimore, Md., for federal defendants.

ALEXANDER HARVEY, II, District Judge:

The five plaintiffs in this suit are presently licensed and registered as professional engineers with the Maryland Board of Registration for Professional Engineers and Professional Land Surveyors (hereinafter "the Board").¹ Having been charged by the Board with professional misconduct, plaintiffs have responded by filing a civil action in this Court, seeking injunctive and declaratory relief.²

Inasmuch as the charges pending before the Board arise out of the immunized testimony given by each plaintiff as a witness in a federal criminal case, the plaintiffs here claim that the proposed state disciplinary proceedings will violate the immunity conferred upon them pursuant to 18 U.S.C. §§ 6001-03 and will infringe upon their Fifth Amendment privilege against self-incrimination. Plaintiffs therefore seek (1) a declaratory judgment that their immunized testimony may not support, either directly or indirectly, any suspension, revocation or refusal to renew their individual certificates of registration as professional engineers, and (2) a permanent injunction restraining the Board from so using that testimony.³ Named as defendants herein are the members of the Board, who are sued both individually and in their official capacities.⁴ This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(3).⁵

The parties have stipulated to the essential facts. Although plaintiffs appeared and testified as government witnesses during the criminal trial of Dale Anderson before Judge Young and a jury in this Court, United States v. Anderson, Md., 368 F.Supp. 1253, none did so willingly or voluntarily. Having been subpoenaed by the government, each plaintiff appeared before Judge Young and, invoking his Fifth Amendment privilege, refused to give any testimony or present any evidence. Pursuant to motions filed by the United States Attorney under 18 U.S.C. § 6003, Judge Young then conferred immunity upon each plaintiff, pursuant to 18 U.S.C. § 6002.⁶ Complying with the Court's orders, plaintiffs subsequently testified and implicated themselves in certain fraudulent payments to Anderson.⁷

Thereafter, the Board ordered each plaintiff to appear and answer charges of professional misconduct which, as the Board concedes, "are based directly on the testimony and evidence each plaintiff . . . was compelled to give pursuant to the federal immunity statute." It is further agreed that at the impending administrative hearings on these charges, transcripts of the immunized testimony "will be offered into evidence as a basis for and in support of all charges brought by Orders of the Board . . . against plaintiffs pursuant to Article 75½, Section 17(a)(2) of the Annotated Code of Maryland . . ." In the event that a majority of the members of the Board votes in favor of sustaining the charges against any plaintiff, the Board is empowered to suspend, revoke or refuse to renew that plaintiff's certificate of registration. Md.Ann.Code, Art. 75½, § 17(e). Without such a certificate, an individual cannot practice engineering in Maryland. Id. at § 17A. Thus, each plaintiff is now faced with the prospect that he may no longer be entitled to continue his career as an engineer because of disclosures of professional misconduct made while testifying under a grant of immunity in a federal criminal trial.

Although plaintiffs' testimony was compelled under the federal immunity statute, the scope of the immunity thereby conferred does not, as plaintiffs suggest,⁸ depend upon the statute itself. A statute may effectively displace the Fifth Amendment privilege against self-incrimination only by granting protection commensurate with that privilege. Murphy v. Waterfront Commission, 378 U.S. 52, 54, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Counselman v. Hitchcock, 142 U.S. 547, 587, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

Tracking the constitutional language, Section 6002 of the immunity statute prohibits the direct or indirect use of any testimony compelled thereunder "against the witness in any criminal case." 18 U.S.C. § 6002. The legislative history of this statute clearly reveals a congressional intent that a "statutory claim of immunity . . . be as broad as, but no broader than, the privilege against self-incrimination." H.R.Rep. No. 1549, 91st Cong., 2d Sess. 42 (1970); 1970 U.S.Code Cong. & Ad.News, pp. 4007, 4017. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court found that Congress had successfully accomplished this intention and thus upheld the constitutionality of the immunity statute. Commenting that "while a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader," the Court held the use proscription of Section 6002 to be "coextensive with the scope of the privilege against self-incrimination." Id. at 453, 92 S.Ct. at 1661. An immunized witness may, therefore, claim no greater protection than that accorded him by the Fifth Amendment. United States v. DeDiego, 167 U.S. App.D.C. 252, 511 F.2d 818, 822 (1975). Thus, whether the testimony given by these plaintiffs under Section 6002 may be used in administrative proceedings before the Board presents a constitutional question, not one of statutory interpretation.

The self-incrimination clause of the Fifth Amendment, now fully applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 8-11, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), quite simply provides that no person "shall be compelled in any criminal case to be a witness against himself." By its terms, this clause does "not necessarily protect witnesses against every possible detriment which might happen to them from their testimony . . ." Brown v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819 (1896). Rather, the clause "insures that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime." Counselman v. Hitchcock, supra, 142 U.S. at 563, 12 S.Ct. at 198; accord, Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The Supreme Court has determined that the "sole concern of the self-incrimination clause is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of `penalties affixed to the criminal acts . . .'" Ullmann v. United States, 350 U.S. 422, 438-39, 76 S.Ct. 497, 507, 100 L.Ed. 511 (1956) (quoting from Boyd v. United States, 116 U.S. 616, 634, 6 S.Ct. 524, 29 L.Ed. 746 (1886)); accord, Kastigar v. United States, supra, 406 U.S. at 453, 92 S.Ct. 1653. This danger is not restricted to the subsequent use of the testimony by the compelling sovereign. In Murphy v. Waterfront Commission, supra, 378 U.S. at 77-78, 84 S.Ct. at 1609, the Court held "that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law."

The basic question before the Court in this case therefore is whether a disciplinary proceeding before a State administrative agency empowered to revoke a registrant's right to practice his profession amounts to a "criminal case" within the meaning of the Fifth Amendment. An affirmative answer would entitle plaintiffs to the relief prayed for in their complaint, while a negative one would permit the Board, consistent with the Fifth Amendment, to consider the plaintiffs' immunized testimony in the pending administrative proceedings. For the reasons hereinafter stated, this Court finds that a hearing before the Board to determine the fitness of a professional engineer to continue in that profession is not a criminal case for purposes of the privilege against self-incrimination.

In support of their position here, plaintiffs rely mainly on two Supreme Court cases decided in the last century, namely Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150 (1893). Characterizing as a "penalty" the revocation by the Board of their certificates as professional engineers, plaintiffs argue that a disciplinary hearing is the type of criminal proceeding contemplated by Boyd and Lees.

Although extending the Fifth Amendment privilege against self-incrimination to cases other than standard criminal prosecutions, Boyd and Lees nevertheless require that the proceeding be "unquestionably criminal in nature" before "a defendant cannot be compelled to be a witness against himself." Lees v. United States, supra, 150 U.S. at 480, 14 S.Ct. at 165. Thus, in Boyd, the plaintiff sued for the recovery of goods claimed by the government to have been forfeited because they were illegally imported. The Court held that such claimant could not be ordered to produce his own records for the government's inspection. Since the statutes under which the government had initially proceeded declared certain acts to be criminal and prescribed penalties, including forfeitures, for the commission of such acts, the Supreme Court concluded "that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in...