Bell v. Waterfront Commission of New York Harbor

• Court: New York Court of Appeals
• Writing for the Court: FULD; VAN VOORHIS and BERGAN, JJ., concur with FULD; KEATING
• Citation: 281 N.Y.S.2d 753,228 N.E.2d 758,20 N.Y.2d 54
• Decision Date: 31 May 1967
• Parties: , 228 N.E.2d 758 In the Matter of Peter BELL, Appellant, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent.

Page 753

281 N.Y.S.2d 753

20 N.Y.2d 54, 228 N.E.2d 758

In the Matter of Peter BELL, Appellant, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Respondent.

Court of Appeals of New York.

May 31, 1967.

Michael B. Standard, New York City, for appellant.

Irving Malchman, New York City, William P. Sirignano, Mt. Vernon, and Anthony L. Piazza, New York City, for respondent.

Sanford M. Katz, New York City, for New York Civil Liberties Union, amicus curiae.

FULD, Chief Judge.

This is an appeal from an order of the Appellate Division confirming the determination of the Waterfront Commission revoking the petitioner's registration as a longshoreman. The petitioner, 33 years old, had been a longshoreman since 1952, when he was 19. In 1960, desirous of improving his employment status, he applied to the respondent Commission for registration as a checker. ¹ Starting in October, 1961, he was called before one of the Commission's lawyers for a series of interviews relating to his application. Although notified that he had the right to be represented by counsel, he chose to appear at the interviews alone and was questioned under oath about alleged subversive activities during the late 1940s when he was 15 or 16 years old. The petitioner denied, or claimed he could not recall, having belonged to, held office in, known officers of, or participated in the activities of the Young Progressives of America (YPA) or the American Youth for Democracy (AYD), the latter an organization cited by the Attorney General of the United States in 1947 as 'subversive.'

In November of 1963, the Commission ordered a hearing to determine whether the petitioner had committed 'fraud, deceit and misrepresentation' when questioned about his connections with the above-mentioned organizations and, if so, whether to revoke, cancel or suspend his registration as a longshoreman and grant or deny his application as a checker. At the hearing, where the petitioner was represented by counsel, the only witness, one Herbert Romerstein, testified that from 1947 to 1949 he was a member of the Communist party as well as a member and officer of YPA and AYD and that the petitioner not only had been a member of AYD present at meetings open only to 'county officers' and 'representatives' of AYD clubs but that he had been a most active participant in its and YPA affairs.

The Commission, finding the petitioner guilty of 'fraud, deceit and misrepresentation' in connection with the testimony he had given under oath, issued an order revoking his registration as a longshoreman and denying his application for registration as a checker. The petitioner thereupon brought this article 78 proceeding in the Supreme Court to annul that order and to restore his registration as a longshoreman. ²

Under the terms of the Waterfront Commission Act, the agency is empowered to revoke the registration of any longshoreman 'for such period of time as it deems in the public interest' (L.1953, ch. 882, pt. I, art. VIII, § 5, McK.Unconsol.Laws, § 9831) if he has committed '(f)raud, deceit or misrepresentation in connection with * * * any interview, hearing or proceeding conducted by the commission' (L.1953, ch. 882, § 5-h, subd. 3, added by L.1954, ch. 220, § 2, McK.Unconsol.Laws, § 9912, subd. 3). ³ There is more than sufficient evidence in the record to establish that the petitioner lied when he denied, or claimed he could not remember, having belonged to, and attended meetings of, AYD and YPA when he was a teenager. Considering the extent to which he engaged in such activities, the Commission was certainly warranted in concluding that his testimony was incredible to the extent that he could not remember having done any of them at all. Accordingly, the Commission was justified in determining that his denials and lapses of memory were the products of 'fraud, deceit and misrepresentation'.

Perhaps, the petitioner would have been entitled to decline to answer the interviewer's questions, without prejudicing his longshoreman's registration, on the ground of the privilege against self incrimination (see, e.g., Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574; Slochower v. Board of Higher Educ., of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692,) or for the reason that he was not sufficiently apprised of the subject matter of the investigation and the 'pertinency of the interrogation to the topic under * * * inquiry.' (Deutch v. United States, 367 U.S. 456, 467--468, 81 S.Ct. 1587, 6 L.Ed.2d 963; see DeGregory v. New Hamp. Atty. Gen., 383 U.S. 825, 829, 86 S.Ct. 1148, 16 L.Ed.2d 292; Barenblatt v. United States, 360 U.S. 109, 123, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Watkins v. United States, 354 U.S. 178, 208--209, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Matter of Koota v. Colombo, 17 N.Y.2d 147, 150, 269 N.Y.S.2d 393, 394, 216 N.E.2d 568, 569.) Indeed, if he had truthfully answered the questions about his activities so many years before, his responses standing by themselves would not have provided a sufficient basis for the imposition of discipline. The Commission's power to revoke a longshoreman's registration because of participation in subversive activities can only be exercised against a person who 'knowingly or willingly advocates the desirability of overthrowing or destroying the government of the United States by force or violence or who shall be a member of a group which advocates such desirability knowing the purposes of such group include such advocacy' (L.1953, ch. 882, pt. I, art. VIII, § 3, subd. (b), McK.Unconsol.Laws, § 9829(b)). These provisions are explicitly directed at Current membership in subversive organizations and Present unlawful activities. Although the petitioner's past activities might be relevant to establish a chain of intrigue continuing into the present, his past actions alone would 'not justify an inference that he presently has bad moral character.' (Schware v. Board of Bar Examiners, 353 U.S. 232, 245--246, 77 S.Ct. 752, 760, 1 L.Ed.2d 796; see Veterans of Abraham Lincoln Brigade v. SACB, 380 U.S. 513, 85 S.Ct. 1153, 14 L.Ed.2d 46; American Committee for Protection of Foreign Born v. SACB, 380 U.S. 503, 505, 85 S.Ct. 1148, 14 L.Ed.2d 39; Konigsberg v. State Bar, 353 U.S. 252, 267--274, 77 S.Ct. 722, 1 L.Ed.2d 810; cf. DeGregory v. New Hamp. Atty. Gen., 383 U.S. 825, 86 S.Ct. 1148, supra; Matter of Anonymous, 17 N.Y.2d 674, 269 N.Y.S.2d 454, 216 N.E.2d 612.)

Be that as it may, the fact of the matter is that the petitioner chose to answer the questions posed and, in so doing, lied. It is well settled that deliberately telling a falsehood under oath or practicing deceit in dealing with a government agency is a sufficient predicate for criminal prosecution, adverse regulatory action or administrative discipline even if the misrepresentation was not 'material' or the deceiver would have been privileged to withhold the information in the first instance. (See, e.g., Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973; United States v. Williams, 341 U.S. 58, 65--68, 71 S.Ct. 595, 95 L.Ed. 747; Federal Communications Comm. v. WOKO, 329 U.S. 223, 227, 67 S.Ct. 213, 91 L.Ed. 204; Kay v. United States, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607; United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205; People v. Samuels, 284 N.Y. 410, 414, 31 N.E.2d 753, 754; Matter of Skaricia v. Waterfront Comm., of N.Y. Harbor, 20 A.D.2d 871, 248 N.Y.S.2d 704; Penal Law, § 1620-b; cf. Matter of Anonymous, 17 N.Y.2d 674, 269 N.Y.S.2d 454, 216 N.E.2d 612, supra; Matter of College Point Wine & Liqs. v. O'Connell, 296 N.Y. 752, 70 N.E.2d 554.) In these circumstances, as the Supreme Court observed in the WOKO case (329 U.S., at p. 227, 67 S.Ct., at p. 215), 'The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones.' In the case before us, the petitioner's registration as a longshoreman was revoked precisely for such 'willingness to deceive' the Waterfront Commission, and he may not now be heard to claim that he was ill advised either to practice such deception or even to answer the questions posed.

Moreover, in view of the petitioner's fraud and deception, there is ample basis for denying him the opportunity of challenging the constitutionality of the statute (L.1953, ch. 882, pt. I, art. VIII, § 3, subd. (b)) which authorizes the Commission to discipline longshoremen for subversive activities. (See, e.g., Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, supra; Kay v. United States, 303 U.S. 1, 6, 58 S.Ct. 468, supra; United States v. Kapp, 302 U.S. 214, 217--218, 58 S.Ct. 182, supra.) In the Dennis case (384 U.S. 855, 86 S.Ct. 1840, supra), several officers of a labor union were convicted for filing false affidavits that they were not members of the Communist party in purported satisfaction of section 9(h) of the Taft-Hartley Law, a provision which was subsequently repealed. They interposed the defense that section 9(h) was unconstitutional, a question which the Supreme Court had never previously considered, although it had invalidated the successor to section 9(h) as a 'bill of attainder' (U.S.Code, tit. 29, § 504: see United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484). In holding that the defendants lacked standing to raise the constitutional issue, the court declared that 'a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioner's fraud. It is not an action to enforce the statute claimed to be unconstitutional' (384 U.S., at p. 867, 86 S.Ct., at p. 1847).

This...