# Respondents 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%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1968 - **Citation:** 392 U.S. 280 ## Text ee ing RG “°? SUPREME COURT. U.S APR 13 joe (39056) ne a Supreme, Court of the Ynited Bates ‘ October Term, 1967. . No. 823 Unirormep Saniration Men Association, Inc., et al.,- Petitioners, . —against— . ‘ | | CoMMISSIONER OF SANITATION OF THE | Crry or New York, et al., 4 | : Respondents, ON WRIT OF CERTIORABI TO THE UNITED STATES COUBT . OF APPEALS FOR THE SECOND CIRCUIT — ee —— - 7 RESPONDENTS’ BRIEF a J. Lez Rank - Corporation Counsel of the. . City of New York, na : Attorney for -Respondents : ce and Post Office Address - Municipal Building Pie . "Borough of Manhattan New York, New York 10007 ‘ Norman Rep.icu, Joun J. LoFuin, Rosert C. Dinerstern, of Counsel. (re a a United States v. McGavie,°337 F. 2d 317 (6th Ge =. 5: BE dvdusnneassaxnevhbudustesses veeuwiun ane -. 9,27 United States v. Tane, 329 F. 2d 848 (2d Cir. 1964) 26 United States v. Wade, 388 U. 8. 218 (1967 ete macee's 20 Williams v. Ball, 294 F. 2d 94 (2 Cir. 1961) cert. den., 368 U.S. 990 ..... rere pore osegeceeesees 1.22 -. | on : e 2 Sire - PPE Tee ae ; iv | Statutes | ‘ oo - "| PAGE _ 28 USC. §2281 ........ ati a teestisesee 0 Bat U.S.C; $4001, 605 «.....0.....5.45...0 ‘sooe+ 02, 9-10, 52 | New York City Charter: ’ ©. 2° | eae ae 2 Section 1423 (previously 903) | Seas ed conn .% i New me Code of Criminal isis Section 818-8 4... erie i cacekee Se ee New oom Btate Civil Service Law § ere towhan | U. 8. Constitution ‘ Fourth Amendment Te 8, 17; 18, 21, 24, 28, 30-32 _. Fifth Amendment ......... a a eaee 15, 19, 20, 21, 26 qt Fourteenth Amendment , a PTT T TTT e ‘Gersitene See r as 4 Bee ee ; 7) } * Spree Court af the Yuited States: iio Term, 1967 © ¢ No. 823 "= rv UnirorMep Sanitation Men Assocration, Inc., et al., 4 ae ae - Petitioners, er . + —against— Sr, CoMMISSIONER OF SANITATION OF THE _ Crry or New York, et al., oF Respondents.: ON WRIT OF.CHRTIORARI TO THE UNITED STATES COURT - e OF APPEALS FOR THE SECOND CIRCUIT , lia. a dy. 7 RESPONDENTS’ BRIEF © Preliminary Statement Petitioners ask this Court, upon a writ of certiorari ‘granted on January 29, 1968 (R. 91a),* to review a judg- ‘ment of the United States.Court of Appeals for the Second Circuit, entered on September 20, 1967 (R. 90a-91a). That judgment unanimously affirmed a. judgment of the United States District Court for the Southern District of New York which dismissed petitioners’ compiaint. for failure to state a claim on which relief can be granted (R. salle * References designated ow sil ‘to the Joint Appendix filed in this Court. ; , P z 2 j — “~ ° Questions Presented , 1. Maya municipal employee’ be dismissed for refusing - to answer questions concerning the proper performance of - his duties on the ground that his answers would tend' to in- * eriminate him, ‘or for withholding information by. refusing ; to sign’a waiver of immpnity from prosecution when called - to testi *about his employment by a grand j jury, and then - - failing to justify or explain his action at a hearing where q he was given full opportunity to do sot : 2. Wn petitioners? dismissals rendered unlawful be- cause the City Commissioner of Investigation, pursuant to court order, intercepted and recorded telephone conversa- tions over a telephone leased by the City to transact official business, to which conversations certain of the petitioners were parties, even though no evidence derived from the * interceptions was offered against the petitioners i in any sub- | +. sequent proceeding? + Relevant Statutes *« The primary statutes involved, Section 1123 of the New York City Charter, Section 813-a of the’ New York Code of Criminal Procedure, Federal Communications Act of 1934, 47 U.S.C. §§ 501, 605, and New” York State Civil Service Law § 75, are set forth in the — infra, pp. 34-39. The Facts - The niaterial facts are not in dispute. Petitioners were formerly employees of the New York City Department of Sanitation assigned to the Marine Transfer Station at 91st Street and ° the Kast River in Manhattan. In the fall of ; . / 1966 the City Commissioner of Investigation learned that Sanitation Department employees were failing to charge private cartmen proper fees for the use of City facilities at the Mariné Transfer Station. Insteady the employees were alleged to have diverted fees to their own use result- ing in a loss of income to the City of hundreds of thousands of dollars (R. 5a, 71a-72a). In the course of his investigation, the Commissioner ob- tained authorization frdm Supreme Court, New York County, under the provisions of Section 813-a of New York Code’ of Criminal Procedure, to tap a telephone-(AT 9- 7935)-leased by the Department of Sanitation for the trans- action of official business at the Marine Transfer Station. This official City telephone was the “— line tapped i in the investigation (R. 72a). In November, 1966, the Pater dr his deputy questioned petitioners concerning their duties and employ-— ment (R. 41a-65a). Prior to being questioned they were: § advised- of their right to counsel, their right to remain silent and not be compelled tg be a witness against them- selves, and that anything they said could be used against them, They were also apprised of the provisions of Sec- tion 1123 of the New York City Charter which provides for dismissal where a City employee fails to testify concerning the property, government or affairs of the City or his official. conduct on the ground that his answer would tend to in- criminate him (R. 73a-74a). ‘Twelve of the petitioners re- fused to answer claiming the constitutional privilege against self-incrimination. Three of the petitioners were inter- rogated and gave answers ‘without claiming the privilege against seff-incrimination (R: 6a). *-- aie re anal ale ene palptatitainals MO rch A (nea Lal ’ 7 - ; On December 2, 1966, the Commissioner of Sanitation suspended the petitioners. Those who, had refused to tes- tify on the basis that their answers would tend to incrim- inate them were advised that their suspensions were based on Section 1123 of the City Charter. The others were ad- vised that their suspensions were based on information received from the Commissioner of Investigation concern- ing irregularities arising out of their employment (R: 7a, 45a, 58a). On December 14, 1966, petitioners commenced this action ' for declaratory judgment and injunctive relief. As of that data petitioners had been suspended but not.dismissed from their employment. Subsequently, on December 16, 1966, the Commissioner of Sanitation issued formal charges under Section 75 of the New York Civil Service Law against the twelve petitioners who had refused to answer questions put to them by the Commissioner of Investigation or his deputy. At the:time of argument before the District Court no hearings had been held on these charges (3a, 56a-70a). After argument of the case in the District Court but prior to the argument in the Second Circuit Court of Ap- — peals the following relevant events occurred. Hearings were held on the charges made against the - twelve employees who invoked the privilege against self- * incrimination in their appearance before the Commissioner ~ of Investigation. The only evidence offered against them was the transcript of proceedings before the Commissioner - of Investigation. Petitioners were represented at the dis- ciplinary proceedings by the same counsel who gppeared for them in the District Court and on their appeal. No tran- scripts, setetings or other evidence obtained through a 3 . ? wiretap were offered against petitioners or réceivéd in evi- dence during the disciplinary proceedings. ¢ “¢ The three petitioners who did not assert the privilege against self-incrimination when. called before the Commis- sioner of Investigaticn were later summoned to appear before a grand jury and asked to sign waivers of: im- munity. Each of them refused to sign a waiver. Subse- ‘ quently, they were served with amended charges by the — Commissioner of Sanitation to~ the effect that they. had violated Section 1123 of the New York City Charter by _ their refusal to waive immunjty before the grand jury. In the hearings conducted by the Department of Sanita- tion the charges against those three petitioners related solely to their refusal to waive immunity before the grand jury. No evidence or testimony of any kind based ‘upon -a-wiretap was offered against them. At the disciplinary proceedings ssitliamand offered no testimony. to explain their refusal to answer questions put to them by the Commissioner of Investigation or his deputy or their refusal. to sign. waivers of immunity. Their de- _ fense rested solely on claims of unconstitutionality or ille- gality in the, proceedings. Each of the petitioners. was dismissed after the hearings for violations of Section 1123 of the New v York City Charter. Guinions Below The District « ‘Court on respondents’ motion dismissed § the complaint 9n grounds of abstention. ‘Subsequent to the District :Court decision the New York State Court of Ap- peals decided Garduer v.. . Broderick, 20. N Y 2d 227 ry * which authoritatively. construed Section 1123 of the New. 7 4 York City Charter. The Second Cireuit Court. of Appeals ‘ noted that this construction removed the federal abstention - | question from the case and proceeded to consider the merits. * In its opinion, the Circuit Court held “ {t]here was no inva- 4 sion of appellants’ constitutional rights when they were _ @ dismissed from their employment for refusing to answer . questions as to their conduct of, their jobs’’ (R. 87a). That + Court also. held that there had been no ‘‘trespassory intru- 4 sion into private, constitutionally protected premises’’ as - : was found to exist by this Court in Berger v. New York, 388 % : U. S. 41 (1967). The Circuit Court stated (R. 88a) : a x + « $e also hold that appellants’ claim based on the -Commissioner’s wiretap was properly dismissed. No : . Violation of the Federal Communications Act, 47 : USC §605 * * * or deprivation of rights under the ‘ Fourth Amendment has been established. ’’ ‘SUMMARY OF ARGUMENT I; Respondents have not. violated petittonene? privilege against self-incrimination. Since this Court’s decision in | Slochower v. Board of Edu- cation, 350 U.S. 551 (1956),.the courts of New York have 4 made the implied constitutional guarantee of a full adminis- 4 trative hearing an integral part of the disciplinary proce- @ dure when Charter. § 1123 is invoked aoe a public em- ployee. This approach is enalabini with the decision. of this ee Court in Lerner v. Casey, 357.U.S. 468 (1958) ; Béilan v. Bd. of Ed. of Phila., 357 U.S. 399 (1959) ; Nelson, et al,v. County of Los Angeles, 362 U.S. 1 (1960). These cases upheld the - 3 . dismissal of a public employee where he was asked questions . of legitimate concern to his employer, refused to. answer those questions and then failed to explain that refusal in a subsequent administrative hearing held for that purpose. This Court’s recent decisions in Garrity v. New Jersey, 385 U.S. 493 (1967) and Spevack v. Klein, 385 U:S. 511 (1967), do not’ support petitioners’ contentions. Both the opinion of the Court (fn. 3, at p. 516) and the concurring opinion of Mr. Justice Fortas (at p. 519), in. pene dis- tinguish that case from the one at bar. In light of the decision | in Garrity, there is even less reason to support the cqntention that a public employee may refuse to answer questions concerning the performance of his duties, and retain his job. As a result of Garrity, a public employee need not fear subsequent criminal prosecution | based on any testimony given to his employer or a grand | jury. | IL. The wlieten in this case did not wn ee - Fourth Amendment rights. | A. The decisions of this Court i in Berger v. New York, 388 U.S. 41 (decided June 12, 1967) and Katz v. United States, 389 U.S. 347 (decided December 18, 1967), should not -be given retroactive ‘application. Under the tests estab- - lished by this Court in Linkletter v. Walker, 381.U.S. 618 (1965), Tehan v. Shott, 382 U.S. 406 (1966), Johnson v. New | Jersey, 384 U.S. 719 (1966), and Stovall v. Denno, 388 U.S. 293 (1967), the constitutional standards for eavesdrop war- rants, set forth in Berger.and Katz, should be applied pro- spectively to trials or proceedings commenced after the date of. these decisions. : ‘i : ba dhe aA Dit aN on RSE Shas Wis thin OSES Halle SI SEM i The basic premise of this test is that new judicial construc- tions ‘of constitutional provisions have been applied retroac- tively whére the purpose served by the new rule is preserva- tion of ‘the ‘‘integrity of the truth-determining process at trial ...’’ Stovali v. Denno, 388 U.S. at 298. This was not the case in either Berger or Katz where there was no ‘doubt as to the reliability of the evidence barred by the new rules. At the time of the tap involved here, and thereafter until the decision in Berger, law enforcement officials could not ascertain the standards which that’ decision established for eavesdrop warrants ; and until Katz, they believed that non- trespassory eavesdrops were beyond the scope of Fourth — Amendment protection. ‘Thus, there would be a substantial - adverse affect on the administration of justice if Berger and Katz were applied retroactively, thereby invalidatirg thou- | sands of prosecutions based on- what were, believed to be legal eavesdrops and wiretaps. Respondents relied on a state statute that: had been held to be constitutional. ’ Nor is the Court presented with a situation where the ~ rules of Berger and Katz should be applied to cases on direct appeal at the time of those decisions. Unlike the situation . whic’, the Court faced in Linkletter v. Walker and Tehan v. Shott, no decision of this Court since Berger and Katz has applied these cases on direct appeal. Therefore, the Court ne | should apply the same test it enunciated in J ohnson v. New Jersey and Stovall v. Denno and apply the new rules to pro- ceedings commenced ‘after the decisions in Berger and Katz. -B. Even if the doctrines of Berger and Katz are applied. - retroactively, the wiretap did not taint the subsequent pro- ceedings. ; No evidence secured through the tap was ever used against petitioners. The tap was not used to identify peti- e 9 ticners as suspects, nor as the basis for thé investigation. ‘Instead, the tap was the source of certain questions which petitioners refused to answer. Under these circumstances, ’ any alleged taint, caused by the tap, has been dissipated. Nardone: v. United States, 308 U.S. 338; United States % £. McGavic, 337 F. 24 317 (6th Cir. 1964); Rogers v. United States, 330 F. 2d 535 (5th Cir. 1964); Hollingsworth v. United States, 321 F, 2d 342 (10th Cir. 1963). - C. Petitioners have not established a violation of their , Fourth Amendment. rights under the doctrines of ‘Berger and Katz. ‘This Court has not held that warrants meeting Fourth Amendment standards are required in all cases where conversations are seized. Under the facts of this case, . . petitioners could not reasonably expect that calls.made on the phone at the 91st Street Marine Transfer Station would - be free from interception by their employer during an au- §—. thorized investigation into irregularities regarding the per- formance of their duties. — | ~ Although not indicated in the record, the facts here differ markedly from these presented in Katz. If the Court should _ reach the constiistional question of the validity of the tap under the Fourth Amendment, the case should be remanded to the District Court in order to develop a record which . would permit a sound constitutional determination as to F whether the-tap of this government-owned phone, in light B of all the circumstances, including the regulations governing E the use of this phone, was an unconstitutional search and seizure.: ; | can . _D. While an unconstitutional wiretap would be inadmis- & sible in a state court proceeding under Mapp 'v. Ohio, 367 U.S..643 (1961), a finding of a violation of § 605 of the Fed- ) eral Communications Act alone, does not ‘sustain peti- tioner’s claims. Under Schwartz v. Texas, 344 U.S. 199, the exclusionary | ‘rule applicable to violations of constitutional provisions by state officials,,does not apply to such violations of federal . statutes. Further,'for the reasons cited in B, above, there is no causal connection between the tap and petitioners’ sub- sequent dismissals. - POINT I hd _ _ As applied in New York, in administrative practice. * and through judicial interpretation, Charter §1123 | meets the constitutional requirements of due process __ ! expressed by this Court in Slochower v. Bow>d of Edu- : cation and subsequent decisions. ere Ole In Slochower v. Board of Baucation, 350 U.S. 561: (1956), this Court was called upon to review a dismissal pursuant to §903 of the New York City Charter (predecessor to the :present §1123). Slochower, a Brooklyn College professor, was summarily dismissed pursuant to §903 for failing to — answer questions concerning his membership in the Com- ~ munist Party before a Senate. Subcommittee on Internal | . Security. This Court overruled the- holding of the: N ew York Court of Appeals that under §903 an Assertion of the privilege against self-incrimination in defiance of the Char- ter provision.is equivalent to a resignation, saying: ° 4 : 2 ’ ‘Tt is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite andther for his discharge to be based entirely on events oc-: - curing before a federal committee whose inquiry. was announced as not directed at ‘the property, affairs 11 © or government of the city, “eer official conduct of city employees.’ * * * . ‘‘The State has broad powers in the olntiun and discharge of its employees, and it. may be that proper inquiry would show Slochower’s continued employ- ment to be inconsistent with the real interest of the State. But there’ has beén no such inquiry here. We _ | hold that the ‘summary dismissal of appellant vio- lates due process of law.’ 350 U.S. at pp. 558-559. Subsequent to Stedheawer this — has held that state statutes authorizing the dismissal of public employees who ~ fail: to answer questions in an investigation of matters. of : legitimate concern to the state or agency involved do not . es) violate - due process ‘where a hearing is. held prior to. dis- _ _missal,_Lerner-v. Casey, 357.U. S. 468 (1958); Beilan v. - Bd. of Ed. of Phila., 357 U. S. 399 (1959)5 Nelson, et al. v.. County of Los Angeles, 362 U. S.1 (1960). In each of these ~ ' eases, appellants were dismissed pursuant to the relevant ~ statute, after a hearing before an appropriate administra- tive body at which time they were given the opportunity to explain their refusal to testify. The ultimaté’ dismissal in each instance was based not on the mere refusal to testify but-on the breach of legitimate conditions of employment— - candor and integrity—that the refusal reflected. This is — not at all the built-in inference of guilt imputed to an em- - ployee’s invocation of the privilege which this Court con- | demned i in Slochower-and Nelson. In the case at bar, upon their refusal to testify before - the Commissioner of Investigation or their failure to waive . immunity and testify before the Grand Jury, each of the | fifteen petitioners. was subsequently given a full hearing - aban hei RG a ale A Nl ae ath al ah z before the Commissioner of, Sanitation. This hearing dealt with petitioners’ refusal to answer questions concgrning — the performance of their job. It should be noted that in Lerner and Beilan Mr. — Justice Douglas, with whom Mr. Justice Black concurred, based his dissent, covering both\cases, on the propriety of the government concerning itself with the opinions and be- liefs of its employees. 357 U.S. at p. 415. The dissent, how- ever, recognized the right ef the government.to inquire into the ‘‘actions of men’’ such as the fitness of the public employee for his job for reasons of health, promptnéss, rec- -- ord for reliability. 357 U.S. at P. 415. Dissenting in a separate opinion, in Lerner, Mr. Justice Brennan stated: . “But can we suppose that a subway conductor ‘«would be branded a security risk if he refused to , answer a question about his health? Of course the answer is no, although the question is plainly rele- _ . vant to his qualifications of employment. It may well , be that it such a case the State would be fully justi- ‘ fiell in discharging the employee as ‘untrustworthy and unreliable.’ ¥ 357 U.S. at p. 422. Since the Slochower waiia: the New York Courts have - made the implied constitutional guarantee of “‘proper in- ' quiry’’ an integral part of the disciplinary procedure when- ever §1123 is invoked against a public employee. Gardner v. Murphy, 46 Misc. 2d 728. (Sup. Ct., N.Y. Co., 1965) ; Con- lon v. Murphy, 24 AD2d 737 (1st Dep’t.,.1965). In Gardner, the court reviewed this Court’s decisions which recognized ~ both the interest of the government in the loyalty of its employees and the need to protect the constitutional rights . of those emaployees, and found: ~ 13 ‘Logic thus iis the post-Malloy v. H ogan (378 US. 1) applicability to State proceedings of the doce trine enunciated in Slochower v. Board of Educ. (350. U. 8.551) ; ; Automatic dismissal from public employ- ment predicated solely upon-one’s invocation of the Amendment privilege against self-incrimina- | tion is proscribed by the United States Constiraiaen * * *.?? 46 Mise. 2d at p. 734. \ oe e-e 6 e f ‘ 4 ‘ ” Thus, under this test the question to be answered is whether petitioners could reasonably” have expected that calls made on the phone at the 91st Street Marine Transfer Station would be free from interception by their employer, during’ an authorized investigation into irregularities re- garding the performance of their duties. Certain facts readily distinguish this case from Katz. Although these facts do not appear in the record, they are mentioned here for purposes of indicating to the Court the | factors which the trial court should consider ‘in determining whether the obtaining of wiretap evidence in this case was a violation of petitioners’ Fourth Amendment rights, if the Court concludes that this issue should be reached in’ this case. For example, the phone tapped by the Commissioner of | Investigation was a City phone, used exclusively for the transaction of official business. It was the’ only telephone (with one extension) at the Transfer Station. It was not. » assigned to any individedl employee.. Department regula- tions prohibited any unauthorized use of the phones at that or any other Sanitation facility. The phone was not open. to the publie. | In Katz, on the other hand, the telephone which was “bugged”? was a public phone which a person could expect to use in privacy when he paid his toll. In Katz there was only one suspect involved, who used the phone at regular times each day. As the Court noted, these were circum- stances in which the warrant defining the limits of the search ‘was most appropriate. In the case at bar, nearly all of the . petitioners used the phone (R. 41a-62a) throughout working hours at the facility, which is open 24 hours a day. OE Se ted es Sat ia 30 Under ‘these circumstances a trial court may find that a court order is neither practicable nor necessary or that the petitioners could not reasonably have expected privacy dur- _ing the unauthorized use of the phone, ‘particularly from Antrusion by a City official who had a duty to discover and expose the niisuse of City property. . a Me Mie I 4 2 Me Under circumstances analogous to the instant case, the Court of Appeals for the Second Circuit, in United States v. Collins, 349 F. 2d 863, cert. den., 383 U.S. 960 (1965), declined to find a invasion of privacy. It sustained the conviction of a federal employee for mail theft ‘where the primary evi- dence was obtained by a search, without a warrant, of de- ™ fendant’s office desk and jacket. In holding this to be a reasonable search and seizure, ‘the Court said (349 F. 2d at pp. 867-868): F awe have no doubt that the search of ‘defendant’s ; - work area,. ineluding the surface and interior of his desk, conducted by. Customs agent McDonnell and . Post Office Inspector Forster was a constitutional exercise of the power of the Government as defen- dant’s employer, to supervise and investigate the. performance of his duties as a customs employee. Defendant was handling valuable mail for which the _ Government was responsible. The agents were not _ investigating a crime unconnected with the perform- ance of defendant’s duties as a Customs employee.’’ This Court has never held that all searches and seizures by government officials, made without a warrant, violate . the Fourth Amendment. Experience. has evolved rules con- cerning, for example, searches incident to a lawful arrest, Agnello v. United States, 269 U.S. 20 (1925), Ker v. Cali- fornia, 374 U.S. 23 (1962); searches of moving vehicles, 31. Carroll v. United States, 267 U.S. 132 (1925), Brinegar v.. United States, 338 U.S. 160 (1948) ; and, most. recently, ad- ministrative inspectional searches, Camara v. Municipal Court, 387 U.S. 523 (1967), See v. Seattle, 387 U.S. 541 (1967). In Berger and Katz this Court charted new areas of. constitutional protections when it specifically applied Fourth Amendment protections to conversations, including those garnered by. non-trespassory eavesdrops. As in the case of the seizure of objects, or in the development of pro- . cedures for administrative inspectional warrants, experi- ence in this evolving area of law militates against the. adop- tion of a rule which would apply strict Fourth Amendment standards to all eavesdrops by the government of its em- ployees’ conversations. ~ This Court should recdgnize the legitimate need. of gov- ernment to ascertain whether its equipment, including its . phones, is being used in an unauthorized manner for non- . governmental purposes. Respondents do not suggest that government employees do not have a right to privacy with . regard to their conversations, even on government phones. . Respondents do contend, however, that the facts of this case, if fully developed in an adequate record, would establish that the tap of. this phone, under the circumstances sur- rounding the tap, was not an unreasonable search and seizure. If this Court finds it necessary to reach this ‘con- stitutional question in light of the compelling arguments already made concerning the retroactive application of . Berger and Katz and the tenuous link bétween the tap and these proceedings, the Court should remand in order for the trial court to-ascertain the facts upon which a sound con- stitutional determination could be made. | Pome Ie Pe eee i wl Sa ic aia Na andl RO, SSL Ge Naa Oe ete | ri Rao LS, ‘ tal teen Se er es ee eee One (tion ite gi 32 ‘D. The: adie Violation of Section 605 of Federal . / Act Does Not Invalidate the Dis- missal of Petitioners. Petitioners contend that the wiretap used by the Commis- ” sioner of Investigation violated their rights under §605 of | ‘the Federal Communications Act and thus, all subsequent proceedings are invalid. - Even if there’ had been a + ition of $605, for the rea- sons stated in subdivision (B), above, there was no,causal connection between the interception of the conversations involving petitioners and their subsequent dismissals. Neither the tapped conversations nor any evidence obtained through them was ever used against petitioners in their disciplinary hearing or in any subsequent proceeding. .Their dismissals were.based on their refusal to answer questions relating to their duties, or on their withholding of information by refusing to waive immunity from prose- cution when called before the grand jury. If the Court, however, were to determine that the tap did affect subsequent events, the use of such evidence, or its fruits, is permitted in state proceedings under the doctrine of Schwartz v. Texas, 344 U.S. 399 (1952). In light of that ' decision, this Court should reject the argument that Mapr v. Ohio, 367 U.S. 643 (1961), which required the exclusion — of evidence obtained in violation of the Fourth Amendment in state as well as federal courts, overruled Schwartz. In’ Pugach v. Dollinger, 365 U.S. 458 (1961), decided only a few months prior to Mapp, this Court reaffirmed the ‘Schwartz doctrine. While an unconstitutional wiretap would - be inadmissible in state trials under Mapp, a finding of a violation of 4605 algne does not sustain petitioners’ claims. ‘88: CONCLUSION The judgment below should be affirmed. April 12, 1968. Respectfully submitted, ; See J: Lee Ran, — Corporation Counsel of the ‘City of New York, Attorney for Respondents. Norman Rep.iicu, Rat ee ee Joun J. Lorin, | = Rorert C. Drnerstern, of Counsel. — 34 re 4 ar ‘ a ey @ 4 - APPENDIX _ New York City Charter §1123: = ‘Failure to testify.—If any councilman or other | _. Officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear : - before any court or judge, any legislative committee, or any Officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regard- ing the property, government or affairs of the city or of.any county included within its territorial limits, or regarding the nomination, election, appointment i or official conduct of any officer or employee of the © - gity or of any such county, on the ground that his answer would tend to incriminate him, or shall _re- ’ fuse to waive immunity from prosecution on account of any such matter. in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall ter- tminate and such office or employment shall be vacant, and he shall not be eligible to election or appoint- ment to any office or employment under the city or any agency. (Derived from former §903.)’’ + New York State Code of Criminal Procedure §813-a: ‘‘Ex parte order for eavesdropping. An ex parte ' order for eavesdropping as defined in subdivision one and two of section seven hundred thirty-eight of the penal law mey be issued by any justice: of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer abovethe _ rank of sergeant of any police department of the . state or’ of any political subdivision thereof, that 35° | ‘ = Appeniia 7 there is soneonable ground to believe that evidence of crime may be thus obtained,- and particularly de- scribing the person or*persons whose communica- tions, conversations or discussions are to be over- heard or recorded and the purpose thereof, and, in ~ the case-of a telegraphic or telephonic communica-.- tion, identifying the particular telephone number or | - telegraph line involved. In connection with the issu- ance of such’an order the justice or judge may ex- amine on oath the applicant and any other-witness he may produce and shall satisfy himself of. the Ox: istence of reasonable grounds for the granting of. such application. Any such order shall be effective for the time specified therein but not for a period of more than two-months unless extended or re- newed by the justice or judge who signed and is- sued the original order upon satisfying himself that such extention or renewal is in the public interest. Any such. order together with the papers upon which ‘the application was based, shall be delivered to and retained by the applicant as authority for the eaves- _. dropping authorized therein. A true copy of such _order shall at all times be retained in his possession _ by the judge or justice issuing the same, and, in the ‘event of the denial of an application for such an order, a true copy of the papers upon which the | application was based shall in like manner be re- tained by the judge or justice denying the -same.’? ‘Communications Act of 1934, 47 U. S. C. §501, £605: “$501. General penalty: _ Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be’ unlawful, or who willfully and knowingly omits. or fails to do any act, matter, or thing in this chapter - required to be done, or willfully and knowingly causes or suffers such omission or failure, shall, upon conviction thereof, be punished for ’such of- fense, for which no penalty (other than a forfeit- ure) is provided in this chapter, by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both; except that any _ person, having been once convicted of an offense punishable under this section, who is subsequently convicted of violating any provision of this chapter punishable under this section, shall be punished by a fine of not more than $10,000 or by imprisonment for a term not exceeding two years, or both. June 19, 1934, ¢. 652, Title V, §501, 48 Stat. 1100;*Mar. 23, i c. 104,.68 Stat. 30. “8605. Unauthorized publication or use of com- munications ‘No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any inter- state or foreign communication by wire or radio _- shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, ex- — cept through authorized channels -of transmission or reception, to any person other than the addres- see, his agent, or attorney, or to a person employed ~ or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpoena issued by a: court of com- * petent jurisdiction, or on demand of other lawful authority; and no person not ‘being authorized by . 37 Appendia ‘the sender shall intercept any communication and divulge or publish the existence, conténts, sub- stance, purport, effect, or meaning of such inter- cepted communication to any person; and no per- son not being entitled thereto shall receive or as- sist in receiving any interstate or foreign communi- cation by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person .having received such intercepted com- © munication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such in- formation was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not en-— titled thereto: Provided, That this section shall not apply to the receiving, divulging, publishing, or util- izing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress. roars 19, 1934, c. 2, Title VI, §605, 48 Stat. 1103.” | ° New York State Civil Service Law 95 : ‘‘Removal and other disciplinary action _ 1, Removal'or disciplinary action. A person de- scribed in paragraph (a) or paragraph (b), or para- _ graph (c) of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or miscondyct shown after a hearing upon stated charges pursuant to this section. se -*® © Appendia 2.. Procedure. A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing. The hearing upon such charges shall be held by the officer or * body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose. In case a deputy or other person is so designated, he shall, for the pur- pose of such hearing, be vested with all the pow- . ers of- such officer or body and shall make a rec- ord of such hearing which. shall, with his recom- mendations, be referred to such office or body for review and decision. The person or persons holding™. such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, and shall allow him to summon witnesses in his behalf. The burden of prov- ing incompetency or misconduct shall be upon the - , person alleging the same. Compliance with technical rules of evidence shall not be required. 3. Suspension pending determination of charges; penalties. Pending the hearing and determination of | charges of. incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period riod not exceeding thirty days.* * * If he is acquitted, he shall be restgred to his,positiem with full pay for the period of suspension less the amount of compen- sation which he may have earned in any other em- ployment or occupation and any unemployment in- surance benefits he may have received during such a 39 - Appendiz. period. If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission hav- ing jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the ¢ Officer or employee affected, be furnished to him with. ’ out charge. 2 ed 2 # ue --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0020%3A07. Public record. Not legal advice.