1997-01: Judge's assertion of Fifth Amendment, or obtaining a grant of immunity, in relation to proceedings before grand jury.

Opinion No. 97-1
January 13, 1997


TOPIC: Judge's assertion of Fifth Amendment, or obtaining a grant of immunity, in relation to proceedings before grand jury.

DIGEST: A judge can be disciplined under the Code of Judicial Conduct for asserting the Fifth Amendment with respect to questioning before a grand jury regarding the performance of the judge's judicial duties. A judge can also be disciplined for bargaining for a grant of immunity in connection with such grand jury proceedings. However, a judge cannot be disciplined for accepting and testifying under an unrequested grant of immunity.
REFERENCES: U.S. Const. amend. V; 18 U.S.C. §6003(b)(2); Spevack v. Klein, 385 U.S. 511 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280 (1968); Baxter v. Palmigiano, 425 U.S. 308 (1975); Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973), cert. denied, 416 U.S. 956 (1974); United States v. Braasch, 505 F.2d 139 (7th Cir. 1974); In re Kinoy, 326 F. Supp. 407 (S.D.N.Y. 1971); 725 ILCS 5/106-1; Illinois Supreme Court Rules of the Code of Judicial Conduct, Canon 1 (145 Ill.2d R. 61), Canon 2 (145 Ill.2d R. 62); In re Holland, 337 Ill. 346 (1946); In re Ray, 2 Ill. Cts. Com. 148 (1991); Illinois Judicial Ethics Committee Opinion No. 97-2.

FACTS
A judge is subpoenaed to appear before a grand jury to answer questions relating to the performance of the judge's official duties.

QUESTIONS
1. Can a judge be disciplined, under the Code of Judicial Conduct and the Constitution, for invoking the Fifth Amendment and refusing to testify before a grand jury in relation to the performance of his or her official duties?
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2. Can a judge be disciplined for requesting a grant of immunity in connection with questions before a grand jury regarding the performance of his or her judicial duties?
3. Can a judge be disciplined for testifying before a grand jury under an unrequested grant of immunity?

OPINIONS
Question 1
The threshold issue raised by this inquiry is whether a judge's refusal to testify before a grand jury with respect to the performance of his or her official duties violates the Code of Judicial Conduct. If it does, the question arises whether it is constitutional to discipline a judge for asserting the Fifth Amendment. Each of these issues is addressed below.
A
Judges are required to observe "high standards of conduct so that the integrity . . . of the judiciary may be preserved." Supreme Court Rule 61. Judges are also required to conduct themselves "at all times in a manner that promotes public confidence in the integrity . . . of the judiciary." Supreme Court Rule 62A. The Committee believes that a judge's assertion of the Fifth Amendment would violate Rules 61 and 62A by bringing the judiciary into disrepute. Cf. In re Ray, 2 Ill. Cts. Com. 148 (1991) (judge violated Rules 61 and 62A by refusing police officer's order to step out of car, submit to field sobriety test, and take a breathalyzer test).
At first blush, the Committee's conclusion may appear to conflict with the decision of the Illinois Supreme Court in In re Holland, 337 Ill. 346 (1946), where the Court held that a judge could not be disciplined for invoking the Fifth Amendment before a grand jury. However, Holland did not involve judicial disciplinary proceedings; the judge was being prosecuted as a lawyer for allegedly violating "the demands of legal ethics applied to him in such capacity." Id. at 349. Consequently, that decision was not based on the interpretation of any judicial disciplinary rules1 and is not inconsistent with the
1Under the 1870 Illinois Constitution, the Supreme Court lacked jurisdiction to impose judicial discipline. Holland, supra, 337 Ill. at 348.
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Committee's conclusion that a judge's assertion of the Fifth Amendment with respect to questions concerning the performance of his or her official duties violates Supreme Court Rules 61 and 62A.
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B
The Illinois Supreme Court noted in Holland, supra, that punishing someone for asserting the Fifth Amendment would tend to limit their enjoyment of that constitutional right:
"To say that one has an absolute right to a privilege, but if he exercises it he will be punished, is to limit the enjoyment of that right, and unless the circumstances surrounding him or duties placed upon him are of such character as to require, in honesty and good conscience, that he waive the right, we are unable to see wherein it can be said that an individual, be he judge, lawyer, or layman, is either legally or morally guilty of a wrong should he claim the right." 377 Ill. at 357.

Holland presaged the decision of the United States Supreme Court in Spevack v. Klein, 385 U.S. 511 (1967), where the Court held that a lawyer cannot be disciplined for asserting the Fifth Amendment in disciplinary proceedings. Employing reasoning similar to that advanced in Holland, a four-member plurality declared that the state cannot impose "any sanction which makes assertion of the Fifth Amendment privilege 'costly.'" Id. at 515. The crucial fifth vote in that 5-4 decision was supplied by Justice Fortas, who refused to accept the applicability of the plurality's sweeping principle to public employees. Id. at 519.

One year after Spevack, Justice Fortas wrote for the Court in holding that public employees may be disciplined for refusing to answer grand jury questions "specifically, directly, and narrowly relating to the performance of [their] official duties. . . ." Gardner v. Broderick, 392 U.S. 273, 278 (1968). In such cases, the state's interest in "an accounting of [the public employees'] use and abuse of their public trust" is perceived to warrant burdening the employees' exercise of their Fifth Amendment privilege. Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation, 392 U.S. 280, 284 (1968). See also Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) ("Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties. . . ."). Confederation of Police v. Conlisk, 489 F.2d 891, 894 (7th Cir. 1973), cert. denied,

416 U.S. 956 (1974) ("the Gardner and Uniformed Sanitation Men decisions indicate that a public employer may discharge an employee for refusal to answer where the employer both asks specific questions relating to the employee's official duties and advises the employee of the consequences of his choice, i.e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings).2

2The Supreme Court has also permitted other "penalties" to ensue from assertion of the Fifth Amendment. For example, it is permissible to draw adverse inferences in a civil proceeding from a witness' refusal to testify. Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1975).

The Committee believes that the public interest in obtaining an accounting of judges' use and abuse of the public trust is at least as great as that which Gardner v. Broderick stated justifies disciplinary action against police officers who refuse to answer questions regarding the performance of their official duties, and is much greater than the public interest which Uniformed Sanitation Men indicated warrants disciplinary action against sanitation workers who refuse to answer such questions. Consequently, judges can be disciplined for invoking the Fifth Amendment in response to questions before a grand jury regarding their performance of official duties.3

3The Committee expresses no opinion regarding whether judges can be disciplined for invoking the Fifth Amendment in response to questions that do not concern their performance of official duties.

Question 2
The Committee believes that it also violates the Code of Judicial Conduct for a judge to bargain for a grant of immunity in cases involving the judge's performance of official duties. Any such bargaining necessarily involves a threat by the judge to invoke the Fifth Amendment if immunity is not granted. Because asserting the Fifth Amendment would violate the Code of Judicial Conduct, threatening to assert the Fifth would likewise bring the judiciary into disrepute in violation of Supreme Court Rules 61 and 62A.
A judge would violate the Code even if he or she does not expressly threaten to refuse to answer questions if immunity is not granted. Such a threat is implicit in any discussion of possible immunity; all participants in that negotiation would be aware that the usual incentive for granting immunity is to obtain testimony that would otherwise be unavailable. Accordingly, the Committee believes that a judge's efforts to obtain immunity bring the judiciary into disrepute in violation of Supreme Court Rules 61 and 62A.

Question 3
Grants of immunity are sometimes given to witnesses who have not sought immunity or threatened to invoke the Fifth Amendment. In Illinois, the State may grant immunity even if there is no indication that the witness will assert the Fifth Amendment. See 725 ILCS 5/106-1. Likewise, a federal witness does not have to first refuse to testify before being granted immunity. 18 U.S.C. §6003(b)(2); United States v. Braasch, 505 F.2d 139, 146 (7th Cir. 1974). Immunity may be wholly prospective--granted before the witness is even subpoenaed by the grand jury or asked any questions. In re Kinoy, 326 F. Supp. 407, 409 (S.D.N.Y. 1971).
Under these circumstances, the Committee believes that a judge may accept an unrequested grant of immunity without violating the Code of Judicial Conduct so long as that grant was not prompted by the judge's threat to assert the Fifth Amendment. But see Illinois Judicial Ethics Committee Opinion No. 97-2 (judge can be disciplined for misconduct disclosed in grand jury testimony given under grant of immunity).

CONCLUSION
A judge violates the Code of Judicial Conduct by asserting the Fifth Amendment with respect to questions before a grand jury specifically, directly, and narrowly relating to the performance of his or her official duties. A judge can also be disciplined for bargaining for a grant of immunity with respect to such an inquiry. However, a judge does not violate the Code of Judicial Conduct by accepting and testifying under an unrequested grant of immunity.