In re Fuhrer
100 Misc.2d 315, 1979 N.Y. Misc. LEXIS 2459, 419 N.Y.S.2d 426 (1979)
Rule of Law:
The constitutional right to free exercise of religion does not excuse a witness from testifying before a grand jury about alleged criminal conduct, especially when the witness is purportedly involved, as the state's interest in prosecuting fraud is compelling. The clergyman-penitent privilege applies only to communications made for spiritual counsel, not to alleged criminal activity, and a statutory justification defense does not apply if the injury to be avoided is due to the actor's own alleged fault.
Facts:
- The Special Assistant Attorney-General for Medicaid fraud initiated an investigation into an alleged scheme to defraud the Medicaid program.
- The prosecutor believed Rabbi Führer's yeshiva was being used to 'launder' money from kickbacks paid by nursing home vendors to the operators of nursing homes.
- The alleged scheme involved a nursing home employee bringing checks, payable to the yeshiva from several nursing home vendors, to Rabbi Führer.
- Rabbi Führer would allegedly deposit these checks into the yeshiva's accounts and return approximately 90% of the proceeds in cash to the nursing home employee, who would then forward it to the nursing home operator.
- These payments, disguised as legitimate charitable contributions, were allegedly illegal kickbacks to the nursing home operator.
- Rabbi Führer acknowledged receiving and depositing a $500 check payable to the yeshiva, drawn on a nursing home vendor.
- Rabbi Führer was admonished by the Central Rabbinical Congress of the United States of America and Canada to refrain from responding to the prosecutor’s interrogatories, under penalty of excommunication.
Procedural Posture:
- A Special Assistant Attorney-General subpoenaed Rabbi Führer to appear before the Richmond County Grand Jury to testify about the possible involvement of his yeshiva in an alleged Medicaid fraud scheme.
- Rabbi Führer appeared before the Grand Jury and was granted transactional immunity.
- Rabbi Führer refused to answer specific questions posed by the Special Assistant Attorney-General, asserting three grounds to justify his refusal.
- The court was asked to rule on the witness's contention that he was excused from answering these inquiries.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a witness, subpoenaed to testify before a grand jury investigating an alleged Medicaid fraud scheme in which the witness is purportedly involved, have the right to refuse to answer questions based on (1) the constitutional right to free exercise of religion, (2) the statutory clergyman-penitent privilege, or (3) a statutory justification defense, even when granted transactional immunity?
Opinions:
Majority - Theodore G. Barlow, J.
No, a witness cannot refuse to answer grand jury questions based on the constitutional right to free exercise of religion, the clergyman-penitent privilege, or a statutory justification defense, especially when the witness is allegedly involved in the criminal scheme and has been granted transactional immunity. While the freedom to believe is absolute, freedom to act is not, and conduct remains subject to regulation for the protection of society (Cantwell v Connecticut). The State's interest in uncovering and prosecuting alleged Medicaid fraud and corruption in the nursing home industry is a 'compelling' interest of the 'highest order' (Wisconsin v Yoder), which outweighs the incidental impingement on a witness’ sincerely held religious beliefs, even if it leads to excommunication. To allow such refusal would make religious doctrines superior to the law of the land (Reynolds v United States), and the New York Constitution explicitly states that religious liberty cannot excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state. The clergyman-penitent privilege (CPLR 4505) applies only to communications made in the clergyman's 'professional character as spiritual advisor' for the purpose of seeking religious counsel, advice, solace, absolution, or ministration (United States v Wells). The questions posed did not involve spiritual matters or communications for such purposes, and the privilege cannot be used as a shield to cover up criminal activities in which the clergyman himself is allegedly involved. Finally, the statutory justification defense (Penal Law § 35.05) is narrowly construed and only applies to situations 'occasioned or developed through no fault of the actor.' Since the prosecutor alleges the witness and the yeshiva participated in the scheme, the injury the witness seeks to avoid (religious repercussions) does not arise from a situation 'through no fault of the actor,' rendering the defense inapplicable.
Analysis:
This case reinforces the principle that while freedom of religious belief is absolute, religiously motivated conduct remains subject to regulation for the protection of society, particularly when a compelling state interest like prosecuting widespread fraud is present. It clarifies that religious freedom cannot be invoked as a shield for criminal acts or to obstruct a legitimate criminal investigation, especially when the individual is allegedly complicit. Furthermore, the ruling strictly defines the scope of the clergyman-penitent privilege, limiting its application to genuinely spiritual communications and preventing its misuse to conceal alleged criminal activity by the clergy member themselves.
