Motion to Affirm — Frohman Holland v. Hogan, District Attorney

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IN THE OCT 26 1967

_ Supreme Court nf the United | Staten sii mene

decume ae?

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| = 653-

| Fronman Ho.xanp, Invine Hoianp, ee Muze, Ros-

ERT SauNDERS, Bert GILBERT, on their own behalf and Se

_ behalf of all other persons similarly situated, _ eal

: - -Plaintiff's-Appellants,

wees ~ RIcHMOND Naina Norton Kortouer, Davin

2. | Guwpzn and Jack Saoxs;,

? Intervenor Plaintifio-Agpeliante,

"iia ta and Epwarp Brewnan and all

other officers and employees of the Borden Company, :

Intervenor Plaintif's, .

against * aoe ae

_ Frank S. Hoean, District Minnis silk Samoa Yaseur,

_ Assistant: District Attorney and each and every Assistant

es District Attorney of. Ne ew York County, and SamvuzL ADLER, ©

| Defendants-Appellees,

Lous J. Larxowrm, as Attorney General ‘of the -

‘State of New York, ~- ~

| Intervenor Defendant-Appellee. ee

MOTION. TO AF FIRM

| J. Lez Rayzrn,

Corporation Counsel,

Counsel for Appellee

Samuel Adler,

, Municipal Building;

New York, New York 19007.

Norman REdii0H,

Srantey Buoussaum,

Moraan N. Lrron,

of Counsel.

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| Supreme Court nf the. United States

October Term, 1967 -

Oe

_No. 653

: : :

_ Frouman Honwanp, Irvine Houianp, Harvey Muze, Ros-

ERT SAUNDERS, Base GiBert,-on their own behalf and on

behalf of all other persons similarly situated,

Plaintif{s-Appellants,

‘Rrommoxp Koroner, Norton Korcues, Davip |

_. Gimpz and Jack Sacks, :

Intervenor Plaintif's-Appellants,

“Micwazr, W. Cammarosano and Epwarp Brennan and all -

other officers and employees of the Borden Company,

: Intervenor Pieintiffs,

agamst

Frank S. Hogan, District Attorney and Samuzn Yascur,

_ Assistant District Attorney and each and every Assistant

‘District Attorney of New York County, and Samuzn ADLER, ©

| ae Defendants-A ppellees,

lean J. Lawaowine, as | Attorney’ General of the

State of New York,

' Fetervenor Defendant-Appellee.

. . . : ¢

_ ‘ E $$$ ; ‘

. ~“ q - Y

MOTION TO AFFIRM

‘inca |

|. This action was a Ween under 42 U.S.C.; 61983, against |

the District Attorney of New York County and the Director

JERE So Want eng een ney

of Purchase of the City of ‘New York. ~The Attorney

General of the State of New York ene in support

“of the ee \

This iad action: sought. to erijoin the defendants Seen ae

‘doing acts pursuant to New York State General Municipal

‘Law, Section 103-b, and other,New York laws of similar _

purport, alleging that the plaintiffs were, by such acts, ©

being deprived of their right, under the Fifth and. Four-

~ teenth Amepdments of the United™States Constitution, not

to incriminate themselves. Plaintiffs also sought to have: °

these aioe daws declared upoonatitntionsl,

_ Motions by the plaintiffs he an initerlocutory injunction |

and for summary judgment were referred to a three-judge

court. That @ourt denied the motions, and it stayed the

action pending resort to State court proceedings by the

plaintiffs. This — is from that order.

;: The Motions |

qd)

The affidavits i in iain of the motions state that: The.

plaintiffs are officers of milk companies en ed in the sale

and distribution of milk in-the New York ity area. They ~

and other milk cgmpany executives appeared, -pursuan to

subpoena, before a grand jury. Before entering. the grand

jury room they were shown blank forms of waivers of

immunity and were told they would be asked to sign them.

"On advice of lawyers who were present with them, they

\ etated that they. would not sign the waivers. Before the

grand jury they were advised that it was investigating.

a

iia coercion, extortion, conspiracy and price rigging~

in the :milk industry.. They were warned about General

Municipal Law, Section’ 103-b, and its application in the

event that they should refuse to waive immunity. They

refused to sign waivers. Some, at least, : did this after

leaving the room™and consulting their attorneys. ‘They

were not asked any specific question relating to afty trans- ae

~ action; contract or bid with the State of New York. or any

of its political subdivisions.

The affidavits also assert. that the statement made to

’. them concerning: the General Municipal Law provision was

regard; d by. them as. threatening a and their com °

panies with economic loss,

‘They state that’ a list of companies whose officers re-

fused to waive immunity was: sent to various govern-

mental officials including the appellee Adler. It is also

stated that two of the compaities, although they were the

: lowest bidders, were not given City contracts, and that the“

contracts were awarded to. higher bidders.

.

(2)

> ab affidavit by Marvin Gersten, dated May 1, 1967, was.

submitted.on behalf of appellee Adler. It jecthie that Mr.

Gersten,is the Acting Commissipner . of Purchase of the

City of New York, that is,'the superior of appellee Adler.

= states that, he’ has instructed Mr. Adler that persons

or corporations who. have refused. to. waive immunity be-~

. fore the grand jury investigating crimes in ‘the milk in-

dustry are not © be automatically disqualified from being

. ° : ent oa - . 4

. “

a een a City nen, -_ that they: “shall not be Pe

nied ‘‘the award of any city contract. solely : by reason of

the fact that his or its name. appears in a nation of refusal. tg

It then directs. that: |

‘““(b) Such persons er corporations listed j in-a notice

of refusal shall be accorded a hearing at which an op-

‘portunity will be given to explair the refusal to waive

immunity or to answer a question before the grand

‘jury, investignting public contracts, ase

-z goes on to state that, where inal, a person is the

_ low bidder on a City contract, a. Boatd of Responsibility,

shall be convened i in accordance with a 1949 resolution of .

‘. the New York City Board. of Estimate. That resolution

provided that such a bidder should be disqualified as a re- .

- sponsible bidder only upon. the determination ‘of such a

board. ae era Gi.

— ARGUMENT

Qusient Municipal Law, Section 103-b, is consti: |

‘tutional. Certainly it is constitutional as construed

and applied by- the City of New York and appellee:

Adler.

>

Sleihewer v. Board of Bdvcation, 350 vU. S. 551 (1956),

‘ involved the dismissal of a teacher at a public college pur- 5

suant to Section 903 of theNewYork City Charter because

_he had refused, before a Congressional committee, to an- -

swer questions concerning membership .in the Communist

Party. The opinions of this Court first made it clear that

a sinister meaning could not: be imputed merely because a

person exercised his right under the Fifth Amendment to

| refuse to testify. . The opinion then said that Section 903,

. Sa eS. j . ’ 8 . . .

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” ne ay mere RUIN Reatard oe EA ON ENRN hae SOR TR RAT "i fre .

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5. ° : < es,

as interpreted and applied, operated’to discharge every

employee who invoked-the Fifth Amendment (p. 558). “It

went-on to say that the questions asked were being taken “

‘as confessed and that no consideration was being given to

" such factors as the subject matter of the questions or justi- | %

_ fication for the orercise ‘of the privilege. —

| It then said (p. 558):

“Tt is one thing for the city authorities themselves

to inquire into Slochower’s fitriess, but quite another

for his discharge to’ be. based entirely on eyents oc- ~

curring before a federal committee whose ifquiry was

_ announced ‘as not directed at ‘the property, affairs, or ©

government of the city, or * * * official conduct of city |

‘ employees.’ ”’ ,

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.The case, therefore, appears to have been acided : on :

- ‘two grounds. One related to the sature of the inquiry at

which the refusal to testify occurred. The other empha- —

- gized the automatic discharge for exercising the Fifth |

+ Amendment right before. an agency other than the em- .

ployer—the absence of an opportunity for the employee

to explain his exercise of the privilege or, for the employer

to consider the circumstances of the refusal to answer.

; Other decisions of this Court hold that a public em-

ployee who fails to answer questions relating to his em-

ployment may be dismissed pursuant to a relevant statute

if he has had an opportunity te.explain his refusal at a

hearing before an appropriate body. Beilan v. Board of -

Education, 357 U. 8. 399 (1958) ; Lerner v. Casey, 357 U. 8.

468' (1958) ; Nelson v. County of Los Angeles, 362 U..8. 1

(1960).

' MhRe pee ee ey

REPT FN ¥

. New: York City Charter, Sectidn- 903, ‘involved in the

~ “Slochower case, and its successor section, Section 1123 of

the. City’s. new charter, are identical. . Both, if read liter-

ally, require an automatic. dismissal of an EB ployee for:

‘refusal to“testify at specified hearings or inquiries. Never-

theless, after. the Slochower decision, the New York courts

~ treated. the section as requiring a hearing before dis-.

": missal;. Matter. of Conlon v. Murphy, 24 A’D 2d 737, 263

" N.YS. 2d 360° (1965). . The same rule was ‘applied In the

two cases “decided : ‘under the title of Matter of. Gardner v.:

a

3

Murphy, 46 Mise 2d 728, 260 N.Y.S. 2d 739 (1965). Asa

result ‘the veiitioner : ‘Gardner was given a hearing and,

thereafter, dismissed. Matter of Gardner v. Broderick, 27

A D°2d 800 (1967), affd. 20.N Y 2d 227 (1967).*. Th

197, 268 N:Y.S. 2d 265 (1966), APP. to New York Court of

Appeals pending.

en General Municipal Sou Section 103-b, is *losely analo- —

, gous to the Chartet ° section just discnssed: . ‘Its literal |

' terms indicate that it mandates ‘automatie disqualification. ,

At present, however, the construction placed on At by the |

City of New York i is similar to that. now: being given to

the Charter section. In‘ an affidavit in opposition to ap-

- pellants’ motions, the City’s Acting Commissioner of Pur-:

“companion case: ‘was reversed becauge of its peculiar. omg

cumstances, Matter of Koutmk v. Murphy, 25 A D 2d

chase deséribed’ the practice which he has directed the |

. is no aut

appellee dler, his subordinate, to follow. Under it there |

atic. disqualification for: refusal : ‘to waive im- °

“Anunity before a grand jury. A hearing is “granted at

“+ which an opportunity is given to explain the refusal ‘to:

waive immunity or to ‘answer questions: before a ‘grand

Fac” * ‘ This case is ptesently < on _— to, this Court (No. 635).

ee

jury investigating public contracts. ond a low bidder on —

a City contract will not be disqualified unless, after such

a hearing, a Board of Responsibility concludes that the

bidder is ngt a esponsible bidder. .

Thus, it is not necessary to consider whether a statute ~

which requires’ automatic ‘disqualifigation would be. valid.

In the present case the only defendant who could apply

General: Municipal Law, Section 193-b, is the~ appellee

oAdler, who “might apply it on behalf of the City of New

York. And it is clear, that he will not apply it as auto- .

matically disqualifying the appellants as- sellers to the

‘ City: The other defendants, other than the intervenor-de-

- fendant, are the Disftict Attorney of New York County |

- and his assistants. They are parties because they have

5 _-warned the appellants and perhaps others, who refused to

_ Waive immunity before the grand jury investigating price

rigging and similar crimes. in the milk industry of the dis-

i qualification provisions of the General. Municipal Law sec-

tion: The intervenor-defendant came into the case to sup-

' port: the validity of the statate.

| We subsnit there is nothisig insta cases decided by this

Court that bars a city from refusing to purchase from a

corporation .whose officers have refused to testify: before

a grand jury. investigating price rigging: where, before, such

a refusal to purchase, the corporation is given a full op- -’

portunity to explain the. failure to testify or otherwise to .

mow that: it is a responsible: ‘bidder. |

Garrity v. New Jie, 385 U. 8. 493 ( 1967), has no di-

ae / ‘At most it might -furnish sbme support .

. 8

- for an argument that those who testify because of fear of

the application of the General Municipal Law provision

can have that testimony or any evidence obtained as a re-

sult. of it excluded in a subsequent criminal case browght —

| against them. Ask

— Spevack v. Klein, 385: U. S. 511 (1967), has some rele- ©

vance, but it is readily distinguishable. The distinction is

évide by the reservations, in footnote. 3 of the major- :

' ity opinion and in J ustice Forras’ concurring opinion, with, —

pees regard to whether a public employee may be discharged _

for refusing to answer appropriate questions in discipli-

nary proceedings. -Tle issue in the present case is, at least,

as different from. the‘issue decided in Spevack as the is-

sue which this Court said it was not. passing on.

| The éloak of protection that this Court has provided

.. those who invoke the Fifth Amendment is-broad, but there

would appear to be no valid reason to transform it into ~

- @ har against a reasonable investigation by governmental .

buyers-of the reasons why those who wish to sell to them

refused to testify i in an investigation of price rigging. A

statute, construed to require such an investigative hearing

before disqualifying such sellers, does: not violate the ap-

, pellants’ peau rights. 7 :

This nae has gone far } in protesting waits rights, but

: | it has not and, we submit, should not add to such protec- ©

tion a bar against a reasonable investigation, under appro-

‘priate procedural safeguards, by a purchaser as to why _

one. who wishes to sell goods to it has refused to testify con- —

coring its — —.

» . . CONCLUSION

The motion to affirm the order a, hein

should be granted.

October 23, 1967.

~ Respectfully submitted,

, _ ° ‘J. Lzz Rawarsr,

oe ears Caen Corporation Counsel,

ane Counsel for Appellee

nee - Samuel. Adler.

Norman REDLIcH,

Strantey BucHsBauM, -

_Morean N. Lirton, —

- of Counsel. +