GARDNER v. BRODERICK

Print this transcript Transcript: 

Argument of Ronald Podolsky

Chief Justice Earl Warren: Number 635, Robert Vincent Gardner, Appellant, versus Vincent L. Broderick, as Police Commissioner at the City of New York.

Mr.Podolsky.

Mr. Ronald Podolsky: Mr.Chief Justice and may it please this Court.

In this case probable jurisdiction has already been noted.

It's a -- an appeal by a former policeman who was dismissed by the appellees.

This policeman was served with departmental charges involving conspiracy to violate gambling laws -- the next -- and suspended.

The next day, he was subpoenaed before the grand jury of New York County and asked to sign a waiver of immunity from prosecution.

It was announced at that hearing that it was a criminal investigation into conspiracy to violate gambling laws.

The appellant refused to sign such a waiver on advice of counsel stating that since he was a target of the investigation, the grand jury had no authority to subpoena and question him.

He was not questioned.

He was not granted immunity but rather excused and thereupon was served with an additional departmental charge, refusal to sign a waiver of immunity before the grand jury as required by Article I, Section 6 of the New York State Constitution and Section 1123 of the New York City Charter.

And --

Justice Potter Stewart: I'm a -- I want to be sure I understand the context here.

He -- what he did was refuse to sign a waiver of immunity which would imply to me that otherwise he would have had immunity had he testified?

Mr. Ronald Podolsky: It is my position, Your Honor.

The appellant's position that since he was under subpoena.

Any testimony that he gave at that hearing would cause immunity to attach to the substantive area of the inquiry.

Justice Potter Stewart: As a matter of New York law?

Mr. Ronald Podolsky: As a matter of New York and I believe federal law as well.

Justice Potter Stewart: Well, but perhaps required by the Constitution, if --

Mr. Ronald Podolsky: Yes, sir.

Justice Potter Stewart: You can make a person testify if you give him -- brought enough immunity.

And do I understand that New York law does -- would have given him immunity --

Mr. Ronald Podolsky: Under these circumstances --

Justice Potter Stewart: -- in the absence of his signing a waiver of immunity.

Mr. Ronald Podolsky: Yes.

There is a more formal procedure under 244 -- 2447 at the Code of Criminal Procedure which was not followed in this case.

But it is my position that he would have been granted immunity had he testified under the compelled compulsion of the subpoena.

Yes, Your Honor.

Now the appellant was served with an additional charge, refusal to sign a waiver of immunity by the police commissioner and directed to report for a hearing on that charge.

Upon appearing, the appellant requested that all three charges; the substantive charges as well as the procedural charge of refusal to sign a waiver be tried at once.

This request was denied and the hearing proceeded under objection on the one charge of refusal to sign a waiver of immunity.

And the grand jury minutes and the District Attorney testified at that hearing and resulted in the dismissal complained of in this action.

No disposition of the substantive charges of misconduct was made.

It is the appellant's contention that the requirement to sign a waiver of immunity before the grand jury imposed by state law is an unconstitutional limitation on the federal constitutional provisions of the Fifth and Fourteenth Amendments and therefore must fall under the federal supremacy of laws section.

I think it's very important to keep in mind that he was under substantive charges involving the same area of grand jury inquiry at the time he was asked to sign a waiver.

He was not someone against to whom charges were not then and there pending.

Appeals through the Courts to this Court subsequently followed.

The Court of Appeals of the State of New York said that the Garrity case undoubtedly partially invalidated these sections, these sections of law requiring the waiver.

May I inquire whether we break for lunch now, Your Honor?

Chief Justice Earl Warren: We'll recess now.

Mr. Ronald Podolsky: Thank you.

A portion of the subpoena would be inadmissible but absolute immunity I don't think would apply unless the formal procedures under the New York Penal Law were followed.

And there was a definite intention on the part of the grand jury to confer that immunity.

There was no legal residuum here respecting the substantive acts of misconduct.

No finding whatever.

The only act of misconduct here was an invocation of a federally protected right against self-incrimination.

Under Malloy against Hogan, the protection of Fourteenth Amendment is coextensive with that of the Fifth and it applies to the states.

The Court of Appeals of the State in New York in this case has held that a refusal to sign a waiver of immunity is equivalent to and an act of invoking a privilege against self-incrimination.

And that being the highest court in the state, I think that their interpretation of the statute is binding for all purposes in this case.

Justice Potter Stewart: He didn't --

Mr. Ronald Podolsky: State --

Justice Potter Stewart: He didn't refuse to answer any questions?

He wasn't asked any questions.

Mr. Ronald Podolsky: He was never asked any questions.

He was excused upon his refusal to sign a waiver, Your Honor.

Justice Potter Stewart: So that that was it.

So that he didn't literally invoke the privilege against self-incrimination.

Mr. Ronald Podolsky: Your Honor, the Court of Appeals of the State in New York by Mr.-- by Judge Fuld, Chief Judge Fuld, has said in its opinion in this particular case, “definitely that a refusal to sign a waiver of immunity under this circumstance is in fact an invocation of the privilege against self-incrimination in the opinion itself”.

And therefore, taking this interpretation as being binding by the highest court in the State --

Justice Potter Stewart: Well, that's not a -- is it -- that's hardly a construction of the state law, is it?

Mr. Ronald Podolsky: It says construction --

Justice Potter Stewart: That would be binding clearly of course, we would all agree would be binding on us if that were a construction or an interpretation of a state, of a New York state law, New York law.

But is it binding if it's a -- suppose a construction of the federal constitution?

It's not binding on us.

Mr. Ronald Podolsky: Your Honor --

Justice Potter Stewart: That's what it is.

Mr. Ronald Podolsky: Your Honor, it was a construction of a New York State constitutional provision.

Article I, Section 6 required the appellant according to the Court of Appeals to waive his immunity -- waive his privilege against self-incrimination and testify.

That is directly from the opinion in this case.

Now the New York State constitutional proviso, accepting public officers from its own protection contained against self-incrimination under Article I, Section 6 at the same time seeks to add a proviso to the Fifth Amendment to the Constitution of the United States and a proviso to the Fourteenth Amendment when no such proviso exists in the federal constitution.

Therefore, it is the appellant's position that the statute is unconstitutional that the requirements are unconstitutional for continued public office.

Now, the Fifth Amendment and the Fourteenth Amendment have applied not only to criminal sanctions but also to administrative sanctions citing for example (Inaudible) case, Lovett, and a few other cases in my brief so that we have a situation where there is a penalty visited upon this appellant strictly by virtue of his invocation of a federally protected right.

The right -- the invocation of that right has proved costly and it is a federally protected right.

The action of the State in New York in requiring its public officers to waive a federally protective requirement is not, I believe, a constitutional one.

Now this -- Court of Appeals of the State of New York has said that Garrity undoubtedly partially invalidated Article I, Section 6 of the New York State Constitution but they don't say what part of that is invalid nor is there any saving clause that I could find in the New York State Constitution saying that a part of a Section is declared unconstitutional.

The rest survives.

At any rate, the Court of Appeals has said that the question when Gardner was before the grand jury and all the way up to the time of the Court of Appeals decided its case and including today, they have said that this is an open question that this Court has left the question open.

Yet, they have countenance by their affirmation.

The full penalty against this appellant for a cause of action which is perfectly consistent with the very openness of the question so we feel --

Justice Abe Fortas: Is there any question as to whether the issues before the grand jury matters upon which petitioner was going to be questioned?

Is there any doubt that those questions were related to the scope of his duty as a policeman?

Mr. Ronald Podolsky: There is no doubt in that in respect.

However, it also inquired into an area under which he was charged by the department existing charges which to this day have never been disposed off.

So that it is -- the Court of Appeals of the State in New York has said that the appellant herein committed an act of misconduct.

Yet, they recognized that the very question is an open one.

Is the appellant held to a higher degree of knowledge of the law than the unanimous decision of the Court of Appeals here or his actions or were his actions perfectly consistent with the very openness of the question, which we hoped to close today.

The --

Justice John M. Harlan: Did he had administrative hearing -- if he had there -- before his dismissal?

Mr. Ronald Podolsky: Yes, Your Honor.

The sole question at that hearing was did he or did he not refuse to sign a waiver?

There was a motion at that hearing --

Justice John M. Harlan: (Inaudible)

Mr. Ronald Podolsky: There was no automatic dismissal.

We have a (Inaudible) point in that that the mere invocation of the constitutional privilege is not an act of misconduct as far as we're -- as far as the appellant is concern.

We have a situation also where to apply this statute as the Court of Appeals of the State of New York has applied it.

We would have a shift of burden of proof of misconduct when the precepts of due process of law and the statutes involved in the State of New York placed that burden upon the prosecution.

The prosecuting authority of the State in New York by an extrinsic independent evidence must come up -- prove acts of misconduct, substantive acts of misconduct.

Justice Abe Fortas: Suppose this policeman were brought up on charges that -- suppose there's a grand jury investigation and it was known that the focus of that grand jury investigation was a charge that he had shot and killed a man while he, the policeman was on duty?

And he was called to testify.

Let's assume he refused to testify and he refused to sign a waiver of immunity on the -- both on the Fifth Amendment grounds.

Would the -- could be a constitutional principle in your opinion that would prevent the state from discharging him as a policeman?

Mr. Ronald Podolsky: Yes, Your Honor.

If it appears that there was a disciplinary reason for asking it rather than a supervisory one.

For example, --

Justice Abe Fortas: Tell me, what's -- would you say that again?

Mr. Ronald Podolsky: Yes.

If it appears that his answers will tend to incriminate him, either disciplinary action for example.

I feel that he would have a right to maintain silence.

If it is used to investigate for supervisory reasons, for example strengthening patrols in the certain area or even suspending him pending investigation of extrinsic evidence, then for that limited purpose, I would say that he could answer it.

Justice Abe Fortas: Oh!

The case I have put to you they say 1429.

It's not a good idea to have policeman on our force who go around shooting people instead of arresting them and so we want to look into this and this is purely supervising.

That's what they say and then can -- then is the state justified in dismissing him?

Mr. Ronald Podolsky: If it is limited strictly to supervisory will not be used against him --

Justice Abe Fortas: He told me if that ruling --

Mr. Ronald Podolsky: -- in a disciplinary sense, then I would say that his refusal to answer, in addition to the extrinsic evidence of the fact of the killing and the gunshot and the ballistics test, it would be illegal residuum there to support a dismissal if the request were for a supervisory rather than a disciplinary reason.

Justice Abe Fortas: Well so --

Chief Justice Earl Warren: Let us be specific --

Justice Abe Fortas: So that the bar is not absolute.

I beg your pardon, Mr.Chief Justice.

Chief Justice Earl Warren: No, go right ahead, right now.

Justice Abe Fortas: The bar is not an absolute one.

That is to say, it is not in every case where the policeman claims a Fifth Amendment protection that the state is disenabled by a reason of the federal constitution from dismissing the man from public service.

Have I stated that clearly enough?

Mr. Ronald Podolsky: You have, you have.

Justice Abe Fortas: And what's your answer?

Mr. Ronald Podolsky: My answer is that if -- if the -- it goes back again, Your Honor to the purpose of the questioning.

If he is assured, if he's granted in effect immunity from prosecution, administrative or otherwise, then that's another ins -- another situation as not being used against him.

It's being used either to strengthen patrols or get him off a sensitive post or whatever it is.

But if it's going to be used against him in a disciplinary sense, then the state would just have to unfortunately content itself with gathering extrinsic evidence independently gathered to discharge this officer.

Chief Justice Earl Warren: Is it your position that if the department has evidence that this man has been associating with gamblers in an illegal way and perhaps accepting bribes and it calls the officer in and asked him about his conduct in relation to that that he can refuse to testify?

Mr. Ronald Podolsky: Especially -- yes, especially, if he's under departmental charges, which he was in this case and if --

Chief Justice Earl Warren: Well, suppose they want to -- suppose they want to do it to find out whether they're going to fire him or not?

Mr. Ronald Podolsky: I don't think his answers there can be used against him, Your Honor.

There can be -- they -- at that point, he is the focus of an investigation and once that comes, we have constitutional -- the questions arising, a constitutional objections to his response.

If he is being accused, he has a right to be confronted by his accusers and cross-examine him before he has a duty particularly to go ahead with the evidence to counter it.

So state must have a extrinsic evidence which would result in a legal residuum.

Under those instances if they have enough to dismiss him, his silence would advance no tenable reason in mitigation, extenuation or explanation for his continued service but his silence again cannot be used as a confession of guilt under any circumstances.

We have a situation where the state is attempting to add a state proviso to a federal constitutional provision.

Under Malloy against --

Justice John M. Harlan: They're not punishing him.

They just say they don't want a man who won't answer questions (Inaudible) police board.

Mr. Ronald Podolsky: Your Honor, the refusal to sign a waiver of immunity under this section mandates dismissal.

It's not discretionary.

They say, "Well, we'll give him a hearing".

What's the hearing have to --

Justice John M. Harlan: The legislatures said that, would you not wish people on our law enforcement branch of our Government that won't answer questions when their official conduct is called an issue.

Mr. Ronald Podolsky: Well, in --

Justice John M. Harlan: It's a legislative determination?

Mr. Ronald Podolsky: The legislative determination at that instance runs contrary to the Fifth Amendment and the Fourteenth Amendment of the United States Constitution and therefore must fall --

Justice Abe Fortas: And that's the issue?

Mr. Ronald Podolsky: Yes, Your Honor.

Well, that is the position that the appellant takes in this case.

There are no -- now the reservations in Spevack against Klein, Footnote 3 and also Mr.Justice Fortas' reservation in that case, spoke about a silence at a disciplinary hearing.

The appellant's silence in this instance was not at the disciplinary hearing.

It was a grand jury hearing without disciplinary powers with powers to indict.

It was a criminal investigation so I think that the reservations there -- I don't agree with them but I don't think they apply in this case.

I think that the reservations are not appropriate either because there would be a violation of the privilege against self-incrimination which applies to states here.

Again, I'd like to emphasize there's no -- at this hearing that they give, the hearing.

The dismissal is mandatory.

The hearing, in my opinion in this case where he gave adequate and good reason for his failure to answer questions and that being that he was a target of the investigation and was illegally subpoenaed.

Now it was a reason, the reason was before the Commissioner --

Justice Potter Stewart: You say, give an adequate good reason for his failure to do what?

Mr. Ronald Podolsky: He had an adequate and good reason, explanation at this hearing.

You see --

Justice Potter Stewart: Or you said for his failure to answer questions.

I didn't read -- again I (Voice overlap)

Mr. Ronald Podolsky: He had an adequate and good reason --

Justice Potter Stewart: I didn't think he was asked any questions.

Mr. Ronald Podolsky: He was an -- he had an adequate and good reason for objecting to his very presence in the grand jury room that a subpoena was illegal on the ground that he was a target of the investigation and under Bernoff against Amoroso cited in my brief, this subpoena probably was illegal and -- thank you.

Thank you.

Chief Justice Earl Warren: General Rankin.

Argument of J. Lee Rankin

Mr. J. Lee Rankin: Mr.Chief Justice, may it please the Court.

This is a case that is of great importance to all municipal governments, state governments and federal governments, federal government in this country.

The problem is whether or not a person occupying official position, one of the most important of which is a policeman in any city.

Law enforcing officer can be asked in regard to the performance of his duties.

Mr.Justice Black -- Stewart brought out properly the issue in this case which did not involve the questioning in regard to the performance of those duties because the appellant refused to sign any waiver.

But he gave as his reason even more than that in that he said that, “Under the law, it was not legal for him to be subpoenaed before a grand jury where he was a target of the investigation”.

So that he made it plain that he would not answer any questions regardless because he said, "He could not legally be brought before the jury".

Now, he was in error in regard to the law in so asserting although he did it under the advice of counsel.

The law as set out by the Court of Appeals of New York in Tomasello, and Goldman, also in Stude make it plain that there is a right and legal power to subpoena him before the grand jury.

But there are certain instance under the Constitution of New York that result from that if he testifies.

And if he proceeds to testify, he gets protection regarding that testimony.

That is automatically giving him whether he claims the privilege or not in regard to any testimony that he gives.

And that protection concerning that testimony is less than the protection or the immunity he would get under Section 2447 of the Penal Code.

In that, it protects him concerning the use of that testimony and any of its fruits but not -- does not extend to the coverage of matter, thing or transaction involved in 2447.

Or is the same kind of protection that the Court described and provided in Murphy against Waterfront.

This case, we think is controlled by the decisions of this Court in Nelson, Beilan and Lerner against Casey.

Except that since those cases, this Court has moved on and included Murphy against Waterfront and Garrity so that a person called before the grand jury has protections that were not present in any of the three cases that I've named.

Beyond that, this inquiry by definition in the constitution and also in the charter provision is a limited inquiry.

It does not relate to security risk and loyalty and other elements that are involved in those cases but to -- is in precisely the question of the performance by the party involved of his official duties in that job.

Now, this case dramatically presents that problem.

Justice William O. Douglas: I suppose that's in a rather large circle of related problems such as the disabilities of any on the men or women on that public payroll to make a speech, to discuss, to criticize First Amendment problems?

Mr. J. Lee Rankin: I don't think that's involved here at all.

These provisions are explicit in regard to official duties and performance.

Justice William O. Douglas: I suppose in the welfare program as been administered the conditions to be made explicit so that you can dispense with a warrant for a search of the house to see if the welfare law is being complied with?

Mr. J. Lee Rankin: I wouldn't think it was possible under these provisions.

Justice William O. Douglas: I know, this is not a -- this is not that case but I mean this is a rather big subject we're getting into, isn't it?

Mr. J. Lee Rankin: No, I --

Justice William O. Douglas: (Inaudible) employment can be conditioned on the surrender of constitutional rights?

Mr. J. Lee Rankin: I think this is a very limited inquiry and it's a question of whether a policeman --

Justice William O. Douglas: Oh, it's just one case, that's true but --

Mr. J. Lee Rankin: Well, but --

Justice William O. Douglas: -- if whether what?

Mr. J. Lee Rankin: -- if you take all public officials in the Court of Appeals of New York has extended it Perlas to public officials.

That's a class and as a reasonable classification and this constitutional provision and the charter provision were in response to the reaction of the people in the State of New York in connection with the See Berry investigations, to the idea that people who admittedly had done all kinds of criminal acts showed in those investigations could continue to occupy their public positions because there is nothing the people could do about it.

Justice Abe Fortas: But general, suppose this man had been dismissed from service for a refusal to sign a waiver and period, nothing more.

Is that different in your submission from the result that they would've obtained if you knew this case has a dismissal for refusal to answer questions with respect to his official duties?

And if there is a difference, what consequences would you attach to it?

Mr. J. Lee Rankin: I think the case of dismissal just for a refusal to sign a waiver is the most difficult case because the heart, the essence of this right, the people of New York wish to assert is to find out how this man was conducting his work on behalf of the people.

Now, this --

Justice Abe Fortas: And also it's very arguable that he has an immunity by reason of federal law, federal constitutional law against being prosecuted in the event that he makes such disclosures.

Mr. J. Lee Rankin: Well, that's --

Justice Abe Fortas: An immunity which the waiver seeks to defeat.

Mr. J. Lee Rankin: It's a contention of the city in this case that he does have that immunity by reason of Garrity.

Justice Abe Fortas: But suppose if he signs a waiver?

The waiver is pro tanto inoperative by reason of Garrity, is that your --

Mr. J. Lee Rankin: That's right.

Justice Abe Fortas: -- statement?

Mr. J. Lee Rankin: It has no effect --

Justice Abe Fortas: But they've done it -- but if on the other hand, your view of this particular case as a refusal by the officer to answer questions with respect to his -- whether he did or did not take bribes or shot a fellow on the street or whatnot, of course, from his official duties.

Then you said it's an easier case?

Mr. J. Lee Rankin: Yes, because there you are going getting to the question of the particular conduct.

On the other hand that if he will not -- if he just refuse to answer which is the effect, a refusal to sign a waiver, certainly, when he has -- gets the immunity, it does under Murphy and Garrity.

Justice Abe Fortas: Well, I didn't know it is different because you're charging him now with the knowledge that he wouldn't -- that the signing of the waiver would be ineffective.

Mr. J. Lee Rankin: Yes.

Justice Abe Fortas: But he has, I suppose -- he could say well if it's going to be ineffective whether these fellows want me to sign it or whether they'd fire me for signing it.

Mr. J. Lee Rankin: Yes.

Justice Abe Fortas: And that may be a very different case and if a man -- a public official or policeman were fired because of his refusal to answer questions within the narrowly defined scope of his official responsibility.

Mr. J. Lee Rankin: Well, but we have a further gloss on this case and that he refused to answer or sign the waiver and to answer on the ground that he could not even be subpoenaed before the grand jury.

So it would be a futile act for us to try to follow up and compel him to answer under the decisions of the Court because he took the position that he couldn't be sworn and he couldn't be compelled to answer.

Justice Abe Fortas: Well, did your Court of Appeals treat it as your brother said, as I understand him, did the Court of Appeals treat this as the case in which he refused to answer the questions as well as case of refusal to sign a waiver?

Mr. J. Lee Rankin: No.

It treated that as insubordination and the failure to -- it did treat it as a failure to respond and tell how he had discharged his duties.

Yes, sir.

Justice Abe Fortas: Because -- if I were just to waive a case as I read with great difficulty of the concurrence that I wrote in Spevack against Klein this would not be covered.

Mr. J. Lee Rankin: The Court went beyond that in the --

Justice Abe Fortas: Now, that would be different kind of a situation.

Mr. J. Lee Rankin: And treated it as a refusal to answer the questions.

Now, there is no Slochower point in the case as we visualize it because of the hearing in which he was given opportunity to explain his reasons for refusing to waive and answer questions.

Justice Byron R. White: He never answered in that hearing anything about his -- the conduct of his official business?

Mr. J. Lee Rankin: That's right.

We did not.

Justice Byron R. White: But why should the state if it -- all it was to do is to find out how the employee has been performing his job?

Why should they be entitled to rely on a grand jury proceeding which is aimed at criminal prosecution?

Mr. J. Lee Rankin: Well, the grand jury in New York --

Justice Byron R. White: Why don't' they just have an ordinary hearing in the civil context and ask him the questions.

If he refuses to answer, he claimed you could fire if he answered.

You would know what you wanted to know and what he said since it's obtained under a job threat.

Wouldn't be admissible in the criminal proceeding?

Mr. J. Lee Rankin: Well, a grand jury inquiry is a broader inquiry under the law of New York, then just a proceeding which needs to end in indictment.

I know one, a misunderstanding --

Justice Byron R. White: Wasn't there a (Voice Overlap) --

Mr. J. Lee Rankin: -- in this case, he was a target of the investigation.

Justice Byron R. White: And didn't -- wasn't there a testimony that he was a -- what a -- possible or probable --

Mr. J. Lee Rankin: He was a --

Justice Byron R. White: -- defendant in a criminal prosecution?

Mr. J. Lee Rankin: That's right.

But the grand jury in New York has a power to make presentments which involved the recommendations about the conduct of the laws, enforcement, and other matters of that kind.

So if they have this broader right, broader interest, and it seems to us that the grand jury should properly be able to inquire into the manner in which public officials are performing their duty.

And then they correct commendations to the legislature or the governor, other officials as to how these laws should be changed or improved to carry out the purposes --

Justice Byron R. White: Does in -- does the New York law require that an employee be asked to waive immunity if he is interrogated by his superior rather than by the grand jury?

Mr. J. Lee Rankin: Yes.

It -- the constitution does not, the charter does.

There is that distinction between the two.

Justice Abe Fortas: Are you -- would you --

Mr. J. Lee Rankin: (Inaudible)

Justice Abe Fortas: Are you defending -- are you saying that despite the Fifth Amendment in Garrity, a public official may be forced to sign a waiver from payment being discharged?

Mr. J. Lee Rankin: No.

I say that in light of Garrity, it doesn't make any difference.

Justice Abe Fortas: Alright.

But you're not defending that were clear then, we're in agreement that the -- you cannot dismiss a public employee because of his refusal to sign a waiver of criminal prosecution and if that is the thrust of Garrity.

That's what I'd like to get cleared General?

Mr. J. Lee Rankin: May I hear the question again, Your Honor?

Justice Abe Fortas: Yes.

A public employee is required to sign a waiver for a criminal -- a waiver of immunity against criminal prosecution.He refuses to do so and that's all.

That's all it's present in the case.

Can he be dismissed for his refusal to sign that waiver?

That's as distinguished from a dismissal for refusal to answer questions as to his performance of his duty.

Mr. J. Lee Rankin: Well, it would seem to me that if you told him that the waiver had no effect as far as waiving his rights were concerned and that he had all of the rights that he has under Garrity and Murphy against Waterfront that he would have no excuse for not proceeding to testify.

Justice Abe Fortas: Then he would say -- what -- why do you want me to sign this.

Is this some exercise in penmanship?

But he weren't told that here anyway, was he?

Mr. J. Lee Rankin: He was not.

But in the book --

Justice Thurgood Marshall: Mr.Rankin, am I correct that this man was suspended first --

Mr. J. Lee Rankin: Yes.

Justice Thurgood Marshall: -- by the Police Commissioner.

Mr. J. Lee Rankin: Yes, Mr.Justice.

Justice Thurgood Marshall: On charges of being involved in gambling?

Mr. J. Lee Rankin: Yes, sir.

Justice Thurgood Marshall: And the next day, he went for the grand jury.

Mr. J. Lee Rankin: That's correct.

Justice Thurgood Marshall: That's criminal.

One is, he's got a chance of losing his job permanently.

The grand jury if he had a chance to go into the penitentiary.

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: And while he's suspended officer, he still obliged to testify?

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: How can you rationalize that?

Mr. J. Lee Rankin: Because --

Justice Thurgood Marshall: You're not -- the grand jury at that stage had nothing to do with his fitness as a police officer.

You have already started that machinery by suspending him.

These are two different items.

Mr. J. Lee Rankin: Yes.

But then --

Justice Thurgood Marshall: I submit that if he'd been suspended after you'd had a different case from which you have here.

Mr. J. Lee Rankin: The grand jury has a legitimate right of inquiry in regard to the performance of his duties in law enforcement under the laws of the State of New York and the fact that it makes an inquiry.

If it's the target -- if he's the target of the investigation, he gets the protection of the Constitution of the State of New York anyway as to the use of that testimony and the fruits of it.

Justice Thurgood Marshall: Well, then the only problem is that he didn't sign the waiver?

It has no legal significance?

Mr. J. Lee Rankin: The further problem that he asserted that he could not be compelled to appear before the grand jury at all --

Justice Thurgood Marshall: Well, then --

Mr. J. Lee Rankin: -- because he was the target.

Justice Thurgood Marshall: Well then it narrows down to bad legal advice, he loses his job.

Mr. J. Lee Rankin: Well, he refuses to answer the question --

Justice Thurgood Marshall: Well, isn't that what it is.

He's operating on the advice of counsel.

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: And you say counsel was wrong.

Mr. J. Lee Rankin: Yes.

Justice Byron R. White: But if he's answered the questions, he might been fired anyway.

Justice Byron R. White: He might have been.

Mr. J. Lee Rankin: Well --

Justice Byron R. White: Might have been.

Mr. J. Lee Rankin: If you can assume that he had good grounds for thinking that he might be incriminated and those grounds included he himself being involved in some way as his reasons, then if they'd -- if it disclose that he was involved in a bribery, he certainly would have been discharged (Voice Overlap) --

Justice Byron R. White: Yes, but I gather, Mr.Rankin, if your position is that under that under the Constitution of New York, had he talked, what he said could not have been used as the basis for evidence in a criminal prosecution?

Mr. J. Lee Rankin: That's correct.

Justice Byron R. White: But if what he said involved him in something for which he might be disciplined or discharged.

He then would have to be the subject of a separate disciplinary proceeding, would he not?

Mr. J. Lee Rankin: That's the law in New York, yes (Voice Overlap) --

Justice Byron R. White: So in other words, he'd have an administrative hearing on all that what he said would do would we provide the basis for the administrative proceedings, is that it?

Mr. J. Lee Rankin: That's right.

Justice Byron R. White: And that's subject to judicial review, I gather, is it?

Mr. J. Lee Rankin: Yes.

There is a contention here, however, that he cannot be -- even though he is given all of those protections under Garrity and Murphy and so forth, and also those under Stude under New York law nevertheless, he could not be asked about the performance of his duties in connection with any disciplinary hearing.

Justice Byron R. White: Do you think, Mr. Rankin that if before the grand jury he refused to waive his immunity and then some questions were put to him and he took the Fifth Amendment and said, I don't need to answer on grounds that it'll incriminate me and the -- and that -- and the -- he was taken before a judge and refused again that he could’ve been held in contempt?

Mr. J. Lee Rankin: No, I don't think so in this case.

Justice Byron R. White: Why not?

Mr. J. Lee Rankin: The Court at least -- Court of Appeals has not yet decided --

Justice Byron R. White: Well, what about -- do you think -- do you -- is it your position that Garrity in effect provides an immunity in those circumstances which really sends in place of the privilege?

Mr. J. Lee Rankin: Well, I've been told by your decisions you haven't cited that question yet to counsel -- regard to Counselman.

Justice Byron R. White: So that you're not -- you would think that he could take this -- take the Fifth Amendment before the grand jury in this case and refuse to talk and that only -- and your only contention is that if he does, he can be discharged?

Mr. J. Lee Rankin: I have difficulty with answering that categorically in light of your decision in Murphy against Waterfront and in Garrity and trying to arrive at the question of whether or not how much immunity you did give in those cases which clearly say that there is -- that the testimony could not be used and the fruits cannot be used but does not go as far as Counselman's dictum.

That I think is the issue of the question that you're asking.

Justice Potter Stewart: What -- where -- of course, no questions were asked of this man either before the grand jury or at the administrative hearing except that the latter to establish that he had indeed refused to sign that waiver of immunity.

Mr. J. Lee Rankin: Yes.

Justice Potter Stewart: Is it clear what kind of investigation this was?

Was this an investigation of his conduct as a police officer as has been assumed and stated here or what was it?

It wasn't -- it did involve his shooting anybody, did it?

Mr. J. Lee Rankin: Before the grand jury, no it did not involve his shooting.

It involved the question of the bribery of police officials regarding -- to keep them from interfering with gambling activities in the city.

Justice Potter Stewart: It was an investigation of organized gambling, was it?

Mr. J. Lee Rankin: Well, it was an investigation of bribery transactions that were --

Justice Potter Stewart: Of alleged police corruption?

Mr. J. Lee Rankin: That's right.

Justice Potter Stewart: Corrupting of the police department by gamblers, is that it?

Mr. J. Lee Rankin: That's right.

And this particular appellant was thought to be one of those involved in the bribery at the time of the investigation for the grand jury.

And when he was given the hearing and took the position that he would not sign the waiver and the reason -- and that he would not -- could not be required to testify before the grand jury because he could not be called and sworn before the jury.

There was no purpose in trying to do anything more about asking about what he'd done because he was indicating that he was taking illegal position but he didn't -- could not be compelled to testify from that point on.

The importance of this issue is obvious and I'm sure that the Court has recognized in connection with the footnote that was referred to and the concurring opinion of Mr. Justice Fortas and the very structure of our Government and it’s various parts in the federal system and the right to try to find out what any official has been doing and his doing in the performance of his duties.

Justice John M. Harlan: Has New York ever had a system requiring evidence (Inaudible) --

Mr. J. Lee Rankin: I don't know of anything of that kind, Mr. Justice.

I offhand had thought that that would not add anything because he would be presumed to know what the constitution provides and what the charter provided.

And if that would make a part of his contractual relationship with the community that once he took upon himself the job of enforcing the laws --

Justice John M. Harlan: (Inaudible)

Mr. J. Lee Rankin: That's right.

Justice John M. Harlan: (Inaudible)

Mr. J. Lee Rankin: Yes.

Rebuttal of Ronald Podolsky

Mr. Ronald Podolsky: Your Honor the appellant waives rebuttal.