# Cunningham v. Bronx County Democratic Executive Committee

> District Court, S.D. New York · April 22, 1976 · 420 F. Supp. 1004

URL: https://www.frixlaw.com/law-library/cases/8838640

## Case

- **Full name:** Patrick J. CUNNINGHAM v. BRONX COUNTY DEMOCRATIC EXECUTIVE COMMITTEE
- **Court:** District Court, S.D. New York
- **Decided:** April 22, 1976
- **Citations:** 420 F. Supp. 1004; 1976 U.S. Dist. LEXIS 15458
- **Precedential status:** Published
- **Opinion:** Concurrence by Kaufman
- **Judges:** Kaufman, Mansfield, Tenney
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8838640

## Opinion text

IRVING R. KAUFMAN, Chief Judge
(concurring):
I concur fully in Judge Tenney’s thorough opinion. It is important, however, lest our action today be misunderstood, that we stress what this Court has not held.
Our decision does not in any way mandate that the plaintiff be permitted, by those he represents, to remain in office — or, indeed, that he should be reelected to his positions within the Democratic party. Nor have we ruled that Cunningham may continue to avoid testifying before the grand jury. To the contrary, Judge Tenney has taken pains to point out that the plaintiff may be compelled to testify and disclose the truth regarding matters under investigation- — on pain of imprisonment or fine for refusal to testify or for perjury in any testimony given — so long, of course, as the immunity which the Constitution 1 requires be afforded to all witnesses is also extended to him.
Finally, our holding places no restraint whatsoever on the State’s power to prosecute Patrick Cunningham on the basis of evidence that it may already have uncovered, or will discover in the future, through its official investigations. But, the State cannot coerce Cunningham to establish its charges out of his own mouth. As Mr. Justice Frankfurter so eloquently stated,
Ours is the accusatorial as opposed to the inquisitorial system. . . . Under our system society carries the burden of proving its charge . . ..It must establish its case, not by interrogation of the accused . . ., but by evidence independently secured through skillful investigation.
Watts v. Indiana, 338 U.S. 49, 54 , 69 S.Ct. 1347, 1350 , 93 L.Ed. 1801, 1806 (1949).
Only at our peril and at the peril of our free governmental process can we ignore the immense dangers posed by corruption and by abuses of official position. But, when faced by a statute intended to uncover possible misconduct which inescapably runs afoul of the fundamental guarantees of the Fifth Amendment, our duty is clear beyond peradventure.
It must have been apparent to all who played a role in this constitutional drama, after even cursory research of the authorities, that the answer to the narrow constitutional question presented to us had been clearly foreordained by the United States Supreme Court in an unbroken series of decisions during the past decade. Judge Tenney’s opinion describes with admirable clarity how the Supreme Court has consistently struck down as unconstitutional a *1013 number of statutes virtually identical in their wording and practical impact to the one before us today. We will not — and, indeed, we cannot — flout that unambiguous mandate. Judge Cardozo (then Judge on the New York Court of Appeals) reminded us a judge is
not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. . . . He is not to yield to spasmodic sentiment .
Cardozo, The Nature of the Judicial Process at 144 (1921).
Our task is narrowly circumscribed: we must view § 22 of the New York Election Law in light of the Fifth Amendment and its consistent application by the Supreme Court in similar circumstances. And we must remain ever mindful that the fundamental protections of the Constitution and its Bill of Rights extend to all citizens, whether popular and powerful, or weak and oppressed. It “covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Ex parte Milligan, 71 U.S. (4 Wall.) 2 , 120-21, 18 L.Ed. 281, 295 (1866).
By our decision today we do not condone the abuse by any individual — however exalted his position may be — of his power or the public trust. Some will undoubtedly dispute the wisdom or propriety of Cunningham’s decision to exercise his rights not to testify before the grand jury, given the circumstances here present. Its political or ethical consequences, however, can only be determined in the public arena.
. We are not faced with the question whether any additional immunity may be required under New York State statutes, although this is a question the Deputy Attorney General undoubtedly will wish to consider. See, e. g., N.Y.Crim.Proc.Law §§ 50.10(1), 190.40(2).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8838640. Public record. Not legal advice.