Lerner v. Casey, 2 N.Y.2d 355, 161 N.Y.S.2d 7 (1957)

Brownstein, Joel

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Constitutional Law—Invoking Privilege Against Self Incrimination—Grounds for Discharge

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Buffalo Law Review Volume 7 Number 1 Article 27 10-1-1957 Constitutional Law—Invoking Privilege Against Self Incrimination—Grounds for Discharge Joel Brownstein Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Constitutional Law Commons Recommended Citation Joel Brownstein, Constitutional Law—Invoking Privilege Against Self Incrimination—Grounds for Discharge, 7 Buff. L. Rev. 88 (1957). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol7/iss1/27 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWin industry. A similar result was reached in Lincoln Candies v. Department ofLabor' where the setting of minimum hours per week for women was heldconstitutional as a means to effectuate the policy of article 19 of the Labor Law.42Since this statute is not unconstitutional on its face, the only issue remainingis whether it is unconstitutional in its appIcation to plaintiff. The Court ofAppeals refused to decde this issue because the plaintiff had not exhausted hisremedies under the act. Section 66 2 4a allows matters of law to be reviewed by theBoard of Standards and Appeals as provided in §11044 which states that mattersof validity and reasonableness shall be proper for that Board's review. Thereafterappeals from that determination can be taken direct to the Appellate Division,third Department. Due to the plaintiff's failure to seek relief under these sectionsbefore appealing to the Court of Appeals, that body followed the well-establishedrule that constitutional issues will not be decided unless there are no othergrounds on which to disposes of the case in controversy.4 1The dissent would have decided the constitutional question as to applicationin favor of the plaintiff in this instance instead of relegating him to his remedyunder the statute.In the light of the prevailing doctrine in the federal as well as the statecourts to avoid constitutional issues if possible,4" the majority's approach to thisproblem is the more acceptible.Invoking Privilege Againsf Self Incriminaion-Grounds For DischargeA controversial area of law today is the extent of the protection given bythe courts to a party who invokes the privilege against self-incrimination.Although the basic merits of the privilege have been questioned,4 7 the right seemsfirmly entrenched in our legal system.48 Dean Griswold has called it "one of thelandmarks in man's struggle to make himself civilized."49Due process considerations were present in Lerner v. Casey,00 where petitioner41. 289 N.Y. 262, 45 N.E.2d 434 (1942).42. See note 35 supra.43. See note 39 supra.44. N.Y. LABOR LAw §110.45. Schieffelin v. Goldsmith, 253 N.Y. 243, 170 N.E. 905 (1930); O'Kane v.State, 283 N.Y. 439, 28 N.E.2d 905 (1940).46. Ibid; Carter v. Carter Coal Co., 298 U.S. 238 (1936); Drisco]l v. EdisonLight & Power Co., 307 U.S. 104 (1938).47. 74 U. PA. L. REV. 139 (1925). For a discussion of the privileges againstself-incrimination, see 6 BUFFALO L. Rsv. 343 (1957).48. 24 FORDHAM' L. REV. 19 (1955); see Maffie v. United States, 209 F.2d 225(1st Cir. 1954).49. GRISWOLD. THiE FiTE AmENDMTENT TODAY, 7 (1955).50. 2 N.Y.2d 355, 161 N.Y.S.2d 7 (1957).COURT OF APPEALS, 1956 TERMsought to compel the New York Transit Authority to reinstate him in his positionas a conductor in the subway system of New York City. In an appearance beforethe commissioner of investigation of New York City, petitioner refused to answerthe question whether or not he was then a communist, on the ground that theanswer might tend to incriminate him. He persisted in his refusal, even afterbeing advised of the provisions of the Security Risk Law,51 under which provisionshe was subsequently discharged. The sole ground for his discharge was that hehad invoked the fourteenth amendment.The majority of the Court, in affirming a denial of the petition, agreed thatthe New York Transit Authority was a "governmental agency" within the termsof the Security Risk Law, and that the transit authority was properly designated asecurity agency under said statute. The Court also held that the invocation of thefourteenth amendment was sufficient reason, that is, reasonable grounds, fordischarge. A distinction was drawn that the petitioner's dismissal was not due toany possible communist membership, but rather such conduct of using theprivilege against self-incrimination was in itself evidence of doubtful trust andreliability so as to constitute sufficient grounds for petitioners discharge.In upholding the constitutionality of the statute, the Court found it necessaryto distinguish the recent Supreme Court decision of Slochower v. Board of HigherEducation.2 In that decision, state action in dismissing a teacher from his positionand basing such dismissal on the ground that he invoked the self-incriminationprivilege, was declared unconstitutional. Slochower had invoked it before aFederal Committee twelve years before his dismissal by the State of New York.The Court in the instant decision found the time period not remote, and alsostated that under the Security Risk Law, petitioner was provided an opportunityto explain his use of the privilege against self-incrimination, while in theSlochower decision, no explanaton for this conduct was available, and that in theinstant case petitioner was discharged for creating a "doubt" as to his truthworth-iness and reliability.5 3The importance of the New York Transit system is easily recognized,5 4 for itwould be a primary means of exodus in case of enemy attack. Any possible conductby petitioner to hinder the proper operation of the system in case of emergencywas also noted. Yet, taking these facts into consideration, the Court does notadequately explain 'vhy the mere refusal to answer a question on the grounds ofself-incrimination, was sufficient evidence to establish petitioner's lack of trust-51. 2 McK., UNCONSOLIDATED LAWS §§1101-08.52. 350 U.S. 551 (1956).53. NEw YORK CITY CHARTER §903 (1956).54. See New York City Transit Authority v. Loos, 2 Misc.2d 733, 738, 154N.Y.S.2d 209, 214 (Sup. Ct. 1956). For a related topic, see Gardner v. Board ofPublic Works of Los Angeles, 341 U.S. 716 (1950).BUFFALO LAW REVIEWworthiness. In the Slochower opinion, the Supreme Court asserted that the"invocation of the privilege ...would be reduced to a hollow mockery if itsexercise would be taken as equivalent either to a confession of guilt or conclusivepresumption of perjury." The Court of Appeals, declared that the raising of theprivilege is evidence of doubtful trust which is the basis of discharge, and notthe invocation of the fourteenth amendment. The validity of this semanticdistinction will soon be tested, since this decision now rests on the docket of theSupreme Court. Dismissal based solely upon the invocation of the privilegeagainst self-incrimination presents a grave constitutional problem involving thescope and reach of the due process clause.Civil Righs-Discrimination In Public PlacesUnder section 40 of the Civil Rights Law, no person can be excluded fromplaces of public accommodation, resort, or amusement because of race, color,creed, or place of national origin. This restriction does not apply, however, toinstitutions, clubs, or places of accommodation that are distinctly private. Twoquestions thus arise when an individual is denied access to a certain establishment.Was such access refused because of the individual's race, color, creed, or place ofnational origin? Was the establishment public as distinguished from private?Affirmative answers to these questions in a certain situation clearly demonstratea violation of the Civil Rights Act. Such a conclusion was reached by the Courtof Appeals in Castle Hill Beach Club v. Arbury55 in affirming the order of theAppellate Division.In this case, the Castle Hill Beach Club, a membership corporation, refusedto sell to Mrs. Brown, a negro, season locker rights which would have entitled herto use beach facilities. The Court of Appeals easily determined that the denialof access to Mrs. Brown was solely because of her color. The real problem wasdetermining whether the Beach Club was a private or public amusement.The Court's conclusion that the Beach Club was public leaves us with theproblem of how to distinguish between public and private establishments.Generally it can be stated that public and private characteristics of a place ofamusement will be considered in their overall effect giving greater weight tothose features to which the public attention has been drawn. Whichever featuresare predominant will determine the nature of the amusement facilities. 0 Moreover,if the predominant purpose of creating private characteristics is to avoid the effectof the Civil Rights Act, the court will probably feel more prone to label thefacilities public. This distinction is not entirely satisfactory as it leaves much to55. 2 N.Y.2d 596, 162 N.Y.S.2d 1 (1957).56. Cf. Delaney v. Central Valley Golf Club, 28 N.Y.S.2d 932 (1941), aif'd,263 App. Div. 710, 31 N.Y.S.2d 834 (1st Dep't 1941), uppeal denied 263 App. Div.870, 32 N.Y.S.2d 1016 (1st Dep't 1942), aff'd, 289 N.Y. 577, 43 N.E.2d 716 (1942).

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Constitutional Law—Invoking Privilege Against Self Incrimination—Grounds for Discharge

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