Lerner v. Casey
| Decision Date | 25 June 1956 |
| Citation | 154 N.Y.S.2d 461,2 A.D.2d 1 |
| Parties | In the Matter of Max LERNER, Appellant, v. Hugh J. CASEY et al., Constituting the New York City Transit Authority, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Leonard B. Boudin, New York City, for appellant.
Daniel T. Scannell and Edward L. Cox, Jr., Brooklyn, for respondents. Jacob K. Javits, Atty. Gen. (James O. Moore, Jr., and Ruth Kessler Toch, Albany, of counsel), in his statutory capacity under section 71 of the Executive Law.
Before NOLAN, P. J., and BELDOCK, MURPHY, UGHETTA and KLEINFELD, JJ.
With the outbreak of hostilities in Korea in 1950, the world's attention was rudely focused on the increasing audacity of the communist conspiracy, by force or by guile, to accomplish its long-announced aim of taking over the free world. The Legislature, early in its next session, accordingly enacted chapter 233 of the Laws of 1951, effective March 24, 1951, McK.Unconsol.Laws, § 1101 et seq., hereinafter referred to as the 'Security Risk Law.'
Section 1 is a declaration of legislative findings and intent. It refers to the Korean situation, and then finds that the employment by government of members of well-organized and rigidly disciplined subversive groups presents a grave peril to the national security. It is then found that 'If members of such organizations and groups and persons concerning whom reasonable grounds exist for the belief that, because of doubtful trust and reliability, their employment in public service in security positions would endanger the security or defense of the nation and the state, are permitted to hold public office and employment, their retention in security positions during the existence of a national emergency would imperil or endanger the safety, welfare or best interests of the armed forces, the civilian defense forces and the people of this state and of the United States.' Having found the existence of this danger as a fact, the section then points to the remedy--'it is vital and essential that measures be taken to effect the disqualification for entrance into and the suspension and removal from security offices and positions in governmental service of persons concerning whom reasonable grounds exist for the belief that, because of doubtful trust and reliability, their employment in security positions would endanger the security or defense of the nation and the state.'
Section 5 provides for the transfer to nonsecurity positions or agencies of employees deemed to be security risks. This section specifically refers to a 'security position' or 'position in a security agency'. A finding that the position itself is a sensitive one is not required. It is sufficient that it be in an agency that the State Civil Service Commission has determined to be one wherein functions are performed which are necessary to the security or defense of the nation and the State or where confidential information relating to such security or defense may be available, and such determination by the commission is subject to review by the courts, §§ 2, 3. Section 5 further provides for the suspension of employees when it is found 'after proper investigation and inquiry, that, upon all the evidence, reasonable grounds exist for belief that, because of doubtful trust and reliability, the employment of such person in such position would endanger the security or defense of the nation and the state.' The suspended employee is to be given notice of such action and of the reasons therefor and is to be afforded an opportunity, within 30 days after such notice, to submit statements or affidavits. Thereafter, following such further investigation and review as is deemed necessary, his transfer shall be affirmed or his employment terminated, if it shall be found that upon all the evidence, reasonable grounds exist for the belief that, because of doubtful trust and reliability his employment would endanger the security or defense of the nation and the State. Otherwise he is to be restored to his position and is entitled to back pay for the period of his suspension. Section 6 provides for an appeal from the determination to the State Civil Service Commission and for a hearing by that body or by persons designated by it, and further provides that the decisions of the commission shall not be reviewable by the courts.
Section 7 provides that evidence shall not be restricted by the rules prevailing in the courts, that a finding may be based on previous conduct including, but not limited to, treasonable or seditious conduct or membership in any organization or group found by the State Civil Service Commission to be subversive. Section 8 defines a subversive group or organization to be one which is found by the State Civil Service Commission, after inquiry, to advocate, advise, teach or embrace the doctrine of overthrow of the government by force and violence. The commission, in making such inquiry, may utilize any listings or designations promulgated by, among others, any Federal agency, and may adopt designations of the United States Attorney General, provided such designation was made after due notice to such organization or group and an opportunity afforded it to answer.
Appellant has been removed pursuant to this statute from his position as a conductor on the New York City subway system on a finding that reasonable grounds exist for belief that because of his doubtful trust and reliability, his employment endangers the security or defense of the nation and State. He brings this proceeding pursuant to article 78 of the Civil Practice Act to secure his reinstatement.
The petition having been dismissed on the ground that it does not state facts sufficient to entitled appellant to the relief prayed for, we must take the allegations therein contained to be true. These allegations may be summarized as follows: Appellant is a citizen of the United States and a resident of the borough of The Bronx. Respondents are members of the New York City Transit Authority, a public benefit corporation organized pursuant to section 1800 et seq. of the Public Authorities Law. It is an agency created by the State performing a governmental function, Public Authorities Law, § 1802, and as such governmental agency is subject to the provisions of the Security Risk Law. Under the provisions of section 1810 of the Public Authorities Law appellant became an employee of the Transit Authority subject to the provisions of the State Civil Service Law. His primary duties consisted of opening and closing subway doors to permit the entrance and exit of passengers together with certain routine duties incidental thereto. His service has at all times been deemed satisfactory and on one occasion he was awarded a commendation. On September 14, 1954, pursuant to instructions from his immediate supervisor, he appeared at the office of the commissioner of investigation of the City of New York where he was advised by a deputy commissioner that unless he answered all questions fully he would be subject to dismissal. After being sworn, he declined to answer questions concerning his political affiliations, relying upon his constitutional privilege. On two subsequent dates he appeared with counsel and was advised that the Mayor of the City of New York had authorized the commissioner of investigation to inquire into the employment of certain persons in, among other agencies, the Transit Authority. He was again sworn and reiterated his refusal to answer for the reasons stated. On October 21, 1954, he was suspended. The resolution passed by the Transit Authority recited that it had been found, after due investigation and inquiry, that 'reasonable grounds exist for belief that, because of his doubtful trust and reliability, the employment of Max Lerner in the position of Conductor would endanger the security or defense of the nation and the state'. It further provided that appellant might within 30 days submit statements or affidavits to show why he should be reinstated or restored to duty. He was informed that the action was taken because he refused to answer questions under oath as to whether he was then a member of the Communist party. His right to submit statements or affidavits within 30 days was pointed out to him. The petition alleges that no charge other than his refusal to answer was made and that for this reason no statements or affidavits were submitted. On November 24, 1954, appellant was discharged by resolution containing a recital similar to the one in the suspension resolution, together with a recital that he had not within the 30-day period communicated with the Transit Authority.
The first question presented is whether the Security Risk Law is to be construed as authorizing the Transit Authority to suspend and discharge appellant merely upon a showing that he invoked his constitutional privilege when asked if he was then a member of the Communist party. Section 5 of said law, unlike some other statutes, makes no specific reference to a refusal to answer.
It cannot be gainsaid that the communist conspiracy is a cancer threatening our nation's existence. As was pointed out in Daniman v. Board of Education of City of N. Y., 306 N.Y. 532, 540-541, 119 N.E.2d 373, 379, overruled on other grounds in Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, rehearing denied 351 U.S. 944, 76 S.Ct. 843: ...
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...2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed. 1423, affirming 2 N.Y.2d 355, 161 N.Y.S.2d 7, affirming 2 A.D.2d 1, 154 N.Y.S.2d 461 [2d Dept.]; Matter of Delehanty, 280 App.Div. 542, 115 N.Y.S.2d 614, affirmed 304 N.Y. 725, 108 N.E.2d 46; Christal v. Police Commission......
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