In an investigation conducted under the New York Security Risk
Law, appellant, a subway conductor employed by the New York City
Transit Authority, was summoned to the office of the Commissioner
of Investigation of New York City and asked whether he was then a
member of the Communist Party. He refused to answer, claiming his
privilege against self-incrimination under the Fifth Amendment, and
he persisted in this refusal after being warned that it might lead
to his dismissal and after being given time to reconsider and to
obtain counsel. Based upon this refusal, appellees found that
"reasonable grounds exist for belief that, because of his doubtful
trust and reliability," appellant's continued employment would
endanger national and state security, and they suspended him and
later discharged him after he failed to avail himself of an
opportunity to submit statements or affidavits showing why he
should be reinstated. Without pursuing his administrative remedies
before the State Civil Service Commission, he sued in a state court
for reinstatement; that court dismissed the suit; its decision was
sustained by the State's highest court, and he appealed to this
Court.
Held: appellant's discharge did not violate his rights
under the Federal Constitution. Pp.
357 U. S.
470-479.
1. Since the constitutional questions before this Court relate
primarily to the propriety of the findings made by appellees,
rather than to the validity of the provisions of the state law, the
appeal is dismissed; but certiorari is granted. P.
357 U. S.
473.
2. Appellant is in no position to claim that the state law
deprives him of procedural due process by providing for dismissal
of employees without a hearing, opportunity for cross-examination,
or disclosure of the evidence upon which dismissal is based, since
his own refusal to answer blocked such proceedings, and, in any
event, he failed to pursue his administrative remedy. P.
357 U. S.
473.
3. Since the highest state court considered that appellant was
not discharged on the ground that he was a member of the Communist
Party, he cannot claim that the statute offends due process by
making it possible to base dismissal of an employee on mere
Page 357 U. S. 469
present membership in the Communist Party without regard to the
character of such membership. Pp.
357 U. S.
474-475.
4. The manner in which the Security Risk Law was applied to
appellant did not violate his rights under the Fourteenth
Amendment. Pp.
357 U. S.
475-479.
(a) The highest state court held that appellant's discharge was
not based upon any inference of Communist Party membership drawn
from the exercise of his Fifth Amendment privilege, nor upon the
assertion of that constitutional protection, but rather upon a
finding of "doubtful trust and reliability" based upon his lack of
candor in refusing to answer questions relevant to his employment
put to him by his employer. Pp.
357 U. S.
475-476.
(b)
Slochower v. Board of Higher Education,
350 U. S. 551,
distinguished. Pp.
357 U. S.
476-477.
(c) New York's classification of employees found to be of
doubtful trust and reliability as "security risks" is not so
arbitrary as to be constitutionally impermissible when applied to
one in appellant's position. P.
357 U. S.
478.
(d) Appellant's assertion of his Fifth Amendment privilege in
these state proceedings did not preclude the State from concluding
that his failure to answer questions relevant to his employment
engendered reasonable doubt as to his trustworthiness and
reliability. Pp.
357 U. S.
478-479.
2 N.Y.2d 355,141 N.E.2d 553, affirmed.
Page 357 U. S. 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, [
Footnote 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). [
Footnote 2]
Page 357 U. S. 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," [
Footnote
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. [
Footnote 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. [
Footnote 5]
After he had
Page 357 U. S. 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.2d
Page 357 U. S. 473
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), and we postponed
to the hearing on the merits the question of our jurisdiction. 355
U.S. 803. 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. [
Footnote 6] 28 U.S.C. § 2103.
Cf. Sweezy v. New
Hampshire, 354 U. S. 234,
354 U. S.
236.
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. [
Footnote 7]
Page 357 U. S. 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 existence of a public emergency, and we do not
think it open to us to inquire into the motives which led the State
Legislature to extend the Security Risk Law beyond its original
effective period. Nor can we say that it was so irrational as to
make it constitutionally impermissible for New York to apply this
statute to one employed in the major artery of New York's
transportation system, even though appellant's daily task was
simply to open and shut subway doors. We are not here concerned
with the wisdom, but solely with the constitutional validity, of
the application of this statute to appellant.
Finally, the claim that the statute offends due process because
dismissal of an employee may be based on mere present membership in
the Communist Party, without regard to the character of such
membership,
cf. Wieman v. Updegraff, 344 U.
S. 183, must also fail. Apart from the fact that the
statute simply makes membership in an organization found to be
subversive one of the elements which may enter into the ultimate
determination as to "doubtful trust and reliability," appellant, as
the Court
Page 357 U. S. 475
of Appeals viewed the administrative proceedings and as we
accordingly treat them here, was not discharged on grounds that he
was a party member.
We come then to what we consider appellant's major
constitutional claim, which goes to the manner in which the
Security Risk Law was applied to him. It is contended that the
administrative finding of reasonable grounds for belief that he was
"of doubtful trust and reliability," and therefore a security risk,
offends due process. The contention is (1) that the finding rests
on an inference, that appellant was a member of the Communist
Party, which was drawn from appellant's invocation of the Fifth
Amendment, and that this inference lacked any rational connection
with appellant's refusal to answer based on the exercise of this
constitutional privilege; and (2) that the drawing of such an
inference was, in any event, in derogation of the policy behind the
Fifth Amendment privilege and contrary to the teaching of this
Court's decision in
Slochower v. Board of Higher
Education, 350 U. S. 551. We
think this contention both misconceives the basis on which the
Court of Appeals sustained appellant's dismissal and assumes
incorrectly the availability of the Fifth Amendment to appellant in
these proceedings. Consequently it must be rejected in both its
aspects.
As we read its opinion, the Court of Appeals held that appellant
had been discharged neither because of any inference of Communist
Party membership which was drawn from the exercise of the Fifth
Amendment privilege nor because of the assertion of that
constitutional protection, but rather because of the doubt created
as to his "reliability" by his refusal to answer a relevant
question put by his employer, a doubt which the court held
justifiable quite independently of appellant's reasons for his
silence. In effect, the administrative action was interpreted
Page 357 U. S. 476
to rest solely on the refusal to respond. The Court of Appeals
said:
"[N]o inference of membership in [the Communist] party was drawn
from [appellant's] refusal to reply to the question asked . . . .
[Appellant] was not discharged for invoking the Fifth Amendment; he
was discharged for creating a doubt as to his trustworthiness and
reliability by refusing to answer the question as to Communist
party membership."
2 N.Y.2d at 372, 161 N.Y.S.2d at 20, 141 N.E.2d at 542. In other
words, we read the court's opinion as meaning that a finding of
doubtful trust and reliability could justifiably be based on
appellant's lack of frankness,
cf. Garner v. Board of Public
Works, 341 U. S. 716;
Beilan v. Board of Public Education, ante, p.
357 U. S. 399,
just as if he had refused to give any other information about
himself which might be relevant to his employment. It was this lack
of candor which provided the evidence of appellant's doubtful trust
and reliability which, under the New York statutory scheme,
constituted him a security risk. The Court of Appeals went on to
reason that, had appellant refused, without more, to answer the
question, the finding of "doubtful trust and reliability" would
have undoubtedly been permissible, and that the basis for such a
finding in appellant's refusal to answer was not destroyed by the
claim of the Fifth Amendment privilege, because the Commissioner
was not required to accept that claim as an adequate explanation of
the refusal.
Accepting, as we do, these premises of the state court's
opinion, we find no constitutional block to its decision sustaining
appellant's dismissal from employment. Postponing for the moment
the question whether appellant was entitled to rely in this local
investigation on the federal privilege, it seems clear that the
discharge here
Page 357 U. S. 477
in any event was unlike that in
Slochower v. Board of Higher
Education, supra, in that, as definitively interpreted by the
Court of Appeals, it was not based on the fact that the employee
had asserted Fifth Amendment rights. Further, in
Slochower, such a claim had been asserted in a federal
inquiry having nothing to do with the qualifications of persons for
state employment, and the Court, in its opinion, carefully
distinguished that situation from one where, as here, a State is
conducting an inquiry into fitness of its employees. Nor, as the
Court of Appeals stressed, was the claim of possible
self-incrimination made the basis for an inference that appellant
was a Communist, and therefore unreliable. Hence, we are not faced
here with the question whether party membership may rationally be
inferred from a refusal to answer a question directed to present
membership where the refusal rests on the belief that an answer
might incriminate,
cf. Adamson v. California, 332 U. S.
46, or with the question whether membership in the
Communist Party which might be "innocent" can be relied upon as a
ground for denial of state employment.
Cf. Wieman v. Updegraff,
supra; Konigsberg v. State Bar of California, 353 U.
S. 252;
Schware v. Board of Bar Examiners,
353 U. S. 232.
We think it scarcely debatable that, had there been no claim of
Fifth Amendment privilege, New York would have been
constitutionally entitled to conclude from appellant's refusal to
answer what must be conceded to have been a question relevant to
the purposes of the statute and his employment,
cf. Garner v.
Board of Public Works, supra, that he was of doubtful trust
and reliability. Such a conclusion is not "so strained as not to
have a reasonable relation to the circumstances of life as we know
them."
Tot v. United States, 319 U.
S. 463,
319 U. S. 468.
This Court pointed out in
Garner that a government
employee can be required, upon pain of dismissal, to respond
Page 357 U. S. 478
to inquiry probing into matters relevant to his employment, and
that present membership in the Communist Party is such a matter.
See also Beilan v. Board of Public Education, supra.
Certainly it is not a controlling constitutional distinction that
New York, rather than impose on employees, as in
Garner
and
Beilan, an absolute duty to respond to permissible
inquiry upon threat of dismissal for refusal, has, in these
proceedings, held that an employee lacking in candor to his
governmental employer evidences doubt as to his trust and
reliability. Finally, unlike the situation involved in
Konigsberg v. State Bar of California, supra, there is
here no problem of inadequate notice as to the consequences of
refusal to answer, for appellant was specifically notified that
continued refusal might lead to his dismissal.
The fact that New York has chosen to base its dismissal of
employees whom it finds to be of doubtful trust and reliability on
the ground that they are in effect "security risks" hardly requires
a different determination. The classification is not so arbitrary
that we would be justified in saying that it is constitutionally
impermissible in its application to one in appellant's position.
Neither the New York statute nor courts purported to equate this
ground for dismissal with "disloyalty." That term, which carries a
distinct connotation, was never relied upon by New York as
justification for appellant's dismissal.
The issue then reduces to the narrow question whether the
conclusion which could otherwise be reached from appellant's
refusal to answer is constitutionally barred because his refusal
was accompanied by the assertion of a Fifth Amendment privilege. We
think it does not. The federal privilege against self-incrimination
was not available to appellant through the Fourteenth Amendment in
this state investigation.
Knapp v. Schweitzer,
357 U. S. 371;
Adamson v. California,
Page 357 U. S. 479
supra. And we see no merit in appellant's suggestion
that, despite the teachings of these cases, the plea was available
to him in this instance because the State was acting as agent for,
or in collaboration with, the Federal Government. This contention
finds no support in the record. Hence, we are not here concerned
with the protection, as a matter of policy or constitutional
requirement, to be accorded persons who, under similar
circumstances, in a federal inquiry, validly invoke the federal
privilege.
Cf. 18 U.S.C. § 3481;
Wilson v. United
States, 149 U. S. 60;
Slochower v. Board of Higher Education, supra; Grunewald v.
United States, 353 U. S. 391.
Under these circumstances, we cannot say that appellant's
explanation for his silence precluded New York from concluding that
his failure to respond to relevant inquiry engendered reasonable
doubt as to his trustworthiness and reliability.
We hold that appellant's discharge was not in violation of
rights assured him by the Federal Constitution.
Affirmed.
For concurring opinion of MR. JUSTICE FRANKFURTER,
see
ante, p.
357 U. S. 399.
For dissenting opinion of MR. CHIEF JUSTICE WARREN,
see
ante, p.
357 U. S.
411.
For dissenting opinion of MR. JUSTICE DOUGLAS, with whom MR.
JUSTICE BLACK concurs,
see ante, p.
357 U. S.
411.
For dissenting opinion of MR. JUSTICE BRENNAN,
see
ante, p.
357 U. S.
417.
[
Footnote 1]
The state statute was originally passed as an emergency measure,
and thereafter extended from year to year. The present terminal
date is June 30, 1958.
[
Footnote 2]
A subversive organization is defined in § 8 as one which is
found
". . . to advocate, advise, teach or embrace the doctrine that
the government of the United States or of any state or of any
political subdivision thereof shall be overthrown or overturned by
force, violence or any unlawful means, or to advocate, advise,
teach or embrace the duty, necessity or propriety of adopting any
such doctrine. . . ."
[
Footnote 3]
The New York Court of Appeals held that the Transit Authority
was a state body corporate subject to classification under the
Security Risk Law and sustained the Commission's determination that
it was a "security agency." 2 N.Y.2d 355, 365-367, 161 N.Y.S.2d 7,
14-15, 141 N.E.2d 533, 538-539. We consider ourselves bound by
these holdings.
[
Footnote 4]
The Court of Appeals held that the Commissioner of
Investigation, although a city official, was authorized to act with
respect to these matters arising under the Security Risk Law, and
to conduct these investigations.
[
Footnote 5]
Appellant did not specifically state that his refusal to answer
was based on his belief that an answer might incriminate him, but
simply explained his silence by reference to the "Fifth Amendment."
We consider this reference, without regard to the availability of
the Fifth Amendment to appellant in this state investigation
(
see p.
357 U. S. 477,
infra), to be equivalent to an assertion of a claim of
possible self-incrimination.
See Quinn v. United States,
349 U. S. 155,
349 U. S.
162-163;
Emspak v. United States, 349 U.
S. 190,
349 U. S.
194.
[
Footnote 6]
For convenience, we shall continue to refer to the parties as
appellant and appellees.
[
Footnote 7]
We must also reject the contention that appellant was denied due
process in that the resolution made the basis for his dismissal
noted not only his refusal to answer. but also
". . . that further investigation has revealed activities on the
part of [appellant] which give reasonable ground for belief that he
is not a good security risk. . . ."
These other activities were not revealed to appellant. But this
issue is not before us, since the state court sustained the
dismissal solely on the basis of appellant's refusal to answer. In
any event, had appellant pursued his administrative remedy, he
could have sought disclosure and review of such evidence before the
Civil Service Commission.