State of New Hampshire v. Valerie Litvin
147 N.H. 606 (2002)
Facts
Valerie Litvin was a clerk in a municipal collections department. In January 1999, she was terminated after an investigation revealed that she had improperly taken approximately $40,000 in city funds.
During the investigation, she was given a form to sign, which read:
"I am not questioning you for the purpose of instituting a criminal prosecution against you. During the course of this investigation, even if you do disclose information which indicates that you may be guilty of criminal conduct, neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.
Since this is an administrative matter and any self-incriminating information you may disclose will not be used against you in a criminal case, you are required to answer my questions fully and truthfully. If you refuse to answer my questions, you will be in violation of City policy and shall be subject to disciplinary penalties."
Following her termination, she was charged with theft by unauthorized taking or transfer. Before trial, she moved to suppress evidence from the city's investigation on the grounds that it stemmed from compelled statements she made to city officials. She argued that she had a subjective belief that she would be discharged if she did not cooperate, based on a city policy which indicated that dismissal was a potential penalty for insubordination. This, she argued, entitled her to Garrity protection. The trial court denied her motion, ruling that her statements were not compelled despite her subjective belief that if she failed to cooperate, she would be fired. She was then convicted.
During the investigation, she was given a form to sign, which read:
"I am not questioning you for the purpose of instituting a criminal prosecution against you. During the course of this investigation, even if you do disclose information which indicates that you may be guilty of criminal conduct, neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.
Since this is an administrative matter and any self-incriminating information you may disclose will not be used against you in a criminal case, you are required to answer my questions fully and truthfully. If you refuse to answer my questions, you will be in violation of City policy and shall be subject to disciplinary penalties."
Following her termination, she was charged with theft by unauthorized taking or transfer. Before trial, she moved to suppress evidence from the city's investigation on the grounds that it stemmed from compelled statements she made to city officials. She argued that she had a subjective belief that she would be discharged if she did not cooperate, based on a city policy which indicated that dismissal was a potential penalty for insubordination. This, she argued, entitled her to Garrity protection. The trial court denied her motion, ruling that her statements were not compelled despite her subjective belief that if she failed to cooperate, she would be fired. She was then convicted.
Issue
Was the trial court correct in allowing the use of the employee's statements?
Holding
Affirmed. The trial court was correct, because the statements were not compelled.
Reasoning
- "The defendant concedes that she was not expressly threatened with termination if she failed to answer the city's questions" (608).
- "The First Circuit Court of Appeals has held that in order to trigger Garrity protections, a defendant must have been threatened with automatic dismissal for failing to cooperate and that the defendant's subjective belief that he or she would be dismissed does not render his or her statements compelled" (citing Indorato, 608).
- ". . . she was not threatened with automatic job loss. The city's policy, like the department policy at issue in Indorato, permitted dismissal for 'insubordination,' but did not require it. The defendant's subjective fear that she would be fired if she failed to answer the city's questions does not entitle her to Garrity protections" (609).
Commentary
State of New Hampshire v. Valerie Litvin is one of the narrowest rulings related to Garrity Rights at any level. Amazingly, the New Hampshire Supreme Court decided that Litvin's statements were not improperly used against her, despite the clear affirmation of rights that she was given by her management to sign, and a city policy allowing termination for insubordination.
Put oneself in the position of Valerie Litvin: our employer has presented us with a document stating that we are required to answer their questions, and that refusal to answer will be subject us to disciplinary penalties. There is a city policy that allows termination as a possible penalty for insubordination. This scenario is obviously within the scope of Garrity. Even further, the warning document says that any self-incriminating information we provide will not be used against us in a criminal case!
This is the textbook situation examined by the Garrity line of cases: if I am directed to answer under threat of discipline, I am being compelled; if I am being compelled, my answers cannot constitutionally be used against me in a future criminal proceeding.
The fact that the city officials put this statement in front of Valerie Litvin and asked her to sign it clearly shows that it was their intention to extract information purely for administrative purposes and to gain her cooperation by immunizing her answers - the classic scenario envisioned in the doctrine established by the Supreme Court's penalty cases. However, relying on Indorato, the New Hampshire Supreme Court held that because Litvin was not explicitly threatened with automatic termination for refusing to answer, she was not compelled. Therefore, they found that her statements were voluntary. The New Hampshire court interpreted, as narrowly as possible, the First Circuit's already overly narrow view.
The New Hampshire court went on to argue that the facts of this case were similar to another First Circuit decision, Singer v. State of Maine, 49 F.3d 837 (1st Cir. 1995), when in fact the circumstances of the two cases are conspicuously different. In Singer, the employee was never presented with a statement of her rights which directed her to answer on pain of discipline and informed her that her answers would be use-immunized. Litvin was in fact presented with such a statement. The employer in Singer never demonstrated a desire to cloak the employee with Garrity Rights, as the employer so clearly did with Ms. Litvin. Further, the employee in Singer was never even prosecuted - thus her statements, protected or not, were never even used to incriminate her. The facts of these two cases could hardly differ more.
While not bound by circuit decisions outside of the First Circuit, the New Hampshire court certainly could have reviewed the interpretations of other courts. However, New Hampshire v. Litvin didn't even pay lip service to the D.C. Circuit's "subjective-objective" test established in United States v. Friedrick. In fact, in its strict adoption of Indorato, the court rejected any possibility that an employee's subjective belief that they faced dismissal would ever be found objectively reasonable. In this case, the court said "the defendant's subjective belief that he or she would be dismissed does not render his or her statements compelled" - directly contrary to the D.C. Circuit's position in Friedrick, and directly contrary to the Eleventh Circuit's Vangates decision issued just nine days prior to Litvin.
Fortunately for most public employees and employers, the Litvin decision does not apply outside the state of New Hampshire. However, it stands as a guidepost for other courts to make similarly bad determinations. Unfortunately, the trend in state courts has been to restrict employees' rights and narrow the definition of compulsion to the detriment of employees.
Put oneself in the position of Valerie Litvin: our employer has presented us with a document stating that we are required to answer their questions, and that refusal to answer will be subject us to disciplinary penalties. There is a city policy that allows termination as a possible penalty for insubordination. This scenario is obviously within the scope of Garrity. Even further, the warning document says that any self-incriminating information we provide will not be used against us in a criminal case!
This is the textbook situation examined by the Garrity line of cases: if I am directed to answer under threat of discipline, I am being compelled; if I am being compelled, my answers cannot constitutionally be used against me in a future criminal proceeding.
The fact that the city officials put this statement in front of Valerie Litvin and asked her to sign it clearly shows that it was their intention to extract information purely for administrative purposes and to gain her cooperation by immunizing her answers - the classic scenario envisioned in the doctrine established by the Supreme Court's penalty cases. However, relying on Indorato, the New Hampshire Supreme Court held that because Litvin was not explicitly threatened with automatic termination for refusing to answer, she was not compelled. Therefore, they found that her statements were voluntary. The New Hampshire court interpreted, as narrowly as possible, the First Circuit's already overly narrow view.
The New Hampshire court went on to argue that the facts of this case were similar to another First Circuit decision, Singer v. State of Maine, 49 F.3d 837 (1st Cir. 1995), when in fact the circumstances of the two cases are conspicuously different. In Singer, the employee was never presented with a statement of her rights which directed her to answer on pain of discipline and informed her that her answers would be use-immunized. Litvin was in fact presented with such a statement. The employer in Singer never demonstrated a desire to cloak the employee with Garrity Rights, as the employer so clearly did with Ms. Litvin. Further, the employee in Singer was never even prosecuted - thus her statements, protected or not, were never even used to incriminate her. The facts of these two cases could hardly differ more.
While not bound by circuit decisions outside of the First Circuit, the New Hampshire court certainly could have reviewed the interpretations of other courts. However, New Hampshire v. Litvin didn't even pay lip service to the D.C. Circuit's "subjective-objective" test established in United States v. Friedrick. In fact, in its strict adoption of Indorato, the court rejected any possibility that an employee's subjective belief that they faced dismissal would ever be found objectively reasonable. In this case, the court said "the defendant's subjective belief that he or she would be dismissed does not render his or her statements compelled" - directly contrary to the D.C. Circuit's position in Friedrick, and directly contrary to the Eleventh Circuit's Vangates decision issued just nine days prior to Litvin.
Fortunately for most public employees and employers, the Litvin decision does not apply outside the state of New Hampshire. However, it stands as a guidepost for other courts to make similarly bad determinations. Unfortunately, the trend in state courts has been to restrict employees' rights and narrow the definition of compulsion to the detriment of employees.
