# Appellees Brief — Gardner v. Broderick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0018%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1968 - **Citation:** 392 U.S. 273 ## Text APR 13. 1938 IN THE Supreme Court of the United States OCTOBER TERM, 1967 No. 635 2 x Rosert ViIncenT GARDNER, :; . &§ Appellant, wo. Vincent L. Bropericx, as Police Commissioner of the City of New York, and Tue Crry or New York, ; Appellees. Eee I Ay Re Py ae eae Ox APPEAL FROM THE CouRT OF APPEALS OF THE Strate or New York : “ ; APPELLERS’ BRIEF i J. Lee RANKIN, © i Corporation Counsel, : Attorney for Appellees, i Municipal Building, | _ New York, N. Y. 10007. Z e . : ¢ 4 Norman ReEDLICcH, - ‘SranLex. BucHSBAUM, . Rosert T. Harrmawy, . of Counsel. , ~ *¢ * J - . ; , nS - QB 249 Press of Fremont Payne. Inc., 80 Washington St., N. Y.—BOwling Green 9-8153 ° ‘ ™~ TABLE OF CONTENTS Statement ...--- soweewes Leseoseues eocceee wiapeces Question Presented for Review *...---- ~ Veena 2 i i as cakyaenarasvseewenntyveses 2 A. Charge Against Appellant ..----------- oes 2 B. Departmental Hearing ..+..:-2--)e++fe+0++ 3 + Assistant District Attorney Andreoli’s Testi- MONY .-eeeeeeeeees ‘ — APPELLEES’ BRIEF “Statement F &. This js an appeal from a final wieeiaa of tie New York Court of Appeals [R. 41-47, 20 N Y 2d 227, 229 N. E. 2d 184 (1967)], affirming a judgment of the Supreme Court of the State of New York, Appellate Division, First; De~- ,partment [R. veontne .D 2d 800, 279 N.Y.S, 2d 150 a which confi a determination of the Police | 2 « This argument was not made in the New York courts. Nor was it mentioned in the Jurisdictional Statement. ’ In the New York courts the appellant merely ardent that a target of an inquiry may not be brought before a | grand jury by subpoena. No mention of equal protection was advanced in relation to this argument. Appellant merely relied on New York eases which did not discuss amy equal protection issue. _ While in his ' Jurisdictional Statement, although not in the- “’Question Presented, > appellant did argue equal pro- tection, that argument was limited to the issue .of bur- den of proof. of miscdnduct.. Appellant contended: that ther public employees may be removed only where the department bringing the charges sustains the burden. of proof of ‘misconduct, while those in the position of the appellant are, in effect, required to sustain the burden of proof that they were not guilty of misconduct. Such an _ equal protection issue obviously is different from -appel- - lant’s present argument that equal protection is denied by | — a public officer to appear before a — jury . wae | : : . pursuant to sukpoena even though he is a target: of the investigation while others who are: targets of, an imvesti- | gation -may not-be subpoenaed. . . Moreover, with regard ta.equal protection, it is reason-- able and proper to draw a distinction between public em- Ployees and other persons who are targets. .They have a special responsibility to the community which justifies such © inquiry. - a ae ie There are additional reasons barring the presentation of the equal protection argument to this Court. The petition _in the New York Supreme Court instituting this proceed- ing alleges in general terms that there has been a denial of equal protection of the laws (Par. ‘‘Sixth’’, R; 4). The ‘issue, however, was not presented to the New York Appel- late Division or to the Court of Appeals. Furthermore, _ there is not the slightest indication that the New York courts ever considered the issue: It would ‘appear, there- fore, that it cannot be raised on this appeal. Hiawassee _ Power Co. v. Carolina-Tenn. Co., 252. U. S. 341, 343-344 (1920) ; McGoldrick v. Compagnie enerale, 309 U. S. 430, 433-434 (1940); Wilson v. Cook, ®27 U. S. 474, 483-484 — (1946). Moreover, the reference in .the petition to equal - protection of the laws does not specifically refer to the _ United States Constitution and makes it clear that appel-* lant is not relying on 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 case where the police officer has testified before a grand jury ‘and that such testimony is being used-as the basis ‘for a dismissal. That is not what occurred in the present case. At the least, the argument assumes that the New York Court of Appeals 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. ; | Po. : All that the New York Court of Appeals held, however, is that a police officer who has refused to furnish“informa-. tion to a grand jury regarding the conduct of his office and the performance’ of his official duties may be discharged ‘unless, at his disciplinary hearing, he offers an appropri- ate explanation for such refusal. This holding applies to all police officers. Even if it varies from the rule appli- ‘ cable 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 interpreted since the eer decision. é CONCLUSION The appeal to this Court from the jadgnient of the | : New York Court of apnea should be affirmed. April 11, 1968. tained dial J. Lez Rana,” . Corporation Counsel, i | | Attorney for Appellees, Municipal Building, New York, N. Y. 10007. Norman Rebiicu, — Stantey Bucussaum, Rosert T. Hartmann, of Counsel. . B . f | - APPENDIX Waiver of Immunity ‘(Department's Exhibit 4). y% vv a . THe People oF THE STATE OF New York | against Joun Dor, Er At. . = I, . _ _, residing at occupying the office of | in the , gras of the City of New York, do hereby waive all benefits, privileges, rights and immunity which I would otherwise obtain from indictment prosecution and punishment for or on account of; regarding or relating to any matter, transaction or things, concerning the con- duct of my office on the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the nomination, election, appointment or official conduct of any officer of the city or of.any such county, concerning any of which matters, transactions or things I may testify or produce evidence documentary or otherwise, before the ; on, _ Grand Jury in the County of New York, in the investigation being conducted by said | Grand Jury: — J Dated: New York, N. Y. _ Witness: State or New York ] County or New York § = Onthis ~ day of 4 196 , before me per- . sonally appeared +, to me personally known and known to me to be the individual described in and who executed the above waiver, and he duly acknowl-. edged to me that he executed the same. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0018%3A07. Public record. Not legal advice.