Lerner v. Casey, et. al., (constituting the New York City Transit Authority)
Decided on June 30, 1958; 357 US 468


A. Issues Discussed: 1st Amendment, 14th Amendment, 5th Amendment, Government Authority, Security Risks (Communism)

B. Legal Question Presented:

Did the appellant's termination as a New York City Transit System subway conductor, pursuant to the Security Risk Law of the State of New York, violate the due process safeguard of the 14th Amendment?


A. Background:

The appellant, Max Lerner, a subway conductor employed by the New York City Transit Authority, was suspended from his job after refusing to answer whether he was a member of the Communist Party. Claiming his privilege against self-incrimination under the Fifth Amendment, the appellant refused to pursue the administrative options mandated in the New York Security Risk Law that allowed for the possible reversal of his suspension. Based on his refusal, the city terminated him, finding that his employment would endanger national and state security.

The appellant sued in a state court for reinstatement. The case was dismissed on the ground that the appellant had not exhausted his administrative remedies under the New York Security Risk Law. On appeal, the New York State Court of Appeals affirmed the state court's decision.

B. Counsel of Record:
Opposing Side
Leonard B. Boudin argued the cause for appellant. With him on the brief was Victor Rabinowitz. Daniel T. Scannell argued the cause for appellees. With him on the brief were Helen R. Cassidy and Edward L. Cox, Jr.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
David I. Shapiro and Stephen C. Vladeck filed a brief for the New York Civil Liberties Union, as amicus curiae, urging reversal. Ruth Kessler Toch, Assistant Attorney General, argued the cause for the State of New York, as amicus curiae, urging affirmance. Supporters of the brief were Louis J. Lefkowitz, Attorney General, and Paxton Blair, Solicitor General.

"Appellant was...advised, pursuant to [section] 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...

[A]ppellant 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...

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...

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 of Appeals viewed the administrative proceedings and as we accordingly treat them here, was not discharged on grounds that he was a party member.

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."

Affirmed: The Court holds that the appellant's termination was not in violation of rights assured to him by the Constitution.

Justice Vote: 4 Pro vs. 5 Con

  • Harlan, J. Con (Wrote majority opinion)
  • Frankfurter, F. Con (Wrote concurring majority opinion)
  • Whittaker, C. Con (Joined majority opinion)
  • Clark, T. Con (Joined majority opinion)
  • Burton, H. Con (Joined majority opinion)
  • Warren, E. Pro (Wrote dissenting opinion)
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Black, H. Pro (Joined minority opinion, joined Douglas' dissent)

The ACLU, as amicus, urged reversal of the Court of Appeals' judgment; the Supreme Court affirmed the judgment of the lower court in a 5-4 vote, giving the ACLU an apparent loss.