# Petitioners Reply Brief — Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0020%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1968 - **Citation:** 392 U.S. 280 ## Text “ “> Supreme Gciet uf ii Unite ‘ ™ Guin Term, 1967 i ‘ - No. 823 UNIFORMED SANITATION MEN ASSOCIATION, INC., et a, .° Petitioners, against | —- ’ GOMMISSIONER OF SANITATION OF THE CITY OF NEW YORK, et al, “a - Respondents. .. PETITIONERS’ REPLY BRIEF ioe il : 4 s* Lzonarp B. Boupry, Victor RaBinow!Tz, ” Attorneys for Petitioners, 30 East 42nd Street, New York, New York.10017. ~ Dorian Bowman, . Of Counsel. January 8, 1968. ' INDEX : | “PAGE I—Petitioners were dismissed for asserting their. ' constitutional privilege, not for failing to | explain its invocation ................ seen 1 Il—Petitionérs’ dismissal from employment re- - sulted from wiretapping which was illegal and. -' * in violation of petitioners’ constitutional rights : Comorénisow elaine: abouts Ree Pr SEH ee “ Authorities Cited © CASES: Beilan v. Board of Edueation of Philadelphia, 357 Ber peer re pre err trey 4 Benanti v: United States, 355 U.S. 96 .......... 5 Berger v. New York, 388 U.S. 41 ............2.. 6,7 Gardner v. Broderick, 20-N.Y. 2d 297 03.00.2005. (3,7 Gardner v. Murphy, 46 Misc. 2d 728 (Sup. Ct., EE, Wie WE aon acre ee acl Garrity v. New Jersey, 385 U.S. 493 ..... < nee, | Hoffman v. United States, 341 U.S. 479 ......... —- Kata v. United States, — U.S. 236 U.S.L.- Week . : biaaes v. Ceak 357 US: 468 . sigue nwe imines Malloy v. Hogan, 378 U.S. 1).........2...0.6. ’ Nardone v. United States, 308 U.S. 338 ....+..... - Nelson v. County of Los Angeles, 362 U.S. 1 ..., Olmstead v. United States, 27 US. 438 ......... Schwartz v.. Texas, 344 U. 8. eee ~ Silverman v. United States, 365 U.S. eh, Slochower v. Board of Education, 350 U.S. a : Spévack v. Klein, 385 U.S. 521 ........ccccecsne: Stefanelli v. Minard, 342 U.S. 117 ....°......... Stevens v. Marks, 383 US. 234 eet arechassece ~ Ullman v. United’ States, 350 US. 422 i Or S United States v. Collins, 349 F..2d 863 (2d Cir, , 1965), cert. domed, 383 US. GU Sanevessees din, 6 ; | yA CONSTITUTIONAL PROVISIONS: United States : ie Fourth Amendment ...2.............4. ek - Fourteenth Amendment .:.........0...... Pa 4 ' P - rg i STATUTES: . : | United States” Federal Conitiunications Act 47 U. S.C. § 605 New York ° # New York City Chasier § 1123 vi keecnstyss New York Code of Criminal Procedure § 813-a PAGE ‘5 1,2 * Supreme Court of the United § States October Term, 1967 No. 823 : 0 ‘ ; ae a Usiveimp SANITATION Mzn Assoctatiox, Inc., et a, : Petitioners, against : CommassionEn | or SANITATION OF THE CITY OF New Tous, et al, ‘ Respondents. Ly Vv a oe PETITIONERS’ REPLY BRIEF Even. as phrased in respondents’ brief, the questions presented herein are important ones, never apse A de- ‘cided by this Court although foreshadowed by the decisions upon which petitioners rely. Respondents, however, have interpolated into eagh question an element not fairly in this case. In fact, (1) petitioners were dismissed for asserting _ their constitutional privilege against self-incrimination, not their failing to explain or justify its invocation; and (2) the issue is not whether wiretap evidence was offered against petitioners in their disciplinary proceedings, but whether it led to their investigation, suspension and dis- missal. ... Petitioners were dismissed for asserting their con- - -stitutional eee ‘not for on to explain its invocation. ‘The respondénts, unlike ‘the court below, argue ‘that the petitioners were dismissed, not for assertion of the privi- ° . lege, bit for failure to explain it,’ This, however, is not ' what the New York City Charter contemplated, nor what. ' the complaint alleged, nor what actually occurred. The Charter speaks in unequivgcal terms, and makes assertion ' of the privilege or the refusal ai waive immunity an abso- . _ jute — for dismissal. - ~ “The respondents rely (Br. p. 8) upon the lower court’ decision in Gardner v. Murphy, 46 Misc. 2d 728 (Sup. Ct., N.Y. Co. 1965) for the proposition that dismissal from public employment based solely upon the invocation of the . privilege is forbidden by the Constitution but that the asser- tion of the privilege may legitimately serve as a ‘‘prima facie’’ basis for dismissal. This is plainly in confli¢t with whet the Court has said about the privilege. in Ullman v. United States, 350 U.S. 422 and Slochower x. ‘Board of —* 350 U.S. 591. The respondents also assert that since a one pur- portedly wader, Section 1123 of the Charter, was held peti- tioners have been afforded a substantive administrative remedy and that at such a‘ hearing, petitioners had ‘‘the right to refuse to answer’’ but not the ‘‘right to fail to ex- . ‘plain or justify [their] refusal.’’ (Br. p. 11).. However, respondents do not answer the question of how, at such a hearing, one can explain the invocation of the constitutional privilege without surrendering it. As the Court stated in en v. United States, 341 U.S. 479, 486-487: - “Gf the witness, upon interposing: his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, ~ he would be compelled to surrender the very protec- tion which the privilege is designed to guarantee. To sustain the privilege, it need only. be evidént from the implications of the,question, in the setting in which it. is asked, that a responsive answer to the question ‘or’ an explanation “of why it cannot be . answered might be dangerous nr injurious dis- closure could result.’’ Clearly, petitioners were not required to justify their in- vocation df the privilege at such a hearing. In any event, respondents’ argument ignores the fact, which the court below recognized, that the petitioners ‘‘ were dismissed from their’ employment for refusing to answer . Tecognized, at p. 243, that the issue was an’ open one, still to be; “of the Supreme Court Justices in the majority in those two cases questions”’ (Pet. 12a), not for refusing to justify the invoea- tion of their privilege. . Respondents’ casual reference to the inquiry ‘‘by ap- propriate City officials’’’ (Br. P. 11) ‘skims over -the fact that it was not an employer’s inquiry with respect to the fulfillment of an employee’s duties that ig, involved here, but an inquiry by a criminal investigating agency which, as such, had secured-a search warrant to wiretap under Sec- tion 813-a of the New York Code of Criminal Procedure, and had formally warned the employees of their con- stitutional privilege, their right- to counsel, ete. (R.. 7a-8a). Certainly, no one would suggest that the grand jury’s inquify in which the refusal to waive immunity by three of the%petitioners Jed to their discharge was an inquiry _ by an. employer into qualifications for employment.- The respondents suggest that this Court in Spevack v. Klein, 385 U.S. 511, ‘‘did not reach’’ the question presented in this petition for certiorari. They cite Mr. Justice Fortas’ concurring opinion to emphasize their point (Br. p. 10). The very fact that this Court .was not required to reach this important question in that case is a reason for\deciding it in the instant one where the issue is squarely presented.” ; Respondents rely here. (Br. p. 7) upon three*cases in * which: a: closely divided ‘Court upheld the dismissal of public employees who failed answer questions put ‘by their employers. None of these cases involved a statutory mandate | that assertion of: the constitutional ‘privilege 1In Stevens v. Morks, 383 U.S. 234, the Com had earlier. resolved. , 2 The Corporation Counsel has elsewhere canta that “all five [Garrity v. New Jersey, 385 U.S. 493 and Spevack v. Klein, 385 U.S. 511] have left open the que&tion which petitioner argues has been decided in his favor.” Brief of the Corporation Counsel in Gardner v. Broderick, 20 N.Y. 2d 227. 4 ‘ camelent self-incrimination requires automatic dismissal from employment.’ Lerner v. Casey,.357 U.S. 468, er a statutory man- date that persons ‘‘of doubtful trust. and reliability’’ be dismissed from a so-called security agency. The Court held that the refusal to answer certain questions justified ‘‘a ‘finding of doubtful trust and reliability’. The Court spe- cifically pointed out, however, at p. 477, that the employee’s ‘discharge ‘‘was not based on the fact that the employee had asserted Fifth Amendment rights’’. In addition, the Court noted, at p. 478, that ‘‘the federal privilege against ° self-incrimination was not available to appellant through - the Fourteenth Amendment” in the state investigation, a statement subsequently overruled by the decision in Malloy v. Hogan, 378 U.S. 1. » ‘wm Beilan v. Board of Education of Philadelphia, 357 U.S. 399,,400, the Court upheld a school’ teacher’s dismissal for ‘‘incompetency’’ where the’ ‘‘incompetency’’. was evi- | denced by the teacher’s refusal ‘‘to confirm or refute in- formation as to the. teacher’s loyalty and his activities in certain allegedly subversive organizations”’. These casés do not uphold the validity of a statute requiring the automatic dismissal of a public employee who asserts his constitutional privilege against self-incrimina- tion. Petitioners’ Sistinah from employment resulted | from wiretapping which was illegal and in violation of petitioners’ constitutional rights. | © Respondents first argue that “‘no evidence derived from the interceptions was offered against the petitioners in any | subsequent proceedings’’ (Br. p. 2). This careful formula- : tion overlooks the result reached in the second Nardone * One of those cases, Nelson v. County of Los a 362 U.S. 1, was discussed on page 9 of the petition for certiorari in this case. - a e’ e’ e 7 an : case; namely, that use of the fruits of illegal wire- tapping.is prohibited by Section 605 of the Federal Com- munications Act, Nardone v. United States, 308 U.S. 338. In the instant case, the complaint alleges that respondents’ investigation and disciplinary actions against petitioners were the result of such wiretapping (R. 7a). The affidavits show that the wiretapping was the foundation stone of the interrogation (R. 18a, 72a).” ‘y Constitutional questions aside,. violation of. a federal . statute—particularly’ where it constitutes.a crime—does : » make the dismissal unlawful. The refusal of this Court in Schwartz v. Texas, 344 U.S. 199, to reverse a state criminal - conviction based upon wiretapping was the result of a belief that Congress in, -enacting Section 605 did not intend to impose a rule of evidence upon state courts. In Benanh v. United States, 355 U.S. 96, 101, the Court reiterated this view, stating: ‘‘[D]ue regard to federal-state relations pre- cluded the conclusion that Congress intended to thwart a . state rule of evidence in the absence of a.clear indication to that effect.”” In Stefanelli v. Minard,-342 U.S. 117, 120, the Court had elaborated further on this theme when, in a federal suit to enjoin the use_in a state criminal trial of evidence alleged to have been secured by .an. unlawful state search, it said: ‘*Here the suiiiiitiesiiien governing that discretion touch perhaps the most: sensitive seurce of friction between States and Nations, namely, the active’ in- trusion .of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the states.’’ The policy considerations precluding fedeiel, interfer- ence with state criminal prosecutions do not apply to dis- _ missals’ from city ennners based upon violations of federal law. Respondents’ argument that wiretapping is supported by New York’s’ ‘‘constititional and legislative policy’’ 4. (Br. p. 13) ignores the issue of the violation of petitioner’s rights under the United States Constitution. It must be reemphasized that in Berger. v. New York, 388 U.S. 41,- this Court struck down New York’s statute implementing ; that policy. 'The.court below was wrong—as are respond- ents—in suggesting that. Berger was limited to ‘‘the, cir- cumstances there presented” (Pet. 14a). Respondents next argue (Br. p. 14) that a ‘‘telephone . leased by the City, on City-owned premises, tapped by — a City official in the course of his investigative duties’? is” not a ‘‘constitutionally protected area, within the purview of the Fourth Amendment: protection’. Whatever doubts there. may have been as to what constitutes a ‘‘constitution- ally protected ‘area”’ have been laid to rest by this Court’s recent opinion in Katz v.-United States, — US. —, 36 USL." Week 4080 (Dec. 19, 1967). There, in reversing a defendant’s conviction based upon evidence secured by ‘the use of a listening device attached to the outside of a telephone booth from which the defendant was making a call, the Court departed from the narrow view of the - Fourth Amendment -which governed the decisions in such cases as Olmstead v. United States, 277 U.S. 438, and Silverman v. United States, 365 U.S. 505. The Court de- clared, eat 36 U. 8.L. Week 4081: ‘‘Por the Fourth Avemdnaent protects people, not _ places. What a person knowingly exposes to the public, even in his own home or office, is not a sub- _ ject: of a Fourth Amendment protection. . . . But ~ what he seeks to preserve as private, even in an area accessible to the _— mee be aseecmaired pratected.’’ United States v. Collins, 349 F.2d 863 (24 Cir, 1965), cert.. denied, 383 US. 960, is not.to the contrary. -There, the search was limited to specific and identifiable’ objects, .- namely, the defendant’s office desk and jacket, This’ is. o quite different from wiretapping a telephone, Tiere the = mo wiretap is not limited to conversations relating to city _ business and there is a ‘‘roving commission’’ to search out all telephone conversations ; * see -Berger v. New York, supra, at 59. . The ‘suggestion (Br. p. 15) that the eee of Investigation was investigating the ‘‘misuse of City prop- erty’’ is not a fair description of what-occurred here. The | Commissioner of Investigation was -not interested in the misuse of a telephone, but in securing evidence of crime ~« . from the telephone conversations. | Til a, & This case presents two questions of continuing. im- portance which require early resolution by the Court, .One © question, that of the privilege against self-incrimination, is reflected by the periding jurisdictional statement in Gardner v. Broderick, October Term, 1967, No. 635. -The second. question is whether wiretapping, engaged in by city officials ‘in violation of a federal statute and the Fourteenth Amend- ment, can lawfully lead to the dismissal of an employee from public employment. The instant petition has the advantage ‘of presenting ~ both issues to this Court upon a very short record involving . no disputed issues of fact. Counsel is prepared to brief and argue the case-upon short notice. In the light of-the fact that it presents two separate and important questions of constitutional law, it is respectfully suggested that full argument be permitted in this case even if jurisdiction is noted in Gardner or "other. cases of a similar nature. ant : cE Oa have not™ complied with petitioners’ “requests for et of the application for the wiretap order and the. order itself. a.) ‘CONCLUSION _ | __ The petition for certiorari should be granted. | “Respectfully submitted, Leonarp B. Boupriy, Victor RaBrinowITz,. Attorneys for Petitioners, 30 East 42nd Street, _ ‘ New York, New York 10017. Dorian Bowman, ‘ | Of Counsel. January 8, 1968. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0020%3A05. Public record. Not legal advice.