Major Garrity Decision Out Of California Has Far-Reaching Implications For Disciplinary Investigations

Potentially the most important case in 40 years interpreting Garrity v. New Jersey was decided on January 12, 2007, by the California Court of Appeals. If the reasoning of the decision is adopted by other states, it will fundamentally alter the way disciplinary investigations are conducted.

Thomas Spielbauer was employed as a public defender by Santa Clara County, California. Spielbauer became the subject of a disciplinary investigation into charges that he had either misled or deliberately lied to a judge. At the start of Spielbauer’s disciplinary interview, the County’s investigator began asking Spielbauer questions. Spielbauer’s attorney interjected, stating that Spielbauer would refuse to answer questions “under the protection afforded to him under the Constitution of the State of California, the Constitution of the United States, and the Statutes and Laws of the State of California, the County of Santa Clara, and the United States of America” (apparently the local zoning code was unavailable for citation).

The investigator responded by specifically ordering Spielbauer to answer his questions, and by stating that his statements would be not be admissible in a subsequent criminal prosecution. The investigator’s words were: “Tom, you have a right to remain silent and not incriminate yourself. Your silence, however, may be deemed insubordination, leading to administrative discipline up to and including termination. Any statement made during this interview cannot, and I emphasize cannot, be used against you in a subsequent criminal proceeding. Do you understand what I’ve just read to you?” Spielbauer still refused to answer questions, indicating that he would only do so if a formal grant of immunity was received from a court.

The County fired Spielbauer for insubordination for refusing to answer the investigator’s questions, and for untruthfulness in his dealings with the judge. Spielbauer challenged his termination in court, arguing that no public employee could be compelled to answer questions in a disciplinary investigation unless the employer first obtained a formal grant of immunity from the use of the interview or the fruits of the interview in a subsequent criminal prosecution.

In an exhaustive opinion, the Court upheld Spielbauer’s challenge. The Court first turned to the threshold for Fifth Amendment self-incrimination analysis – in other words, when the Garrity doctrine applies at all. In the Court’s eyes, “the privilege against compulsory self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” The Court found that Spielbauer’s investigation easily met this test, and that he could have reasonably believed prosecution could be based upon his answers.

The heart of the matter, the Court observed, was whether Spielbauer “could be compelled to answer, or disciplined for refusing to do so, despite the incriminating potential of his answers.” The basic proposition, the Court stated, was that “a state agency cannot compel its employees to answer incriminating questions over a Fifth Amendment objection unless it first grants them protection against the use of their compelled answers, and evidence derived from those answers, in any later criminal prosecution.”

The County argued that the operation of immunity under Garrity was automatic, and that the moment it used its authority as an employer to compel Spielbauer to answer the questions, Spielbauer’s answers were immunized, and thus his constitutional rights were fully protected. After reviewing the full line of cases decided in the wake of Garrity v. New Jersey, 395 U.S. 493 (1967), the Court ultimately rejected the County’s arguments, and held that an employer’s promise that compelled statements could not be used in a criminal prosecution was an inadequate protection for an employee’s Fifth Amendment rights. Instead, the Court held, the employer must obtain a formal grant of immunity before an employee can be forced to participate in a disciplinary interview.

The Court’s rationale bears quoting at some length:

“The foregoing cases stand for the rule that the state cannot compel a public employee to answer incriminating questions ‘unless and until he is protected’ against the use of his answers to make a criminal case against him. In the absence of such protection, the interrogatee is ‘privileged to stand mute without fear of punishment for his refusal to answer.’ The protection contemplated by these cases is a grant of immunity, i.e., an undertaking by the state not to use the answers to prosecute.

“This privilege to stand mute must be distinguished from a second rule of federal constitutional law, which arises after an individual has been unlawfully compelled to answer incriminating questions. Under this rule, when a compulsion to answer violates the interrogatee’s right to remain silent, he may object to the admission of his answers, or any evidence derived from them, in any criminal action brought against him. Thus, if a public employee is compelled to answer incriminating questions under a threat of dismissal, his responses will be excluded from a subsequent criminal prosecution. This exclusionary rule is a remedial device predicated upon an unlawful violation of the interrogational privilege.

“In sum, federal cases contemplate two distinct shields, which become available at different stages of a prospective or actual prosecution. The first arises in any official interrogation, and entitles the interrogatee to refuse to answer incriminating questions unless immunity is granted. The second arises at the time of a criminal trial, and entitles the defendant to exclude from evidence any incriminating statement, or evidence derived from a statement, that was extracted in violation of the first privilege. The interrogational privilege preserves the right to remain silent; the exclusionary rule remedies a breach of that right. These rights coexist because any attempt to compel incriminating disclosures places the interrogatee ‘between the rock and the whirlpool.’ He is entitled to resist threats of punishment for his exercise of the right to remain silent, but he may be excused if instead he succumbs. In either case, the law strives to vindicate his right to remain silent in the first situation by setting aside any adverse consequences visited upon him for standing mute, and in the second by excluding from evidence his wrongfully compelled statements, and any evidence derived from them. The first right is preservative and protective; the second, restorative and remedial.

“Here, when Spielbauer’s supervisor sought to question him in a potentially incriminating manner, Spielbauer asserted his right to remain silent, and the supervisor told him he must answer or subject himself to discipline, including discharge, for insubordination. Although the supervisor stated that Spielbauer’s answers could not be admitted in a criminal prosecution, an apparent allusion to the rule of exclusion, he never granted or offered immunity. Under the foregoing authorities, the failure to offer immunity was fatal to any attempt to discipline Spielbauer for remaining silent. It follows that the Board’s finding of insubordination cannot survive.”

The Court then turned to the next substantial question before it – who could grant the immunity necessary before a disciplinary investigation could proceed? In the Court’s eyes, that immunity could only be granted by a prosecutor in a judicially-supervised process. The process suggested by the Court was a petition to the local prosecutor to obtain a protective order immunizing the employee. Such an approach, the Court reasoned, “reflects a meticulous balancing of the needs of would-be interrogators against the prerogative of the Legislature to define crimes and their punishments, and the power and duty of the executive to prosecute the offenses thus defined. An integral part of this balancing is judicial supervision of the process. The immunity thus entails, first, legislative authority implied from statutes applicable to the controversy in which the request for immunity arose; second, due consideration of the risk the immunity may significantly hinder enforcement of the criminal laws; and third, direct involvement of a court by whom the merits of a particular request may be considered, and conflicting interests weighed.

“Requiring a clear grant of immunity provides superior protection to prosecutorial interests precisely because it disables other officials from unilaterally compelling statements that may taint later prosecutions. If an official wants to compel incriminating disclosures, he will have to secure immunity; if he fails to do so, the employee is entitled to stand on his right of silence without fear of repercussions. If the employee does this, no tainted disclosures will be made, and no prosecutor will be required to overcome a later claim that his case has been poisoned. To be sure, the employee’s assertion of this right may pose impediments to disciplinary investigations, but surely it is not for the courts to solve that problem with a blanket regime of automatic immunity.” Because Spielbauer’s termination was based in part on the insubordination charge, the Court reversed the termination, and remanded the case back to the County for reconsideration of the appropriate punishment for the remaining of Spielbauer’s offenses.

Spielbauer v. County of Santa Clara, No. H029345 (Cal. App. 2007).