# Motion to Dismiss or Affirm — Gardner v. Broderick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0018%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1968 - **Citation:** 392 U.S. 273 ## Text =: ee Ee lees . No. 635 ROBERT VINCENT GARDNER, | . Appellant, v. VINCENT L. BRODERICK, as Police Secustnclener’ of © the ad of New York and THE CITY OF NEW YORK, Appellees. On po from the.Court of Appeals of the | State of New York - SOS MOwome MOTION TO DISMISS OR AFFIRM x J. Lez Rangr, : Corporation Counsel, Attorney for Appellees, Municipal Building, New York, N.Y. 10007. Srantey BucHssBaumM, ‘ Roszer T. HantTmany, of Counsel. - : \ = F “ * 4 PAGE QUESTION PRESENTED ..........0+:.:-cs:cccssepeeepeecseesestsesennnennnens 2 a i ndisesavsccsccstonledrsmnarcasheS tgisaaoesenensosssiesenit 3 _A. Charge Against Appellant 0.0.0... Cae B. Departmental Hearing ~........-.-.---- en a Assistant District Attorney Andreoli’s Tes- CEEROTEG, ......000scccevsccesscscsncnreses > . On August 6, 1965, ‘todines was roused as a witness, but was not sworn. He was again informed of the nature — of the Grand Jury investigation (RA 19f.. He stated that he had discussed his constitutional rights and his ‘duty to | testify with his attorney and stated, ‘‘On the advise of my © ‘attorney I have-been regarded as a'target of this-investiga- tion, and you have no authority to question me.’’. He was then advised that he had been called before the Grand Jury as a public officer to testify ‘concerning the: perform- © ance of his duties as a police officer (RA 20). Appellant then refused to sign the waiver-of immunity (RA 21). Motion to Dismiss Decision on the motion to dismiss the charge because the appellant had been subpoenaed and was a target of the investigation was reserved (RA 11). _ ‘i Appellant's Case Appellant. did a effer any evidence on’ his behalf or: - ‘ offer any explanation of his refusal to sign ‘a waiver of immunity (RA a 6 ~~ C. Commissioner’s Determination | In the report of Hearing Officer Reisman, dated August a, 1965, he found that appellant chad been called before the . ', Grand Jury and had refused to sign a waiver of immunity as required by Section 1123 of the New York City Charter. He recommended that appellant’s employment be termi-, nated and his office vacated (RA 24). . Based pm these findings and recommendations, Police Commissioner Broderick ordered appellant’s office vacated (RA 25). a6 DR at —- se a ARGUMENT The dismissal of a policeman does not violate his rights under the United States Constitution when the dismissal is pursuant to Article I, Section 6, of the New York Constitution and Section 1123 of the New York City Charter, which require a public employee to be discharged if he refuses to sign a waiver of immunity: and to answer relevant questions before a ' grand jury concerning his conduct and performance of official duties and which have been interpreted to _ require a hearing before such discharge at which the public employee is afforded an opportunity to explain his refusal to waive immunity or to answer such ques- tions. , (1) ' The appellant argues that to ‘dismiss him for refusing to | waive immunity and testify before a grand jury consti- tutes a violation of his rights under the Fifth Amendment. ' He relies primarily on the cases of Slochower v. Board of Education, 350 U. S. 551 (1956) and Garrity v. New Jer- sey, 385 U. S: 493 (1967). ; Slochower involved the dismissal of a teacher at a pub-~ lic college pursuant to Section 903 of the New York City Charter because he had refused, before a Congressional committee, .to answer 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 thaf Section 903, as interpreted and applied,’ operated to discharge every employee who invoked the Fifth Amend‘ ao ment (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 justification for the exercise of the privi- lege. It then said (p. 558): ‘‘Tt is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events oc- curring before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or © government of the city, or * * * official conduct of city employees.’ ”’ The case, therefore, appears to have been decided. on two grounds. One related to the nature of the inquiry at which the refusal to testify occurred. ‘The other empha- sized 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 peru of this — 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 arf opportunity to explain his refusal at a hearing befgre-an appropfiate body. Beilan v. Board of Education, 357.U. 8. 399 (1938) ; Lerner v. Casey, 357 U.S. . - 468 (1958); Nelson v. County of Los Angeles, 362 ” Ss. 1 (1960). y . ee enw 9 New York City Charter, Section 903, involved in the Slochower case, and its successor sectjon, Section 1123 of .. the City’s new charter, are identi¢al. Both, if read liter- ally, require an automatic dismissal of an employee for - refusal to testify at specified hearings or inquiries. Never- theless, after the Slochower decision, the New York courts treated the section and Article I, 46, of the New York Con- stituti as requiring a hearing before dismissal. Matter of Conlon v. Murphy, 24 A D 2d 737, 263 N.Y.S. 2d 360 (1965). The same rule was applied in the two gases de- cided under the title of Matter of Gardner v~ Murphy, 46 Mise 2d 728, 260 N.Y.S. 2d 739 (1965). As a result the appellant herein was. given a hearing and, thereafter, dis- missed. The companion case was reversed: because of its peculiar circumstances. Matter of Koutnik v. Murphy,-25 A D 2d 197, 268 N.Y.S. 2d 265 (1966), app. to aad — Court of Appeals pending. In Garrity it was held that answers given by police offi- cers to questions asked them in the course of an Attorney General’s investigation could not be’ used against them in a criminal prosecution. The answers were excluded on the ground that they were coerced confessions becatse the ‘police officers were faced by-a choice of either answering the questions or forfeiting their jobs by reason of a New ' Jersey forfeiture of office statute similar to the New York Constitution. and City -Charter provisions here involved. This Court did not pass on the validity of the forfeiture of office statute. It confined itself to holding that answers given under threat of its application are coerced .and, therefore, cannot be used in a criminal prosecution of the police officers. ° 10 7 In the companion case of Spevack v. Klemm, 385 U.S. 511 . (1967), this Court held that a lawyer cannot be disbarred because he invoked the Fifth Amendment as the ground for refusing to honor a subpoena to produce financial records and for refusing to answer questions relevant to charges of misconduct in carrying on_his law practice. It said that. the threat of disbarment was a powerful form of compul- sion to make a Tawyer relinquish the. Fifth Amendment privilege. \ Mr. \ Justice Dovucias, who spoke for the majority in both the, Garrity and Spevack cases, wrote the following footnote in tlie Spevack opinion (385 U.S. at p. 516) : **3. ‘Whether a policeman, who invoked the privi- lege when his conduct as a police officer is questioned in disciplinary proceedings, may be discharged for re- fusing to testify i is a question we do not reach.’’ - Mr. Justice Forras, in his concurring opinion in that case, said (385 U.S. at p. 519): Ge ‘But I would distinguish beteeen @ lawyer’s right to remain silent and that of a public employee who is - asked questions: specifically, directly, and narrowly re- lating to the performance of his official. duties as dis- tinguished from his beliefs or other matters that are - not within the scope of the specific duties whieh he undertook faithfully to perform as part of his employ- ment by the State. This Court has never held, for. ° example, that a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer.” The quoted reservations apparently apply to an auto- matic discharge of a police officer for refusing to testify. ° 11 > Here the dismissal was not automatic. At the hearing granted appellant subsequent to his refusal to waive im- /~ , munity, he failed to offer any explanation for such refusal. - Stemberg v. United States, 141 Ct. Cl. 1, 163 F. Supp. 590 (1958), relied on by appellant, held that a statute which automatically révoked a federal pension as of the date that the pensioner refused to testify before a grand jury, federal court or congressional committee was invalid. The Court relied’ on the Slochower case. It should be recalled that the Grand Jury investigation was concerned with a conspiracy to bribe police officers to permit illegal gambling’ operations, that the appellant was - advised of the nature of the investigation and that he was requested to sign a limited waiver of immunity (RA 12, RA 19). The waiver was limited to matters ‘‘concerning the conduct of my office on the performance of my official duties’’ (RA 22). Appellant, as a police officer, had a duty to furnish the appropriate authorities with information pertinent ‘to his employment. This is especially significant where the con- duct in question relates to the administration of justice and the integrity of the Police Department.. His refusal to sign a limited waiver of immunity in this investigation concerning the bribery of police officers and his failure,-at his hearing, to give reasons for his refusal are inconsistent with his duty as a police officer. Having breached his duty, appellant was properly dismissed. Particularly apt is the following statement in Sekoll v. Bell, 125 Ky. 750, 102 S.W. 248, 261-262 (19073: - ‘‘Here were police officers being interrogated as to existence of. crimes they were paid to prevent, if possible; if not, to expose and punish afterwards; and yet they‘one and-all refused to answer ‘under advice _ of counsel.’ Suppose a secret murder had been com- mitted, and the police officer on that beat, when asked about it, should say, ‘I decline to answer for fear of _ incriminating myself.’ This, under the rule invoked, would protect the witness from answering; but how long would it justify his retention on the roll. of the _ police? What would be thought of those who left the - public safety in his hands fonger than it would sian ad * a him?’ | , (2) The appellant also argues that he has been denied equal . protection of the laws (Juris. Statement, pp. 6-7). The ’ petition in the New York Supreme Court instituting this proceeding alleges in general terms that there has been a | _ denial of equal protection of the laws (Par. ‘‘Sixth’’). ‘The issue, however, was: not presented to the New York Appel- late Division or to the Court of Appeals. And there is not the slightest indication that the New York courts ever con- sidered the issue. It would appear, therefore, that it can- ~ not be raised on this appeal. Hiawassee Power Co. v. Caro- lina-Tenn. Co., 252 U. S. 341, 343-344 (1920); McGoldrick. - y, Compagnie Generale, 309 U. S. 430, 433-434 (1940) ; Wil-- son v. Cook, 327 U. S.'474, 483-484 (1946). Moreover, the ‘ reference in the petition to equal protection. of the laws does not specifically refer to the Uniced States Constitution despite the fact that there also is an.equal protection clause in Article I, §11, of the New York Constitution. Kansas Endowment Asso. v. Kansas, 120 U. 8: 103, 104 (1887). . In any event, the appellant’s equal protection argument lacks merit. It appears to assume that we are dealing with a StanLtey BucussBavm, 13 a case where the police officer has testified before a grand jury and that such testimony is being used as the basis for a dismissal, which is not what occurred in the present case. . At the least, it assumes that the New York Court of Ap- peals has held that the burden of proof of misconduct, which ordinarily is on the party seeking to have a police officer dismissed, is on the appellant in the present case. All that has been held, however, is that a police officer who has refused to furnish information to a grand jury re- garding the conduct of his office and the performance of his official duties may be discharged unless he offers an appro- priate -explanation for stch refusal. This applies to all police officérs. Even if it varies from the rule applicable under other circumstances, it is reasonable; and it is not discriminatory because of its uniform application to all _ police officers pursuant to the New York Constitution and the New York City Charter, as a since the Slochower decision. | CONCLUSION The appeal to this Court from the judgment of the New York,Court of Appeals should be oe, or the ju ent ofemed.. Janué _ Mespectiully submitted, J. Lee Rankin, - Corporation Counsel, Attorney for Appellees, Municipal Building, New York, N.Y. 10007. Rosert T. HarTMann, of Counsel. ~s --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0018%3A02. Public record. Not legal advice.