Reply Brief — Stevens v. Marks

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JAN £af 1968

IN THE JOHN F. DAVIS, CLER

Supreme Court of the United States

OcToBER TERM, 1965

No. 210

JAMES T. Stevens, Petitioner,

v.

CHARLES A, Marks, Justice of the Supreme Court of

New York, County of New York, Respondent.

On Writ of Certiorari to the Appellate Division of the Supreme

Court, First Judicial Department in the

County of New York

No. 290

JAMES T. STEVENS, Petitioner,

v.

JoHN J. McCuoskery, Sheriff of New York City,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

REPLY BRIEF FOR PETITIONER

JOHN P. ScHOFIELD

231 West 96th Street

. New York, N. Y. 10025

EUGENE GRESSMAN

1730 K Street, N. W.

Washington, D. C. 20006

January, 1966. Attorneys for Petitioner

Pazss or Brnon S. Avams, Wasumvoron, D. C.

=>,

INDEX

Reply Brief for Petitioner: Page

1. This Court may appropriately exercise its juris-

diction to consider the constitutional question as

to which certiorari was granted ................ 2

2. The Regan decision, being premised on the avail-

ability of an automatic immunity that is no longer

in existence under New York law, is not controlling

DORE: ivavnc¥incbesty cen vedes shaasedebiieconaxs 6

3. The destruction of petitioner’s freedom to choose

between speaking or remaining silent renders un-

constitutional the employment forfeiture provi-

SE TE III a ba ctv cbccvccitvdevesseveses 11

NE bh nc cevdvecdnenhasdns cesensdasvesscens 15

CITATIONS

CasEs:

Adler v. Board of Education, 342 U.S. 485 ......... 3

Albertson v. Subversive Activities Control Board,

BRS er re ree eer ee 8

Atchison R. Co. v. Publie Utilities Commission, 346

SG EE sche oad dk on oe Uren ho o6eseses a caven 4

Beilan v. Board of Education, 357 U.S. 399 ........ 12

Conlon v. Murphy, 263 N.Y.S. 2d 360 .............. 13

Counselman v. Hitchcock, 142 U.S. 547 ............ 8

Daniman v. Board of Education, 306 N.Y. 532, 119

ps Bf OP OPrrerrrrrcrt ricer rrr er ree 5

Gardner v. Murphy, 46 Mise. 2d 728, 260 N.Y.S. 2d

OE icc cai eGu eee weeds bewes seis g lesan 13

Greene v. Louisville & Interurban R. Co., 244 U.S.

OO eiciewandatet ee dkes sores Web kekes se checed unde

Griffin v. School Board, 377 U.S. 218 .............. 5

Tsaaes v. United States, 2456 F. 2d 654 (C.A. 8) ..... 8

Konigsberg v. State Bar, 353 U.S. 252 ............. 4)

Lawrence v. State Tax Commission, 286 U.S. 276... 4

Lerner v. Casey, 357 U.S. 466 . 2... ccc cc ccc cc cecs 12

Malloy v. Hogan, 378 U.S. 1 ........... cece eee 10, 14

RELY AIELLO GE CBRE DAT ILS ARE RHEE SEINE TEES BET IEE IES TOTS ONES

ii Index Continued

Page

Musser v. Utah, 388 U.S. 96... 2.0... .ccccccecsss, 3

N.A.A.C.P. v. Alabama, 377 U.S. 288 ..............

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 3

Oxley Stave Co. v. Butler County, 166 U.S. 648 .....

People v. Laino, 10 N.Y. 2d 161, 218 N.Y.S. 2d 647... 7

Raley v. Olio, S00 US. O05 oon. ccc cccccces.ne, 10

Regan v. New York, 349 U.S. 58 .................. ,4,

Slochower v. Board of Education, 350 U.S. 551 . .5, 11, 12

Smith v. Cahoon, 283 U.S. 553 ....................

Staub v. City of Baxley, 355 U.S. 313 .............. 5

United States v. Ford, 99 U.S. 594 ................ 8

Wieman v. Updegraff, 344 U.S. 183 ............... 14

CoNSTITUTIONAL AND Statutory Provisions:

Be EC dibs os vax Hiden ved dc tatbnwn does: 2

BP We EE Gar a beatae cadda be bad eins 2.3

New York State Constitution, Art. 1, Sec.6........ 2,13

New York Penal Law, $361 .......6.0.ccccccccuce 6

New York Penal Law, § 381 as amended ........... 7,8

New York Penal Law, § 2447 .................... 7, 8,9

New York City Charter, Sec. 1123 ................ 2, 13

EERE NRE ate Sat Og oN ran heuer omen we pr ieee ne

IN THE

Supreme Court of the United States

OctoBerR TERM, 1965

No. 210

JAMES T. StEvENS, Petitioner,

v.

CHARLES A. Marks, Justice of the Supreme Court of

New York, County of New York, Respondent.

On Writ of Certiorari to the Appellate Division of the Supreme

Court, First Judicial Department in the

County of New York

No. 290

JAMES T. StTEvENs, Petitioner,

v.

JoHN J. McCuoskey, Sheriff of New York City,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

REPLY BRIEF FOR PETITIONER

In reply to certain contentions advanced in the Re-

spondents’ Brief, petitioner submits the following:

RE LE ELE NIRS POSEN NUE | EOE T AE SEER AE AN CED RMT RE

2

1, This Court May Appropriately Exercise Its Jurisdiction to

Consider the Constitutional Question as to Which Cer-

tiorari Was Granted

The respondents continue to urge that the constitu-

‘tionality of Article 1, Section 6, of the State Consti-

tution and of Section 1123 of the City Charter ‘was

never drawn in question by the decisions of the courts

below in either case, and hence the [constitutional]

issue is not properly before this Court.’’ Brief, p. 17.

Reference is made in this respect to the fact that the

courts below all felt that this Court’s decision in Regan

v. New York, 349 U.S. 58, was controlling and that the

question as to the constitutionality of the provisions in

question need not be resolved.

Such a contention misconceives both the nature of

this Court’s jurisdiction to consider the federal consti-

tutional validity of state law provisions and the ap-

propriateness of exercising that jurisdiction in this

instance. The propriety of a constitutional issue be-

ing before this Court does not depend, as respondents

would have it, upon that issue having been drawn in

question ‘‘by the decisions of the courts below.”’ Such

propriety, at least with reference to state court de-

cisions here on certiorari,’ depends instead upon two

factors (see 28 U.S.C. § 1257):

* What is said herein relates primarily to No. 210, which is here

on writ of certiorari to the Appellate Division of the New York

Supreme Court. The jurisdictional necessity of a federal constitu-

tional claim having been raised and necessarily decided is one that

adheres to cases here on appeal or certiorari from state courts.

28 U.S.C. § 1257. No suck jurisdictional requirement is mandated

as to cases here on certiorari from federal courts of appeals, as is

No. 290. See 28 U.S.C. §1254. This Court’s jurisdiction over

judgments of lower federal courts is plenary, though the failure

to raise an issue or the absence of a decision on the point involved

may affect the exercise of the Court’s discretion in granting or

denying certiorari.

E—o_ ie EEN E

3

(1) The federal constitutional validity of the state

law provisions must have been drawn in question in

the courts below by the protesting party. Federal

issues are raised by parties, not by the courts. In other

words, ‘‘if a party intends to invoke for the protection

of his rights the Constitution of the United States...

he must so declare; and unless he does so declare ‘spe-

cially’ that is, unmistakably, this Court is without

authority to re-examine the final judgment of the

state court.’’ Oxley Stave Co. v. Butler County, 166

U.S. 648, 655.

(2) The decision below must necessarily have in-

voked a resolution of the constitutional issue. But ‘‘it

is not necessary that the ruling shall have been put in

direct terms,’’ as was said in New York ex rel. Bryant

v. Zimmerman, 278 U.S. 63, 67. ‘If the necessary

effect of the judgment has been to deny the claim, that

is enough.’’ Ibid.’

The first of these factors has been conceded by the

respondents, who have acknowledged (Brief, p. 14)

that the petitioner ‘‘persistently asserted’? in the

courts below that the employment forfeiture provisions

in question were invalid under the federal Constitu-

tion. Such a raising of the federal question below

completely distinguishes the cases relied upon by re-

spondents, Musser v. Utah, 333 U.S. 95; Adler v.

Board of Education, 342 U.S. 485, where this Court

declined consideration of federal issues which had not

2 A denial of the federal claim is jurisdictionally essential only

as to cases here on appeal from state court judgments involving the

validity of state statutes. See 28 U.S.C. § 1257(2). If such cases

come here by certiorari, it matters not whether the state statute.

was held valid or invalid in light of the federal claim. See U.S.C.

§ 1257(3).

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been properly presented by the parties in the lower

courts,

The second factor—the necessary involvement of the

federal question in the decision below—is equally satis-

fied in these cases. There is no claim, and indeed no

basis for assuming, that the decisions below in any way

rested upon an adequate state law ground. Reliance

upon this Court’s decision in Regan was in itself a

federal ground of decision. But, more importantly,

the refusal to decide the properly raised federal eon-

stitutional question on the theory that the Regan de-

cision made such a resolution unnecessary in no way

detracts from this Court’s jurisdiction to decide the

constitutional issue. If reliance on Regan was un-

founded and if the Constitution protects the petitioner

from the coercive impact of the state law provisions in

question, “his constitutional rights are denied as well

by the refusal of the state court to decide the ques-

tion, as by an erroneous decision of it.’ Lawrence vy.

State Tar Commission, 286 U.S, 276, 282; and see

Greene Vv. Louisville & Interurban R. Co., 244 US.

499, 508; Smith v. Cahoon, 283 U.S. 553, 564. See also

Atchison R. Co. v. Public Utilities Commission, 346

U.S. 346, 349.

Thus the constitutional question as to which this

Court granted certiorari was inescapably involved in

the decisions below despite the failure to resolve the

properly raised contention. That very failure oper-

ated to deny petitioner’s claimed constitutional rights.

And, in the circumstances of these cases, it becomes

appropriate for this Court to adjudicate this consti-

tutional matter forthwith. That matter relates to the

effect of the state law provisions on the free assertion

of the federally-protected privilege against self-in-

ee

5

crimination. The nature and scope of those provisions,

providing for employment forfeiture should a public

employee refuse to sign a waiver of immunity, are

obvious on their face. No state court elaboration of

their thrust could make their intendment any plainer.

Indeed, the highest New York court has already in-

terpreted these provisions to mean that ‘the assertion

of the privilege against self incrimination is equiva-

lent to resignation,’? Daniman v. Board of Education,

306 N.Y, 582, 588, 119 N.E. 2d 373, 377, and this Court

has accepted that interpretation as authoritative,

Slochower v. Board of Education, 350 U.S. 551, 554.

Any abstention by this Court at this juncture, pend-

ing a remand to the state courts for a resolution of

the constitutional issue, would appear both unneces-

sary and unproductive in these circumstances. The

sole constitutional question is whether these employ-

ment forfeiture provisions unduly infringe upon the

freedom to assert or waive the federal privilege against

self-inerimination. As to that issue this Court is

necessarily the tinal arbiter. Nothing that the state

courts could now say would make the issue any plainer

or the task of this Court any lighter; to remand what

has already been prolonged through three contempt

proceedings would only delay unnecessarily the day

of this Court’s determination of an obviously im-

portant constitutional question—one that has been

fully briefed by the parties in the instant cases.

The cireumstances being what they are, this Court

may appropriately proceed to resolve the constitu-

tional question without further delay. See N.A.A.C.P.

v. Alabama, 877 U.S. 288, 302; Griffin v. School Board,

377 U.S. 218, 229; Konigsberg v. State Bar, 353 U.S.

252, 258; Staub v. City of Baxley, 355 U.S. 313.

PSE Sa CN TR Pn SAO GR PMY EE RRR eS Mere oD RRR NACL ES ER EE Spas

2. The Regan Decision, Being Premised on the Availability of

an Automatic Immunity That Is No Longer in Existence

Under New York Law, Is Not Controlling Here

This Court’s decision in the Regan case, which the

lower courts thought to be dispositive of the instant

ones, was expressly premised upon the availability of

the immunity provided by §381 of the New York

Penal Law ‘‘as it existed at the time of this case.”

349 U.S. at 59. At that time, § 381 provided uncondi-

tionally that no person testifying in a proceeding re-

lating to bribery ‘‘shall be prosecuted or subjected to

any penalty or forfeiture for or on account of any

transaction, matter or thing concerning which he may

so testify or produce evidence. . .”? That statutory

provision, which was said to be ‘‘crucial in this case,”’

349 U.S. at 62, enabled this Court to conclude that

even though the waiver be deemed invalid “‘the im-

munity from prosecution persists, and in the presence

of such immunity petitioner’s testimony could not

possibly be self-incriminatory,’’ 349 U.S. at 64.

But as this Court noted in Regan, 349 U.S. at 59,

n. 2, §381 was amended after the occurrence of the

operative events in that case. So significant is the

change in the immunity statute as to make the Regan

decision totally inapplicable here.

Respondents seek to characterize the change wrought

in New York law as ‘wholly without constitutional

significance,’’ being limited to a new requirement that

the witness interpose a refusal to testify ‘‘before im-

munity may be conferred by a direction to answer.”

Brief, p. 24. Such is not the case. As the amicus

curiae brief filed herein by the Superior Officers

Council of the New York City Police Department

a ise

7

points out, the 1953 amendment to § 381 and the new

§ 2447 that was enacted at that time make the follow-

ing constitutionally significant changes in the New

York immunity scheme:

(1) Section 381 now provides that in any bribery

) investigation ‘‘the court, magistrate or grand jury or

the committee, may confer immunity in accordance

with the provisions’? of § 2447 (Emphasis added).

. There is thus no absolute or automatic immunity at-

taching to the witness who testifies; the word ‘‘may’’

| indicates that the iinmunity is discretionary with the

governing body.

(2) Section 2447 provides that an investigating

grand jury is among those ‘‘authorized to confer im-

munity’? in a proceeding relating to bribery. But

several procedural steps must be taken under the

section® before such immunity is conferred: (a) the

witness must refuse to answer on the ground of possi-

ble self-incrimination; (b) the grand jury must then

be ‘‘expressly requested by the prosecuting attorney to

order such person to... answer’’; (c) the grand jury

must then order the person to answer; (d) the wit-

ness must then comply with the order to answer; and

(e) thereupon ‘‘immunity shall be conferred upon

him.”’

In short, as the New York Court of Appeals held

in People v. Laino, 10 N.Y. 2d 161, 172, 218 N.Y.S.

2d 647, 656, the defendant, merely by testifying, no

longer receives ‘‘automatic immunity for all time, as

3 Subsection 4 of § 2447 provides that immunity cannot be con-

ferred on any person ‘‘except in accordance with the provisions of

this section.’’

8

vw

to ‘any transaction, matter of thing’ revealed by him,

as he would have prior to the enactment of section

2447 of the Penal Law.’’ To achieve complete im-

munity under the new statutory scheme, there must

be “strict comp’ se with the procedural require-

ments’’ of § 2447. Ibid.

A statute that gives no automatic and unconditional

immunity, of course, is a far cry from the constitu-

tional premise of an effective immunity statute—one

that affords ‘‘absolute immunity against future prose-

cution for the offense to which the question relates.”

Counselman v. Hitchcock, 142 U.S. 547, 586; and see

Albertson v. Subversive Activities Control Board, 382

U.S. 70. And this selective or conditional immunity

established by the amended § 381 and the new § 2447 is

radically different from the automatic immunity con-

ferred by the original § 381 in effect at the time Regan

would have testified. Because and only because of that

automatic immunity, which required no procedural

preconditions, this Court was able to say in Regan that

had Regan actually testified and had the waiver later

been found to be invalid, his immunity would have

been automatically established by virtue of the then

§ 381.

Obviously, such was not the case with petitioner.

Had he gone ahead and testified and had it been estab-

lished on a later prosecution that his waiver of immu-

nity was invalid, petitioner would have been bereft of

any immunity under the present New York statutory

scheme. For complete immunity to have attached,

* As to the ineffectiveness of an immunity conferred in the dis-

eretion of a court or prosecutor, in the absence of an absolute im-

munity statute, see United States v. Ford, 99 U.S. 594; Isaacs v.

United States, 256 F. 2d 654, 661 (C.A. 8).

x!

PENI TELS! OS FRE NORTH TPR SR TEE: PEC OED Bee 8 : fi ¥ took . us ei

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9

there would have had to be strict compliance with all

the procedural requirements of § 2447 at the time of

the grand jury investigation and both the prosecutor

and the grand jury at that time would have had to be

favorably disposed to granting immunity in return

for the answers to the incriminating questions.

As detailed more fully in petitioner’s main brief

(pp. 27-29), the situation at the time of questioning

petitioner was such as to preclude compliance with

§ 2447; the prosecutor and the grand jury had no

thought of conferring immunity on petitioner. The

whole atmosphere was one of holding petitioner to his

waiver of immunity and insisting that he had lost any

and all immunity from prosecution for matters re-

vealed by any testimony he might give. As a result,

the prosecutor made no effort to bring § 2447 into Op-

eration by expressly requesting the grand jury to order

petitioner to answer ; nor did the grand jury then order

petitioner to reply to the incriminating question. And

there is no basis for assuming that the grand jury in

these circumstances would have been disposed to grant

immunity with respect to any answer petitioner might

then have given. The only complete immunity which

New York law authorizes was never permitted to ma-

ture. Not having come into being at the time of the

grand jury hearings, the immunity could not later

attach so as to protect petitioner from a subsequent

prosecution.

Thus the essential crutch of the Regan rationale—

the absolute assurance that Regan would have received

immunity had he testified—-is completely absent here.

Indeed, the failure of the prosecutor to establish the

preconditions of immunity in accordance with § 2447

only confirms petitioner’s thesis, developed in his main

Seiten aa Mone ake tee ard, that Tate NSLS GREP RE I ee EES YO PEER a a ELSES. are

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10

brief (pp. 27-31), that the whole conduct of the grand

jury procedure was inconsistent with any intent or be-

lief or possibility that the New York immunity statute

was applicable. As in Raley v. Ohio, 360 U.S, 423,

petitioner received the type of treatment he would have

been given had there been no immunity statute what-

ever in New York. The confusing entrapment which

marked the Raley ease, causing the defendants to be-

lieve there was no state immunity statute, finds a par-

allel here: petitioner was led to believe that no immiu-

nity whatever was possible by virtue of the waiver and

yet that he could still ‘tat any time’ invoke his federal

privilege against self-inerimination,

Respondents attempt (Brief, p. 28) to distinguish

Raley by the unsupportable allegation that the peti-

tioner herein was ‘punished for his stubborn adherence

to a claimed privilege which he was explicitly and re-

peatedly told was unavailable.” The record, however,

plainly reveals that the Assistant District Attorney

again and again told petitioner that he could ‘tat any

time’? invoke his federal privilege against self-inerim-

ination. See 210 R. 9-10, 13; 290 R, 18-14, 25-26, 29;

these statements of the prosecutor are quoted in peti-

tioner’s main brief at pp. 7, 8, 27, 28. And on a fair

and honest reading of this reeord, the Raley ease is

indistinguishable in terms of the unfair entrapment

imposed on the respective witnesses.

The sum total of the factual situation and the drastic

change in the statutory immunity provisions compels

the conelusion that the Regan rationale—quite apart

from the constitutional change wrought by Malloy v.

Hogan—eannot be applied to dispose of these cases,

11

3. The Destruction of Petitioner's Freedom to Choose Between

Speaking or Remaining Silent Renders Unconstitutional

the Employment Forfeiture Provisions in Question

Respondents’ answer to the critical constitutional

question under review is that the requirement that a

public employee answer pertinent questions eo:icern-

ing the performance of his duties, on pain of losing his

job, is a fair and reasonable condition of continued

public employment. Any distinetion to be drawn in

assessing that condition as between the assertion of

the privilege against self-inerimination, the imputa-

tion of guilt or the demonstrated lack of candor is said

to be *ta semantic exercise only.’ Brief, p. 35,

Surely, however, this Court was not engaging in ‘a

semantic exercise only’ when it ruled in Slochower vy.

Board of Education, 350 U.S. 551, that New York eould

hot constitutionally use these employment forfeiture

provisions to cause the summary dismissal of a publie

employee for having invoked the privilege against self-

inerimination before a congressional committee. In so

ruling, the Court took pains to point out that “The

State has broad powers in the selection and discharge

of its employees, and it may be that proper inquiry

would show Slochower’s continued employment to be

inconsistent with a real interest of the State.’’ 350

U.S. at 559, The Court thus recognized that the free-

dom of invoking the privilege could have two conse-

quences, one prohibited and the other permissible:

(1) New York could not summarily discharge Sloch-

ower for freely invoking the privilege, but (2) upon

proper procedures, New York migit be able to dis-

charge Slochower for having acted in a manner ineon-

sistent with some legitimate state interest. Such a

ENR: SER, Bi, EOE BRR: LIBRE OLEGIE HEBEL. SEAR REDE SIGNS TD BM ET IES HEE AE CE URGE

12

distinction, however, involves something far more fun-

damental than ‘‘a semantic exercise only.’’®

What concerned the Court in Slochower was the

summary fall of ‘‘the heavy hand”’ of these provisions

on public employees merely for freely exercising their

constitutional privilege, ‘‘the full enjoyment of which

every person is entitled to receive.’’ 350 U.S. at 558,

And so in the instant cases, ‘‘the heavy hand”’ of the

provisions fall summarily on public employees pre-

cisely at the point when they are confronted with the

constitutionally protected choice of speaking or re-

maining silent. By threat of the use of the summary

aspects of those provisions, the State destroys the ‘‘un-

fettered exercise of his own will’’ which constitution-

ally must accompany that choice. And the alternatives

are thereby significantly changed. Instead of the choice

being freely exercisable between speaking or invoking

the privilege, the forced choice is between the waiver

of the right to remain silent and the loss of one’s job

immediately upon invocation of the privilege. There

is no real freedom in being compelled to make such a

‘*choice,’’ particularly since Slochower has already out-

lawed the summary dismissal aspects of the ‘‘choice.’’

But despite that outlawry, New York continues to use

the threat of employment forfeiture, and indeed makes

good on the threat, to circumscribe the freedom of

choice available to the public employee confronted with

an incriminating question. And New York is imple-

menting that threat with criminal contempt proceed-

5 And this Court was not engaged in ‘‘a semantic exercise only”’

when it repeated the Slochower distinction in Beilan v. Board of

Education, 357 U.S. 399, 408-409; and see Lerner v. Casey, 357

U.S, 468, 476-477.

UAE EET MEE SSRN ETN

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13

ings for those who insist on invoking their federal

privilege.

As respondents have indicated (Brief, p. 32), lower

New York courts have heeded the Slochower ruling by

ordering the reinstatement of police officers summarily

dismissed for having refused to sign waivers of immu-

nity in grand jury investigations. Gardner v. Murphy,

46 Mise. 2d 728, 260 N.Y.S. 2d 739; Conlon v. Murphy,

263 N.Y.S. 2d 360. They have done so on the theory

that New York law, by force of the Slochower decision,

must be read as requiring a full due process hearing

and opportunity to explain as a predicate to dismissal.

But that development in New York law cannot disguise

the critical fact that the threat of summary dismissal—

which remains explicit on the face of Section 1123 of

the City Charter and Article 1, Section 6, of the State

Constitution—is still being used to destroy the freedom

in the first instance to invoke or waive the federal priv-

ilege against self-incrimination. Petitioner’s experi-

ence stands as mute testimony of that fact.

The constitutional and charter provisions in question

must accordingly be deemed invalid under the Four-

teenth Amendment by virtue of their burden and re-

striction upon the freedom surrounding the invocation

of the federal privilege against self-incrimination.

Such a conclusion, to repeat, does not call into question

the right of the State of New York to impose penalties,

pursuant to procedural due process, upon those of its

publie servants who refuse to cooperate with lawful

investigations into their public duties. All that New

York is here proscribed from doing is encumbering the

invocation of the federal privilege with threats of em-

ployment forfeiture and criminal contempt citations so

as to force the public employee to waive the privilege.

—_— PERE AEE ILE RRL PORE ELE OLS LIN: SEF DE AT TR

14

Once the employee has been given complete freedom to

speak or remain silent, which includes an awareness

that some form of penalties may later be imposed if he

invokes the privilege, it will be time to assess the con-

stitutional power of New York, in the light of Malloy

v. Hogan, to discipline or discharge the employee for

having freely elected to remain silent.

There is nothing unique about a state’s ‘internal

managerial functions” in ferreting out ‘‘abuse among

its own agents,’’ as respondents would have it (Brief,

p. 16), that justifies a state in discriminating against

its employees in their assertion of a federal privilege.

Just the contrary of respondents’ position was estab-

lished by Wieman v. Updegraff, 344 U.S. 183, and its

progeny. And whatever power a state may have to

compel the forfeiture of a constitutional right as a con-

dition of public employment, that power is certainly

exceeded when used to jail those employees who have

sought freely to invoke a federal privilege.

The focus of these cases is upon the freedom that

must surround the decision of a citizen to speak or re-

main silent when asked an incriminating question. At

the point of making that decision, every person—every

publie servant, every policeman—must be accorded the

right to make a choice ‘‘in the unfettered exercise of

his own will.’? Malloy v. Hogan, 378 U.S. 1, 8. To

threaten employment forfeiture and contempt citation

if the employee does not waive his federal privilege is

to destroy that essential freedom. Therein lies the con-

stitutional defect of the legislation in issue.

RN eee emaneen

15

CONCLUSION

For these reasons, supplementing those advanced in

petitioner’s main brief, the judgments below should be

reversed,

Respectfully submitted,

JOHN P. ScHOFIELD

231 West 96th Street

New York, N. Y. 10025

EUGENE GrESSMAN

1730 K Street, N.W.

Washington, D. C. 20006

Attorneys for Petitioner

January, 1966.

_ BIEN ON CTSNET, LEMIRE RS AP RE NR RTE A Ps Rt RS A