Lefkowitz v. Turley 8212 331

• Decision Date: 19 November 1973
• Docket Number: No. 72,72
• Citation: 94 S.Ct. 316,414 U.S. 70,38 L.Ed.2d 274
• Parties: Louis J. LEFKOWITZ, Attorney General of New York, et al., Appellants, v. M. Russell TURLEY et al. —331
• Court: U.S. Supreme Court

414 U.S. 70

94 S.Ct. 316

38 L.Ed.2d 274

Louis J. LEFKOWITZ, Attorney General of New York, et al., Appellants,

v M. Russell TURLEY et al.

No. 72—331.

Argued Oct. 10, 1973.

Decided Nov. 19, 1973.

Syllabus

New York statutes require public contracts to provide that if a contractor refuses to waive immunity or to testify concerning his state contracts, his existing contracts may be canceled and he shall be disqualified from further transactions with the State for five years, and further require disqualification from contracting with public authorities upon a person's failure to waive immunity or answer questions respecting his state transactions. Appellees, New York-licensed architects, when summoned to testify before a grand jury investigating various criminal charges, refused to sign waivers of immunity, whereupon various contracting authorities were notified of appellees' conduct and had their attention called to the applicable disqualification statutes. Appellees thereafter brought this action challenging the statutes as violative of their constitutional privilege against compelled self-incrimination. A three-judge District Court declared the statutes unconstitutional under the Fourteenth and Fifth Amendments. Held:

1. The Fifth Amendment privilege against self-incrimination is not inapplicable simply because the issue arises in the context of official inquiries into the job performance of a public contractor. The ordinary rule is that the privilege is available to witnesses called before a grand jury as these appellees were, and the State's legitimate interest in maintaining the integrity of its civil service and of its transactions with independent contractors, like other state concerns, cannot override the requirements of the Fifth Amendment. Pp. 77—79.

2. The State could not compel testimony that had not been immunized and the waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver device, Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; Uniformed Sanitation Men Assn., Inc., et al. v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089, and there is no constitutional distinction in terms of compulsion between the threat of job loss in those cases and the threat of contract loss to a contractor. Pp. 79—84.

3. Under a proper accommodation between the interest of the State and the Fifth Amendment, the State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant their Fifth Amendment privilege. Kastigar v. United States, 406 U.S. 411, 92 S.Ct. 1653, 32 L.Ed.2d 212. Pp. 84—85.

342 F.Supp. 544, affirmed.

Brenda Soloff. New York City, for appellants.

Richard O. Robinson, Buffalo, N.Y., for appellees.

Mr. Justice WHITE delivered the opinion of the Court.

New York General Municipal Law §§ 103—a and 103—b, McKinney's Consol.Laws, c. 24, and New York Public Authorities Law §§ 2601 and 2602, McKinney's Consol.Laws, c. 43—A, require public contracts to provide that if a contractor refuses to waive immunity or to answer questions when called to testify concerning his contracts with the State or any of its subdivisions, his existing contracts may be canceled and he shall be disqualified from further transactions with the State for five years.¹ In addition to specifying these contract terms, the statutes require disqualification from contracting with public authorities upon failure of any person to waive immunity or to answer questions with respect to his transactions with the State or its subdivisions. The issue in this case is whether these sections are consistent with the Four- teenth Amendment insofar as it makes applicable to the States the Fifth Amendment privilege against compelled self-incrimination.

I

Appellees are two architects licensed by the State of New York. They were summoned to testify before a grand jury investigating various charges of conspiracy bribery, and larceny. They were asked, but refused, to sign waivers of immunity, the effect of which would have been to waive their right not to be compelled in a criminal case to be a witness against themselves. They were then excused and the District Attorney, as directed by law, notified various contracting authorities of appellees' conduct and called attention to the applicable disqualification statutes. Appellees thereupon brought this action alleging that their existing contracts and future contracting privileges were threatened and asserted that the pertinent statutory provisions were violative of the constitutional privilege against compelled self-incrimination. A three-judge District Court was convened and declared the four statutory provisions at issue unconstitutional under the Fourteenth and Fifth Amendments, 342 F.Supp. 544 (WDNY 1972). We noted probable jurisdiction, 410 U.S. 924, 93 S.Ct. 1353, 35 L.Ed.2d 585 (1973). The State appealed pursuant to 28 U.S.C. § 1253. We affirmed the judgment of the District Court.

II

The Fifth Amendment provides that no person 'shall be compelled in any criminal case to be a witness against himself.' The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924), squarely held that

'(t)he privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant.'

In this respect, McCarthy v. Arndstein reflected the settled view in this Court. The object of the Amendment 'was to insure 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, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). See also Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 186 187, 42 L.Ed. 568 (1897); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Boyd v. United States, 116 U.S. 616, 634, 637—638, 6 S.Ct. 524, 534, 536—537, 29 L.Ed. 746 (1886); United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69 (1828). This is the rule that is now applicable to the States. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 635 (1964). 'It must be considered irrelevant that the petitioner was a witness in a statutory inquiry and not a defendant in a criminal prosecution, for it has long been settled that the privilege protects witnesses in similar federal inquiries.' Id., at 11, 84 S.Ct., at 1495. In any of these contexts, therefore, a witness protected by the privilege may rightfully 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. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, supra; Boyd v. United States, supra.

Against this background, there is no room for urging that the Fifth Amendment privilege is inapplicable simply because the issue arises, as it does here, in the context of official inquiries into the job performance of a public contractor. Surely, the ordinary rule is that the privilege is available to witnesses called before grand juries as these appellee architects were. Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 375, 50 L.Ed. 652 (1906).

It is true that the State has a strong, legitimate interest in maintaining the integrity of its civil service and of its transactions with independent contractors furnishing a wide range of goods and services; and New York would have it that this interest is sufficiently strong to override the privilege. The suggestion is that the State should be able to interrogate employees and contractors about their job performance without regard to the Fifth Amendment to discharge those who refuse to answer or to waive the privilege by waiving the immunity to which they would otherwise be entitled, and to use any incriminating answers obtained in subsequent criminal prosecutions. But claims of overriding interests are not unusual in Fifth Amendment litigation and they have not fared well.

In McCarthy v. Arndstein, supra, the United States insisted that because of the strong public interest in marshaling and distributing assets of bankrupts, the Fifth Amendment should not protect a bankrupt during the official examinations mandated by the Bankruptcy Act. That position did not prevail. The bankrupt's testimony could be had, but only if he were afforded sufficient immunity to supplant the privilege. And long before McCarthy v. Arndstein, the Court recognized that without the compelled testimony of knowledgeable and perhaps implicated witnesses, the enforcement of the transportation laws 'would become impossible,' but nevertheless proceeded on a basis that witnesses must be granted adequate immunity if their evidence was to be compelled. Brown v. Walker, 161 U.S., at 610, 16 S.Ct., at 651. Similarly, the enforcement of the antitrust laws against private corporations was at stake in Hale v. Henkel, supra, but immunity was essential to command the testimony of individual witnesses. Also, it would...