Lefkowitz v. Turley – Oral Argument – October 10, 1973

Media for Lefkowitz v. Turley

Audio Transcription for Opinion Announcement – November 19, 1973 in Lefkowitz v. Turley

del

Warren E. Burger:

We will hear arguments next in number 72-331, Lefkowitz against Turley.

Miss Soloff, you may proceed whenever you’re ready.

Brenda Soloff:

Thank you. Mr. Chief Justice and may it please the Court.

At issue in this case is the ability of the State, in this case New York and its subdivisions here, Eerie County.

To provide themselves with some reliable assurance that in committing public funds to independent contractors, the contractors will deal with them openly and candidly, when information is sought about those contracts.

Two related sets of New York statutes were struck down by the District Court.

The first, in which New York General Municipal Law Section 103 a is an example, requires each public contract to contain a provision that if a person who is called before a grand jury, or other agency, which is authorized to subpoena and swear witnesses.

Such a person is called to testify in an investigation concerning a public contract and he refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning that contract or transaction, then that person and any business organization of which he is a member or officer shall be disqualified from public contracting for five years, and existing contracts maybe canceled.

That’s the first set of statutes involved.

The second group statutes struck down below and which New York General Municipal Law Section 103 b is an example, is directed at already completed contracts and transactions and establishes a five-year disqualification from future contracting for a similar refusal to cooperate under similar circumstances.

Both of these statutes and related statutes, which are similar in other sections of New York Law, were struck down by the District Court.

The two appellees in this case, are licensed architects and members of a partnership which according to the complaint had various contracts with Eerie County.

The only one of these contracts which is specifically mentioned in the complaint, concerns the construction of a domed stadium in Eerie County, similar to the Astrodome in Houston.

In answering the complaint in the District Court, the Eerie County attorney admitted the existence of various contracts and of the stadium contract.

This is the only information in the record about contracts between appellees and any publications in New York.

On February 8, 1971, while under public contract, the two appellees and another member of the partnership were subpoenaed to testify before an Eerie County grand jury respecting transactions and contracts that they had with the county.

All three were presented with waivers of immunity which they were asked to sign.

All three refused.

The third member of the partnership then was granted immunity and testified.

The other two did not, and did not testify.

The appropriate authorities were informed of the refusals and the instant action followed in the United States District Court for the Western District of New York, claiming that they had in the past and wished in the future to contract with the State and its agencies, the appellees claimed that the statutes violated their privilege against self incrimination.

A Three-judge District Court, and what must be regarded as an over extension of the decisions of this Court and Gardner v. Broderick and its companion cases agreed, and the statutes were enjoined.

However, in seeking to protect the public interest, the State has not acted unreasonably towards its contractors.

The State and the businessman enter not only into a business arrangement, but into something of a social contract as well.

The State begins with a premise, that public money must be well and carefully spent.

Neither cost nor quality must be painted by graft, bribery, the use of inferior materials, or any other unseen impermissible factor.

Potter Stewart:

Is that the same premise that the Government employees, the premise that the taxpayer are going to get the honest performance of their labor in return for the compensation pay for them, isn’t it?

Brenda Soloff:

That’s right, Your Honor.

Potter Stewart:

And so why this is different from the Gardner case?

Brenda Soloff:

This is different from the Gardner case in a number of respects.

Brenda Soloff:

A contractor, when he enters into a contract, understands at the beginning what is expected of him.

He hasn’t committed his life, his career, his ability to earn a living through this contract.

He’s seeking profit from an episodic source.

He knows at the time that he enters it, enters the contract that this kind of information will be required of him.

Potter Stewart:

I wonder if the New York City policemen and Gardner knew about Section 1123 of the New York City Charter.

Brenda Soloff:

Section —

Potter Stewart:

Does that appear in the case?

Brenda Soloff:

It does not appear in the case, Your Honor.

Section 1123 of the City Charter is undoubtedly a harder thing to find.

That’s one thing that can be said about it.

Beyond that, contractors typically enter contracts with attorneys.

They have typically knowledge, they have the advice of the counsel at the time they enter contracts.

And the contract itself is for a limited span of time.

A policeman doesn’t consider perhaps every possible ramification of his employment at the time he takes that Civil Service Examination, doesn’t have the advice of counsel, typically.

And the Section 1123 was very different from the statutes that we have in this case.

The statutes in this case request to information concerning any transaction or contract.

Section 1123 of the City Charter talks about any kind of activity in city Government.

It’s much broader than the scope of the duties of the policeman.

It involves local elections; it involves any aspect of city Government which might possibly occur to an investigating agency.

It isn’t limited to the scope of the employment of —

Potter Stewart:

But in each case, the basic situation is that the contractor in a one case and the employee in the other case, when called before grand jury, must waive his immunity, correct?

Brenda Soloff:

He either waives — the agreement that he makes is either to the contractors makes.

I think that there’s a much closer question as to whether the public employee makes such an agreement.

The agreement he makes is not to waive immunity.

The agreement he makes is if he does not waive immunity, then certain the economic consequences will follow.

Potter Stewart:

i.e., termination.

Brenda Soloff:

i.e., termination.

Potter Stewart:

Suspension of the contractor for period of years, termination of the policeman —

Brenda Soloff:

That’s right.

Potter Stewart:

In his employment

Brenda Soloff:

That is right.

Termination of this particular contract is discretionary and disqualification for a limited period of time.

The consequences to a contractor are far less, devastating than they are of course to an employee.

Potter Stewart:

Well, then, do I understand you correctly that this case, the question in this case is whether a contractor is sufficiently different from an employee, so that the rule of the Gardner case does not apply.

Is that really what it comes down to?

Brenda Soloff:

I think that is what it comes down to, Your Honor.

Although, I think the Court need not reach the issue of reconsideration of the Gardner principle itself.

Potter Stewart:

Otherwise, we would have to reconsider the Gardner principle, the Gardner constitutional principle, would we not?

Brenda Soloff:

Yes, your honor, I think that’s perfectly correct.

But that the — the consequences of what happens to a contractor have to be considered from the point of view or at the point in time of what he bargained for.

What was it that he bargained for at the time he went into the contract?

What was his understanding?

I think one thing that’s perfectly clear is that the interests of the State are both urgent and vital.

In the public contractor and in a public employee situation, it is also clear that a contractor has a higher obligation than the ordinary citizen to provide information with respect at least to the relationship which he has with the State.

If he’s unwilling to provide the information, then the relationship should not continue.

So, that the businessman understands when he goes after a contract on which he’s seeking to make a substantial amount of money.

But before that money, and even perhaps public safety will be committed to him, he must be willing to accept certain preventive measures and to cooperate in any necessary detection of wrong doing doing because typically in a situation involving contracts, detection of wrong doing will be difficult.

So then he enters into the special relationship with the State and he agrees that not withstanding any possible consequences, should the time come, he will be open and honest.

Even if it means that the evidence will be used against him and that he will be brought to justice.

Obviously, a principal benefit of this understanding is prevention.

Corruption may well be nipped in the bud.

The public not only is protected, but it has some sense of confidence.

The contractors can be called to account.

But the execution of contract is an open book and that the public is not being had.

Potter Stewart:

Well the agreement of the contract is in the form of a waiver of immunity?

Brenda Soloff:

The statute provides that the contract should contain a clause that in the event that the contractor refuses to waive immunity with respect to transactions or contracts had with the State, or to answer relevant questions respecting the contracts then the economic consequences follow.

Potter Stewart:

So, he — So, there is — if he refuses to sign a contract with that condition in it, then he is not going to get the contract.

Brenda Soloff:

That’s correct.

Potter Stewart:

So, there is a condition or a barrier to doing things with the State which amounts to a waiver of immunity.

Brenda Soloff:

No, I do not think that —

Potter Stewart:

Well, eventually it will amount to that because he can’t get the next contract if he reaches that provision.

Brenda Soloff:

At the time that he enters the contract, he is under no impermissible coercion to take that contract.

He’s after something.

The State is after something.

Yes, he can at that point to take it or not take it.

But there’s no, this kind of hard choice is not unknown and does not —

Potter Stewart:

It must be during the waive of immunity he can’t get more than one contract.

Brenda Soloff:

That’s right.

Unless he’s — unless he’s going to —

Potter Stewart:

So, sooner or later, it amounts to he either waives of immunity or he doesn’t do business with the State.

Brenda Soloff:

Either agrees that should it become necessary, he will waive immunity, or he will not for a limited period of time be able to do business with the State.

Potter Stewart:

When a person does enough business with the State or perhaps when he’s informed enough then you can expect him to have advice of the counsel of what not you should.

You should sustain a State’s insistence upon a waiver, in advance, which — let’s don’t quiver about what there is or isn’t.

You say it isn’t.

I look at it as sooner or later as an enforced labor.

You just say that the contract that you ought to uphold in an advance waiver by well enough informed person.

Brenda Soloff:

Where the interests are so severe on the part of the public, where the contractor is well enough informed, I am sorry, where the consequences are not the devastating kind of consequences which occur to a public employee then the balance, and this is always a question of balancing, shifts back toward the interest of the public in being able to know what has happened with its money.

And it being able somehow to prevent corruption to have an extra tool in preventing corruption in cases where public interest is so vitally concerned.

Potter Stewart:

It can’t really be a balancing process and so far as you can’t — can you concede that there was a violation of the provision of the Fifth Amendment that’s been held to be incorporated in the fourteenth and then say nonetheless we should just to over look at in the interest of the taxpayers in the State of New York.

That’s hardly — you cannot concede the violation, can you?

Brenda Soloff:

I don’t concede a violation.

Potter Stewart:

And then ask this just to balance that out in the interest of the taxpayers in the State of New York.

Brenda Soloff:

No, I’m sorry if I even gave that impression.

What I’m saying is that the balancing process which takes place in determining whether or not, —

Potter Stewart:

There was a violation.

Brenda Soloff:

— there was a violation;

Potter Stewart:

Well, I have a little difficulty to that.

Brenda Soloff:

It is what is stated here.

Because the question really is, are you compelling testimony by impermissible means?

Wasn’t your question the validity in the waiver and if there is a waiver, there is no violation.

Brenda Soloff:

But the waiver, the validity of the waiver depends on whether or not, it’s impermissibly compelled.

Potter Stewart:

Was there anything in the written contract that referred to this statute?

Brenda Soloff:

There is nothing in the record which indicates one way or the other.

There is an allegation in a memorandum of law filed by the appellees after the pleadings were filed but this was not in this particular contract.

I have since read the contract, the clause is not in the contract.

It is not any Eerie County contract.

I don’t know about other contracts.

Potter Stewart:

So, you’re simply relying on the presumption of the knowledge of the law that is part of everybody plus the fact that this was presumably a sophisticated contractor with good legal advice.

Brenda Soloff:

I’m relying on that as well as the fact that I’ve never had heard a claim in the pleadings that he didn’t know what the consequences are.

Potter Stewart:

Well, that was my question.

Is there any real dispute about this at all?

Brenda Soloff:

I don’t believe so.

Potter Stewart:

About what?

Brenda Soloff:

About whether or not the contractor actually knew that he was subject to termination and disqualification for failure to waive immunity.

The answer as far as I can derive it from the record is he was under no such — he was not ignorant of the fact.

Notwithstanding the fact that clause was not in the contract.

The complaint below attacked the contract clause statute and the District Court struck that down.

Potter Stewart:

Now is there, I asked you before.

What is the Section 1123 of the New York City Charter that was involved in the Gardner case?

There’s no indication on that opinion.

I just read it as to knowledge on the part of the policeman.

But do we know the chronology if that was a part of the city charter the time that policeman got his job?

Brenda Soloff:

We don’t know.

Potter Stewart:

That is the same case you’re here, would not it on this issue?

Brenda Soloff:

I don’t know the chronology in Gardner, Mr. Justice Stewart.

Potter Stewart:

But as said were or it’s a similar predecessor provision on the part of the city charter at the time of the policeman, Gardner, got a job that would be just the same situation as it is here with no indication that he did not know about it.

Brenda Soloff:

I think that we may have here.

There maybe some failure in the pleadings but I think that, that in common sense terms, we have to assume it is much more likely that the contractor in this case knew the ramifications of the law, then that the policeman in Gardner banned Section 1123 of the city charter.

Potter Stewart:

In my observation that employees generally know how to deal about the condition of the job.

Brenda Soloff:

And also as I said, the kind of consequence which attaches in Gardner and the kind of scope —

Potter Stewart:

Well, that’s something else, that is a different argument.

Brenda Soloff:

This is very, very different —

Potter Stewart:

Different branch of the organization.

Brenda Soloff:

Yes, much different from that.

Warren E. Burger:

Ms. Soloff, suppose as a condition to getting the contract along the lines of Mr. Justice White was discussing with you, the State presented the contractor, the would be contractor with half a dozen standard forms of waiver of immunity with the title of the grand jury and the date and all that left in blank, and just got these waivers signed in blank.

Would you think that would pass muster?

Brenda Soloff:

No, I wouldn’t, Your Honor.

Warren E. Burger:

How do you distinguish then from what —

Brenda Soloff:

What we’re dealing here —

Warren E. Burger:

— Justice White was suggesting that this was a de facto waiver of immunity?

Brenda Soloff:

Because what would bother me there is the scope of what’s —

Let’s put it, the waiver said in it — when the blank waiver said in it, covered only having things to do with his contracts with the State.

Brenda Soloff:

My reaction to that would be that we have to have involved here a genuine, an ongoing investigation into specific transaction and contracts being had with the State.

And that should that come to pass then the contractors requested either to waive immunity or to forego to cancel the special relationship that he has with the State for a period of five years.

Potter Stewart:

So, this is a — the State is really taking a less severe approach than perhaps it could.

It doesn’t exist on a waiver but it might.

It says really we don’t insist that you waive in advance and appear before the grand jury and have your statements used against you.

You can choose not to have your statements used against you at the later day but the cost to you is you cannot do anymore business with us for a while.

Brenda Soloff:

You can but you choose at a time when you haven’t committed materials, you have not committed your firms; you haven’t committed yourself to a course of action involving that contract.

At the time you make that choice, you are still a free agent.

You haven’t obligated yourself in anyway.

You haven’t gone out and hired people to build the stadium.

You haven’t brought in subcontractors.

You haven’t done a number of things which would increase perhaps the pressure to sign a waiver.

What you’ve done is you said, “I really want that contract.

I will be open and honest, there is no problem whatsoever.

I’ll sign.”

And then, at the time when the provision is sought to be enforced, when there is a real problem, you say no, revoke.

And the consequence is not specific enforcement of a waiver of immunity but the promise has been broken, and the business relationship is severed, just as the original understanding provided but he did not testify and he did not waive immunity.

Thurgood Marshall:

Do you put this in the same category as a contractor that uses 80% cement instead of 81%.

Brenda Soloff:

I’m sorry, Mr. Justice Marshall.

Thurgood Marshall:

The contractor uses 81% of the cement instead of 85% of the cement, so he is punished for it.

Isn’t that the law?

Brenda Soloff:

I don’t know.

Thurgood Marshall:

Well in this stadium, if he’s getting ready to build it, if he doesn’t live up to his specifications that he agrees to build the stadium, he’s punished by the State Court.

Brenda Soloff:

He has broken the contract.

Thurgood Marshall:

So, he put this in the same category.

Brenda Soloff:

No, I think this I think goes to different things and is —

Thurgood Marshall:

Like what?

You said is just he breaks the contract, he knows all his doings.

He makes the contract and then he breaks it and therefore he severed.

I think there’s a difference.

Brenda Soloff:

The difference lies in the scope of the public interest that you’re protecting here.

You are investigating in this situation, criminal violations as well as breach of contract.

The real crux of the matter I think is coming down to why we would want a waiver of immunity, why not grant immunity, and get the candor that we’re seeking.

And I think that the answer to that comes down to the fact that it’s not really that we are seeking to prosecute so much as it — the State when it undertakes an investigation like this is not willing at the outset to give up the possibility of prosecution because not enough is known about what is involved in the investigation.

Immunity is not something lightly given or easily given and it should not be.

Where here, you have what I think what the Courts have acknowledged to be a higher obligation on the part of a contractor then on the part of an ordinary citizen.

This willingness, this pre-stated willingness to give information without the possibility of immunity has a part of that higher obligation.

Otherwise, you very much returned to — if you give immunity then you’re placing the contractor in the position of the ordinary citizen.

Potter Stewart:

Ms. Soloff, is there any legislative history of this State legislation —

Brenda Soloff:

There is —

Potter Stewart:

— indicating the kinds of evils to what he was addressed?

Is it bribing public officials to award contract or is it substandard performance by contractors or both or is there something else?

Brenda Soloff:

It is basically corruption — problems involving corruption, Mr. Justice Stewart.

In our brief at pages, page nine essentially, there is a statement by Governor Rockefeller stating what the legislation grew out of and it was the problems that grand juries were having in getting information relating to public contract.

And the governor said, —

Potter Stewart:

Does that really, thank you very much.

It’s a very nice — very nice statement.

Brenda Soloff:

There is another statement in the same volume which I did not set out in the brief dealing more specifically with the fact that in the Leino case, the US ex rel Leino against Wallick (ph) which is cited in our brief.

Brenda Soloff:

There’s a reference to the memorandum respecting the fact the grand juries were having a lot of trouble getting information about how the contracts —

Potter Stewart:

Do you really just say here, it would be appropriate to pass this legislation.

Brenda Soloff:

In the Leino case as I just said Mr. Justice Stewart there is, I believe a quotation, a further quotation dealing with the fact that that was at issue is a fact the grand jury simply have been (Inaudible) in getting information.

Warren E. Burger:

Ms. Soloff, in the Gardner case, you remember that line that undertook to distinguish between the refusal to sign a waiver of immunity and the refusal to answer very specific questions relating to the performance of duties or contract.

Would the State of New York in your view, not have adequate protection if this architect we called before the grand jury asked the specific questions which the Gardner case purported to say if that’s still good law.

Brenda Soloff:

That’s not really — well, it is not so easy to call somebody before the grand jury in New York, or any place else, Mr. Chief Justice Burger.

What happens if the State of the Law of immunity at the time this case arose, it was forbidden to call a target of an investigation or potential target of an investigation before a grand jury.

If somehow, without a waiver of immunity, if somehow he were called, he received automatic use immunity.

Warren E. Burger:

This is under New York Law?

Brenda Soloff:

This is under former New York Law.

This is under New York Law at the time that this case arose.

Should he testify and claim the privilege against self-incrimination question by question as New York Law then required.

He would receive transactional immunity.

That is, without calling, he could not be put into the grand jury either without a waiver of immunity, or without immunity itself.

Today, the law is somewhat — is somewhat changed although the impact is no different.

Today, New York gives automatic transactional immunity and has abandoned the target rule.

Automatic transaction in this immunity to whom?

Brenda Soloff:

To any witness called before the grand jury.

To any witness called before the grand jury?

Brenda Soloff:

I believe so.

Even though he doesn’t claim the privilege?

Brenda Soloff:

That’s right.

He no longer needs to claim the privilege in New York under the new code Criminal Procedure Law.

Warren E. Burger:

To what extent then, does this affect this importance of this case then?

Brenda Soloff:

Well, the waiver, the question — there is a serious question of the scope of immunity being sought in this case.

It was not explored by the District Court.

Abstention was not raised as an argument.

But the statute, of course, speaks about waiving immunity with respect to any transactions had with the State.

It would be possible of course to waive transactional, the transactional immunity which would occur in being called before the grand jury or which could under the time this contract was entered into could’ve been claimed.

It’s possible to waive transactional immunity and still obtain use immunity, if that is not waived.

Brenda Soloff:

We all know what New York would do with the case like this at this point.

There’s in case in the New York Court of Appeals called People against Avant, which has pending decision now for sometime.

That’s cited in our brief.

The third department of the State of New York rejected a contractor claim.

Basically, on the sort of argument which we are presenting today on the public interest involved and the fact that the contractor is essentially changing his mind.

That case is still pending before the New York Court of Appeals.

Well, that probably will turn on a New York problem.

Brenda Soloff:

It may or it may turn on this case depending on which is decided first.

Why wouldn’t New York be satisfied with the rule that said that the — surely the State may question a contractor about his performance of the contract?

And have indicated so — terminating the contract or finding out what’s going on but that his answers may not be used against the human criminal prosecution.

Brenda Soloff:

Because the contractor does have as I said this higher obligation but corruption cases are very difficult to prove without testimony of principle.

You want to be free to use his answers in the criminal prosecution.

Brenda Soloff:

If it comes to that, what we’re really saying is we don’t know when we question him.

Whether or not, we’re going to want to conduct a criminal prosecution.

And that we don’t to give it away at this stage.

We don’t want to placed in the position of having granted immunity to a principle figure in a very serious case.

And yet, haven’t you also said that in certain state of New York Law as such that even if he waived immunity.

He might still be able to use his answers against some of the criminal questions.

Brenda Soloff:

If he waives immunity.

This would tell (Inaudible) transaction with it?

Brenda Soloff:

That’s the question — the question which I cannot answer because I don’t know what the New York Court would say and if I may point that one further thing in connection with that question, the New York Court of Appeals decision in Gardner against Broderick which was reversed by this Court specifically said, it was post-Garrity case and it specifically said, the waiver of immunity in this case, after Garrity means that the evidence cannot be used in a criminal prosecution.

This Court nevertheless held that that evidence was being sought for criminal prosecution and I really don’t know whether Gardner in the New York Court of Appeals is still the law of New York.

Well, this Court held in Gardner that he was being penalized for asserting the constitutional right, i.e. for refusing to waive immunity that is what Gardner helped to decide —

Brenda Soloff:

But there was also the additional statement.

I didn’t join the opinion but — may not be the authority is to what it held.

William H. Rehnquist:

UMs. Soloff, does New York have any statutory authority for interrogating contract that is under or above the performance of their contracts other than a grand jury?

Brenda Soloff:

This very statute refers also to heads of state agencies, heads of city agencies and other, a number of any agency which is empowered to swear witnesses and to subpoena and to swear witnesses.

So, there are other agencies.

They do not give automatic transactional immunity.

They’re still under the old procedure.

You don’t want to be — you’re not satisfied with utilizing that device and being able to question the contractor about the performance of this contract with the understanding that those answers would not be used in the criminal prosecution, just use of immunity.

You’re not satisfied with that.

You want to be able to use those answers perhaps.

Brenda Soloff:

Use of immunity raises some of the same problems of being unable to prosecute of being — of having the public spectacle of —

Yes, you are not satisfied.

Brenda Soloff:

Yes, I am not.

Well, your attraction of all the validity of the law that the New York Legislature passed, maybe you might be satisfied with it but the New York’s legislature has passed a different law.

That’s the one involved here.

Brenda Soloff:

The statute is very — is much more carefully limited and any questions that go beyond the scope of the contracts would not be —

But underlying that position is that you can’t really get to the bottom of what has happened unless you can get the information from the contractor himself.

Brenda Soloff:

That’s correct.

That’s the basic reason, isn’t it?

Warren E. Burger:

Mr. Robinson, while the subject is fresh in your mind as I’m sure it is from listening to the colloquy, I wonder if you would suggest what difference there is between that provision in the Gardner opinion of this Court of which, does that — whether it is just alright to penalize a policeman or someone else for exercising his constitutional privilege under the Fifth Amendment but it wasn’t alright, it wasn’t constitutional to require someone to waive that in advance which —

Richard O. Robinson:

Your Honor, I cannot find any distinction.

In fact, if anything, I think in the Gardner case, the statute in the proceeding which was involved was more restrictive and more related to the specific employment of the police officer.

Now, that Section 1123 stated at that time if any counsel man or other officer or employee the city shall after lawful notice in presses, willfully refuse to appear before any Court or judge or any legislative committee or body authorized to conduct such hearing or inquiry or having appeared shall refuse to testify or answer any questions regarding the property, government, or affairs of the city or of any county included within its territorial limits.

So that in Gardner, the law was even more restrictive and more limited than it is under Section 103 a b, sections of the general municipal law, Sections 26.

Warren E. Burger:

Well, I was speaking of that one paragraph in the Gardner case in which the Court said that, if the appellant, the policeman and refused to answer questions specifically directed and narrowly related to the performance of his official duties without being required to waive immunity in advance then the privilege against self incrimination would not have been a bar to his dismissal but that still in fact is the law and not just a view of collateral question, it would mean that the policeman is penalized for exercising constitutional right, isn’t he?

Richard O. Robinson:

We had no argument with that, Your Honor.

Because it says without being required to waive his immunity.

And of course if he — If he was granted immunity, then of course he could be asked any questions, a policeman or bricklayer or a judge or anybody else if he has been granted immunity then he has no more constitutional privilege.

Warren E. Burger:

And then if this paragraph is still the law, he can still be penalized by being fired.

However, I’m simply saying that there are two different kinds of penalties, one of which the Court said it is all right to direct against the policeman and the other is not.

Richard O. Robinson:

I assume that to be the gist of the concurring opinion of the decision.

Warren E. Burger:

And in one case, he’s immune from criminal prosecution for the conduct for whatever happens but in the other case, he can be fired from his job so that there are just two different kinds of penalties directed at the same exercise or the exercise of a similar constitutional privilege isn’t that true?

Richard O. Robinson:

Yes, and as I started to say I assume that to be the gist of a concurring opinion of Mr. Justice Harlan, Mr. Justice Stewart, in the Gardner case.

They had dissented in the Spevack and the Garrity cases and then —

Potter Stewart:

And we seized on this paragraph —

Richard O. Robinson:

They seized on it and may have in effect overrule Spevack in process.

But the Court also states that there was not necessarily any criminal proceeding.

Richard O. Robinson:

I would like to point out to the Court that in this particular case, a grand jury had been in the panel and the two architects here were presented with the waivers of immunity which stated that I have been advised by District Attorney John J. Honan at the grand jury of the County of Eerie now in sessions investigating charges of conspiracy, bribery, larceny, and other matters of every nature whatsoever appertaining thereto.

I am further advised that such charge and investigation may involve me so that they were directly — they are made targets of the investigation.

I should like to point out from in regards to the previous remarks made in the argument that the law of the State of New York at the time of these proceedings was stated and People versus Steuding, not cited in the briefs, S-T-E-U-D-I-N-G, at six New York 2nd 214.

However, the Court of Appeals held it by virtue of the constitution of the State of New York, a perspective the defendant or one who was a target of an investigation might not be called or examined before a grand jury.

And if he was, he is constitutionally conferred privilege against self incrimination was deemed to violate it even though he did not claim or assert the privilege.

Now, that was incorporated in Article 50 of the Criminal Procedure Law.

So, at the time that this proceeding arose, the targets, the architects, the police here were presented with a waiver, directed him to give up all constitutional rights which is ahead of the time and compelling them, tempting the appellant to testify against themselves obviously in a criminal proceeding.

Well, what’s your explanation for why a contractor — responsible contractor shouldn’t be bound by his agreement in advance that if he refuses to answer questions about his contract that he can’t do anymore business with the city for a period of time.

Richard O. Robinson:

Well first of all, there was no such provision in the contract.

The State statutes say that —

Are you suggesting that the contractor didn’t know about it?

Richard O. Robinson:

I’m not suggesting that, Your Honor.

Let’s assume he did.

Richard O. Robinson:

I think, we have to assume he did.

All right.

You assume he did then why should not he be bound by that agreement that he must terminate business relation with the State unless he refuses to answer question.

Richard O. Robinson:

First of all Your Honor, he makes no such agreement.

There was no such agreement.

Well, he went into — he signed a contract with the State.

Richard O. Robinson:

He did but the statutory state —

And the State Law said that if you do that, there are some certain consequences that come over.

Richard O. Robinson:

The State Law says that every contract shall contain such a provision.

It does not state that every contract shall be deemed to contain such a provision whether or not it is written into it.

There’s nothing in any of the briefs or arguments here —

It must all be technical.

For the purposes of this question, let’s assume that it had the provision in it that said, precisely what the law said.

Richard O. Robinson:

Assuming that to be true, I think we have to fall back on the loyalty oath cases, as Farkova (ph) case to the effect that the State cannot require a public employee to waive his constitutional right as a condition of public employment.

My argument here and the argument of the —

That’s what you have to get to.

Richard O. Robinson:

Yes, the argument of the appellees —

And the reason is?

Richard O. Robinson:

The argument of the appellees is that this statute is overbroad.

We don’t argue that the Government might have less rights than any ordinary employer to inquire into the conditions of the contract, to inquire into relevant matters concerning the contract.

What we argue here is that this goes well beyond that and in effect permits the Government to employ its full powers of subpoena, and repression to inquire into matters not necessarily related to the contract.

William H. Rehnquist:

I thought over breadth was a doctrine in the First Amendment area.

Is your client asserting some sort of First Amendment right here?

Richard O. Robinson:

It’s usually asserted in the First Amendment area.

However, I think in the last term in the case of Brooks versus Tennessee, it was asserted.

I believe that was under the — that was in the Fifth Amendment area.

I believe that was an over breadth case.

I believe also that the city’s recent decision concerning the rights of aliens to public employment would be in the over breadth area.

That is there has to be some reasonable relationship of a limiting statute, a Government statute, a limiting constitutional rights.

You mean a narrowly drawn statute which required a waiver in advance of your rights or waiver of your, or whatever is the objective here and now withdrawn when you wouldn’t see any problem with terms of contractor.

Richard O. Robinson:

Well, I would see a problem with it but I do not believe it’s an issue in this case.

Simply, it’s not an issue in this case.

The issue in this case was very clearly stated by the lower court and that the statute goes well beyond limiting the limitations under constitutional right to narrowly confined areas concerning employment.

And that even if the questions that the State wanted to ask in this case or the right kinds of questions, the statute might authorize other kinds of questions and therefore was invalid on the State.

Richard O. Robinson:

That’s absolutely correct.

Is that your argument?

Richard O. Robinson:

Our position.

Well, it really is a straight over breadth argument.

Richard O. Robinson:

That’s absolutely correct.

And I believe that, that is the gist of the Gardner and uniform sanitations in all these cases that the statutes went above and beyond narrowly confined limitations relating to the employment.

The only other issue presented —

Warren E. Burger:

You haven’t wished as far as my understanding indicated what is the difference between penalizing the man after the event and the thread of criminal prosecution for what is the constitutional distinction, I’m well aware that one is civil, economic remedy, and dismissal from employment and the other is exposure to criminal prosecution.

They’re both coercive in terms of exercise of the constitutional right, are they not?

Richard O. Robinson:

Your Honor, I cannot distinguish between a prior restriction and a restriction imposed subsequent to the commencement of a contract.

Warren E. Burger:

In other words you think what the court said in the Gardner was probably doubtful.

Richard O. Robinson:

Yes.

Warren E. Burger:

Doubtful constitutional law.

Richard O. Robinson:

Yes.

Warren E. Burger:

No.

I would well —

Richard O. Robinson:

The only other point raised was the quantitative and qualitative or as to whether the thread of loss of contract, contracting privileges by a public contractor is somehow less of a penalty than a direct employee of the Government.

All I can say is in that, and that is pointed out in my brief, I can see no qualitative or quantitative difference between the firing of a laborer on a garbage truck who can go out and secure other laboring employment in the public sector, and termination of a contractor or an architect’s contract and restriction upon him for five years in future contracting.

If there are no other questions, thank you.

Warren E. Burger:

Very well.

I think your time is all is used up, Ms. Soloff.

Thank you very much.

The case is submitted.