Lerner v. Casey, No. 165

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation357 U.S. 468,78 S.Ct. 1311,2 L.Ed.2d 1423
PartiesMax LERNER, Appellant, v. Hugh J. CASEY, William G. Fullen, Harris J. Klein, et al
Decision Date30 June 1958
Docket NumberNo. 165

357 U.S. 468
78 S.Ct. 1311
2 L.Ed.2d 1423
Max LERNER, Appellant,

v.

Hugh J. CASEY, William G. Fullen, Harris J. Klein, et al.

No. 165.
Argued March 4, 1958.
Decided June 30, 1958.
Rehearing Denied Oct. 13, 1958.

See 79 S.Ct. 12.

[Syllabus from pages 468-469 intentionally omitted]

Page 469

Mr. Leonard B. Boudin, New York City, for appellant.

Mr. Daniel T. Scannell, New York City, for appellees.

Mrs. Ruth Kessler Toch, Albany, N.Y., for the State of New York, as amicus curiae, with consent of appellees.

Page 470

Mr. Justice HARLAN delivered the opinion of the Court.

This case raises questions under the Fourteenth Amendment to the Constitution of the United States concerning the validity of appellant's dismissal from his position as a subway conductor in the New York City Transit System. The dismissal was pursuant to the Security Risk Law of the State of New York, N.Y.Laws 1951, c. 233, as amended, N.Y.Laws 1954, c. 105.

The Security Risk Law, enacted by New York in 1951,1 provides in pertinent part as follows: The State Civil Service Commission is authorized to classify any bureau or agency within the State as a 'security agency' (§ 3), defined as any unit of government '* * * wherein functions are performed which are necessary to the security or defense of the nation and the state * * *.' (§ 2.) The appointing authority in each such agency is given powers of suspension and dismissal as to any employee if, after investigation, it is found that, '* * * upon all the evidence, reasonable grounds exist for belief that, because of doubtful trust and reliability, the employment of such person * * * (in a security agency) would endanger the security or defense of the nation and the state' (§ 5). Such evidence is not to be restricted by normal rules prevailing in the courts, and the required finding may be based upon an employee's past conduct '* * * which may include, * * * but shall not be limited to evidence of * * * (d) membership in any organization or group found by the state civil service commission to be subversive' (§ 7).2

Page 471

A discharged employee has a right of appeal to the Civil Service Commission, which may take further evidence (§ 6).

In November 1953 the Commission determined the New York City Transit Authority, which the appellees in this case constitute, to be a 'security agency,'3 and in March 1954 it listed the Communist Party of the United States as a 'subversive group,' adopting, as contemplated by the Security Risk Law, the similar listing of the State Board of Regents made under the provisions of the Feinberg Law, N.Y.Laws 1949, c. 360, after hearings at which the Party appeared by counsel. In September 1954 appellant was summoned to the office of the Commissioner of Investigation of the City of New York in the course of an investigation being conducted under the Security Risk Law.4 Appellant, who had been sworn, was asked whether he was then a member of the Communist Party, but he refused to answer and claimed his privilege against self-incrimination under the Fifth Amendment to the Federal Constitution.5 After he had

Page 472

been advised of the provisions of the Security Risk Law and given time to reconsider his refusal and to engage counsel, appellant, accompanied by counsel, made two further appearances in September and October before the Department of Investigation, on each of which he adhered to his initial position.

Appellees, informed of these events, thereupon adopted a resolution suspending appellant without pay and sent him a copy of the resolution with a covering letter. This letter notified appellant that his suspension followed a finding under § 5 of the Security Risk Law '* * * that, upon all the evidence, reasonable grounds exist for belief that, because of his doubtful trust and reliability * * *,' appellant's continued employment would endanger national and state security. This finding was based on appellant's refusal '* * * to answer questions as to whether or not he was a member of the Communist Party and (invocation of) the Fifth Amendment to the Constitution of the United States * * *.' Appellant was also advised, pursuant to § 5 of the Security Risk Law, that he had thirty days within which to submit statements or affidavits showing why he should be reinstated. At the expiration of this period appellees, having heard nothing further from appellant, dismissed him from his position by a resolution which confirmed the previous 'suspension' findings.

Appellant did not appeal to the Civil Service Commission, as was his statutory right, but brought this proceeding in the state courts for reinstatement. He attacked appellees' actions on various grounds, including the constitutional grounds asserted here. The State Supreme Court, assuming jurisdiction despite appellant's failure to exhaust his administrative remedies, upheld the Security Risk Law and its application to appellant as constitutional, ruled adversely to appellant's state law contentions, and dismissed the proceeding. 138 N.Y.S.

Page 473

2d 777. The Appellate Division, 2d Dept., 2 A.D.2d 1, 154 N.Y.S.2d 461, and the Court of Appeals, 2 N.Y.2d 355, 161 N.Y.S.2d 7, 141 N.E.2d 533, both affirmed, each by a divided court. An appeal to this Court was brought under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), and we postponed to the hearing on the merits the question of our jurisdiction. 355 U.S. 803, 78 S.Ct. 19, 2 L.Ed.2d 27. As will appear from this opinion, we consider that the constitutional questions before us relate primarily, and more substantially, to the propriety of the findings made by appellees rather than to the validity of the provisions of the Security Risk Law. Accordingly, we think it the better course to dismiss the appeal, and to treat the papers as a petition for a writ of certiorari, which is hereby granted.6 28 U.S.C. § 2103. Cf. Sweezy v. State of New Hampshire by Wyman, 354 U.S. 234, 236, 77 S.Ct. 1203, 1204, 1 L.Ed.2d 1311.

We address ourselves initially to appellant's constitutional challenges to the Security Risk Law in its entirety or to certain of its provisions. It is said that New York's statute deprives him of procedural due process, in that it provides for dismissal of employees in the first instance without a statutory right to a hearing, opportunity for cross-examination, or disclosure of the evidence on which dismissal is based. However, appellant is in no position to complain of procedural defects in the statute. His own refusal to answer blocked proceedings at his appearances before the Department of Investigation, and more important he failed to pursue his administrative remedy by appealing to and obtaining a hearing before the State Civil Service Commission.7

Page 474

Appellant further argues that the Security Risk Law could not be applied to him in 1954 since at that time no public emergency existed which could justify the law. But New York's right to enact legislation to protect its public service against the employment of persons fairly deemed untrustworthy and unreliable, and therefore security risks, can hardly be regarded as constitutionally dependent upon the...

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71 practice notes
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...in its sweep. The decisions in Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1444 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960); Konigsberg v. State B......
  • Copeland v. Secretary of State
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 23, 1964
    ...novel prophylactic measures. See Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Pub......
  • Barenblatt v. United States, No. 35
    • United States
    • United States Supreme Court
    • June 8, 1959
    ...71 S.Ct. 909, 95 L.Ed. 1317. See also Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Similarly, in other areas, this Court ......
  • Aptheker v. Secretary of State, No. 461
    • United States
    • United States Supreme Court
    • June 22, 1964
    ...their Communist affiliations, Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423 (1958); and California and Illinois were permitted to deny admission to the practice of law of all applic......
  • Request a trial to view additional results
70 cases
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...in its sweep. The decisions in Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1444 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960); Konigsberg v. State B......
  • Copeland v. Secretary of State
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 23, 1964
    ...novel prophylactic measures. See Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 (1958); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Pub......
  • Barenblatt v. United States, No. 35
    • United States
    • United States Supreme Court
    • June 8, 1959
    ...71 S.Ct. 909, 95 L.Ed. 1317. See also Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Similarly, in other areas, this Court ......
  • Aptheker v. Secretary of State, No. 461
    • United States
    • United States Supreme Court
    • June 22, 1964
    ...their Communist affiliations, Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423 (1958); and California and Illinois were permitted to deny admission to the practice of law of all applic......
  • Request a trial to view additional results
1 books & journal articles
  • Supreme Court Behavior and Civil Rights
    • United States
    • Political Research Quarterly Nbr. 13-2, June 1960
    • June 1, 1960
    ...v. Utah, 357 U.S. 426 (1958); Knapp v. Schweitzer, 357 U.S. 371 (1958);N.A.A.C.P. v. Patterson, 357 U.S. 449 (1958); Lerner v. Casey, 357 U.S. 468 (1958); Beilanv. Board of Education of the City of Philadelphia, 357 U.S. 399 (1958); Abramowitz v. Brucker, 355 U.S. 578 (1958); Wilson v. Leow......

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