Gardner v. Murphy

• Decision Date: 14 June 1965
• Parties: Application of Robert Vincent GARDNER et al., Petitioners, for an Order under Article 78 of the Civil Practice Law and Rules v. Michael J. MURPHY, as Police Commissioner of the City of New York, and the City of New York, Respondent.
• Court: New York Supreme Court

Page 739

260 N.Y.S.2d 739

46 Misc.2d 728

Application of Robert Vincent GARDNER et al., Petitioners,

for an Order under Article 78 of the Civil

Practice Law and Rules v. Michael J. MURPHY, as Police Commissioner of the City of New

York, and the City of New York, Respondent.

Supreme Court, Special Term, New York County, Part I.

June 14, 1965.

Irwin Asofsky, New York City, for petitioner Robert V. Gardner.

Fontana & Geoly, Brooklyn, for petitioner Stanley M. Koutnik.

Gilbert S. Rosenthal, New York City, for petitioner John J. Smith.

Leo A. Larkin, Corp. Counsel, by Irwin L. Herzog, New York City, for respondent.

JACOB MARKOWITZ, Justice.

Applications under calendar numbers 117 and 104 of the same date are consolidated herein with the application under calendar number 103 and decided together.

Each of the petitioners, by way of an Article 78 proceeding, invokes the judicial power to annul his dismissal from the Police Department of the City of New York, to order his reinstatement to the position from which he was discharged and to order the payment of his appropriate interim compensation and, in the case of petitioner Koutnik, to order corollary relief.

The manner and nature of the dismissal of each petitioner is best portrayed by the communication, dated June 25, 1964, which notified each one of his discharge:

'Dear Sir:

I have been directed to inform you that you having appeared before the First June, 1964 Grand Jury of the County of New York, on the 25th day of June, 1964, and having refused to waive immunity from prosecution, as required by Section 1123 of The New York City Charter, The Police Commissioner has ordered that your employment as a member of The Police Department of the City of New York be terminated, and your office vacated.

Very truly yours,

Louis L. Stutman

Chief Clerk'

(Emphasis added.)

Section 1123 of the New York City Charter provides:

' § 1123. Failure to testify.--If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.'

The aforesaid Charter section is the City's counterpart to the substantially identical provision in Article 1, section 6 of the Constitution of the State of New York, which prescribes, in pertinent part, that:

'[No person shall] be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office * * * or the performance of his official duties * * * refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years * * * and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.'

None of the petitioners denies that, upon his appearance before the Grand Jury on June 25, 1964 he refused to sign at that time a waiver of immunity from prosecution. Each urges, and this is substantiated by the transcript of the interrogation before the Grand Jury, that the Chief Assistant District Attorney would not accept a qualified answer to the question of whether the witness would then sign a limited waiver of immunity and continued in his questioning until each petitioner answered in the negative and was then excused. Petitioner Gardner's transcript indicates that he did not want to sign the waiver 'at this time'--before he could 'get a lawyer to find out more about this proceeding.' Petitioner Smith refused to sign 'at this time'--'until I consult an attorney.' Petitioner Koutnik refused to sign because '[m]y lawyer has advised me not to sign anything.'

The petitioners further justify their claim, that the negative response to the assistant district attorney's critical question did not constitute an 'unfettered exercise of will', an informed, intentional refusal to sign the waiver of immunity, by detailing the events leading to their appearances before the Grand Jury. Petitioner Gardner was awakened, after being on duty the preceding night, at approximately 7 A.M. on the morning of June 25, 1964 and directed to appear forthwith before the Grand Jury. Petitioner Smith was notified at approximately 1 A.M. in the morning of June 25, 1964 to appear at 8:30 A. M. at the office of the Deputy Chief Inspector who served petitioner Smith with a subpoena directing his appearance before the Grand Jury at 10 A. M. of the same day. Petitioner Koutnik, at approximately 5:30 P.M. on June 24, 1964, was apprehended by police officers who took him to the District Attorney's office. He was detained there for some three hours, during which time he was served with a subpoena to appear before the Grand Jury the next morning. At approximately 1 A.M. on June 25, 1964, a subpoena to appear that morning before the Grand Jury was werved upon petition Koutnik's wife who thus accompanied her husband that morning.

None of the petitioners was afforded an opportunity to explain, to clarify or to attempt to justify his conduct or answers before the Grand Jury. Immediate communication, by what appears to be a form letter signed by the Chief Clerk, notified each petitioner of his discharge--a dismissal which bars him permanently from holding office or public employment in the City of New York and disqualifies him from State public office or public employment for five years.

The significance of the denial to petitioners of an apportunity to explain must be viewed within the context of each petitioner's status as an employee who, under State law, was entitled to tenure and could be dismissed only for 'incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such policeman to be represented by counsel at such hearing and to a judicial review in accordance with the provisions of article seventy-eight of the civil practice act.' (Laws of 1940, Chapter 834 'Removal of policemen serving in the competitive class of civil service in the several cities, counties, towns and villages of the state.') Of critical importance, the aforesaid statute mandates that '[t]he burden of proving incompetency or misconduct shall be upon the person alleging the same * * *.'

Two basic issues thus emerge for our determination: Does the summary dismissal, without further inquiry, of all who answer in the negative to the request to sign forthwith a waiver of immunity from prosecution, i. e., to sign a waiver of one's Fifth Amendment rights, constitute a deprivation of substantive due process as an unreasonable, discriminatory condition of public employment? (See Slochower v. Board of Higher Education of the City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 [1956].) Does the summary dismissal of petitioners without notice and hearing constitute a deprivation of procedural rights? (See, Laws of 1940, Chapter 834; Civil Service Law, section 75.)

With these questions, we are once again confronted with one of the paramount legal issues of our times--the Constitutional rights of a government employee qua government employee. The problem is a recurring one which, to date, has evoked judicial expression in a veritable host of cases. The determination in each decision has, of necessity, confined itself to the narrow content of its precise fact pattern. Yet, there does emerge from each such pronouncement a concerned awareness of the ever-increasing economic power of government over the life of each member of our society and the concomitant need for the judiciary to safeguard jealously the rights of the individual.

It is rather late in the day to call attention to the burgeoning expansion of the domain of public employment and government concern with the economic welfare of the individual. Rather must we concentrate our resources to preserve the individual's personal rights at the very moment that he is becoming increasingly economically dependent upon government.

Mr. Justice Douglas (dissenting in Adler v. Board of Education of City of New York, 342 U.S. 485, 508, 72 S.Ct. 380, 392, 96 L.Ed. 517 [1952]) has declared, 'I have not been able to accept the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights.' The majority of the members of the United States Supreme Court have not adopted this view to the degree espoused by Mr. Justice Douglas.

With regard to the matter sub judice, however, the Court has branded an unconstitutional, whether by express legislative fiat or judicial interpretation and application, a statute which 'operates to discharge [ipsofacto] every city employee who invokes the Fifth Amendment.' (Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 558, 76 S.Ct. 637, 641 [1956].)

Of critical significance, the specific statute tested in Slochower v. Board of Higher Education of the City of New York...