Hill, In re

• Decision Date: 16 March 1988
• Docket Number: No. 88-112,88-112
• Citation: 149 Vt. 431,545 A.2d 1019
• Court: Vermont Supreme Court
• Parties: In re Justice William C. HILL.

Page 1019

545 A.2d 1019

149 Vt. 431

In re Justice William C. HILL.

No. 88-112.

Supreme Court of Vermont.

March 16, 1988.

Alan B. George of Carroll, George & Pratt, Rutland, for petitioner.

Richard E. Davis and Christopher T. Greene of Richard E. Davis Associates, Inc., Barre, and Leonard F. Wing, Jr., of Ryan Smith & Carbine, Ltd., Rutland, for respondent.

Douglas Richards, Springfield, and William J. Donahue, White River Junction, Special Counsel to Judicial Conduct Bd.

Carl H. Lisman and Michael Marks of Lisman & Lisman, Burlington, for Justice Hill.

Jeffrey L. Amestoy, Atty. Gen., and Phillip J. Cykon, Asst. Atty. Gen., Montpelier, for amicus curiae State of Vt.

Before DOOLEY and MAHADY, JJ., SHANGRAW, C.J. (Ret.), KEYSER, J. (Ret.) and CONNARN, District Judge (Ret.), Specially Assigned.

PER CURIAM.

This case involves two petitions filed in this Court with respect to the testimony of former Assistant Judge Jane L. Wheel in the Judicial Conduct Board proceeding against Justice William C. Hill. Some of the events leading up to these petitions are set forth in Hill v. Wheel, 149 Vt. 203, 542 A.2d 274 (1988) (per curiam). Following that opinion, Jane Wheel was convicted of false swearing in the Rutland District Court. She has not yet been sentenced in that proceeding, and post-trial motions are pending.

Evidence is now being taken in the Judicial Conduct Board (the Board) case against Justice William C. Hill, following the expiration of the continuance granted by order of this Court in No. 88-014. Special counsel has subpoenaed Jane Wheel to appear as a witness in that proceeding. Jane Wheel responded to the subpoena in part by filing with this Court a petition for extraordinary relief to prohibit the Board from compelling her appearance and testimony. Following the denial of a temporary order by a Justice of this Court, she appeared before the Board and declined to answer certain questions on the basis of her Fifth Amendment privilege against self-incrimination, despite a ruling by the Board that the questions involved would not elicit privileged responses. The Board has now brought a petition to this Court seeking that Jane Wheel be held in contempt for refusing to answer the questions put to her.

Both the extraordinary relief petition and the petition for contempt were argued before this Court, essentially on agreed facts. For purposes of the discussion, we will refer to Jane Wheel as the respondent.

The four questions that respondent refused to answer are as follows: ^*

1. Can you describe your relationship with ... [Justice Hill]?

2. Judge Wheel, during 1984 and 1985, were you in the habit of going to the Holiday Inn lounge on Friday afternoons with Justice Hill, Judge Hayes, Frank Fee, and talking about court business, over drinks?

3. Did you require Frank Fee to promise you 100 percent personal loyalty before you hired him as clerk of the Chittenden Superior Court?

4. Would you describe your relationship with Judge Delaney?

In each case the Board found that the answer might tend to embarrass respondent in the Judicial Conduct Board proceeding pending against her, but it would not tend to incriminate her with respect to any crime. On this basis, the Board directed respondent to answer each question, and she refused. Following these specific refusals, special counsel outlined over forty areas of inquiry he proposed to pursue and respondent's attorney indicated that she would answer no questions in these areas on the basis of her Fifth Amendment privilege.

In this Court, respondent makes three major arguments why her assertion of privilege must be honored: (1) as the Board found, the answers would tend to prejudice the judicial misconduct case pending against her; (2) the answers would tend to incriminate her with respect to the false swearing case in which she has been found guilty, but in which judgment and sentence have not yet been entered; and (3) the answers would tend to incriminate her with respect to any obstruction of justice prosecution that might be brought against her pursuant to 13 V.S.A. § 3015. The Board denies that she has any privilege or other grounds to refuse because of the effects on her judicial misconduct proceeding and that the answers to the questions she was asked could not tend to incriminate her under any theory. The Board urges us to further rule that any statements made by respondent could not be used in any criminal proceeding under the theory of this Court's decision in State v. Begins, 147 Vt. 295, 514 A.2d 719 (1986). Special counsel adopts the Board's view and, in addition, asserts that respondent has waived any privilege because of her testimony in the criminal case and her assertion in No. 88-014 that she would testify in the Board proceeding if she obtained a continuance.

We hold that based on the theory of Begins, the testimony that respondent gives before the Board cannot be used in a criminal proceeding. Before reaching that holding, we emphasize--as did the Board--that Judicial Conduct Board proceedings are not criminal in nature. See In re Rome, 218 Kan. 198, 204, 542 P.2d 676, 683 (1975). The purpose under Ch. II, § 36 of the Vermont Constitution is entirely remedial to protect the public from improper conduct by judges. The greatest sanction authorized by § 36 is suspension from office. See also Rules of Supreme Court for Disciplinary Control of Judges 9(1). Thus, respondent cannot incriminate herself with respect to her disciplinary proceeding, and there is no Fifth Amendment privilege with respect to testimony that may prejudice her in the disciplinary proceeding only. See, e.g., Napolitano v. Ward, 317 F.Supp. 83 (N.D.Ill.1970). As a recent article about a comparable lawyer's privilege in a disciplinary proceeding noted, "a lawyer who has been given the requisite immunity against criminal prosecution has an obligation to answer questions about his professional conduct even though doing so may render him guilty of professional misconduct. Sanctions for refusal to comply with this obligation include contempt." Hazard & Beard,A Lawyer's Privilege Against Self-Incrimination in Professional Disciplinary Proceedings, 96 Yale L.J. 1060, 1070 (1987).

We are not persuaded by respondent's argument that the Due Process Clause of the Fourteenth Amendment creates an equivalent to the self-incrimination privilege based on the impact on fair adjudication of her disciplinary proceeding. Respondent emphasizes, for example, that when questioned as a witness, her counsel cannot object to the questions despite the fact that her testimony may be used against her. However, her testimony must still be admitted in her own Board proceeding to be used against her, and she can object at that time.

It necessarily follows that respondent may not refuse to appear as a witness before the Board. See McComb v. Superior Court, 68 Cal.App.3d 89, 95, 137 Cal.Rptr. 233, 236 (1977). Accordingly, the respondent's petition for extraordinary relief to prevent the Board from calling her as a witness must be dismissed. The Board's approach of ruling question by question on respondent's invocation of the privilege against self-incrimination is the proper one unless there is a general ground why the privilege cannot or need not be invoked in these circumstances.

We agree with respondent that her privilege with respect to her false swearing case remains alive. Despite the jury verdict against her, the Fifth Amendment privilege is available until the case is fully concluded, including any appeals. See State v. Gretzler, 126 Ariz. 60, 88, 612 P.2d 1023, 1051 (1980). Nor does the fact that she testified in her criminal trial constitute a waiver of her right to assert the privilege in another forum--here, the Judicial Conduct Board. See United States v. Yurasovich, 580 F.2d 1212, 1220 (3d Cir.1978). Further, we are not persuaded that the representations of her counsel to her willingness to testify, made in this Court, constitute a waiver. While we recognize that it may be possible to waive the privilege expressly, or impliedly, by agreement, the waiver of such an important constitutional right must be clear and intentional and cannot be lightly inferred. See Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264 (1949); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We have reviewed the record and do not believe that the statements of respondent's counsel meet this standard.

Respondent has demonstrated a risk of further prosecution under 13 V.S.A. § 3015, our obstruction of justice statute. That statute is taken almost verbatim from the federal obstruction of justice statute, 18 U.S.C. § 1503. The federal statute has been interpreted quite broadly. See, e.g., United States v. Jeter, 775 F.2d 670 (6th Cir.1985); United States v. Vesich, 724 F.2d 451 (5th Cir.1984). It is not incumbent on respondent to demonstrate that she will be prosecuted or that the answer to a question will result in her conviction. The United States Supreme Court has described the standard as follows:

The privilege afforded not only extends to answers that would in themselves support a conviction under a ... criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a ... crime. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself--his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified and to require him to answer if "it clearly appears to the court that he is mistaken." However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to...