Leonard B. Boudin: -- decisions of this Court in Slochower, the appellees immediately turned their position before the Appellate Division in a supplemental brief in the court below. And thereafter, the Court of Appeals are now here into a complete forgetfulness as to the reason given by them by which they are court-bound for the original discharge, a complete forgetfulness as to the inference that was drawn and they attempted to assimilate this case, therefore, to Garner moving back. Now, the distinction between Garner and our case may be set forth as follows. In Garner, there was a precise disclosure statute. In this case, there is not a disclosure statute precise or otherwise. In this case, there is an evidentiary statute, that is a statute stating that upon certain kinds of evidence, so-called, which I will discuss in a few minutes, evidence of unreliability, the employee may be discharged and we would take the position here that whatever may be the duty of the employee of a state employer under a statute possibly under a regulation, I don't have to meet that issue, under a statute stating that you must disclose. Although, we're not saying what consequences might be, either way. The situation is different where the State is required to prove its case by evidence and that Garner is simply inapplicable. Now, in the Appellate Division while Garner appears, referred to very frequently and in the Court of Appeals while Garner is also referred to very frequently, actually neither court, being a judicial body, wanted to or was able to get away completely from the precise reason given by the appellees for the discharge, namely, the inference that was drawn from the assertion of the privilege. And so, said the Appellate Division at page 35 of the record repeated thereafter, “It's true we may not infer that appellant is a member of the Communist Party from the decision of the privilege. On the other hand,” and I call this Court's attention to the “on the other hand,” “on the other hand, we are required to and should accept this truthful, his statements of answers to the questions propounded might have tended to incriminate him.” In other words, they will not draw the inference, but they will draw the inference. Otherwise, the sentence has no meaning. And thereafter, the Appellate Division, the Court of Appeals said at page 63 of the record -- pardon me, it's page -- yes, 63 and 64. When the employee refuses to tell his employer whether he is a member of the Communist Party, surely he is giving evidence of reasonable grounds for doubt as to whether as Mr. Justice Brennan said in the special term opinion, “He might be a member. He is giving reasonable grounds for doubt as to his trustworthiness and reliability as a security risk.” And as we say, it seems to us clear that the opinion in Slochower and indeed the dissenting opinion in the Slochower to the extent that they moved along on the issue do not accept as justifiable, as consistent with due process, the inference of unreliability which all the courts below as well as the appellees drew in the situation. Now, there is one other reason why this is not Garner, citing the fact that this is not a disclosure situation. There is a radical difference, as I suggested before in my statement of the facts, between the employer, who, as this Court believe, has a duty, has a right to ask his employees certain questions about his own employees' record and the kind of investigating official that the Commissioner of Investigation of the City of New York is. There are two points that I am now making.One is, the Commission of Investigation is not the Transit Authority. He's a part of a different government. And the second thing is that the Commissioner of Investigation has a broad sweeping power and this would be an extension of Garner. This would mean giving a -- an investigating official the power to ask the people about other people and ask the details about one's life, because in large part of the waiver doctrine that will be implicit in the witnesses and to ask to himself in answer that he could very reasonably give to his employer without the slightest danger. Now, what do they say about the Commissioner of Investigation? In our petition, we have -- we pointed out that the investigation was initiated. I hope the Court will remember my word initiated at the instructions of the mayor of the City of New York who told the Commissioner of investigation to investigate a number of employees in various agencies. The City of New York was the lessor, a lessor of a physical property of the Transit Authority and it is because the city was a lessor that they argued below that the city had a right to have its Commissioner call the employees of the Transit Authority and we disputed that and we lost in the court below. What we did we lost in the court below on a ground that we cannot argue here, namely that the City Charter gives the Commissioner certain jurisdiction to investigate virtually anything he wants to in -- under the -- under the standard of the best interests of the city. But the fact that he has power of the City Charter to investigate an employee of the Transit Authority or a person who was not employed by any agency of Government at all does not make him the employer. He is still not the employer of appellant and this was recognized. Again, it's -- it's the second thing that the appellees have forgotten since the original argument in the State Supreme Court. This was recognized in the State Supreme Court by the appellees and by Mr. Justice Brennan with special terms, because the appellees pointed out in the State Supreme Court that this had been initiated by the Commissioner of investigation and they said there's no reason why the Commission of Investigation can't make available to the Transit Authority anything in his possession and that the Transit Authority cannot use whatever the Commissioner gives it, in the same way that it could use evidence coming from a congressional committee. And I refer Your Honors to page 8 of my reply brief where this quotation is set forth. It is submitted and I'll only read the first line that under the Security Risk Law, the authority may consider and weigh evidence from any source whether it be from the Commission of Investigation, the police department, the Federal Bureau of Investigation or evidence of testimony before any legislative or congressional committee. Now, it may be that they can consider anything they get, what all this proves is, at the Commission of Investigation was treated by the Transit Authority, not as their agents authorized by the Transit Authority to act as an employer or the place of the employer, but as a source of information which anybody including a grand jury or congressional committee might have made available to the -- to the Transit Authority.
Speaker: Are you going to discuss the availability of the Fifth Amendment privilege to this -- to your client in the stay inference?
Leonard B. Boudin: Yes, I shall do so now. We have taken the position in analyzing this statute. If Your Honor will recall my emphasis on the federal character of the proceeding of the federal purposes of the state laws that my client had a right to treat this as a federal proceeding, because the purpose of the statute and the purpose of the activities of the Commission of Investigation was to aide the National defense program. Now, if the Court --
Speaker: Is your position turned entirely on that -- supposing that position is to be accepted?
Leonard B. Boudin: Then, I -- I treat this as a constitutional privilege against self-incrimination, not necessarily onto the Fifth, but the constitutional privilege in breadth and that was I think how the courts below treated her.
Speaker: What do you mean in breadth?
Leonard B. Boudin: Well, I mean the court below, the Court of Appeals and the other courts did not distinguish between the constitutional privilege under the Fifth Amendment and the constitutional privilege in the self-incrimination under the state constitution. They were treating this as if the witness had come before a state body and was pleading whatever privilege he possessed against self-incrimination. And if that is the case, then we say it doesn't make any difference whether the Commission of Investigation was a federal body or a sapient body. We still had the right not to be discharged by the Transit Authority because the Commissioner, a different -- a different group of people decided to ask questions and because we pleaded the privilege before the Commissioner. Now, however, we are the ones who have said that in addition to the state privilege against self-incrimination which cannot be used by the Transit Authority as the grounds -- as evidence of disloyalty, in addition to that, we say that because the Commission of Investigation was acting as a federal agent, this was precisely as if we had asserted the constitutional privilege before a federal body. And therefore, a right to assert it was not only comprehended within the Fourteenth Amendment, but a right to assert it was an immunity and privilege under the Fourteenth Amendment.
Speaker: Well, assuming that you would plead it simply or state it's just amendment privilege period, would you then say that as a matter of federal constitutional detection that still this -- the State couldn't use that anyway it wanted to?
Leonard B. Boudin: I think that if we set it our privilege against self-incrimination, whether we pleaded our state privilege or our federal privilege, the -- the drawing of an inference that the assertion of either privilege was evidence of disloyalty or possible disloyalty will be arbitrary action within the definition of Slochower, but Slochower did not depend of course upon the tribunal before which it was, this too was dependent and brought upon the fact that it was not a responsible employer. But the immunities and privileges point in Slochower is not passed upon the Court as Your Honor recalls. In short, I say that when you assert your privilege against self-incrimination, whether you say under state law or do you stay under federal law, whether you say on the state law because you regard the state privilege is broad enough to protect you, Murdock, not withstanding, against the danger of incrimination under federal law, no matter how you plead it, it is arbitrary and unreasonable under Slochower for that plea of the privilege to be treated as evidence of disloyalty. Now, my argument that this is a federal --
Speaker: Slochower didn't decide anything of that kind.
Leonard B. Boudin: Slochower --
Speaker: Slochower went on the premise that the use of a -- the use of a -- of a claim of privilege in a federal investigation knowing for it being made by the State without giving this man a hearing on his -- on his position whether he could hold his position as a school teacher that lacked due process, isn't it?
Leonard B. Boudin: Well, I --
Speaker: It didn't say anything as to how far the privilege could be used as evidence that the state court used to --
Leonard B. Boudin: Well, I -- I've --
Speaker: -- to think about the terms.
Leonard B. Boudin: If Your Honor please, I believe that the reference made in the opinion of Mr. Justice Clark for the fact that he sent us the - -the inference was drawn and could not be drawn from the assertion of the privilege to control this case and that they sent us the inference has been drawn in the present case from the invocation of the privilege. And if I may illustrate that by reference to the statute --
Tom C. Clark: (Inaudible)
Leonard B. Boudin: Well, I think that the sentence -- the inference cannot be drawn, Mr. Justice Clark, no matter who is asking the question.
Tom C. Clark: You mean whether or not you -- you require (Inaudible)
Leonard B. Boudin: Well, then you get the question --
Tom C. Clark: (Inaudible)
Leonard B. Boudin: That is quite true. You would then have that the insubordination problem would arise if you had a -- an employer asking the question and a clear duty imposed upon the employee either by statute or if this Court would hold as a matter of the relationship.
Tom C. Clark: (Inaudible)
Leonard B. Boudin: That would be the gist, that's right, correct. And in this case, we don't have the employer asking the question. We have a city agency asking the question and the employer saying that that is evidence upon reliability. And may I come down to one more point but I will, of course, proceed further on this if I'm asked and that is that there was a dual reason for the discharge. Your Honors may recall my stating that the original letter of suspension merely referred to the invocation of the Fifth Amendment. But the discharge letter referred to other activities and there was never a hearing on those other activities. There was never an elucidation about those -- other activities were. And so, we say that is a denial of due process. Now, let me, because I would not want to, even in the short time, I'm leading for my main argument, avoid the constitutional -- the jurisdictional issue. The jurisdictional issue was raised by appellees unless they developed it further, in which case I can respond to what seems to be this. That the appellant should have gone to the Civil Service Commission on an appeal, rather to have gone into the State Supreme Court for review of the Transit Authority's action. This is really an argument of the non-exhaustion of the administrative remedies. Now, there are a number of answers such as for example the appellees' acquiescence in the courts below on this particular way of testing the constitutional problems involved and the fact of the statute that we're dealing with here provides that when we go to the Commission, if we do, not to say what happens when we don't. We can never appeal to the courts, so said the statute. We have the right to take the statute as its worth, but there is a real and finally there's a principle in New York Administrative Law which I cited in one of my earlier briefs, brief in opposition to the motion to dismiss the appeal, that you have a choice normally of going either to the highest administrative body in the State or going into the courts. If you go into the courts, you have a greater power of review than if you go to the highest administrative body. But the real answer, the answer that I might have given at the beginning of this discussion is this. We raised all the federal constitutional issues in the lower courts including the Court of Appeals and the Court of Appeals and the other courts decided those issues. The question that this Court has said so often of whether or not federal issues are raised as a matter normally of federal -- of state court procedure and the state court was perfectly satisfied as were the appellees up to recently to have the issues decided by it. Now, I want to turn in possibly two minutes of my final discussion to the other points that I made in the brief, because while I think that the issue can be determined by the Slochower and Konigsberg principles, now, I may say, if I must Mr. Justice Harlan, by Footnote 9 even though, Your Honor, is not concluded that's one of the position to the Konigsberg decision. I want to point out in point (4) of our brief, we take the position that the State cannot decide that an employee can be discharged for membership in an organization even if it'd be the Communist Party, in the absence of some kind of emergency situation which we justify such drastic action. And that in 1954, we submit, there was no emergency which would justify the discharge of an employee of the State of New York, subway conductor, a humble man, opening and closing doors or not and as if even if he had joined the Communist Party, even if he was then a member of the Communist Party, and is certainly with no emergency, which call for the discharge of a man for stating the constitutional privilege. Now, it may be asked whether we ever reach this point and the reason why it is conceivable we reach it, if I fail to prevail on the other points, is that we were discharged not for nondisclosure as in Garner, but discharged because there was evidence of unreliability. And we may just as well take the maximum of the evidence and say, “The inferences were drawn that he was or might have been a member of the Communist Party. So, if Your Honors disagree with me on the earlier points which I have made, we may be faced with the question a kind of discharge for inferred membership in the Communist Party be valid if the employee is a subway conductor in the City of New York, not the Federal Government waging the war, if the year is 1954 and if his duties are the duties which have been described incontrovertible in the petition. They add a few more duties in their appendix to their brief which Your Honors, I don't think, can consider as part of this record, namely, that the subway conductor might go on the tracks because he has a badge. Well, I submit that without a badge, the millions of passengers who travel on the New York subway system can do exactly the same kind of theoretical damage that is suggested here and can go on tracks and go into washrooms and control the same number of bonds as a subway conductor can possibly do. Subway conductor, who I may say, from this complaint, have the presumption of -- of good conduct above the average train passenger because of his record as a loyal employee for 21 years, I did not indicate anything further on that point. I will withhold if I may be clarified.
Earl Warren: Mr. Scannell.
Daniel T. Scannell: May it please the Court. We have here before the Court a challenge as to the constitutionality of the Security Risk Law of State of the New York, both as it is written and applied. Now, it is true that the Korean crisis or the Korean War did cause the New York State Legislature to come in to action. Now, it's also true that they were concerned with the defense and security of the Nation, but what Mr. Boudin forgot to mention is they also said they were concerned with the defense and security of the State as well. I may reach the conclusion that it was time to take a look at the public employees in the State of New York and determine whether there were any such employees who were members of subversive organizations or employees who, because of doubtful trust and reliability, should be removed from certain security positions or security agencies. That was the objective of the legislature. And the legislature in setting up the machinery in the Act provided that the State Civil Service Commission should determine which agencies would be security agencies and they setup certain norms that the agency would have to do with jobs which had a -- a relationship to the security of the Nation and the State or where confidential information having the same relationship was handled. They further provided that in the event the agency as such was not found to be of such a character, that there maybe certain jobs in that agency which would be of that character and they would be designated as security jobs. Now, the legislature was also very careful with the term “subversive organization” and they defined it. They defined it as any group which advocated the violent overthrow of the Government by force and violence. They also empowered the State Civil Service Commission to make listings of such organizations. And they required, however, that the State Civil Service Commission would be responsible for having a hearing and which the organization to be listed could have an opportunity to present its side of the case. In addition it provided that they could avail themselves of existing list of such organizations, if the list were made by the Federal Government or by the State Board of Regents, provided however, such listing was made after due hearing. Now, the State Civil Service Commission did avail itself of such a listing of the Communist Party which was made by the State Board of Regents in 1953, after extensive hearings as to the aims and purposes of the party. And it was concluded and it was adjudicated that the Communist Party did have as one of its policies the violent overthrow of the Government. Now, I think the procedure followed in the Security Risk Law, can best be illustrated by what happened to Mr. Lerner himself. The State Civil Service Commission listed the Transit Authority as a security risk agency. And the mayor of the City of New York desiring to have this security risk program carried out with a certain degree of expertness, decided that as to all city security risk agencies, the Commissioner of Investigation would conduct the inquiries as to whether an employee was a security risk or not. Now, --
Hugo L. Black: Do you mind telling us what the Transit Authority is, how (inaudible) to mean that?
Daniel T. Scannell: I'll be very happy to, Your Honor. The Transit Authority is the successor to the old New York City Board of Transportation. It is a creature of the State of New York and the reason it was created was that there was a large operating deficit in the operation of the transit facilities and the city was not raising the fare to meet that deficit. So, the legislature came along and said, “We'll create a separate body and that body will be compelled by law to charge a fare which will produce operating revenue equal to operating expenses.” But they transferred all of the employees to the New York City Transit Authority and they provided by law that any of the facilities formerly used by the old Board of Transportation, namely, of other city agencies could continue to be used by the Transit Authority. Now, when Mr. Lerner was called as part of this security risk investigation by the Commissioner of Investigation, he was directed to go there by his employer, the New York City Transit Authority. And the Court of Appeals, which is the highest New York state court, found that the Commissioner of investigation was acting not only for the City of New York, but also for the employer, the New York City Transit Authority when he examined Mr. Lerner. Now, Mr. Lerner appeared before the Commission of Investigation and he was asked a number of preliminary questions and then they came to the question, “Are you now a member of the Communist Party?” Mr. Lerner declined to answer on the grounds that it may tend to incriminate him. The examiner said, “I think this is something you should give some consideration to. Why don't you go home and think it over and come back in a week?” Mr. Lerner came back in a week on September 21st, 1954, I believe it is or 1953 and he -- no, it's -- it's 1954. He came back and he said, “I would like to get an attorney before I -- before I resume the examination because I want to be sure of what my rights are on this situation.” He came back with an attorney sometime around September 30th. The attorney said, “I would like time to prepare,” which time was given. He returned again on October 8th with the attorney and he took the same position that he would not answer questions as to present Communist Party membership because to answer would tend to incriminate him and he invoked the Fifth Amendment of the United States Constitution. Now, the Transit Authority was, of course, notified of this and they gave the matter consideration and then sent a notice to Mr. Lerner informing him that they concluded that he was a security risk. And in Mr. Boudin, reading from the record or referring to the record, he said that they told him because he had invoked the privilege against self-incrimination, he was found to be a security risk. That tells only half the story. The exact language was that upon -- pardon me just a second. This action has been taken because on September 14th --
Hugo L. Black: But the question is not that clear.
Daniel T. Scannell: -- on -- Thank you, Your Honor. It's page 10 of the record.
Hugo L. Black: 10.
Daniel T. Scannell: And it's the second paragraph on that page. This action has been taken because on September 14, 1954, while testifying under oath at the office of the Commission of investigation of the City of New York, he refused to answer questions as to whether he was then a member of the Communist Party and invoked the Fifth Amendment to the Constitution of the United States. The same notice was sent to him when he was notified at his dismissal. Now, there are -- the information contained in the notice, contained in a narrative form and informed him that because he had refused to give the information he was asked and relied on the invocation of the privilege, he was considered as a security risk. I think it is unfair to say that the reason he was dismissed was because he had invoked privilege. Now, in any event, at that point that the authority notified him that he had 30 days within which to produce affidavits or statements as to why he should not be considered as security risk. During the 30-day interval, the authority heard nothing from Mr. Lerner or anyone representing him and they, then, thereupon notify him of his dismissal. Now under the Security Risk Law Mr. Lerner, could have gone to the State Civil Service Commission and appealed his dismissal or his holding that he was a security risk. And before the State Civil Service Commission, he could have done a number of things. He could have challenged the designation of the Communist Party as a subversive organization. He could have challenged the designation of the Transit Authority as security agency. He could have challenged the conclusion that his position was a security position. He could have challenged the conclusion of the Transit Authority that he was a security risk. But instead, he went directly to Court to challenge the constitutionality of the Security Risk Law and at special term, it's true. The Transit Authority did argue that he had not exhausted his administrative remedies. And the judge at special term said, “Since there are no decisions on the constitutionality of Security Risk Law, I will undertake to pass on it,” but it is significant that the judge at special term noted that Mr. Lerner was complaining about a lack of due process. And then on page 22 of the record, the Court said, “The Security Risk Law,” this is the first paragraph beginning of that page “also provides for an appeal to the State Civil Service Commission by any person who feels himself aggrieved by determination of transfer or dismissal,” but petitioner did not avail himself of this relief. It is observed that upon appeal, the State Civil Service Commission has given wide latitude to require amplification of the reasons given for the action appealed from, to hold or conduct public hearings or private hearings and to subpoena and compel the attendance of witnesses and the production of books, papers, records and documents. Upon such hearing, the employee is given the right by the statute to be represented by counsel and to present evidence in his own behalf. Now, the position of the Transit Authority on this appeal is that the petitioner or the appellant does not have the right to challenge in this Court any of those items which he could have had a full review on before the State Civil Service Commission.
Felix Frankfurter: But is it a short answer to one that was given? That the Court of Appeals may have sustained on that ground but they -- they went to the constitutional question at this point.
Daniel T. Scannell: That's correct, Your Honor.
Felix Frankfurter: And therefore, you can't take or recognize on a specified state statute.
Daniel T. Scannell: Well --
Felix Frankfurter: If the trial is within the power of state courts and if a state ground isn't available the rest of the evidence is not on state ground to include us in the decision as was done in the case yesterday. It's a very different thing if the Supreme Court rules in the majority to cut the ground from under and take consideration and go to the federal courts.
William O. Douglas: Furthermore, the appellant cites in his brief the case that seems to sustain (Inaudible) that if he'd gone to the Civil Service Commission, he would have been precluded from getting any remedy in the courts.
Daniel T. Scannell: We pray on our brief, Your Honor. That's not so.
Felix Frankfurter: But that's a state question. That's a state question. But the other one isn't a state question.
William O. Douglas: Well, that state question becomes important to them on the federal question if he's right.
Daniel T. Scannell: Well, we cite cases in our brief, Your Honor, which indicate that although it says the decision shall be final, the decisions of the Commission of Education and similar state bodies with similar language in the statute have been reviewed by our courts.
William O. Douglas: In spite of that - this 26?
Daniel T. Scannell: That's correct, Your Honor.
William O. Douglas: (Inaudible)
Felix Frankfurter: Then you'll have to decide whether you're right or the other side is right in what the state law is (Inaudible) the other thing is not subject to state determination. It's a state law from which if the state court does what it did here and those are the federal questions. How we can say they might be pointed out under state ground?
Daniel T. Scannell: Well, Your Honor, the reason that I'm making the point is this and I don't dispute your analysis of it, is that he cannot raise questions as to lack of procedure when he didn't avail himself of the procedure. I agree that there is presented a question here as to whether or not the public employer, when the public employee refuses to give information as to present Communist Party membership and then invokes as the reason for it that it may tend to incriminate him. I agree that that question is here before this Court as to whether the public employer may then determine that he is a person no longer worthy of trust. I think that's before the Court, but I think the lack of procedure is not before the court.
Felix Frankfurter: But the lack of procedure by -- in which he was (Inaudible) if considered by the Court of Appeals as judgeable as such if he did and why aren't these -- why is the question for us to be considered on the same basis as the Court of Appeals (Inaudible)
Daniel T. Scannell: Well --
Felix Frankfurter: If the Court of Appeals justified it on that ground, is it for us to dig out some other state ground by which he might have been protected?
Daniel T. Scannell: Well, the Court of Appeals, Your Honor, did not raise any question as to the lack of process. The Appellate Division passed on it and the Appellate Division said, “There was process and you could have gone to the State Civil Service Commission.” What the Court of Appeals did do is they said there was a valid basis here under the Act for finding that this employee was a security risk.
Felix Frankfurter: And that question as such if you've stated it is subject to the scrutiny under the federal or rather the relevant federal criteria, is that right?
Daniel T. Scannell: I think it is, Your Honor.
Felix Frankfurter: But I do not think we can say it goes well in any event you might have protected yourself by resorting to some other procedure that the State makes available which the Court of Appeals didn't invoke as a ground for supporting determination of service.
Daniel T. Scannell: Well, I -- I would say, Your Honor, that inherent in the Court of Appeals' ruling is an acknowledgment that under the statute be aware that specifically provided under the statute that if he wanted additional opportunities to explain or to challenge certain things, they were there for him.
Felix Frankfurter: Is that in the opinion of the Court?
Daniel T. Scannell: It's in the opinion at the Appellate Division level, Your Honor.
Felix Frankfurter: Yes, I know.
Daniel T. Scannell: The Court of Appeals didn't address it just that way.
Felix Frankfurter: (Voice Overlap) Court of Appeals.
Daniel T. Scannell: Well, the Court of Appeals, of course, came down to the -- to the basic proposition in which it held that it's the refusal to answer. That is the thing that breaches the bond of confidence between the employer and an employee.
Felix Frankfurter: And this is then the -- the right to that -- the right to that in terms of the decision of the Court to -- it makes you wonder to open here the challenge on the basis on which the Court of Appeals (Inaudible)
Daniel T. Scannell: I think that's true, Your Honor. I would like to point out that I think this is the situation that was presented in Garner, except that in reality, it's a stronger situation than Garner. In Garner, as I read the case, you had a general enactment in 1941 which said employees may not belong to organizations which advocate the violent overthrow of the Government. Then, you had it implemented in 1948 by an enactment of the municipality of Los Angeles which required that the employees supplied by affidavit information as to Communist Party membership present and past as well as the Communist political association. But there is nothing in the case to indicate that the local legislative body in making that directive had reached any conclusions after hearing as to the nature and character of the Communist Party. Now, in the instant case, you have a full scale hearing at which the aims and purposes of the Party had developed. And then, the question is put to the employee as to whether or not he is a member. Now, I think the situation is clearly distinguishable from Slochower in that you don't have any of the automatic forfeiture features on the posing of the question as such. It's true by refusing to answer the question he was deemed to be a security risk. But it is not the situation you had in also Wieman against Updegraff where the employee had to take the oath at his peril and there wasn't a provision for scienter or knowing membership. Now, of course, if the decision is reached that the scope of the Fifth Amendment is so broad that it released the employee of all obligations to answer his employer, I would suggest that you're really going to have a new era of employer-employee relationships and the employer will be compelled in almost all instances to start to seek information and evidence from sources other than the employee. The traditional thing, as I understand it, both in public and private employment is if there's a question involving the employee to go directly to the employee and ask him and the employee is under a corresponding obligation to answer. And I think that the contention that it's only when a state legislature or a local legislative body frames the particular question and frames the obligation to answer that it's only under those circumstances, is really to ignore the fundamental philosophy present in Garner which is that there are certain, pertinent information, questions which the employer may put and which the employee is under an obligation to answer. Now, the attorney for the appellant has made references to our brief of that special term and I think if the Court reads the brief in each case, it will find that it was in a sense of reciting what the appellant has done. It says that he refused to answer and gave it as his reason for answering -- refusing to answer, the invocation of the Fifth Amendment. All through the case, is the clear indication that it was his refusal to answer, rather than the means used that caused the conclusion that he was a bad risk. I've agreed to share my time with the representative of the Attorney General of the State of New York.
Earl Warren: Mrs. Toch.
Ruth Kessler Toch: Mr. Chief Justice, may it please the Court. The Attorney General of New York is in this case, not only in support of his -- of his statutory duty to appear in support of constitutionality of state statute, but in essence representing the Civil Service Commission of the state which supervises the Civil Service System in New York State and has the overall responsibility of administering this particular law.
Felix Frankfurter: If this Court should revers the Court of Appeals would the statute fall, according to your view?
Ruth Kessler Toch: Well, I would think not. It would depend upon what ground.
Felix Frankfurter: Does this Court have any business to go beyond the application of this statute to (Inaudible)
Ruth Kessler Toch: I certainly think not. No, Mr. Justice Frankfurter, under the principle that the Court does not reach constitutional questions unless they are presented and there is one question presented in this case. We, here, urge that under the striking of a balance between the public interest, the Government's interest in the protection of the freedom of all the people and the total freedom of the individual this application of the statute in this case has been entirely constitutional and I say this after so searching as a public employee to whom that the statute might well be applied. Now, they -- I think we ought to have in mind that the Court of Appeals has decided several questions which I believe take them out over the case. In the first place, it has construed the statute as implicitly permitting the asking of this question. It has also, of course, construed the status of the Transit Authority and the Commissioner of investigation and that is a construction of state statutes. It has also said, “Why this petitioner was dismissed and -- and the grounds upon which he was not dismissed.” At page 63 of the record, Chief Justice Conway says that no inference of membership in the Communist Party must draw from the refusal to answer. He also says that the petitioner was not discharged for invoking the Fifth Amendment, that he was discharged for creating a doubt as to his trustworthiness and reliability by refusing to answer the question as to Communist Party membership.
Earl Warren: Just what is the difference between those two positions then, Mrs. Toch?
Ruth Kessler Toch: I think that it is very clear and I think that Judge Conway used an illustration in his -- in his opinion that makes it clear. I think we stand with the premise that under the principles which this Court has laid down, the Government has the right to ask the employee whether he is a member of the Communist Party. He is required to answer. Now, if he adds to it, as Judge Conway says he says, “I won't answer.” He turns around and walks out of the room, he comes back five minutes later and he said, “You know why I don't want to -- I won't answer it, because I think it will incriminate me.” Now, I don't think that -- and, of course, needn't think that that takes away from -- relieves him of the obligation to answer or takes away from Government the right to have the answer from him. Because if that were so, we might as well forget about this obligation to answer because practically any employee will be out his mind if he didn't have that reason. And moreover, I think that that is -- let's -- let's assume for the purpose of argument ant I stress very strongly, that I'm assuming it for the purpose of argument and I stress very solemnly that I'm assuming it for the purpose of arguing only. Let's assume that he's adding the Fifth Amendment as a reason, did add to the doubt in the mind -- that he created in the mind of his employer as to its trustworthiness because he refused to answer the question. I don't think that we are diminishing the value of the Fifth Amendment or disturbing the principle which this Court has laid down in reference to it. If we say that yes, it did add the doubt and that was the reason for it because he is not being forced to answer the question. He is not being prosecuted for contempt for refusal to answer the question. And incidentally, I should say that there's a case pending in the courts in New York. I don't think it's unethical to say that Mr. Boudin is counsel for the petitioner there. We've argued in special terms several years ago. It is pending and because Mr. Boudin has asked the Court to withhold decision until this case is decided. There, the employee also an operating employee of the Transit is -- of the New York City subway system, refused to answer the question and did not plea the Fifth Amendment, he was dismissed too. In other words, the Transit Authority would dismiss an operating employee for refusal to answer the question whether he pleaded the Fifth Amendment or he didn't, but the Fifth Amendment does not protect and I think this Court had said so in a -- in a series of decisions on the Fifth Amendment two years ago. It does not protect. It protects rather against being compelled to be a witness against oneself so that the testimony will be used against him in a criminal prosecution. That is its ineffable value. But if in pleading the Fifth Amendment and this Court has said so and several of the Justices have said so individually, if he suggests doubt about himself or bring some other disadvantage to himself, that is something which he can't, broadly speaking, avoid. And if there are further results, he has no complaint under the Constitution. He has had and he has and continues his -- to have his constitutional right to silence and that is what the Fifth Amendment protects and he has it here. Now, in returning to -- and I -- in doing this in somewhat broad strokes, leaving some of the particular question of this procedure here and so on to Mr. Scannell, one challenge that they -- Mr. Boudin makes is to the propriety of enacting or continuing to enact the Security Risk Law -- a Security Risk Law at this time. Now, apart from the question that, unless the law was surely unreasonable, this Court and no court will go behind the legislature's judgment that the statute is necessary. And also, as Mr. Justice Frankfurter said in the East New York case, one emergency may bring us back to the bar. Other -- where emergency may cause its continuance. I think that the Cole case was decided on the premise that without even a discussion of it that there is certainly a reasonable need for a Security Risk Law at this time. And that was in 1956 and I doubt that there is less reason today. Now, I said that the Court of Appeals has found that this -- the right to ask this question is implicit in this statute. I don't think it is necessary to provide by statute for the right of an employer to ask a particular question. I think if the question is upon the subject which is barred for some constitutional reason, then that may be raised as a -- as it was raised in Garner, such as being raised here. But I don't think that the statute needs to provide that the particular question may be asked. Now, we have, this Court has held that the right to ask an employee whether he is a member of the Communist Party exists. Now, I think if we go back for a moment to the underlying reason why the Court has so held, we find that the refusal to answer the question in this case meets the ground for discharge under the statute. Isn't that actually on the theory, if you will, that it fell down to this case but on a theory that Government is not required to employ persons of doubtful trust and reliability. Now, that has been applied to various decisions to employees generally in the Garner case, to school teachers in the Adler case and so on. And here, we have a Security Risk Law. So, what appears to be a fortiori. Now, why the Court has held that the question as to Party membership is permissible, I think it's very plain in the context of our times. The Communist Party is not a conventional political party and this Court has said so over and over again. Unfortunately, and for that reason the -- that question is permissible. It is relevant to public employment and it is certainly relevant to employment in security positions and I should add that the State Civil Service Commission has specifically construed the statute as applicable only to persons in security positions and within, in January, the Supreme Court of New York State has upheld that construction and thus far, no appeal has been taken at the same time to appeal has expired. Now, as to drawing doubt from the refusal to answer the question, that is quite a normal reaction to anyone's refusal to answer the question -- a question. If Mr. Boudin were to ask me, “Did you stop in the clerk's office on the way to the Court room?” And I were to say, “I won't tell you.” He, of course, I'm suggesting a doubt is to whether I did or whether I didn't. Now, and -- and also as to, “Why on earth won't she tell me?” Of course, normally, it is -- one doesn't and may not answer a question because when it concludes that it is no affair of the questioner. But in this case, that it is an affair of the Government whether he is or is not a member the Communist Party. And we can cite that in this particular case the normal reaction is not an understandable one and a proper one. Now, as to -- as I've said, the Court of Appeals said the petitioner here was not discharged for membership in the Communist Party and so it's -- in response to Mr. Justice Frankfurter's question, the question of whether one maybe discharged for membership in the Party under this bar or the question of knowledge and so on is not to be decided in this case because for one thing, it is not in the case and, or in addition and for that very reason, the Court of Appeals did not decide it and this Court has held that it will not -- it will not construe statutory provisions before the highest state court has construed them. I think that -- that, that about covers the three broad issues in -- in the case which I have felt the State Civil Service Commission should bring before the Court.
Charles E. Whittaker: May I ask you?
Ruth Kessler Toch: Yes, (Inaudible) Whittaker.
Charles E. Whittaker: Ms. Toch, is it your view that this case was decided upon the finding by the Court that the refusal to answer was evidence of past Communist affiliation?
Ruth Kessler Toch: Oh, indeed not.
Charles E. Whittaker: Well, then why is it necessary for you to argue that matter here? I understood that it was Mr. Scannell's argument that the Court sustained the discharge upon the ground, that the refusal to answer was such insubordination and the like has justified the -- the discharge. Now, do you take a contrary view?
Ruth Kessler Toch: No, I do not, Judge Whittaker. Mr. Justice Whittaker, I agree with Mr. Scannell that it was -- it created doubt of trust and reliability under this and the basis of discharge under the statute is a reasonable finding of doubtful trust and reliability.
Charles E. Whittaker: You stated in your example that if you had told Mr. Boudin and in answer to his questions to whether you'd stopped at the clerk -- clerk's office that you refused to answer.
Ruth Kessler Toch: Yes.
Charles E. Whittaker: But he might legitimately refer -- infer some -- that -- that you have for example. Now, what relevance has that to -- to this case (Voice Overlap)
Ruth Kessler Toch: I see a doubt in his mind about myself.
Charles E. Whittaker: Is that to say that the failure to -- that the exercise of the constitutional privilege is some evidence that the answer if given would have been affirmative?
Ruth Kessler Toch: Oh, no, no. In fact, our position is that he was discharged and properly so, for refusal to answer the question and the fact that he's pleaded the Fifth Amendment had no bearing. And we're saying that there is a misstatement of the issue when Mr. Boudin argues that he was dismissed for pleading the Fifth Amendment. He was not and the Court of Appeals so held in the passage that I read. He was dismissed only for refusal to answer for creating doubt as to his trustworthiness and reliability by refusing to answer.
Hugo L. Black: Why? Why did he create a doubt by refusing to answer (Inaudible)
Ruth Kessler Toch: Because he had the obligation to answer.
Hugo L. Black: Why did that create a doubt in the trustworthiness?
Ruth Kessler Toch: Well, because he -- he was refusing to answer a question that Government has the right to have from him. And so, he was not establishing that report with his employer on a subject as to which the employer had the right to have the truth from him, the assurance from him.
Felix Frankfurter: And in any interest allowable beyond inference that he has made a choice of letting the employer infer, that he is unquestionable as being a less of a danger than the danger that comes from -- that comes to him if he incurred the risk by answering something might suggest a criminal prosecution.
Ruth Kessler Toch: Well, what --
Felix Frankfurter: I think you are on sound ground when you say that someone might make that inference. Not that that is allowable, but someone might make that inference. And therefore, you have conceived two choices with which we have to offer in front of it and fronted in by neither of which is desirable or possible if you choose the lesser as we can say all the time. Now, the lesser one is that he will take the risk the people will make an inference adversely on him on reliability rather than the subversiveness in fact, to do it and taking the risk, that the employer by making that inference, he trusts in the deeper insight of the employer to know that he's untrustworthy and rather not trustworthy men.
Ruth Kessler Toch: Well, he -- he had to as you say, say Mr. Justice Frankfurter make this choice and he made the choice and if there were some I mean if -- if at least the employer was therefore so troubled about him, that he felt that he could not keep him on in a security position, that was the choice that he selected.
Felix Frankfurter: Well, you must -- in your position I don't think you must say that it isn't the deprivation of any constitutional rights of the employer to make an unreasonable inference, to draw an unreasonable inference.
Ruth Kessler Toch: Well, yes if we want to go to that far I think perhaps if it was a reasonable inference.
Felix Frankfurter: Logically -- logically, that's what it must be.
Ruth Kessler Toch: Well, they didn't --
Felix Frankfurter: And just because a man doesn't answer the question that means that it's appropriate to call him unreliable because sometimes it is and sometimes it isn't. It all depends on the circumstances of who is asking the question, what business he has to ask the question and what rule or frame of mind that he should be asking all of those things --
Ruth Kessler Toch: Well, Mr. --
Felix Frankfurter: (Inaudible)
Ruth Kessler Toch: That's correct, sir. Now, Mr. Justice Frankfurter, I think perhaps we have three possibilities there. An inference of reliability, an inference of unreliability and in between the inference which was the basis of discharge, which is the basis of discharge under the statute, just doubt. He didn't answer. They didn't know. Therefore, they did not have the assurance that he was trustworthy and reliable. And therefore, under the statute, they had a right to discharge him.
Charles E. Whittaker: (Inaudible)
Ruth Kessler Toch: Right. [Laughs]
Hugo L. Black: May I ask you? If you notice on page 10 of the record on trial of the evidence based under state law?
Ruth Kessler Toch: Yes. That's the suspension notice (Inaudible).
Hugo L. Black: On page 10?
Ruth Kessler Toch: Yes.
Hugo L. Black: Was that the requirement they've given under state laws?
Ruth Kessler Toch: Yes.
Hugo L. Black: That says it's complete that it charges him in two places for having refused to answer questions whether he was governmental or the Communist Party (Inaudible)
Ruth Kessler Toch: Mr. Justice Black.
Hugo L. Black: But does that direct you?
Ruth Kessler Toch: Well, I think that we have to read it.
Hugo L. Black: And it says there.
Ruth Kessler Toch: The word “and “before “and invokes the Fifth Amendment.”
Hugo L. Black: (Inaudible)
Ruth Kessler Toch: -- I think tremendously important.
Hugo L. Black: Then turn over to page 11.
Ruth Kessler Toch: Yes.
Hugo L. Black: Look at that. What is that? What was that (Inaudible)
Ruth Kessler Toch: Mr. Justice Black, the Transit Authority, its secretary, so to speak. The Executive Director and General Manager sent the notice to Mr. Lerner and included the resolution of the Transit Authority which he was simply reporting in the letter.
Hugo L. Black: Have you checked the resolution?
Ruth Kessler Toch: And the resolution says, as the ground for -- for a suspension. That you refuse to answer questions, as to whether or not he was a member of the Communist Party and invoked the Fifth Amendment.
Hugo L. Black: It said that twice, doesn't it?
Ruth Kessler Toch: It says that twice.
Hugo L. Black: Then turn over to page 24.
Ruth Kessler Toch: Page?
Hugo L. Black: 24.
Ruth Kessler Toch: Yes.
Hugo L. Black: That's the opinion of the Court passing on the discharge. It said there, “The public policy of this State conceded in Section 903 of New York City Charter make inevitable for public service, any employee who fails and refuses to testify on grounds of possible self-incrimination.
Ruth Kessler Toch: Yes. Now, that's --
Hugo L. Black: (Inaudible)
Ruth Kessler Toch: -- that was Mr. Justice Brennan's statement in the course of his opinion.
Hugo L. Black: And the brief --
Ruth Kessler Toch: I --
Hugo L. Black: -- and the brief for the statement, parts of which uphold in the supplemental brief of the counsel, take the same position does it not? And you think --
Ruth Kessler Toch: No, I think that that brief is Mr. Scannell's brief which he can --
Speaker: (Inaudible)
Ruth Kessler Toch: Yes. Now, Mr. Justice Black, I think that what Judge Brennan was doing there, was giving added reasons to support his determination. It was the -- perhaps, the policy as -- as embodied in the -- in 903. It is the policy in a sense that's embodied in Article 1, Section 6 of the -- of our State constitution. But that does not say that was the ground for the -- for dismissal. Now, Mr. Scanell --
Hugo L. Black: Will you turn to page 55.
Ruth Kessler Toch: Yes.
Hugo L. Black: In the Court of Appeals there.
Ruth Kessler Toch: Yes.
Hugo L. Black: You will find on page 55 the following basic questions that have to be discerned.
Ruth Kessler Toch: Yes.
Hugo L. Black: And the court procedure should be decided.
Ruth Kessler Toch: Yes.
Hugo L. Black: What does Section 3 show of that here, that one of the essential things to discern.
Ruth Kessler Toch: I'm reading it over. Assuming that the answer to (2), that is whether the Transit Authority was probably designated security agent say, “Whether, the Security Risk Law authorizes the Transit Authority to suspend and discharge when occupying the position, subway conductor and such security agency merely a -- upon his showing them or not that he was then a member of the Communist Party. He refused to answer and then gave us a reason for so refusing that to answer might tend to incriminate him within the meaning of the Constitution. Yes, precisely, Mr. Justice Black.
Hugo L. Black: (Inaudible)
Ruth Kessler Toch: He pleaded the Fifth Amendment and it was recited and the Court, Judge Conway -- Chief Judge Conway is here reciting the issue that has been presented by the facts and by the appellant.
Hugo L. Black: Did this Court hand down the opinion between the time that his charges were made and the time that the brief's statement was filed in the appellate court in connection with this question.
Ruth Kessler Toch: The -- this Court handed down the Slochower opinion between the time that the -- the -- our main briefs were filed in the Appellate Division and the time that the Appellate Division rendered its decision. And if look, Mr. Justice Black, at the judge, you get his opinion in the Appellate Division, he did consider it.
Hugo L. Black: Have you had any, up to that time, the Slochower had the state counsel ever suggested of any rule, and if so, may be referred that the charge against this means anything to that and the charge that he had violated the state law and because he had refused to answer the appellant whether he (Inaudible)
Ruth Kessler Toch: I am --
Hugo L. Black: If you have such can you (Inaudible)
Ruth Kessler Toch: I will go back and look at my brief in special term and see exactly what I did say. Now, Mr. Scannell asked me to call the Court's attention to another portion of Judge Brenner's opinion, page 25 of the record. He says, “If he makes the disclosure of non-affiliation, he loses nothing and regain the confidence which was formally beset by suspicion, thus guilty or not, no man in public service is entitled to withhold information as to this Communist association and at the same time serve the people.” Now, in other words, it appears to me Mr. Justice Black that all the way through the Court's opinions, we're reciting the fact and they were. They were telling the whole story, but the mere fact that they took cognizance of what was part of the fact. I -- enter -- I mean what had happened does not mean that that was the basis for his dismissal.
Hugo L. Black: If that was the basis of the charge, both of them in terms of statements from which (Inaudible) that was the basis on which he depended and that was the basis on which the lower court decided. Would you say that it would or would not violate due process for the appellate court -- the Court of Appeals to decide his case on entirely different (Inaudible)
Ruth Kessler Toch: No, it didn't because -- Mr. Justice Black, because the Court of Appeals --
Hugo L. Black: You said that --
Ruth Kessler Toch: I don't think it did.
Hugo L. Black: -- well, it did.
Ruth Kessler Toch: I think that the -- a court has the right and this Court does such all the time, decides a -- cases on what it regards as the proper basis of decision --
Felix Frankfurter: (Voice Overlap)
Ruth Kessler Toch: -- whether that is something that's raised or not.
Felix Frankfurter: That's not the greatest prize of counsel --
Ruth Kessler Toch: Oh, I should say, sir.
Felix Frankfurter: (Inaudible)
Ruth Kessler Toch: Yes, indeed.
Tom C. Clark: Sometimes, it's not even raised.
Ruth Kessler Toch: That's quite right.
Hugo L. Black: It is.
Ruth Kessler Toch: No question about it.
Hugo L. Black: That is the question. But has this Court have approved or disapproved the conviction (Inaudible) who was tried under one charge, as it has to permit it to sustain, when it was affirmed on another charge which was not tried.
Ruth Kessler Toch: Well, I wouldn't have any such case in mind, of that --
Hugo L. Black: There has to be one where we held it could not (Inaudible)
Ruth Kessler Toch: Well, in the first place --
Hugo L. Black: (Voice Overlap) --
Ruth Kessler Toch: -- this was not a conviction.
Hugo L. Black: This is not a conviction?
Ruth Kessler Toch: No.
Hugo L. Black: But it's a case that was tried or the man testified at the trial.
Ruth Kessler Toch: Yes.
Hugo L. Black: Of course, it's not criminal (Inaudible)
Ruth Kessler Toch: Well, I don't think it --
Hugo L. Black: (Inaudible)
Ruth Kessler Toch: -- is, but it was I -- I say again that these were things that were raised. I mean, they were in the case. I think the Court did not ignore them. I -- I think, the Court decided the case exactly on the basis on which the Transit Authority had dismissed the man.
Hugo L. Black: I understand that.
Ruth Kessler Toch: And -- and I -- and the Court simply took cognizance. I think, all the opinions in this case were very thoughtfully read, that every aspect was very carefully considered. And so, they -- they explored everything. Judge Brenner did, Judge (Inaudible), Chief Judge Conway did, but they then decided the case upon the facts as they actually occurred and rejected the interpretation, if you will that Mr. -- that the appellant has been making here and that he made below.
Speaker: Could I ask you a question --
Ruth Kessler Toch: Yes.
Speaker: -- before you sit down?
Ruth Kessler Toch: Sure.
Speaker: Cut through this. Assuming that we -- interpreter -- one interprets these opinions as meaning that he was discharged because he claimed his Fifth Amendment rights to get these subtle distinctions as it is to me that you're drawing. And he was discharged because taking his claim of privilege, the Transit Authority then said, “Well, we regard that as creating a doubt in our mind.” Do you concede you're out of court?
Ruth Kessler Toch: No -- no. Mr. Justice Harlan. I indeed do not and I -- I try to say that very near the outset of the argument. I think, under Ullman, definitely --
Speaker: Well, what was --
Ruth Kessler Toch: -- we're not --
Speaker: -- to me was you spent so much time arguing this question as to whether you can fragmentize this problem down to what would have happened if he hadn't claimed these Fifth Amendment rights and then you say the Fifth Amendment rights is just surplusage to --
Ruth Kessler Toch: Well, I think --
Speaker: (Voice Overlap) --
Ruth Kessler Toch: -- factually, Mr. Justice --
Speaker: -- the complaint.
Ruth Kessler Toch: -- Harlan it was and that is why I have --
Felix Frankfurter: Factually, what was it? Factually, what was --
Ruth Kessler Toch: Factually, it was the plea of the Fifth Amendment was not the basis of this charge and that is why I discussed the cases though it hadn't been pleaded. And then also, in light of the fact that it had been and I think that under Ullman, they -- and Slochower, they had a perfect right to discharge him for creating a doubt.
Speaker: If you had a 903 case which we had in Slochower and as the statute said that if the state employer will -- employee will be discharged if he claims his Fifth Amendment rights, then you have to face the question that you've been trying to circle around with don't you?
Ruth Kessler Toch: Yes, except that there are all the -- the factors that would be distinguishing because here, there would be a question of the substance of the question and also the fact that it was the employer who was doing the questioning. And I have tried to itemize, so to speak, the -- the distinguishing factors.
William J. Brennan, Jr.: Well, may I just ask one --
Ruth Kessler Toch: Yes, Justice Brennan.
William J. Brennan, Jr.: -- before you sit down Ms.Toch. Does this all sum up to this that we may treat this as if in the context of the question which was asked? Lerner did nothing more than say, “I refuse to answer.”
Ruth Kessler Toch: I think so.
William J. Brennan, Jr.: And you make no distinction between a naked “I refuse to answer” and “I refuse to answer on the ground I may incriminate myself?”
Ruth Kessler Toch: I -- I -- yes. I make no distinction and then I -- it -- but.
William J. Brennan, Jr.: What's the “but”?
Ruth Kessler Toch: And the “but” is that even though he -- yes -- no, I'll come back to it. I make no distinction.
William J. Brennan, Jr.: I don't think you could.
Ruth Kessler Toch: I say they have -- they have the right to dismiss for refusing to answer the (Voice Overlap) --
William J. Brennan, Jr.: I would -- I would suppose now --
Ruth Kessler Toch: Yes.
William J. Brennan, Jr.: -- the basis of your argument. You can't make a distinction.
Ruth Kessler Toch: No, I don't.
William J. Brennan, Jr.: Do you want to treat this case as if no reference was made in the answer at all --
Ruth Kessler Toch: Yes, I think --
William J. Brennan, Jr.: (Voice Overlap).
Ruth Kessler Toch: I think we have to.
Felix Frankfurter: Well, isn't that what you said Judge Conway said in plain words?
Ruth Kessler Toch: That's right.
Felix Frankfurter: Isn't that the ground of his decision?
Ruth Kessler Toch: Yes.
Felix Frankfurter: That if you have a right to ask him a question and he refuses to answer that it's not normal in the situation that the answer that you and I often will use that before they had the affirmative argument.
Ruth Kessler Toch: Exactly, right.
Felix Frankfurter: I'm not committing myself to the rightness or the wrongness as Judge -- as Judge Conway said that in plain English words in state.
Ruth Kessler Toch: Exactly right.
Earl Warren: Mr. Boudin.
Leonard B. Boudin: The difficulty is that we have been hearing the discussion in the last few minutes from my colleagues on the other side with respect to a statute that is -- is not in this case with respect to the situation that it's not in this case. I remind the Court what I probably failed to do in sufficient detail at the beginning of the argument that the language of the statute in this case, as Chief -- Judge Fuld points out in the court below and indeed as Judge (Inaudible) points out in the Appellate Division below, both dissenting. The language of the statute requires evidence, evidence of unreliability. That Your Honors will look at the statute as I trust will be done eventually, Your Honors, will see that the statutes --
Hugo L. Black: Where?
Leonard B. Boudin: In -- at page 34 of my principal brief. It begins at the bottom of page 33. It requires that the body which suspends or discharges, the top of page 34 I'm reading, Mr. Justice Black, shall find after proper investigation and inquiry that upon all the evidence, reasonable grounds exist for belief that because of doubtful trust and reliability, the employment et cetera would endanger the security of the Nation and the State. Now, that is a -- an evidentiary statute. That does nothing to do with the disclosure. I -- the discussion was quite interesting, but I think theoretical because we are dealing here what a statute requiring evidence. And when the Transit Authority proceeded against Max Lerner, the appellant here, they did not fire him for insubordination, a very easy word to use or for violation of his obligation, a very easy word -- phrase to use. They discharged him as the record shows at record 10 and record 14, they suspended him because of his invocation of the privilege and they discharged him for the other reason as well, namely, the activities which were never specified. But this argument about a disclosure would be reasonable if, (A) there were a disclosure statute and (B), more important I think or as important as the nonexistence of disclosure statute. The State was proceeding in this case on the basis of evidence being required. This Court never said in Garner that evidence had anything which required except the noncompliance with the obligation to take the oath in the Garner situation. This statute requires evidence and everyone treated the invocation of the privilege as evidence. Now, we are told here that Mr. -- Mr. Judge Conway's remarks may be construed as suggesting that there is an obligation on the part of the employee, but we are not, with all do respect, concerned really with what the judges below said as to the reason for the discharge. If the Transit Authority as inclusive here, they said they fired my client because of the Fifth Amendment and they are bound by it and if that is a violation of due process, no level of judicial decision below, I say below, can deprive my client of a due process.
Felix Frankfurter: Is there nothing in -- there's nothing to the Transit Authority that the States have been free to ask the questions that they put to him?
Leonard B. Boudin: Why, of course, the original suspension order says, “Refused to answer and invoked the Fifth.”
Felix Frankfurter: Well --
Leonard B. Boudin: Now, the statement, “Invoked the Fifth” can't be surplusage.
Felix Frankfurter: But you can ask what was in there if you're willing.
Leonard B. Boudin: Of course it's in there, but it's coupled at each point as Mr. Justice Black pointed out with the invocation of the Fifth.
Felix Frankfurter: Well, then suppose the state court interpreted the state authority as meaning that they fired him, that they are reading of their document of dismissal.
Leonard B. Boudin: Well --
Felix Frankfurter: Do you think you can come here and ask us to say they were quite wrong in (Inaudible)
Leonard B. Boudin: Well, I think I could come here if they -- if they said -- let me finish Mr. Justice Frankfurter, if you please, if they have stated that it's refusal to answer was evidence of being a security risk. In other words, I'm not withdrawing from the basic position I take here that they discharged him provoking the Fifth. They did it. They set it in the Supreme Court below and nothing can avoid that. But suppose we didn't even have the Fifth here. I would then be before this Court and say that the refusal to answer, the naked refusal to answer would not be evidence --
Felix Frankfurter: Not unless you did.
Leonard B. Boudin: -- and I'm sure.
Felix Frankfurter: (Inaudible) and I don't know a thing about it. (Inaudible) There was -- there was a time when I used to (Inaudible) Suppose a charge would come before the -- the Subway Authority -- Transit Authority that a conductor has been drunk, suspected of taking -- and they bring him before the appropriate people and ask whether he was drunk in this case and he refuses to answer. I just want to know whether the Authority -- Transit Authority say this is chargeable and no more is what I've said.
Leonard B. Boudin: They could -- I'll answer you completely. They could not discharge him under Security Risk Law which requires evidence of unreliability. They might have made a charge against him in the particular case you indicate with respect to insubordination, but that --
Felix Frankfurter: You mean --
Leonard B. Boudin: -- was not done here.
Felix Frankfurter: It means that it wouldn't -- that Due Process Clause of the United States, the Constitution of the United States would bar the Court of Appeals of New York sustaining the Transit Authority from finding that the information that has come to them from reliable people on the basis of which they ask him questions whether he was or wasn't drunk isn't “evidence within the scope of that statute.”
Leonard B. Boudin: Your Honor, means --
Felix Frankfurter: Is it ever to be a violation of due process?
Leonard B. Boudin: That -- That his refusal to answer?
Felix Frankfurter: They said we have information that you've been drunk, three night succession --
Leonard B. Boudin: Yes.
Felix Frankfurter: -- will you please tell us whether your (Inaudible) he refused to answer and they couldn't discharge him under (Inaudible)
Leonard B. Boudin: Well, I will say to Your Honor, that in my view of the Due Process Clause with all due respect, they could not say, that he was discharged because his answer was evident that he had done any such thing if they were to discharge him because of their basic common law power assuming that they have his employer for insubordination for the violation of the duty imposed upon the employee, accidental problems.
Felix Frankfurter: But evidence isn't evident in the Court of Law, this Court had held in all the Immigration --
Leonard B. Boudin: Yes.
Felix Frankfurter: -- that evidence in the -- the jury and the evidence that's required doesn't mean the usual evidence that you and I are familiar with in an adversary proceeding in a court of law.
Leonard B. Boudin: Well --
Felix Frankfurter: And the Court of Appeals could say that wasn't his refusal to answer it left what information they had as evidence it means I can't agree that this Court would hold if that's a violation as well.
Leonard B. Boudin: I don't think, Your Honor has that problem to consider here --
Felix Frankfurter: Very well --
Leonard B. Boudin: -- because we have a -- an explicit statement that the reason for discharge was the invocation of the Fifth.
Felix Frankfurter: Which I read to be that he didn't ask the question.
Leonard B. Boudin: And which the Transit Authority read below its -- read below to me that he invoked the constitutional privilege. Why, if they discharged him only for his refusal to answer for this obligation, why did they consider that, not only reasonable grounds for inferring that he might have been a member the Communist Party. But why do they say in the courts below, we call Your Honor's attention the court with the special term that Section 903 of the City Charter which refers to the invocation of the privilege. We'll call Your Honors' attention to Article 1, Section 6 of the New York State Constitution which refers to the invocation of the privilege. They made this a privilege case. We didn't. And then it's because they made it, Your Honor that I am -- no point is necessary to answer the hypothetical situation which is suggested.
Felix Frankfurter: But I mean Chief Justice Conway issued the claim is English as you can see that he refused to answer, an evidence (Inaudible) he then invoked the Fifth Amendment has and an issue for saying he refused to answer.
Leonard B. Boudin: Well, then if Your Honor --
Felix Frankfurter: That doesn't destroy the validity or the cause of the first statement as to why they fired him.
Leonard B. Boudin: Well, I would also read, Justice -- Judge Conway's opinion about the part beginning on the bottom of page 63, to the top of 64, where he considered this to be evidence of reasonable grounds for unreliability and this does not discuss the obligation of the employer and employee. And I should also say to Your Honor, if Your Honor will read the dissenting opinions of Judge Fuld --
Felix Frankfurter: I have read it.
Leonard B. Boudin: --and of Van Voorhis. Now, may I add one more point in direct response to Your Honor's questions. Let's assume that the Transit Authority came here today and said, “Yes, we fired him as we said in the lowest court below because we believe he was a Communist. We fired him because we drew the conclusion that he was a member of the Communist Party when he asserted his constitutional privilege.” That's what they said in the lowest court below. And let us assume that Judge Conway had said, “We will regard this as a firing, despite what the Transit Authority said as a firing for nondisclosure.” I think, Your Honors would accept the admission made by the Transit --
Felix Frankfurter: Is that all they said below?
Leonard B. Boudin: The Transit Authority?
Felix Frankfurter: Yes, because they never -- did they infer to that if they say the Transit Authority?
Leonard B. Boudin: Well, they always said he refused to answer, of course, Your Honor, but always.
Felix Frankfurter: Now, this isn't a review.
Leonard B. Boudin: Oh, no. I understand.
Felix Frankfurter: You have the highest court to review.
Leonard B. Boudin: I -- I understand that.
Felix Frankfurter: What Conway did --
Leonard B. Boudin: I understand.
Felix Frankfurter: -- that there the courts would have to decide whether this record on the interpretation given by the Highest Court violates some of the portions of the Constitution.
Leonard B. Boudin: I have filed with Your Honors, a copy of their brief in the lowest state court and I'm satisfied for you --
Felix Frankfurter: I am suggesting you link if there is any validity in that opinion that you file the full text in their brief.
Leonard B. Boudin: Oh, I -- I think --
Felix Frankfurter: (Voice Overlap)
Leonard B. Boudin: I think, Your Honors should know that, of course, I have already filed the full text of their brief. I'm not --
Felix Frankfurter: Well, have you?
Leonard B. Boudin: Oh, yes. I have filed the full text of their briefs in the lower state court. I have not given this Court, just excerpts from the brief.
Felix Frankfurter: Before you sit down, I want to ask you question, Mr. Boudin.
Leonard B. Boudin: Please do.
Felix Frankfurter: This to me, is very important. I hope I hold (Inaudible) to you. The notes of deciding a particular case, not some public cases like -- but I should like to know the reach of this to this Court to make a decision. And I would like you to ask you this question, not termination but employment. Suppose the person in this position seeks employment and he's asking questions. They refuse to answer. And the record is clear that he refused employment because (Inaudible) And I think it's very important for us to know how far he's going to (Inaudible)
Leonard B. Boudin: I do not know of any statutory or constitutional obligation on the part of the State to hire anyone at all. I think it has absolute power in terms of deciding whom to hire.
Felix Frankfurter: Do you think --
Leonard B. Boudin: Now, I don't speak of it so --
Felix Frankfurter: Does it mean to say do you think, the State New York would say, “We're not going to hire either a Jew or a Catholic or a naturalized citizen?”
Leonard B. Boudin: I have no -- I do not --
Felix Frankfurter: You think it could?
Leonard B. Boudin: -- I do not know whether it could.
Felix Frankfurter: You doubt about that?
Leonard B. Boudin: I -- well, whenever the Court says and when whether -- and whatever counsels give the examples of a Jew or Catholic obviously, we have an extreme position which apparently control no other rules of law.
Felix Frankfurter: But I don't know about that.
Leonard B. Boudin: Well, I think, Your Honor, will agree that if a Jew or Catholic would present an extreme situation and yet, it might be that the State of New York could refuse to hire even that kind of person. I don't know.
Felix Frankfurter: Do you think that the State of New York refuses to hire under the Fourteenth Amendment anybody who is -- whoever you were, a Democrat or a Republican?
Leonard B. Boudin: I do not know whether there are any limitations on the power of the -- of the State of New York to hire.
Felix Frankfurter: (Inaudible)
Leonard B. Boudin: And I'm not -- and I'm not prepared to discuss that issue. I do know only one thing why Mr. Lerner was discharged. And I rely for that upon their admissions. I thank Your Honors.