A New York statute provides that, if an officer of a political
party subpoenaed by a grand jury or other authorized tribunal to
testify concerning the conduct of his office refuses to testify or
to waive immunity against subsequent criminal prosecution, his term
of office shall terminate and he shall be disqualified from holding
any other party or public office for five years. Appellee, an
attorney, was divested of his state political party offices
pursuant to this statute when, in response to a subpoena, he
appeared before a grand jury and refused to waive his
constitutional immunity. He then brought suit in Federal District
Court, which granted him declaratory and injunctive relief against
enforcement of the statute on the ground that it violated his Fifth
and Fourteenth Amendment rights.
Held: The statute violated appellee's right to be free
of compelled self-incrimination under the Fifth Amendment. Pp.
431 U. S.
804-809.
(a) Government cannot penalize assertion of the constitutional
privilege against compelled self-incrimination by imposing
sanctions to compel testimony that has not been immunized. Pp.
431 U. S.
804-806.
(b) The statute was coercive against appellee because it
threatened him with loss of powerful offices and because the
compelled forfeiture of those offices would diminish his general
reputation in the community, would, as economic consequences, harm
his professional standing as a practicing lawyer and bar him from
holding any other party or public office for five years, and would
impinge on his First Amendment right to participate in private,
voluntary political associations. Pp.
431 U. S.
807-808.
(c) The State's overriding interest in preserving public
confidence in the integrity of its political process is
insufficient to justify forcing its citizens to incriminate
themselves. P.
431 U. S.
808.
(d) The State's dilemma in being forced to choose between an
accounting from, and a prosecution of, a party officer is created
by its own transactional immunity law, whereas the more limited use
immunity required by the Fifth Amendment would permit the State to
compel
Page 431 U. S. 802
testimony without forfeiting the opportunity to prosecute the
witness on the basis of evidence derived from other sources. Pp.
431 U. S.
808-809.
420 F. Supp. 1004, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in all but
Part (4) of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J.,
filed an opinion concurring in part, in which MARSHALL, J., joined,
post, p.
431 U. S. 809.
STEVENS, J., filed a dissenting opinion,
post, p.
431 U. S. 810.
REHNQUIST, J., took no part in the consideration or decision of the
case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This appeal presents the question whether a political party
officer can be removed from his position by the State of New York
and barred for five years from holding any other party or public
office because he has refused to waive his constitutional privilege
against compelled self-incrimination.
(1)
Under § 22 of the New York Election Law, [
Footnote 1] an officer of a
Page 431 U. S. 803
political party may be subpoenaed by a grand jury or other
authorized tribunal and required to testify concerning his conduct
of the party office he occupies. If the officer refuses to answer
any question, or if he declines to waive immunity from the use of
his testimony against him in a later prosecution, the statute
immediately terminates his party office and prohibits him from
holding any other party or public office for a period of five
years.
In December, 1975, appellee Patrick J. Cunningham (hereafter
appellee) was subpoenaed pursuant to § 22 to appear and testify
before a special grand jury authorized to investigate his conduct
in the political offices he then held, which consisted of four
unsalaried elective positions in the Democratic Party of the State
of New York. [
Footnote 2]
Appellee moved to quash the subpoena in the state courts, arguing
in art that § 22 violated his federal constitutional right to be
free of compelled self-incrimination; his motion was denied.
In
re Cunningham v. Nadjari, 51 App.Div.2d 927, 383 N.Y.S.2d 311,
aff'd, 39 N.Y.2d 314, 347 N.E.2d 915 (1976). On April 12,
1976, he appeared before the grand jury in response to the
subpoena. Appellee refused to sign a waiver of immunity form which
would have waived his constitutional right not to be compelled to
incriminate himself. [
Footnote
3] Because § 22 is self-executing, appellee's
Page 431 U. S. 804
refusal to waive his constitutional immunity automatically
divested him of all his party offices and activated the five-year
ban on holding any public or party office.
The following day, appellee commenced this action in the United
States District Court for the Southern District of New York. After
hearing, the District Judge entered a temporary restraining order
against enforcement of § 22. A three-judge court was then convened,
and that court granted appellee declaratory and permanent
injunctive relief against enforcement of § 22 on the ground that it
violated appellee's Fifth and Fourteenth Amendment rights. We noted
probable jurisdiction, 429 U.S. 893 (1976). We affirm.
(2)
We begin with the proposition that the Fifth Amendment privilege
against compelled self-incrimination protects grand
Page 431 U. S. 805
jury witnesses from being forced to give testimony which may
later be used to convict them in a criminal proceeding.
See,
e.g., United States v. Washington, ante at
431 U. S.
186-187. Moreover, since the test is whether the
testimony might later subject the witness to criminal prosecution,
the privilege is available to a witness in a civil proceeding, as
well as to a defendant in a criminal prosecution.
Malloy v.
Hogan, 378 U. S. 1,
378 U. S. 11
(1964). In either situation, the witness may
"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."
Lefkowitz v. Turley, 414 U. S. 70,
414 U. S. 78
(1973).
Thus, when a State compels testimony by threatening to inflict
potent sanctions unless the constitutional privilege is
surrendered, that testimony is obtained in violation of the Fifth
Amendment and cannot be used against the declarant in a subsequent
criminal prosecution. In
Garrity v. New Jersey,
385 U. S. 493
(1967), for example, police officers under investigation were told
that, if they declined to answer potentially incriminating
questions, they would be removed from office, but that any answers
they did give could be used against them in a criminal prosecution.
We held that statements given under such circumstances were made
involuntarily, and could not be used to convict the officers of
crime.
Similarly, our cases have established that a State may not
impose substantial penalties because a witness elects to exercise
his Fifth Amendment right not to give incriminating testimony
against himself. In
Gardner v. Broderick, 392 U.
S. 273 (1968), a police officer appearing before a grand
jury investigating official corruption was subject to discharge if
he did not waive his Fifth Amendment privilege and answer, without
immunity, all questions asked of him. When he refused, and his
employment was terminated, this Court held that the officer could
not be discharged solely for his refusal to forfeit the rights
guaranteed him by the Fifth Amendment; the privilege against
compelled self-incrimination
Page 431 U. S. 806
could not abide any "attempt, regardless of its ultimate
effectiveness, to coerce a waiver of the immunity it confers on
penalty of the loss of employment."
Id. at
392 U. S. 279.
Accord, Sanitation Men v. Sanitation Comm'r, 392 U.
S. 280 (1968). At the same time, the Court provided for
effectuation of the important public interest in securing from
public employees an accounting of their public trust. Public
employees may constitutionally be discharged for refusing to answer
potentially incriminating questions concerning their official
duties if they have not been required to surrender their
constitutional immunity.
Gardner, supra at
392 U. S.
278-279.
We affirmed the teaching of
Gardner more recently in
Lefkowitz v. Turley, supra, where two architects who did
occasional work for the State of New York refused to waive their
Fifth Amendment privilege before a grand jury investigating
corruption in public contracting practices. State law provided
that, if a contractor refused to surrender his constitutional
privilege before a grand jury, his existing state contracts would
be canceled and he would be barred from future contracts with the
State for five years. The Court saw no constitutional distinction
between discharging a public employee and depriving an independent
contractor of the opportunity to secure public contracts; in both
cases, the State had sought to compel testimony by imposing a
sanction as the price of invoking the Fifth Amendment right.
These cases settle that government cannot penalize assertion of
the constitutional privilege against compelled self-incrimination
by imposing sanctions to compel testimony which has not been
immunized. It is true, as appellant points out, that our earlier
cases were concerned with penalties having a substantial economic
impact. But the touchstone of the Fifth Amendment is compulsion,
and direct economic sanctions and imprisonment are not the only
penalties capable of forcing the self-incrimination which the
Amendment forbids.
Page 431 U. S. 807
(3)
Section 22 confronted appellee with grave consequences solely
because he refused to waive immunity from prosecution and give
self-incriminating testimony. Section 22 is therefore
constitutionally indistinguishable from the coercive provisions we
struck down in
Gardner, Sanitation Men, and
Turley. Appellee's party offices carry substantial
prestige and political influence, giving him a powerful voice in
recommending or selecting candidates for office and in other
political decisions. The threatened loss of such widely sought
positions, with their power and perquisites, is inherently
coercive. Additionally, compelled forfeiture of these posts
diminishes appellee's general reputation in his community.
There are also economic consequences; appellee's professional
standing as a practicing lawyer would suffer by his removal from
his political offices under these circumstances. Further, § 22 bars
appellee from holding any other party or public office for five
years. Many such offices carry substantial compensation. Appellant
argues that appellee has no enforceable property interest in future
office, but neither did the architects in
Turley have an
enforceable claim to future government contracts. Nevertheless, we
found that disqualification from eligibility for such contracts was
a substantial economic burden. In assessing the coercion which § 22
exerts, we must take into account potential economic benefits
realistically likely of attainment. Prudent persons weigh heavily
such legally unenforceable prospects in making decisions; to that
extent, removal of those prospects constitutes economic coercion.
[
Footnote 4]
Section 22 is coercive for yet another reason: it requires
appellee to forfeit one constitutionally protected right as the
Page 431 U. S. 808
price for exercising another.
See Simmons v. United
States, 390 U. S. 377,
390 U. S. 394
(1968). As an officer in a private political party, appellee is in
a far different position from a government policymaking official
holding office at the pleasure of the President or Governor. By
depriving appellee of his offices, § 22 impinges on his right to
participate in private, voluntary political associations. That
right is an important aspect of First Amendment freedom which this
Court has consistently found entitled to constitutional protection.
Kusper v. Pontikes, 414 U. S. 51
(1973);
Williams v. Rhodes, 393 U. S.
23 (1968). Appellant argues that even if § 22 is
violative of Fifth Amendment rights, the State's overriding
interest in preserving public confidence in the integrity of its
political process justifies the constitutional infringement. We
have already rejected the notion that citizens may be forced to
incriminate themselves because it serves a governmental need.
E.g., Lefkowitz v. Turley, 414 U.S. at
414 U. S. 78-79.
Government has compelling interests in maintaining an honest police
force and civil service, but this Court did not permit those
interests to justify infringement of Fifth Amendment rights in
Garrity, Gardner, and
Sanitation Men, where
alternative methods of promoting state aims were no more apparent
than here. [
Footnote 5]
(4)
It may be, as appellant contends, that " [a] State
Page 431 U. S. 809
forced to choose between an accounting from or a prosecution of
a party officer is in an intolerable position." Brief for Appellant
12-13. But this dilemma is created by New York's transactional
immunity law, which immunizes grand jury witnesses from prosecution
for any transaction about which they testify. The more limited use
immunity required by the Fifth Amendment would permit the State to
prosecute appellee for any crime of which he may be guilty in
connection with his party office, provided only that his own
compelled testimony is not used to convict him. Once proper use
immunity is granted, the State may use its contempt powers to
compel testimony concerning the conduct of public office, without
forfeiting the opportunity to prosecute the witness on the basis of
evidence derived from other sources. Accordingly, the judgment
is
Affirmed.
MR. JUSTICE REHNQUIST took no part in the consideration or
decision of this case.
[
Footnote 1]
"If any party officer shall, after lawful notice of process,
willfully refuse or fail to appear before any court or judge, grand
jury, legislative committee, officer, board or body authorized to
conduct any hearing or inquiry concerning the conduct of his party
office or the performance of his duties, or having appeared, shall
refuse to testify or answer any relevant question, or shall refuse
to sign a waiver of immunity against subsequent criminal
prosecution, his term or tenure of office shall terminate, such
office shall be vacant and he shall be disqualified from holding
any party or public office for a period of five years."
N.Y.Elec.Law § 22 (McKinney 1964).
New York Election Law § 2(9) (McKinney 1964) defines a party
officer as "one who holds any party position or any party office
whether by election, appointment or otherwise."
[
Footnote 2]
Appellee was chairman of the State Democratic Committee and the
Bronx County Democratic Executive Committee, and a member of the
Executive Committee of the New York State Democratic Committee and
the Bronx County Democratic Executive Committee. We are advised
that appellee has recently resigned as chairman of the state
organization. He retains his other party offices.
[
Footnote 3]
In the absence of an effective waiver, New York law would have
entitled appellee to transactional immunity from prosecution on all
matters about which he testified. N.Y.Crim.Proc.Law §§ 50.10,
190.40, 190.45 (McKinney 1971 and Supp. 1976-1977). As appellant
concedes, however, Tr. of Oral Arg. 4-5, and as the record
reflects, the State also insisted on a waiver of the more limited
use immunity which we have held essential to protect Fifth
Amendment rights.
Kastigar v. United States, 406 U.
S. 441 (1972).
The waiver form which appellee's counsel represents is presented
to grand jury witnesses waives "all immunity and privileges which I
would otherwise obtain under the provisions of the Constitution of
the United States and of the State of New York," and further
"consent[s] to the use against me of the testimony so given . . .
upon any criminal trial, investigation, prosecution or proceeding."
McKinney's Forms for the Criminal Procedure Law § 190.45, Form 1
(1971).
See N.Y.Crim.Proc.Law § 190.45. Appellee's refusal
to sign this waiver form, pressed on him immediately before taking
the oath, was, in these circumstances, an effective assertion of
his Fifth Amendment privilege.
Of course, New York's procedure in this regard is not
constitutionally required. Rather than permit an assertion of the
Fifth Amendment privilege to confer immunity with respect to all
matters testified to before the grand jury, New York could, if it
chose, require a witness to assert his constitutional privilege to
the specific questions he deems potentially incriminating,
withholding constitutional use immunity until the validity of the
assertion is upheld.
[
Footnote 4]
That appellee's refusal to waive immunity and answer questions
concerning his conduct of office may have already damaged his
reputation and standing is irrelevant to the issues in this case;
it is inescapable that public judgments are often made on such
factors.
[
Footnote 5]
Baxter v. Palmigiano, 425 U. S. 308
(1976), is not to the contrary. That case involved an
administrative disciplinary proceeding in which the respondent was
advised that he was not required to testify, but that, if he chose
to remain silent, his silence could be considered against him.
Baxter did no more than permit an inference to be drawn in
a civil case from a party's refusal to testify. Respondent's
silence in
Baxter was only one of a number of factors to
be considered by the finder of fact in assessing a penalty, and was
given no more probative value than the facts of the case warranted;
here, refusal to waive the Fifth Amendment privilege leads,
automatically and without more, to imposition of sanctions.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring in part.
I join the Court's judgment, for the reasons stated in Parts
(1), (2), and (3) of its opinion. I cannot, however, join Part (4),
because I continue to believe that
"the Fifth Amendment privilege against self-incrimination
requires that any jurisdiction that compels a man to incriminate
himself grant him absolute immunity under its laws from prosecution
for any transaction revealed in that testimony."
Piccirillo v. New York, 400 U.
S. 548,
400 U. S. 562
(1971) (BRENNAN, J., dissenting).
See also Kastigar v. United
States, 406 U. S. 441,
406 U. S. 462
(1972) (Douglas, J., dissenting);
id. at
406 U. S. 467
(MARSHALL, J., dissenting). Moreover, even on the Court's
assumption that a lesser immunity is sufficient to satisfy the
requirements of the Fifth Amendment, I question the propriety of
the Court's suggestion that the New York Legislature's decision to
grant
Page 431 U. S. 810
additional protection to the Fifth Amendment rights of grand
jury witnesses was somehow contrary to the State's best
interests.
MR. JUSTICE STEVENS, dissenting.
The First Amendment protects the individual's right to speak and
to believe in accordance with the dictates of his own conscience.
But if he believes in peace at any price and speaks out against a
strong military, the President may decide not to nominate him for
the office of Secretary of Defense. If he already occupies a
comparable policymaking office, the President may remove him as a
result of his exercise of First Amendment rights. The fact that the
Constitution protects the exercise of the right does not mean that
it also protects the speaker's "right" to hold high public office.
[
Footnote 2/1]
The Fifth Amendment protects the individual's right to remain
silent. The central purpose of the privilege against compulsory
self-incrimination is to avoid unfair criminal trials. It is an
expression of our conviction that the defendant in a criminal case
must be presumed innocent, and that the State has the burden of
proving guilt without resorting to an inquisition of the accused.
[
Footnote 2/2]
Page 431 U. S. 811
Just as constitutionally protected speech may disclose a valid
reason for terminating the speaker's employment, so may
constitutionally protected silence provide a valid reason for
refusing or terminating employment in certain sensitive public
positions. Thus, a person nominated to an office which may not be
filled without the consent of the Senate could exercise his right
not to incriminate himself during questioning by a Senate
committee, but no one would doubt the Senate's constitutional power
to withhold its consent for that very reason. Nor can there be any
doubt concerning the President's power to discharge any White House
aide who might assert his Fifth Amendment privilege in response to
a charge that he had used his office to conceal wrongdoing or to
solicit illegal campaign contributions.
I see no reason why there should be any greater doubt concerning
a state governor's power to discharge an appointed member of his
personal staff who asserts his Fifth Amendment privilege before a
grand jury investigating accusations of influence peddling in state
government. [
Footnote 2/3] And
since a constitutional limitation on the power of the "government,"
see ante at
431 U. S. 806,
applies equally to the legislature and the executive, a statutory
restriction is no more objectionable than an executive order.
My comments thus far have related to policymaking officials who
seek or occupy positions which have no exact counterpart in the
private sector of the economy. In our democracy, their power to
govern is ultimately derived from, and dependent upon, the sanction
of the citizenry they serve.
Page 431 U. S. 812
Their performance in office not only must satisfy high standards
of competence and efficiency but must also inspire confidence in
the integrity of their leadership. [
Footnote 2/4] For that reason, conditions may
appropriately be attached to the holding of high public office that
would be entirely inappropriate for the vast majority of government
employees whose work is not significantly different from that
performed in the private sector. [
Footnote 2/5]
The Court has decide in the past that workers such as sanitation
men employed by a state-chartered municipality may not be
threatened with the loss of their livelihood in order to compel
them to waive their privilege against self-incrimination. [
Footnote 2/6] Neither that decision, nor
any in its line, [
Footnote 2/7]
controls this case. For rules which protect the rights of
government workers whose jobs are not fundamentally different from
positions in other areas of society are not automatically
applicable to policymaking officials of government. [
Footnote 2/8]
Page 431 U. S. 813
Appellee Cunningham (hereinafter appellee) is a policymaking
official occupying a sensitive position in the government of the
State of New York. He is chairman of the State Democratic Committee
and of the Bronx County Democratic Executive Committee. By virtue
of holding those party positions, he performs several important
statutory offices for the State of New York. [
Footnote 2/9] If "heed is to be given to the realities
of political life, [he is one of] the instruments by which
government becomes a living thing."
Nixon v. Condon,
286 U. S. 73,
286 U. S. 84.
The leaders of a major political party
"are not acting in matters of merely private concern like the
directors or agents of business corporations. They are acting in
matters of high public interest, matters intimately connected with
the capacity of government to exercise its functions unbrokenly and
smoothly."
Id. at
286 U. S.
88.
The State has a legitimate interest, not only in preventing
actual corruption, but also in avoiding the appearance of
corruption [
Footnote 2/10] among
those it favors with sensitive, policymaking office. If such a
person wishes to exercise his constitutional right to remain silent
and refuses to waive his privilege against compulsory
self-incrimination, I see no reason
Page 431 U. S. 814
why the State should not have the power to remove him from
office. [
Footnote 2/11]
I recognize that procedures are available by which the State may
compel any of its employees to render an accounting of his or her
office in exchange for a grant of immunity. [
Footnote 2/12]
Page 431 U. S. 815
But the availability of that alternative does not require us to
conclude that our highest public officers may refuse to respond to
legitimate inquiries and remain in office unless they are first
granted immunity from criminal prosecution. The Fifth Amendment
does not require the State to pay such a price to effect the
removal of an officer whose claim of privilege can only erode the
public's confidence in its government.
The New York statute, if enforced, will require the state
chairman to make a choice between silence and public service.
Appellee was on notice on this possibility when he accepted his
offices. [
Footnote 2/13] He has
an unquestioned constitutional right to choose either alternative.
The choice may indeed be a difficult one for him to make. In
constitutional terms, however, I see no difference between his
choice and that confronted by many other public-spirited citizens
who are at once asked to serve their country and to respond
publicly to any suggestion of wrongdoing that may be advanced by
any hostile or curious witness. The fact that such a choice may be
difficult is not a reason for saying that the State has no power to
require an officeholder or office-seeker to make it.
I respectfully dissent.
[
Footnote 2/1]
It is often incorrectly assumed that, whenever an individual
right is sufficiently important to receive constitutional
protection, that protection implicitly guarantees that the exercise
of the right shall be cost-free. Nothing could be further from the
truth. The right to representation by counsel of one's choice, for
example, may require the defendant in a criminal case to pay a
staggering price to employ the lawyer he selects. Insistence on a
jury trial may increase the cost of defense. The right to send
one's children to a private school,
Meyer v. Nebraska,
262 U. S. 390, may
be exercised only by one prepared to pay the associated tuition
cost.
[
Footnote 2/2]
E. Griswold, The Fifth Amendment Today 1-8 (1955); L. Levy,
Origins of the Fifth Amendment: The Right Against
Self-Incrimination (1968); Pittman, The Colonial and Constitutional
History of the Privilege Against Self-Incrimination in America, 21
Va.L.Rev. 763 (1935). The privilege has engendered a great deal of
legal scholarship over the years.
See Dean Griswold's
thoughtful review of the literature and of his own writings in The
Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
See also
Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional
Change, 37 U.Cin.L.Rev. 671, 706-708 (1968).
[
Footnote 2/3]
See, e.g., Scott v. Philadelphia Parking Auth., 402 Pa.
151, 154, 166 A.2d 278, 280-281 (1960);
Mitchell v. Chester
Housing Auth., 389 Pa. 314, 328, 132 A.2d 873, 880 (1957).
[
Footnote 2/4]
Note, A Constitutional Analysis of the Spoils System, 57 Iowa
L.Rev. 1320, 1321 n. 12 (1972); Note, 17 Vill.L.Rev. 750, 753-754
(1972); Note, 26 Vand.L.Rev. 1090, 1092 n. 12 (1973).
A line of cases in the Seventh Circuit has addressed the
distinction between policymaking and nonpolicymaking state
employees,
Indiana State Employees Assn., Inc. v. Negley,
501 F.2d 1239 (1974);
Adams v. Walker, 492 F.2d 1003, 1007
(1974);
Illinois State Employees Union, Council v. Lewis,
473 F.2d 561, 574 (1972),
cert. denied, 410 U.S. 928;
Gould v. Walker, 356 F.
Supp. 421 (ND Ill.1973).
See Pickering v. Board of
Education, 391 U. S. 563,
391 U. S. 570,
and n. 3.
[
Footnote 2/5]
See Orloff v. Willoughby, 345 U. S.
83,
345 U. S. 90-92;
Napolitano v. Ward, 457 F.2d 279 (CA7 1972).
[
Footnote 2/6]
Sanitation Men v. Sanitation Comm'r, 392 U.
S. 280.
[
Footnote 2/7]
Lefkowitz v. Turley, 414 U. S. 70;
Gardner v. Broderick, 392 U. S. 273;
Garrity v. New Jersey, 385 U. S. 493.
[
Footnote 2/8]
Cf. Elrod v. Burns, 427 U. S. 347,
427 U. S.
367-368 (plurality opinion);
Sugarman v.
Dougall, 413 U. S. 634,
413 U. S.
642-643;
United Public Workers v. Mitchell,
330 U. S. 75,
330 U. S. 115,
330 U. S.
122-123 (Douglas, J., dissenting in part);
Myers v.
United States, 272 U. S. 52,
272 U. S.
240-241 (Brandeis, J. dissenting);
Indiana State
Employees Assn., Inc. v. Negley, supra; Mow Sun Wong v.
Hampton, 500 F.2d 1031, 1040 (CA9 1974),
aff'd,
426 U. S. 88,
426 U. S. 95-96;
Leonard v. Douglas, 116 U.S.App.D.C. 136, 321 F.2d 749
(1963).
[
Footnote 2/9]
Appellee selects nominees for commissioner of the State Board of
Elections which administers New York elections, N.Y.Elec.Law § 468
(McKinney Supp. 1976-1977). He has similar powers with respect to
local election officers, §§ 31, 40, 45 (McKinney 1964). The
committees he chairs have the power to designate candidates for
office in party primary elections, § 131(2), to fill vacancies
which occur in the party slate in Bronx County, §§ 131, 140, and to
nominate Democratic electors for the offices of President and Vice
President of the United States, § 131(1).
[
Footnote 2/10]
See Buckley v. Valeo, 424 U. S. 1,
424 U. S. 25-27.
To the extent that it legitimizes the Government's concern with the
integrity of the election process,
Buckley is particularly
apposite here. The majority of the appellee's statutory powers
concern the administration and enforcement of New York's election
laws.
[
Footnote 2/11]
Of course, it may not do so because it wishes to punish him for
the exercise of his right, or as a substitute punishment for the
crimes of which he might be suspected. But the State does have a
legitimate interest in the integrity, and in the appearance of
integrity, of those serving in its governing core.
Cf. In re
Daley, 549 F.2d 469, 474-477 (CA7 1977).
Appellee's removal from a statutorily recognized state political
office does not deprive him of his right to associate for political
reasons,
see ante at
431 U. S.
807-808. The impact on this right is surely no more
significant than the impact of the statute on his privilege against
compulsory self-incrimination. For § 22 leaves appellee free to
participate in Democratic Party political activities in all the
capacities recognized as protected by our right-to-associate
cases.
Nor does this case present the question whether the imposition
of the five-year ban on holding state office contained in § 22 may
be invalid as a penalty.
[
Footnote 2/12]
The failure to tender immunity was the critical missing element
which invalidated the discharges of the policeman in
Gardner v.
Broderick, 392 U. S. 273, and
the sanitation men in
Sanitation Men v. Sanitation Comm'r,
392 U. S. 280,
392 U. S.
284-285:
"If appellant, a policeman, had refused to answer questions
specifically, directly, and narrowly relating to the performance of
his official duties, without being required to waive his immunity
with respect to the use of his answers or the fruits thereof in a
criminal prosecution of himself,
Garrity v. New Jersey,
supra, the privilege against self-incrimination would not have
been a bar to his dismissal."
Gardner v. Broderick, supra at
392 U. S. 278.
I recognize that
Gardner v. Broderick and
Garrity v.
New Jersey, 385 U. S. 493,
make it clear that law enforcement officers are indistinguishable
from other government employees as far as the privilege against
compulsory self-incrimination is concerned. In view of the large
measure of state power and public trust we grant our police, I am
not sure that I would have joined those decisions. But extension of
the largest measure of the Fifth Amendment privilege to the police
does not require its further extension to this case.
See
supra at
431 U. S. 812
(text to n. 7).
[
Footnote 2/13]
Section 22 was enacted in 1949, years before appellee gained his
chairmanships.