# Motion to Dismiss — George Campbell Painting Corp. v. Reid > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0021%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1968 - **Citation:** 392 U.S. 286 ## Text Inve | _ NOV 10 1967 Supreme Court of the Ani ob Arta pom OCTOBER TERM, 196 | No. 673 , ? Greorce CAMPBELL ‘PartntinG Corp., * ‘ Appellant, against } Wuuiam Ren, Francis V. Maniean, Ina Ss. Rossins, Mem- bers of the New York City Housing Authority, and THE New Yorx’Crry Hovusine AvurTHoriry, Appellees. . Georce CaMpBELL Parntinc Corp., ia . — against . Wi11AM a Francis V.- Mapicay, Tra S. sass Mem- bers of the New York City Housing Authority, and THE New York aged Hovsine AUTHORITY, . _ Appellees. Silk: didi Diane aliens ey Mees OF THE STATE or New York —_—— SS MOTION TO DISMISS BY THE ATTORNEY GENERAL OF THE STATE OF NEW YORK: —— : : ——— — - “= date, on cross appeals, the order in the plenary action was modified in-an opinion which stated in pertinent part that: - - “The complaint ‘is insufficient because plaintiff is | _* subject to the contractual agreements it made and © . because of the present allegations plaintiff does not establish a case’ for equitable relief.’? (Id. p. 17) On consolidated appeals, the New York Court of Appeals held that Public Authorities Law § 2601 is constitutional - citing Matter of Gardner v. Broderick, 20 N. Y. 2d-227, 229 N. E. 24-184, appeal pending No. 635, Oct. T. 1967, decided the same: day. The Court held the ‘disqualification to be valid. The Court further held that the fact, that the ap- pellant’s: officer resigned. prior to his appearance before the Grand Jury was not.eontrolling where the resignation was virtually contempotgneous with his refusal to sign the waiver of immunity and where it was obvious that the sole . purpose of the- resignation was to avoid the statutory dis- qualification.- The Court held that while there might be - times when the, statute would penalize a corporation which ‘*had severed its connection with the recalcitrant officer and which has otherwise been cooperative”, the Legislature had _ provided a procedure for the removal of such disqualifica- tion (Public Authorities Law § 2603). The Court concluded that ‘‘the appellant’s exclusive remedy is the procedure outlined in that statute’’ (Jurisdictional Statement, : pp. 18-19). » &,. ~ ° . a % 2 REASONS FOR GRANTING THE MOTION » FF DISMISS : | I | - The insthnt case does ‘not present a justiciable con- -’ troversy within the jurisdiction of this Court, Appéllants. claim that the tien in » the instant case is - whether the assertion of the privilege against self-incrimi- | nation may result in its disqualification from bidding on — public contracts. Appellant is confusing any. individual rights of Mr. Campbell with its own rights. ‘Depending. on the facts, two basic claims might be open to Mr. Campbell , were he a party to this proceeding. He might allege that his privilege against self-incrimination entitles him not to have coerced testimony introduced against him in a crim- inal proceeding ‘and he might allege that he has a right not to suffer any penalty merely for having invoked the’ ___privilege against self-incrimination. Since he did not tes- tify, his first claim would not be available. Contrast Gar- rity v. New Jersey, 385 U. S. 493. The question with re- spect to Mr. Campbell would thus become whether or not his disqualification was the result of his claim of the priv- ilege against, self- incrimination or a lack of candor or some .. other reason. ‘The corporation, however, has no interest in and can —-elaim no derivative benefit’from Mr. Campbell’s privilege against self-incrimination. United States v. White, 344 ' U. S. 694. It thus cannot claim that any alleged impair-. ment of Mr. Campbell’s right to exercise the privilege gives it a right to assert the protection of his privilege for ° its own benefit. Any such right of Mr. Campbell would result from a claim of an unfair imposition of a penalty - © on him. The corporation cannot substitute the imposition of any alleged penalty on itself to complete the relation- ‘aie required before Mr. Campbell could assert such claim .of impairment. And, of course, the corporation has no privilege of its own to assert. United States v. White, supra. . ; Whatever right the corporation may claim as a result of its having been disqualified from doing business with the State and from cancellation of its contracts ‘can still be made the subject of a proceeding i in the State pursuant to Public Authorities Law § 2603. South Carolina v. Katzen, bach, 383 U. S. 301, 333. This, indeed, was the holding of the New York Court of Appeals. See supra, p. 5. Since - this remedy, the exclusive remedy, as that Court held, has | not been pursued, the décision of the New York Court of Appeals is not final with respect to appellant corporation i= no justiciable controversy has _ presented for reso- lution by this Court. cao In any event, appellant is bound by the contracts ie signed. It was a condition of the contracts, a condition of -which all of appellant’s officers and directors obviously —_ were well aware, that, upon the refusal of any one of them : to testify before a Grand Jury ot os their contracts, disqualification and cancellation ‘would ‘Yesult.' Appellant had the option of entering into the contracts on those terms and it cannot now overcome the fact that the contracts were « breached: Fahey v. Malonee, 332 U. S..245; Ashwander'v.. Tennessee Valley Auhority, 297 U. S. 288, 348 (Concurring Opinion); Booth Fisheries v. Industrial Comm., 271 U. S. 208 ;.Buck v. Kuykendall, 267 .U. S. 307; Campbell v. City : of New ‘York, 244 N. Y. 317, 155 N. E. 628. a ane ee > | The j nsteah case does not present a silat fed- eral qupstion for review by this Court. ‘ Even if appellant could assert that its disqualification by virtue of a ee refusal to waive’ immunity vio-., \ lates some right of its own, its ee on the constitution- ality of New York Authorities Law § 2601 is insubstantial. The jurisdictional statement implies that the provision was not inserted because of the necessity for demanding candor on the ‘part of public employees and contractors. It thus apparently rega as inapposite the sof Nelson v. Los Angeles, 362 ©. S.'1; Beilan v. Board of Education, 857 U. S. 399; Lerner v. Casey, 357 U. S. d Slochiower ‘v. Board of Education, 350 U. 8. 551. Each of these cases clearly establishes that the State may, under circumstances substantially the same as those in the instant. case, require testimony from its employees and contractors with respect to their duties and contracts. The governmental interest leading to the enactment of the statute was very strong. The need for candor. was obviously its motivation. In approving the legislation to deal with the problem of contractors who refused to testify _ about their dealings, Governor Rockefeller pointed out: ‘(Unlike a. priyate person’ who may contract with whom he wishes, a public agency usually lets contracts _ - by public auction and is required to accept the lowest bid. For that reason, it would seem appropriate to -., disqualify the bids of persons. who are unwilling to discldse to a grand jury facts relating to some prior contract .with the public. Likewise, it would seem appropriate that public contracts should provide that - the benefit ateruing under them be available only so” long as the beneficiary is willing, when required by a ° grand jury, to disclose any information he may have as to a public contract.’’ Memoranddm of the Gov- -ernor, N. LY. State Legislative Annual 959), P.. 431. The Legislature was concerned “— only with iiaiiias low bidders, but also responsible bidders, and was ‘deter- mined that any contract awarded would best promote the _— interest. The Legislature has ‘affirmatively nite i hate : ve ee ee ee Le eee asi Nba tll 9 that it is of the highest importance that there be no col- lusive bidding or bid rigging for ‘public*contracts. This _ they have done by requiring that in every public contract ‘ proper assurances be incorporated by the private coh- tracting party to that effect (See e.g. General Municipal Law, §103-d). The New York. statute is substantially identical with federal requirements. See 41 C.F.R. 41-1, 317 (1965) (Federal Procurement Regulations). In order to determine whether or not bidders are re- sponsible, public agencies must be able to insure candor on the part of public contractors and to protect “the - public from persons or corporations which feel they cannot be candid in their public dealings. The provisions of the statute are in no respect arbitrary in insisting on. such candor. en Appellant’s claim that the automatic operation of the statute deprives it of due process once more ignores the existence of the hearing provided in the Public Authori- : ties Law § 2603. The fact that that hearing may be ob- tained only after disqualification does not. deprive appellant of due process of law. See Lerner v. Casey, supra; South ; Corcline v. Katzenbach, supra; Bowles v. Willingham, 321 . Neither ‘denne v. New Jersey, 385 U.S. 493 nor Spevack v.. Klein, 385 U. S. 411, gives substance to the issues sought to be presented. Garrity i is inapposite because no testimony was used. Thé Spevack case does not purport to overrule the line of cases beginning With Slochower, swpra, which holds that candor may be required of a public employee. It holds only that the. privilege against self- incrimination could not be withheld from an attorney so that he would be denied the opportunity to challenge the relevance to the proceeding of the documents demanded of him. - It did not even indicate that candor could not be required of attorneys within: the scope of the information the State legitimately could require of them. 10 In any event, the public contractor, even more than the public employee, must be accountable for its dealings. with , respect to, such public contracts, and the failure of candor required by the contract is intolerable. See Spevack v. Klein, supra, at 519-20 (concurring opinion). Any other result would render meaningless the whole system of public bidding written into law. CONCLUSION ° For the foregoing reasons the within motion to dis- : a miss should be granted. Dated: New York, New York, November 871967. Respectfully submitted, | Louis J. LEFrkow!rz Attorney General of the ~ ‘State of New York Intervenor-Appellee pro. se. is SAMUEL A. Hirsnowrrz ‘First Assistant Attorney General Brenpa Sovorr Assistant Attorney General of Counsel * >. “* : ~ . ; 5 ‘ i 7. y . J | . : . i ‘ . : . . - . . ; ; | | | | ; : * *. ” . . quia > ; ¥ : . . . : | . ® a > ; . | \ ’ | : . : $ . : ' : : | . ; | : | | ° . ® | | . . ; | 4 ; | q . . - : « e s | 7 | : | . . : . | : | * | : . 1 hae | | | | . se | : ; | ; ‘ ~ o i. , | | | . s ‘ : . . . >. y , | . G : . : | ° . | . : | . : — | . e —_—_ . ’ : ; * ‘ | . ‘ . . . ‘ | oa ee | | ; . . ; - | . . | } | ’ . : . , ! | . | 3 . . ‘ . | ; : | YM . . r . | - ; ; ; . : | | : , } | ° . a ; | *¢@ . | | . . & ; . | | i | } | : | | . 7 | . ‘ . » : | : g . . . : | ee . . . . " --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0021%3A05. Public record. Not legal advice.