920 F. Supp. 2d 881
N.D. Ill.2013Background
- In 1972 Cook County entered a consent decree prohibiting political motivation in government employment decisions under Shakman v. Democratic Org. of Cook County.
- A 1994 consent decree extended these prohibitions to hiring practices; a 2007 SRO created a post-SRO complaint administration framework.
- The SROs established a Cook County Compliance Administrator (CCA) and a Forest Preserve District administrator (DCA) to oversee compliance and complaint handling.
- The SROs also created a complaint procedure administered by the Inspector General’s Office or Court-selected substitute, later handled by Mark Vogel as post-SRO Complaint Administrator (CA).
- Vogel was empowered to investigate complaints and issue subpoenas, with authority to take testimony as in civil discovery; this includes compelling testimony from witnesses.
- Doris Gershon, a long-time Cook County HR official, was questioned in multiple interviews about hiring practices and related issues; she ultimately invoked the Fifth Amendment and refused to answer during depositions in 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gershon validly invoked the Fifth Amendment | Gershon asserts a reasonable fear of prosecution given ongoing investigations and past immunity. | County contends the fear is not objectively reasonable and privilege is improperly blanket. | Fifth Amendment claim rejected; blanket assertion not justified; compelled testimony granted. |
| Whether Gershon waived her Fifth Amendment privilege | Gershon argues previous disclosures were in different proceedings and not a waiver for this proceeding. | CA contends prior statements related to the same subject matter and thus waive. | Waiver found to the extent prior interviews covered same subjects within the Shakman framework. |
| Whether the CA properly invoked authority to compel | CA seeks to fulfill Shakman/SRO obligations by gathering testimony. | Not explicitly stated here; focus is on privilege and waiver. | Authority to compel testimony upheld for Gershon under the post-SRO framework. |
Key Cases Cited
- Hoffman v. United States, 341 U.S. 479 (U.S. 1951) ( Fifth Amendment limits; witness must show potential incrimination for privilege to apply)
- In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 (7th Cir. 2002) (requires some danger of prosecution to invoke privilege; not blanket entitlement)
- United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997) (court weighs whether a responsive answer could be harmful to witness)
- United States v. Apfelbaum, 445 U.S. 115 (U.S. 1980) (protected right requires reasonable basis to fear incrimination)
- Carter-Wallace, Inc. v. Hartz Mountain Indus., Inc., 553 F.Supp. 45 (S.D.N.Y. 1982) (innocuous questions about duties may still require answer)
- Davis v. Fendler, 650 F.2d 1154 (9th Cir. 1981) (proper assertion requires good faith to assess risk of incrimination)