Constitutionality of Administrative or Statutory Sanctions Upon the Exercise of the Privilege Against Self-Incrimination
Constitutionality of Administrative or Statutor y Sanctions Upon the Exercise of the Privilege Against Self-Incrimination
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Recommended Citation Constitutionality of Administrative or Statutory Sanctions Upon the Exercise of the Privilege Against Self-Incrimination, 36 Fordham L. Rev. 593 (1968). Available at: http://ir.lawnet.fordham.edu/flr/vol36/iss3/8
In light of the recent Supreme Court decisions in Garrityv. New Jersey' and
Spevack v. Klein,2 serious questions have been raised as to the validity of state
constitutional, statutory or administrative provisions which require a public
official, when called before an investigatory body, to testify or be discharged from
employment 3 Some states require a public official to sign a waiver of immunity
and testify when called before a grand jury.4 Statutes6 requiring an individual,
partnership or corporation doing business with the state to waive immunity and
testify before a grand jury investigating the circumstances of government
contracts or to be barred from bidding on such contracts also may be affected by
The fifth amendment 6 guarantees the right of an individual against
selfincrimination. The Supreme Court has said that the privilege "would be reduced
to a hollow mockery" 7 if a presumption of guilt were to be drawn from its
exercise and that there should be no penalty for the exercise of the privilege.8
From the first reported case that discussed this question in 1892,0 however, it
has been considered settled that a state could require its employees to waive their
constitutional privilege against self-incrimination as a condition of employment.
This comment will explore some of the problems raised by Garrit1 0 and
Spevack" and their effect on public employees, contractors and the fifth
The privilege against self-incrimination first appeared during the Middle Ages
in England. 12 From there it was introduced in the American colonies. Though
never included in written English law, the privilege was incorporated in the fifth
amendment to the United States Constitution.' 3 Though the privilege was
originally limited to criminal cases, it was later extended to civil cases by decisional
Until 1964 the federal constitutional privilege applied only to federal courts
and federal agencies, 15 but the privilege was interpreted as being "as broad as the
mischief against which it seeks to guard.""' In 1964 Malloy v. Hogan'7 extended
the federal guarantees to the states and thus abolished the differences between
state and federal application of the privilege. The Court said, "The Fourteenth
Amendment secures against state invasion the same privilege that the Fifth
Amendment guarantees against federal infringement-the right of a person to
remain silent unless he chooses to speak in the unfettered exercise of his own
will, and to suffer no penalty ... for such silence."' 8
The federal policy which "reflects ... our unwillingness to subject those
suspected of crime to the cruel trilemma of self-accusation, perjury or contempt"' 9
now "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."20 It is important to note that the privilege against self-incrimination is a
personal one. It applies only to individualsj not to corporations, partnerships,
labor unions or other organizations. 21
There has been criticism of the need for the privilege from time to time3m
Justice Cardozo said that "[j]ustice... would not perish if the accused were
subject to a duty to respond to orderly inquiry." 23 It has been said that the need
to protect people from torture and coercion is gone and that as administered
today, the fifth amendment serves only to protect the guilty, not the innocent.*"
Arguments favoring retention of the privilege include protection of the privacy of
the individual, the danger of blackmail and oppression, stimulation of more
efficient prosecution, the reluctance of witnesses to testify at all or undue pressure
on them to commit perjury.25
It is settled that an individual has a duty to testify.26 The privilege against
self-incrimination is an exception to this rule. To overcome the problem created
'by the state's right to know as opposed to the individual's personal privilege to
remain silent, the states and the federal government have passed immunity
statutes,2)7 which "haave as their purpose not a gift of amnesty but the securing
of testimony which because of privilege could not otherwise be procured. -s
Because the privilege against self-incrimination is a personal privilege it can
be waived. For example, New York has a constitutional provision which
requires public employees to waive immunity when called before a grand jury
investigating the conduct of their office. Failure to waive immunity results in
dismissal from office. The New York City Charter contains a similar provision."0
New York also has enacted statutes which require persons doing business with
the state,8 1 a public authority, 82 or a municipality 33 to waive immunity when
called before a grand jury investigating the circumstances of a contract or to
lose the right to bid on public contracts for five years. Do these provisions impose
a penalty or forfeiture upon an individual who claims the privilege? If this be a
penalty or forfeiture, is it justified by the overriding needs of the public?
III. PUBLIC EMPLOYEES
The Supreme Court has never directly ruled on the constitutionality of firing
a public employee who claimed his privilege against self-incrimination. The
question was presented in Stevens v. Marks,34 but the Court avoided the issue and
based its decision on other grounds. Before Malloy85 no federal question was
raised, and state courts had unanimously upheld these firings whether they were
based on a statute or on other grounds.8 6 In Drury v. HurlyaT an Illinois court
It is significant that there appears to be no reported case in any jurisdiction
upholding the right of a policeman to refuse to sign an immunity waiver or to refuse to
testify when called to do so in a criminal case. All the decisions heretofore cited are
consonant with the principle that a police officer, by reason of his special status,
duties and responsibility, may not invoke his constitutional privilege against
selfincrimination in matters touching upon his occupation without being guilty of a
breach of duty on his part by reason of such refusal.88
The situation has not changed since Drury was decided. In New York, some
procedural changes have taken place and others have been proposed. The
policeman has been given the right to consult counsel before appearing at a grand
jury,8 9 and an administrative hearing must be held before discharge. 40 The
draft of the New York State constitution that was defeated at the polls in
November, 1967 included provisions for a mandatory hearing when a public
ployee refused to sign a waiver of immunity and deleted provisions for
mandatory dismissal.41 There is still no reported case where a court has ordered
permanent reinstatement of a policeman discharged for refusing to testify or sign a
waiver of immunity.
The first and most influential case42 to consider the dismissal of a policeman
did not involve a refusal to testify, but concerned a policeman who violated
regulations by participating in political activity. In this case, McAuliffe v.
Mayor of New Bedford,4 3 Mr. Justice Holmes, then writing for the Supreme
Judicial Court of Massachusetts, stated, "He has no constitutional right to be a
policeman. There are few employments for hire in which the servant does not
agree to suspend his constitutional rights ....The servant cannot complain, as
he takes the employment on the terms which are offered him." 4 4
Holmes' philosophy has influenced the reasoning in cases where policemen
have been discharged either for refusing to sign a waiver of immunity or refusing
to testify.45 In some of these cases the reason given for dismissal has not been
refusal to testify, but the actual cause of the dismissal was indeed such refusal.
In one case, for example, where a police officer refused to explain the source of
his wealth, he was dismissed for "conduct unbecoming an officer."4 A refusal to
disclose pertinent information, whether or not incriminating, has been held a
"violation of duty" 47 and refusal to testify has resulted in dismissal for "cause." 48
No statute mandated dismissal in these cases. In Callahanv. New OrleansPolice
Department49 the Louisiana Court of Appeals said that the right of the public
to police protection transcends the individual right of an officer to employment. 0
As recently as June, 1967, Judge Fuld, writing for the New York Court of
Appeals, in Gardner v. Brodetick, 1 was still paraphrasing Holmes when he
wrote that policemen "have no constitutional right to remain in office when they
refuse to discuss with frankness and candor whether they have faithfully
performed their duties.' 52 In Gardner,the appellant, a New York City policeman,
was discharged after a departmental hearing for failing to sign a waiver of
immunity when called before a grahd jury investigating alleged bribery of police
officers by gamblers. The appellant was summarily discharged pursuant to New
York City Charter section 1123 but was granted a hearing when this dismissal
was reversed. 53 The requirement for a hearing was read into the charter by the
court, which based its reasoning on the earlier Supreme Court decision in
Slochower v. Board of Education.14 It is important to note that Judge Fuld also
indicated that this once-settled area of the law may have been reopened by
recent Supreme Court decisions. 55
The recent decisions to which Judge Fuld referred are Garrityv. New Jersey0
and Spevack V. Klein. 7 In Garrity, a policeman was called to testify in an
investigation of traffic ticket fixing. He was informed that New Jersey law0 8
requires a public employee in a criminal proceeding to waive immunity against
self-incrimination or forfeit his office. Garrity signed the waiver of immunity
and testified. Subsequently, he was indicted and convicted on the basis of his own
testimony. The Supreme Court in a 5-4 decision reversed the conviction on the
ground that the testimony obtained under the threat of dismissal was
inadmissible in the subsequent criminal proceeding because it was coerced. The Court
reasoned that "[t]he choice given petitioners was either to forfeit their jobs or
to incriminate themselves. The option to lose their means of livelihood or to pay
50. Id. at 737.
51. 20 N.Y.2d 227, 229 N.E.2d 184, 282 N.Y.S.2d 487 (1967).
52. Id. at 231, 229 N.E.2d at 186, 282 N.Y.S.2d at 490.
53. Gardner v. Murphy, 46 Misc. 2d 728, 260 N.Y.S.2d 7
39 (Sup. Ct. 1965
54. 350 U.S. 551 (1956).
55. Gardner v. Broderick, 20 N.Y.2d 227, 230, 229 N.E.2d 184, 186, 282 N.Y.S,2d 487,
489 (1967), prob. juris. noted, 36 U.S.L.W. 3308 (U.S. Jan. 30, 1968).
56. 385 U.S. 493 (1967).
57. 385 U.S. 51
). Both Spevack and Garrity were decided on the same day.
58. N.J. Rev. Stat. § 2A:81-17.
1 (Supp. 1967
). "Any person holding or who has held any
elective or appointive public office ... who refuses to testify upon matters relating to the
office ... in any criminal proceeding wherein he is a defendant ... or a witness ... upon the
ground that his answer might tend to incriminate him or cmoel him to be a Witness against
himself or refuses to waive immunity when called before a grand jury to testify thereon or
who willfully refuses or fails to appear before any court, commission ... or who, having been
sworn, refuses to testify ... upon the ground that his answer may tend to incriminate him
or compel him to be a witness against himself, shall ... be removed ... or shall thereby
forfeit his office .... Any person so forfeiting his office . . shall not thereafter be eligible
for election or appointment to any public office ... in this State."
the penalty of self-incrimination is the antithesis of free choice to speak out or
remain silent."59 The Garritydecision failed, however, to determine whether or
not the United States Constitution prohibits the forfeiture of public employment
for claiming the privilege against self-incrimination. °
The Spevack6l decision, which overruled Cohen v. Hurleyr~c also failed to
decide this question, Both Spevack and Cohen were disbarment proceedings in
New York where the attorneys involved refused to testify (and in Spevack to
produce required records) at judicial inquiries on the ground that their
testimony might be self-incriminating. Both cases were decided by 5-4 majorities. The
Court upheld the disbarment in Coheni but reversed its position in Spevack.
Intervening was the decision in Malloy v. Hogan,03 which extended the federal
privilege to the states. Justice Douglas, writing for the Court in Spevack said,
"the Fifth Amendment has been absorbed in the Fourteenth, . . . it extends its
protection to lawyers as well as to other individuals, and ... it should not be
watered down by imposing the dishonor of disbarment and the deprivation of a
livelihood as a price for asserting it."06 It is to be noted that the opinion
specifically states that the validity of the discharge of a policeman who invokes his
privilege was not determined. 65 Justice Fortas, emphasizing this point in his
concurring opinion, stated: "This Court has never held . . . that a policeman
may not be discharged for refusal in disciplinary proceedings to testify as to his
conduct as a police officer . . . . But a lawyer is not an employee of the
State ... .,,6T6he distinction between the lawyer and the state employee made
by Justice Fortas, however, has been criticized by one commentator as "a
distinction of dubious validity."67
B. Teachers and Other Public Employees
In the 1950s a series of cases appeared dealing with teachers who claimed
their privilege against self-incrimination before legislative hearings or
departmental proceedings investigating subversion. 68 With only one exception,
S1ochower v. Board of Education,69 dismissals of the teachers claiming the privilege
were upheld. In Slockower, where a professor at Brooklyn College was
summarily dismissed without a hearing after refusing to testify, the Supreme Court
held that there was a violation of the due process clause of the fourteenth
amendment.70 The Court pointed out that Slochower was not necessarily entitled to his
job, but that he was entitled to the opportunity to explain his refusal to testify.
To equate the exercise of the privilege against self-incrimination with guilt would
be a "hollow mockery. "7' The Court distinguished Slochower from Adler v.
Board of Education," decided four years earlier, in which it upheld New York's
"Feinberg Law," 73 which provided for dismissal of teachers who were members
of certain subversive organizations by the fact that the teachers in Adler were
given an opportunity to explain their refusal to testify at an administrative
hearing. The provision for mandatory hearings in the New York Constitution 74
that was rejected by the voters in November, 1967 apparently was an attempt to
conform to the Slochower decision. It may also have been an attempt to
circumvent Garritysince there was no longer a mandatory dismissal for failure to sign
a waiver of immunity or failure to testify. The theory might have been that
the degree of coercion would not have been so great as to render the testimony
elicited by the threat of a hearing inadmissible in a subsequent criminal
proceeding. No attempt, however, has been made to amend the provision for summary
dismissal required in the New York City Charter 75 upon which the Slochower
decision was based.
Two years after Slochower, a teacher in Pennsylvania who refused to answer
questions put to him by his superintendent at a hearing was discharged. He had
been told that this was an examination of his fitness to teach. The dismissal was
upheld by the Supreme Court in Beilan v. Board of Education0 on the ground
that an employee has an obligation of frankness, candor and cooperation in an
inquiry as to his fitness as a teacher.77
It is important to note that all of these cases were decided before Malloy. The
philosophy of the Supreme Court is not the same as it was ten years ago. In
Keyishian v. Board of Regents, 78 decided one week after Garrity and Spevack,
69. 350 U.S. 551 (1956).
70. U.S. Const. amend. XIV § 1: "No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property without due process of law . . .
71. Slochower v. Bd. of Educ., 350 U.S. 551, 55
72. 342 U.S.485 (1952).
73. N.Y. Educ. Law § 3022 states that "membership in any such organization included
in such listing ... shall constitute prima fade evidence of disqualification for appointment
to or retention in any office or position in the public schools of the state . . . ." The
"Feinberg Law" has recently been declared to be unconstitutionally vague by the Supreme
Court in Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).
74. Proposed N.Y. Const. art. VII, § 3 (Supp. 1967).
75. N.Y. City Charter § 1123.
76. 357 U.S. 399 (1958).
77. Id. at 405.
78. 385 US. 589 (1967).
the Court, in another 5-4 decision, said that constitutional doctrine rejects the
premise that "public employment... may be conditioned upon the surrender
of constitutional rights which could not be abridged by direct government
action. 7 9 While Keyishian was not concerned with the privilege against
selfincrimination,"0 the sweeping statement by the Court would seem to include this
constitutional right too.
The courts have treated the cases of other government employees in the same
manner as they have treated policemen and teachers. For example, in Nelson v.
County of Los Angeles,81 two social workers were dismissed for insubordination
for refusing to obey an order from their supervisor to testify before a federal
legislative committee investigating subversion. An equally divided Court upheld
the dismissal but reaffirmed the principle that the exercise of the privilege against
self-incrimination was not to be construed as admission of guilt. In another case,
Lerner v. Casey,82 a subway conductor in New York City was discharged for
failure to answer the Commissioner of Investigation. His dismissal was upheld
because there were grounds for "doubtful trust and reliability.11ss Here, the
petitioner was said to have thwarted proceedings himself by his refusal to answer
or to appeal the decision to dismiss him. The Court held that in view of these
facts, he was not denied due process of law. Whether these cases would be
decided in the same way today is an open question.
PERsoNs DOING BusiNEss WITH THE STATE
New York State has enacted three similar statutes8 4 which provide that a
person called before a grand jury to testify concerning a transaction or contract
with the state, a local government or public authority and who refuses to sign a
waiver of immunity or refuses to testify shall be disqualified from selling or
bidding on contracts for five years. Louisiana has a similar statute with a ten
year disqualification, which has not been challenged in the courts. The
constitutionality of the New York statutes has been challenged. The New York Court of
Appeals held Public Authorities Law section 2602 constitutional in George
CampbellPainting Corp. v. Reid.8 6 A similar case involving General Municipal
Law section 103-b, Holland v. Hogan,sr is being appealed. Here, the district
court, while noting that a federal question was presented, decided to abstain from
deciding the constitutionality of the statute until the New York courts had
reached a decision in Campbell. Since Campbell has now been decided with no
interpretation of the statute other than to declare it constitutional, It remains to
be seen how the federal court will decide the question. Two years earlier this
same federal district court said in another case that a contractor "possessed no
inalienable right to contract with the state. His right in that regard could be
tempered by reasonable conditions imposed upon him, one of them being the
necessity of being candid with the authorities and giving full answers .... ",,8
Is a contractor different from a lawyer or an employee of the state? Perhaps
he can be distinguished in that he is not being prevented from carrying on his
business or employment but is only being limited to business other than with
the state. Is this limitation a reasonable (and therefore constitutional)
regulation of doing business with the state or an unwarranted (and therefore
unconstitutional) penalty for the exercise of the constitutional privilege against
The argument advanced by the state in favor of the constitutionality of these
statutes is that since the state is limited in its choice of business partners by
bidding requirements, these statutes represent "a reasonable means to implement
state and municipal policy for the protection of the public by enabling the state
and local governments to ensure themselves of responsible bidders."89) The
validity of this argument hinges on the word reasonable. Is the surrender of the
constitutional privilege against self-incrimination a reasonable price for the
state to ask in exchange for the privilege of doing business with the state? The
New York Court of Appeals has said yes. Will the Supreme Court agree?
V. ADMINISTRATION OF THE STATUTES TODAY
For the last two years New York City has been administering section 1123 of
the City Charter as though a hearing was required before dismissal of a public
employee. This was apparently done to conform to the New York Supreme Court
decision in Gardnerv. Murphy,90 which held that article I, section 6 and section
1123 "are viewed, not as self-executing mandates for summary dismissal, but as
affording petitioners the opportunity to explain ... and the right to be heard."9 1
This decision was a reaction, though somewhat delayed, to Slochower.
The Board of Responsibility which has the power to disqualify bidders on New
York City contracts has seemingly been proceeding cautiously along the same
line, pending outcome of the litigation challenging the constitutionality of these
statutes.9 2 If the holding of a hearing turns out to be a mere formality before
an employee is dismissed or a contractor is disqualified, it is, for the employee or
88. United States ex rel. Laino v. Warden of Wallkill Prison, 246 F. Supp. 72, 96 (SfD.N.Y.
89. Holland v. Hogan, 272 F. Supp. 855, 866
90. 46 Misc. 2d 728, 260 N.Y.S.2d 7
39 (Sup. Ct. 1965
91. Id. at 736, 260 N.Y.S.2d at 748.
92. Holland v. Hogan, 272 F. Supp. 855
contractor, no more than academic exercise. The effect will be the same. He will
be out of a job or disqualified from bidding. If the hearing officer has wide
discretion, it might be a different matter. There is, of course, the additional problem
of whether one should be called upon to explain his invocation of the privilege
at all. Is this not in and of itself a violation of the privilege? It should be
remembered that this discussion relates only to a situation where there is no other
evidence of misdoing than the refusal to testify. If other conclusive evidence
were presented, this problem would not arise. A problem occurs where there is
some, but inconclusive evidence. But how much evidence would be necessary
to sustain a dismissal by an administrative hearing? This is a very real problem
in the cases of alleged bribery of public employees, such as Gardner,where it is
difficult, if not impossible, to obtain testimony from the other party to the
transaction. A way must be found, however, to protect the public interest in cases of
A. Problems Facing the Supreme Court
Unquestionably, a public employee or contractor doing business with the state
has the right, as an individual, to claim his privilege against self-incrimination
and no claim of the privilege can be equivalent to a confession of guilt. The
problem raised is whether losing the right to bid on contracts or losing one's job for
failure to waive immunity or failure to testify after claiming the privilege is an
The Court, in facing this problem, will have to weigh the state's need for all
pertinent information about its employees and contractors with the individual
rights of those employees and contractors not to contribute testimony to their
own criminal convictions. "The individual's constitutional privilege against
selfincrimination should not be abruptly snatched away simply because the needs of
the government purport to require disclosure in a particular case .... What is
required is a principled reconciliation between the individual's privilege and the
needs of the government. 19 3
It is conceded that "the state has a legitimate interest in excluding from
office those who would impair efficiency and honesty in government
operations.'*Is the claim of the privilege against self-incrimination sufficient to impair
efficiency and honesty in government operations in all, some, or a few cases? In the
first case brought to the New York Court of Appeals under article I, section 6 of
the New York Constitution,95 the court said: "Duty required them to answer.
Privilege permitted them to refuse to answer. They chose to exercise the privilege,
but the exercise of such privilege was wholly inconsistent with their duty as
police officers." 96 In the latest case, Gardner, the court said: "Mre find no
con93. 65 Colum. L. Rev. 681, 693 (1965).
94. United States ex rel. Laino v. Warden of Waklll Prison, 246 F. Supp. 72, 94 (S.D.N.Y.
95. Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d 972 (1940).
96. Id. at 171-72, 25 N.E.2d at 974.
stitutional defect in the statute. '97 In all intervening cases the courts, both in
New York and other jurisdictions, have had no difficulty in upholding the
dismissal of public employees solely for claiming the privilege against
self-incrimination. The Supreme Court has never faced the problem squarely"8 because before
Malloy no federal question had been raised.
One writer has indicated that the discharge of the employees in these cases is
"not because his use of the privilege indicates that he is more likely than not a
criminal, but because his behavior interferes with the orderly investigation and
control of public service." 99 This contrasts with another view of the problem
which reasons that "penalizing a person for asserting the self-incrimination
privilege in effect defeats the privilege .... Since deprival of livelihood is a form of
punishment, it would seem that neither the federal government . . . nor any
state . . . could validly discharge a public employee for exercising the
privilege." 0 0
If the deprivation of livelihood in Spevack' 01 is an unconstitutional forfeiture,
cannot the same be said of the deprivation of livelihood of a state employee?
Spevack was an attorney, a licensee of the state. Does he not have the same (and
perhaps as an officer of the court, even more) duty to cooperate with orderly
inquiry by the courts? Will the decision turn on the question of who signs the
paycheck? An extension of the logic of the Spevack decision, despite the caveat
in Justice Fortas' concurring opinion, 0 2 might render these statutes, which
require dismissal of public employees, unconstitutional on their face. There is
some question, therefore, as to the necessity for the statutes at all, if they cannot
constitutionally mandate dismissal of public employees or disqualification of
contractors since it is settled that a public employee or a contractor can be
dismissed or disqualified after a hearing for breach of his duty of candor and
The intention of the framers of the statutes requiring waiver of immunity or
requiring testimony could not have been merely the desire for dismissal of
public employees or to obtain information from public employees or contractors.
If they had only wished to gain information, immunity could be granted and the
witness would then be forced to testify or be held in contempt. Although immune
to criminal prosecution, the testimony could be used in an administrative hearing
as a basis for dismissal or disqualification. It would seem, then, that the statutes
97. Gardner v. Broderick, 20 N.Y.2d 227, 230, 229 N.E.2d 184, 186, 282 N.Y.S.2d 487, 489
98. Spevack v. Klein, 385 U.S. 511, 516 n.3 (1967) ; see also dissenting opinion in Stevens v.
Marks, 383 U.S. 234, 246 (1966).
99. Noonan, Inferences from the Invocation of the Privilege Against Self-Incrimination,
41 Va. L. Rev. 311, 335 (1955).
100. Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 U.
Chi. L. Rev. 472, 495 (1957) (footnotes omitted).
101. Spevack v. Klein, 385 U.S. 51
102. Id. at 519-20.
may have envisioned prosecution as well as dismissal.2° s In view of the decision
in Garrity that such testimony is coerced and therefore inadmissible in a
subsequent criminal proceeding, these statutes have become virtually meaningless. In
fact, the very act of signing a waiver in the face of a threat of discharge confers
immunity against the use of the coerced testimony and its fruits in a subsequent
criminal proceeding. A waiver signed under a threat of an administrative
hearing might also be deemed to be coercion. There is also some question whether it
is permissible to use coerced testimony in an administrative hearing. It is possible
that this testimony might be deemed to be unconstitutionally obtained, and such
evidence has been held to be inadmissible in New York in any official proceeding
brought to impose official forfeitures, penalties, or similar sanctions for violation
of law or regulation. 1 4
B. Possible Solutions
The Supreme Court has the option of extending the logic of Spevack and
declaring all such statutes unconstitutional. This would impose upon the states
the burden of producing other evidence to prove that the employee or contractor
is unfit to serve or do business with the state. The other extreme would be to
follow the precedents of the state courts and declare the statutes constitutional.
Precedent for such a position exists in United Public Workers v. Mitckell,'0:
which upheld the Hatch Act,106 prohibiting political activity by federal
employees. Here the Court said that "for regulation of employees it is not
necessary that the act regulated be anything more than an act reasonably deemed by
Congress to interfere with the efficiency of the public service."' 07 This was most
surely a limitation of the individual rights of public employees.
The Court, of course, has other possible solutions available to it in an attempt
to preserve a balance between the right of the state to demand candor and
frankness and the right of the individual to remain silent. It might distinguish the
cases of public employees from the cases of contractors. Contractors can still
continue to do business even if barred from contracting with the state. It can be
argued that public employees also can find other employment. The Court might
also attempt to distinguish different classes of public employees and treat the
cases of policemen or those dealing directly with the public as a special category.
Even if the Court were to decide that it is permissible to dismiss a public
employee or disqualify a contractor for claiming the privilege against
self-incrimination, the statutes as they appear on the books today should be amended to
provide for a hearing rather than summary dismissal, as the courts have required.
103. Note, 101 U. Pa. L. Rev. 1190, 1191 (1953).
104. Leogrande v. Liquor Authority, 25 App. Div. 2d 225, 231-32, 268 N.YS.2d 433, 440
(1st Dep't 1966), rev'd, 19 N.Y.2d 418, 280 N.Y.S.2d 38
105. 330 US. 75 (1947).
106. 5 U.S.C. § 7324 (Supp. II 1965-66).
107. United Pub. Workers v. Mitchell, 330 U.S. 75, 101 (1947).
An acceptable compromise might be reached if the statutes were amended to
eliminate the requirement for signing a waiver of immunity and to provide that
whenever a public employee or state contractor refuses to testify in an
investigation relating to his official duties or to the circumstances of a contract, a hearing
be mandated to determine his fitness for office or his qualifications to bid on
contracts. If he refuses to cooperate at such a hearing, he could then be
dismissed or disqualified. The dismissal or disqualification should not be mandatory.
Eliminating the requirement of a waiver of immunity, would avoid the problem
of coerced testimony raised in Garrity, and the elimination of the mandatory
dismissal or disqualification, would meet the constitutional objections to the
existing statutes while preserving to the state the right to dismiss employees or to
disqualify contractors for lack of candor and frankness in their dealings with the
state, thereby protecting the public interest.
1. 385 US. 493 ( 1967 ).
2. 385 US. 511 ( 1967 ).
3. See Annot ., 44 A.L.R2d 789 ( 1955 ).
4. See, e.g., La. Const. art . 14 , § 15(P) ( 1 ) ; N.J. Stat . Ann. § 2A: 81 - 17 .1 ( Supp . 1966 ); N.Y. Const. art. I, § 6 .
5. E.g. , La. Rev. Stat . Ann. § 38 .2182 ( 1951 ). N. Y. Gen. Munic. Law § 103 -b ; N.Y. Pub . Auth. Law § 2602; N.Y. State Fin . Law § 139 - b .
6. U.S. Const. amend. V: "No person ... shall be compelled in any criminal caue to be a witnes against himself .... "
7. Slochower v. Board of Educ., 350 US . 551 , 557 ( 1956 ). There can be no inference of guilt from the claiming of the privilege against self-incrimination. If there were such an inference, any protection afforded by the privilege would be "illusory." Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 U. Chi . L. Rev. 472 , 473 ( 1957 ).
8. Malloy v. Hogan, 378 US. 1 , 8 ( 1964 ). "[Tlhe privilege must protect an individual not only from punishment for refusing to answer an incriminating question but also from punishment for invoking the privilege." (footnote omitted) . Ratner, supra note 7 , at 495.
9. McAuliffe v. Mayor of New Bedford , 155 Mass. 216 , 29 N.E. 517 ( 1892 ).
10. Garrity v. New Jersey, 385 US. 493 ( 1967 ).
11. Spevack v. Klein , 385 US. 511 ( 1967 ).
12. An "ex-officio" oath was required by those called to testify before the ecclesiastic courts. Those called were forced to testify; no privilege existed. Torture and other forms of coercion were used on recalcitrant witnesses. There gradually developed a distaste for these methods of forcing a man to accuse himself. Beginning with Lilburn's case, the privilege against self-incrimination gradually became recognized by the English courts . 8 J. Wigmore , Evidence § 2250 ( McNaughton rev . 1961 ).
13. See generally 8 J. Wigmore , Evidence §§ 2250 - 51 ( McNaughton rev . 1961 ); C. McCormick , Evidence § 120 ( 1954 ); Clapp, Privilege Against Self-Inerimination, 10 Rutgers L. Rev . 541 ( 1956 ); Morgan, The Privilege Against Self-Incrimination, 34 Mlrn. L, Rev . 1 ( 1949 ). A history of the privilege also appears in Murphy V. Waterfront Comm'n, 378 U .S. 52 ( 1964 ).
14. 8 J. Wigmore , Evidence § 2252 , at 325 ( McNaughton rev . 1961 ), Where a party to a civil suit claims his privilege, he has, in effect, refused to anSwer the evidence put forth by the opposing party .
15. Adamson v. California , 332 U.S. 46 ( 194Y ); Twining v . New Jersey, 211 U.S. 78 ( 1908 ). Although all states except Iowa and New Jersey had similar coxtttuttonal provisions, they were permitted to interpret them as they saw fit . 8 J. Wigmore , supra note 12, § 2252 , at 319.
16. Counselman v. Hitchcock , 142 U.S. 547 , 562 ( 1892 ),
17. 378 U.S, 1 ( 1964 ).
18. Id . at 8.
19. Murphy v. Waterfront Comm'n , 378 U.S. 52 , 55 ( 1964 ).
20. Id . at 78.
21. See United States v. White , 322 U.S. 694 ( 1944 ) ; 8 3 . Wigmore, supra note 12, § 2259a, at 353.
31. N.Y. State Fin. Law § 139 - b .
32. N.Y. Pub . Auth. Law § 2602 .
33. N.Y. Gen . Munic. Law § 103 - b .
34. 383 U.S. 234 ( 1966 ). In this case a policeman after signing a waiver of immunity attempted to withdraw it and was not permitted to do so. He refused to testify and was Jailed for contempt. The Supreme Court held that it was an error to refuse to allow the withdrawal of the waiver .
35. Malloy v. Hogan , 378 U.S. 1 ( 1964 ).
36. See note 45 infra.
37. 339 Ill. App. 33 , 88 N.E.2d 728 ( 1949 ), cert. denied, 339 U.S. 983 ( 1950 ).
38. Id . at 48 , 88 N.E.2d at 735.
39. Conlon v. Murphy , 24 App. Div. 2d 737 , 263 N.Y.S.2d 360 ( 1st Dep't 1965 ).
40. Gardner v. Murphy, 46 Misc. 2d 728 , 260 N.Y.S.2d 739 (Sup . Ct. 1965 ). In a companion case, Koutnik v . Murphy , 25 App. Div. 2d 197 , 268 N.Y.S.2d 265 ( 1st Dep't 1966 ) , where the officer submitted his resignation immediately upon receiving his subpoena, the court held that summary dismissal was proper to avoid vesting of petitioner's pension rights,
41. Proposed New York Const. art. VII, § 3 ( Supp . 1967 ): "If a person [public employee] refuses to execute a waiver of immunity against subsequent criminal prosecution or to testify pursuant thereto when called to testify before a grand jury concerning the conduct of his present public office or employment . . . the appropriate authority . . . shall conduct a hearing into the fitness of such person to serve in public office or employment. If as the result of such hearing, it is determined that the person's refusal substantially impairs his fitness to serve in public office or employment then such person shall be disqualified from holding any public office or employment for five years ... and shall be removed from his public office or employment, if any. The immunity from subsequent prosecution, if any, obtained by a person called to testify before a grand jury shall not preclude an inquiry into the fitness of such person to hold public office or employment."
42. McAuliffe v. Mayor of New Bedford , 155 Mass. 216 , 29 N.E. 517 ( 1892 ).
43. Id ., 29 N.E. at 517.
44. Id . at 220 , 29 N.E. at 517-18.
45. See , e.g., Christal v . Police Comm'r, 33 Cal. App. 2d 564 , 92 P.2d 416 ( 1939 ); Moretti v . Civil Serv. Bd., 2 EL App. 2d 89 , 118 N.E.2d 615 ( 1954 ); Drury v . Hurly , 339 Ill. App. 33 , 88 N.E.2d 728 ( 1949 ), cert. denied, 335 U.S. 938 ( 1950 ); Callahan v . New Orleans Police Dep't, 171 So. 2d 730 (La. Ct. App . 1965 ); Fallon v . New Orleans Police Dep't, 238 La . 531 , 115 So . 2d 844 ( 1959 ) ; Gardner v . Broderick , 20 N.Y.2d 227 , 229 N.E.2d 184 , 282 N.Y.S.2d 487 ( 1967 ); Canteline v . McClellan , 282 N.Y. 166 , 25 N.E2d 972 ( 1940 ); Souder v . Philadelphia, 305 Pa. 1 , 156 A. 245 ( 1931 ).
46. Souder v. Philadelphia, 305 Pa. 1 , 156 A. 245 ( 1931 ).
47. Christal v. Police Comm'r, 33 Cal. App. 2d 564 , 92 P.2d 416 ( 1939 ).
48. Moretti v. Civil Serv. Bd., 2 IllA .pp. 2d 89 , 118 N.E.2d 615 ( 1954 ).
49. 171 So. 2d 730 ( La. Ct . App. 1965 ).
59. Garrity v. New Jersey, 385 U.S. 493 , 497 ( 1967 ).
60. People v. Straehle, 53 Misc. 2d 512 , 515 , 279 N. YS .2d 115 , 119 (Westchester County Ct. 1967 ), followed Garrity by dismissing an indictment against a police officer based on his own coerced testimony. The court said: "It is to be noted that unanswered in the Garrity case specifically is the status of a public officer where criminal charges are dismissed against him on these constitutional grounds ...
61. 385 U.S. 511 ( 1967 ).
62. 366 U.S. 117 ( 1961 ).
63. 378 U.S. 1 ( 1964 ).
64. Spevack v. Klein , 385 U.S. 511 , 514 ( 1967 ).
65. Id . at 516 n.3.
66. Id . at 519-20 (concurring opinion).
67. Underwood , The Fifth Amendment and the Lawyer , 62 Nw. U.L. Rev. 129 , 131 ( 1967 ).
68. See , e.g., Adler v . Bd.of Educ., 342 U.S. 485 ( 1952 ); Steinmetz v . Bd. of Educ., 44 Cal. 2d 816 , 285 P.2d 617 ( 1955 ) ; Faxon v . School Comm. 331 Mass . 531 , 120 N.E2d 772 ( 1954 ); Daniman v . Bd.of Educ., 306 N.Y. 532 , 119 N.E2d 373 ( 1954 ).