Curle v. Ward

• Decision Date: 03 April 1979
• Citation: 389 N.E.2d 1070,46 N.Y.2d 1049,416 N.Y.S.2d 549
• Parties: , 389 N.E.2d 1070, 20 Empl. Prac. Dec. P 30,066 In the Matter of Joseph CURLE, Respondent, v. Benjamin WARD, as Commissioner of the Department of Correctional Services of the State of New York, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 549

416 N.Y.S.2d 549

46 N.Y.2d 1049, 389 N.E.2d 1070, 20

Empl. Prac. Dec. P 30,066

In the Matter of Joseph CURLE, Respondent, v. Benjamin WARD, as Commissioner of the Department of Correctional Services of the State of New York, et al., Appellants.

Court of Appeals of New York.

April 3, 1979.

Amended April 5, 1979.

Robert Abrams, Atty. Gen. (Lawrence L. Doolittle and Ruth Kessler Toch, Albany, of counsel), for appellants

Richard R. Rowley and Jeffrey G. Plant, Albany, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be modified, with costs to respondent, by providing that the declarations of unconstitutionality be stricken.

Examination of the record on respondent's motion for summary judgment reveals that appellants have failed to tender sufficient evidence of the claimed detrimental impact of employee membership in the Ku Klux Klan (or even the perception thereof by inmates) upon the operation of correctional facilities to support the disciplinary action taken in this case. The only "evidence" submitted constitutes nothing more than speculation as to the effect which such membership might have upon the correctional facilities. In view of the meager and nearly barren state of the record, we do not address the broader constitutional issue raised by the parties.

WACHTLER, Judge (dissenting).

I would dissent. We need no more than what is in this record to meet the important constitutional issue presented by this case. Certainly our own intelligence and the documentation made a part of this record details the malevolent bigotry which the Ku Klux Klan represents. In addition the affidavits from prisoners, a psychiatrist and the Assistant Deputy Commissioner of the Department of Correctional Services, as well as our own common sense is proof enough of the effect prison guards who are members of the Klan would have on a prison population comprised mainly of Blacks and hispanics.

Only a brief recitation of the facts is necessary. On September 4, 1975 appellant, Benjamin Ward, Commissioner of the New York State Department of Correctional Services, promulgated a directive forbidding employees from Ku Klux Klan membership. Suspicions arose that respondent, Joseph Curle, a prison guard at Elmira Correction Facility, was a member of the Klan. To investigate these suspicions, the department interviewed Curle on October 2, 1975. At the interview, although Curle answered questions concerning his activities while at work, he refused, on the advice of counsel, to answer questions probing into his suspected Klan membership. On October 31 he was served with a notice of discipline, charging insubordination, suspending him without pay from service, and informing him that the penalty of dismissal was proposed. ^*

Curle commenced this article 78 proceeding, converted into an action for injunctive and declaratory relief, seeking to bar his dismissal for refusing to answer questions regarding this suspected Klan affiliation. He also sought to have the commissioner's directive declared unconstitutional. Special Term granted the guard's motion for summary judgment, and the Appellate Division affirmed, one Justice dissenting.

Curle asserts that the commissioner's policy of prohibiting prison guards from participation in the Ku Klux Klan unconstitutionally conditions public employment on the surrender of freedom of association. He further urges that termination of his employment for refusing to answer questions regarding his suspected affiliation with the Klan would similarly be unconstitutional. The commissioner contends that the State's policy is compelled by the State interests in the effectiveness and security of the prison system and rights of the inmates to humane treatment. These interests, according to the commissioner, justify whatever abridgment there may be of the guard's freedom of association.

It has long been recognized that the constitutional guarantees of freedom of speech and assembly necessarily imply like protections for the freedom of association (NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 233, 97 S.Ct. 1782, 52 L.Ed.2d 261; Board of Educ. v. Helsby, 37 A.D.2d 493, 326 N.Y.S.2d 452, affd. 32 N.Y.2d 660, 343 N.Y.S.2d 131, 295 N.E.2d 797). Since speech, assembly and association all serve a common purpose to promote the free exchange of ideas defeating any one of these rights might defeat them all (see Rice, Freedom of Association, Foreword, p. viii, Robert McKay). Freedom of association therefore stands as a fundamental right in a free society (Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659).

Guilt by association, repeatedly condemned as an unconstitutional violation of this right (De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356), may assume many forms. One such form, conditioning public employment on the surrender of this right, has therefore been held impermissible (Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Matter of Board of Educ. v. Helsby, 37 A.D.2d 493, 326 N.Y.S.2d 452, affd. 32 N.Y.2d 660, 343 N.Y.S.2d 131, 295 N.E.2d 797, Supra ). Similarly the government's power to compel disclosure of organizational affiliations is constitutionally circumscribed (Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; but see Communist Party v. Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625). These restrictions help assure that legitimate governmental concern in the affairs of individuals and groups will not turn to unjustified oppression of beliefs and activities.

On the other hand, it is true, as the commissioner contends, that our commitment to liberty must sometimes yield to the exigencies of maintaining an orderly society (United States Civ. Serv. Comm. v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 37 L.Ed.2d 796; Matter of Abdush-Shahid v. New York State Narcotics Addiction Control Comm., 52 A.D.2d 846, 382 N.Y.S.2d 813). A person may not exercise his rights without limitation at the expense of the rights of others (Lehman v. City of Shaker Hgts., 418 U.S. 298, 308, 94 S.Ct. 2714, 41 L.Ed.2d 770 (Douglas, J., concurring)). Early in the development of constitutional law the courts were therefore called upon to arrive at a formulation to resolve conflicts between these interests. The principle which first emerged prohibited the government from infringing on fundamental rights unless exercised so as to pose "a clear and present danger (of) bring(ing) about the substantive evils that Congress has a right to prevent" (Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Lewis v. American Federation of Tel. & Radio Artists, 34 N.Y.2d 265, 272, 357 N.Y.S.2d 419, 426, 313 N.E.2d 735, 740). More recently the courts have announced that government may abridge a fundamental right only if the exercise of that right seriously jeopardizes a compelling State interest (Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 795, 98 S.Ct. 1407, 55 L.Ed.2d 707; Phelan v. City of Buffalo, 54 A.D.2d 262, 267, 388 N.Y.S.2d 469, 473). Accordingly in numerous cases the First Amendment freedom of association has bowed to the vital interests of the State (Matter of Shelofsky v. Helsby, 32 N.Y.2d 54, 343 N.Y.S.2d 98, 295 N.E.2d 774; United States Civ. Serv. Comm. v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796, Supra; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830).

In assessing whether the government has established a compelling State interest in this case, one must first note that two closely interrelated State interests are involved: (1) to promote security and effectiveness in correction facilities by preventing arbitrary hostility and violence between guards and inmates, and (2) to protect the inmates' right to be free from racial discrimination, thereby promoting rehabilitation.

Predictably, a determination of what constitutes a compelling State interest is no simple task. It is nevertheless clear that the government's regulatory powers magnify where individual rights are exercised in public institutions particularly prisons (Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149; cf. Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222; Pell v. Procunier, 417 U.S. 817, 827-830, 94 S.Ct. 2800, 41 L.Ed.2d 495). The utter urgency of preventing violence in the prison system is at once apparent. "The interest in preserving order and authority in the prisons is self-evident. Prison life, relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration" (Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 132, 97 S.Ct. 2532, 2542, 53 L.Ed.2d 629). The unfortunate truth of this observation is underscored by the nightmarish riot at Attica in 1971 which cost the lives of 9 guards and 34 inmates (Kwartler, Behind Bars: Prisons in America, p. 32).

Unquestionably the Klan's reputation for violence and illegality indicates that the employment of Klan members as prison guards will surely trigger a recurrence of violent disruption. The terrorism of the Ku Klux Klan is a matter of common knowledge, and amply supported by the record in this case (Report by the Committee on Un-American Activities, The Present Day Ku Klux Klan Movement (1967); Epstein and Forster, Report on the Ku Klux Klan; Hoover, The Resurgent Klan, 52 Amer. Bar Assn. Journal, p. 617). We must be mindful, however, that even if an organization engages in...