LOCATION: United States District Court for the Northern District of Illinois, Eastern Division
DOCKET NO.: 165
DECIDED BY: Warren Court (1957-1958)
CITATION: 357 US 468 (1958)
ARGUED: Mar 04, 1958
DECIDED: Jun 30, 1958
Facts of the case
Media for Lerner v. CaseyAudio Transcription for Oral Argument - March 04, 1958 (Part 1) in Lerner v. Casey
Audio Transcription for Oral Argument - March 04, 1958 (Part 2) in Lerner v. Casey
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.