Brukiewa v. Police Commissioner , 257 Md. 36 ( 1970 )

257 Md. 36 (1970) 263 A.2d 210

BRUKIEWA
v.
POLICE COMMISSIONER OF BALTIMORE CITY

[No. 149, September Term, 1969.]

Court of Appeals of Maryland.

Decided February 13, 1970.

The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

William H. Engelman, with whom were Berenholtz, Kaplan & Heyman on the brief, for appellant.

Bernard L. Silbert, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.

HAMMOND, C.J., delivered the opinion of the Court.

BARNES, J., dissents. Dissenting opinion at page 59 infra.

We are called upon in this appeal to decide whether the State impermissibly restricted the constitutional right a policeman has freely to speak his mind.

The appellant Brukiewa has been a member of the Baltimore City Police Department for over thirteen years and has been officially commended for his police services nine times. He is president of the Baltimore City Police Department, Local Union 1195, American Federation of State, County and Municipal Employees (AFLCIO). In 1967 and 1968 the Union was endeavoring, apparently unsuccessfully, to have its voice heard and heeded by the Police Commissioner.

Brukiewa and a fellow policeman, Gary Woodcock, were invited to and did appear on a television program on WJZ (Channel 13), Baltimore, on June 19, 1968. The transcript of the program shows that the following was communicated to those in the Baltimore area watching and listening to Channel 13:

"George Baumann

Two and a half years ago the Baltimore Police Department was carefully scrutinized by the International Association of Chiefs of Police and the result of that study [was that] the department was revamped from top to bottom. Almost every phase of police work and policy was altered to meet contemporary needs.

Police Commissioner Donald Pomerleau was a consultant for the I.A.C.P. and since taking over the department has energetically tried to effect the I.A.C.P. recommendations. But that restructuring of the department has caused concern in the ranks of the City Police, according to Investigative Reporter Christopher Gaul:

Christopher Gaul

That concern is being aggressively voiced by the Police Union, which is estimated 1700 members, represent about half of the total force. The Union has just put out a 14 page position paper which charges that the recommendations contained in the I.A.C.P. report are a criminal waste of money and that those recommendations endanger the lives of police officers. According to policemen who wrote the position paper, the I.A.C.P. report was geared to small western towns, not to large old urban areas like Baltimore. The paper attacks everything from the changes of uniforms to the way Commissioner Pomerleau handled Baltimore's April riot. I talked to two of the Union Officials, both working policemen. The President is Eugene Brukiewa, a thirteen and a half year veteran. Officer Gary Woodstock [sic] a nine year veteran and a K-9 Patrolman helped prepare the position paper. He began by discussing new I.A.C.P. suggestive reporting technique.

Officer Gary Woodcock

In the old days we did hold a few reports, here and there, smaller crimes weren't reported, but in 64 the Sunpapers, they had a very critical article about the Police Administration at that time and ever since then we've been keeping pretty accurate reports.

Christopher Gaul

Do you think Commissioner Pomerleau is a competent, effective Administrator?

Officer Gary Woodcock

Ah .................. No.

Christopher Gaul

Officer Brukiewa, your position paper is a harsh indictment of the City Police Administration, do you think the Union should be in a position of criticizing actual police policy?

Officer Brukiewa

Well, we feel that it's gotten to a point where definitely we have to start criticizing police policy, due to the fact we have tried to get together with Commissioner Pomerleau to explain problems that still exist with Patrolmen, the reporting system, other issues, to try to help him to make us a good department, but Mr. Pomerleau just has a mind of his own, he sticks strictly to the I.A.C.P. report and we feel definitely that this is nothing to this City.

Christopher Gaul

How would you describe the morale of the Department?

Officer Brukiewa

Right now, I'd say it's hit its lowest ebb, right now.

Christopher Gaul

Would you attribute that to the recommendations of the I.A.C.P. report?

Officer Brukiewa

I'd say definitely, I've been here a good while and I've tried to ____, I've looked into this system, I've looked into it well and the men feel right now that they are completely lost from the public. Years ago when we worked the foot posts, you could get out and talk to people, you got information, now, when you work in a car, you go driving right on by, they wave to you to stop. You are scared to get out of the car because if you don't answer when they call you, you have to make a slip up because they hit you with a delinquency slip. You only have a half an hour out of an hour for foot patrol and with this you can't possibly get around through the post you are working.

Christopher Gaul

What do you think will happen to the City Police Department, say within the next six months, if what you say is happening and continues to happen?

Officer Brukiewa

I really hate to predict it, but I feel that the bottom is going to fall out of this City.

Christopher Gaul

The Police Commissioner has refused to respond to the Police Union's criticism, but I'll take a look at the Administration's attitude tomorrow anyway. This is Christopher Gaul."

As a result of the broadcast Officer Brukiewa was charged with a violation of the Rules and Regulations of the Police Department of Baltimore City for conduct "unbecoming a member of the Baltimore Police Department, and prejudicial to or tending to undermine good order, efficiency, or discipline of the Department," and two specifications thereunder alleging violations of Sections 12 and 16 of Rule 1.

Officer Woodcock was also charged with a violation of Rule 1, and one specification thereunder alleging a violation of Section 12.

Rule 1 of the Rules and Regulations of the Police Department reads as follows:

"Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the Department either within or without the City of Baltimore, which tends to undermine the good order, efficiency, or discipline of the Department, or which reflects discredit upon the Department or any member thereof, or which is prejudicial to the efficiency and discipline of the Department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Police Department of Baltimore City, and subject to disciplinary action by the Police Commissioner."

Section 12 is as follows:

"No member of the Department shall publicly criticize or ridicule the official action of any member of the Department, public official, judge, or magistrate."

Section 16 is as follows:

"All members of the Department shall treat as confidential the official communications and business of the Department."

A hearing was held before a police department disciplinary board on July 17, 1968. Each officer was found guilty as charged and ordered dismissed from the force, the dismissal to be suspended, with probation for six months, during which time the officer should be assigned only to the night shift. The Commissioner approved the dismissals, changed the suspension to twelve months (making no references to night duty) with a proviso that at the end of a year "unless the suspension is sooner vacated, the sentence will be remitted without further action."

The basis of the charge against Woodcock apparently was his criticism of Commissioner Pomerleau in answering "no," to the interviewer's question, "Do you think that Commissioner Pomerleau is a competent, effective administrator?"

The basis of the charge against Brukiewa apparently was his public criticism of the Department in saying that the reporting system and patrol procedure are problems, and that the Department's morale has "hit its lowest ebb," and that in response to the question of what will happen to the City Police Department within the next six months if the situation continues, "I feel the bottom is going to fall out of this City."

The disciplinary board announced no findings of fact and no conclusions as to the effects and results, if any, of the statements found by it to have been offensive to Rule 1. Woodcock and Brukiewa appealed to the Baltimore City Court under the Administrative Procedure Act, Code (1965 Repl. Vol.), Art. 41, §§ 244-256. Judge Sodaro heard and decided the case on the charges, the orders of punishment, the television transcript and his remembrance of the riots and disorders that swept Baltimore in April of 1968. It seems now to be conceded, tacitly at least, and we think properly so, that there is no merit in the vague and unsupported charge that Brukiewa failed to keep confidential police business, and we shall give it no further consideration.

Judge Sodaro dismissed the appeals, finding (1) that the rules of the police department were reasonable, unambiguous and constitutional; (2) that in light of the April riots which had caused "vitriolic attacks" on the Department by a minority of Baltimoreans who were "angry people who had suffered losses * * * and those who would have used greater force in dealing with the trouble," the Department "as never before * * * urgently need cohesion in its ranks and a rebirth of respect and confidence within the community;" (3) that:

"It was in this explosive situation that the Appellants injected public statements that were given the widest circulation. Their utterances were corrosive of confidence in the Police Department and tended to widen the breach between the police and the public. The morale and discipline of the Department had to obviously suffer from the divisive effect of the statements. The Appellants then had a duty of loyalty to the Police Department, their employer, and a duty of temperate speech in consideration of the prevailing tense situation, as well as the obligation to comply with stated rules and regulations of the Department.

"The evidence is clear that these Appellants were highly critical of and heaped censure upon the Police Commissioner and the Police Department in their interview on television;"

(4) that:

"The Appellants' contention of a failure of proof that their statements amounted to conduct that tended to undermine the good order, efficiency or discipline of the Department or reflected discredit upon the Department is without merit. The Disciplinary Board that heard the evidence were superior officers of long tenure with substantial experience in the Police Department. The five members included the Chief of the Criminal Investigation Department with the rank of Lieutenant Colonel, an Assistant Chief of Patrol with the rank of Major, a Captain, a Lieutenant, and a Sergeant. They were eminently qualified by unique and special knowledge gleaned from many years in the Department to pass judgment upon the effects of the Appellants' statements on the morale and discipline of the Department. Certainly, they were in a better position to do so than the court and counsel. Their expertise is entitled to great weight. It would be presumptuous for [me] to substitute [my] judgment and to hold that their findings and that of the Police Commissioner were not supported by substantial evidence;"

and finally, in answer to the arguments that Brukiewa had permissibly exercised the right of free speech, (5) by finding controlling, and quoting extensively from Meehan v. Macy (D.C. Cir.), 392 F.2d 822, 833-834 (a case in which a police officer of the Canal Zone intemperately, contemptuously, defamatorily and with invective, lampooned the Governor of the Zone, and was dismissed), as follows:

"``Free and open discussion within an agency of government is different from heated debate flowing into the public arena. While a free society values robust, vigorous and essentially uninhibited public speech by citizens, when such uninhibited public speech by government employees produces intolerable disharmony, inefficiency, dissension and even chaos, it may be subject to reasonable limitations, at least concerning matters relating to the duties, discretion, and judgment entrusted to the employee involved. There is a reasonable difference between the kind of discipline and limitation on speech the government may impose on its employees and the kind it may impose on the public at large. To ensure a basic efficiency in public service a limitation may be imposed as a condition of government employment that is broader than the standard that defines the wrongdoing that subjects a private citizen to penalty or damage action.

* * *

"``The fact that Meehan was also the spokesman for the police union may have increased his authority to speak in behalf of his union members when he confined his speech to appropriate channels. It also gave him a stature and commensurate responsibility, both to the union and to the employer, to confine himself to channels and to exercise temperance.'"

Both Brukiewa and Woodcock appealed Judge Sodaro's ruling. Without giving any reason for doing so, Woodcock dismissed his appeal a few days before argument of the case in this Court, and we deal only with Brukiewa's case.

Judge Oliver Wendell Holmes, speaking for the Supreme Judicial Court of Massachusetts, said in 1892,^[1] somewhat epigrammatically: "[McAuliffe] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Mr. Justice Holmes later observed that:^[2] "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." The latter observation proved substantially true for many years as to the epigrammatic phrase in McAuliffe. Professor Van Alstyne notes in his article, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1441 n. 7, that McAuliffe had fathered more than 70 cases of which almost four-fifths resolved the decision against the constitutional right being asserted.^[3] He also notes that beginning some years after the decision in McAuliffe courts began to question the validity of the right-privilege distinction and to "erode the [Holmes] epigram" by circumventing in various ways "the harsh consequences of the right-privilege distinction as applied to private interests in the public sector." Id. at 1445. Nevertheless, in some quarters the erosion was slow for as late as 1952 the Supreme Court, in Adler v. Board of Education, 342 U.S. 485, 492, 96 L. Ed. 517, 524, held constitutional a New York statute providing that one who teaches or advocates or knowingly is a member of an organization which teaches or advocates the overthrow of the government by force or violence, should be disqualified from employment in the public school system, saying through Mr. Justice Minton in another way what Judge Holmes had said in McAuliffe sixty years earlier:

"It is clear that [State employees] have the right under our law to assemble, speak, think and believe as they will * * *. It is equally clear that they have no right to work for the State in the school system on their own terms * * *. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere."

The composition of the Court and prevailing constitutional philosophy had changed as the decade of the 1960s began. Coming events cast their shadow before them when the Court, in Sherbert v. Verner, 374 U.S. 398, 404, 10 L. Ed. 2d 965, 971, held that unemployment compensation could not be denied a Seventh-Day Adventist who was discharged by her employer because she refused to work on Saturday, the Sabbath Day of her faith, because to so penalize her would impair the free exercise of her religion, there not being present a compelling State interest in a subject within its constitutional power to regulate. The Court said:

"Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that the unemployment compensation benefits are not appellant's ``right' but merely a ``privilege.' It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or the placing of conditions upon a benefit or privilege."

Any belief in the validity of the Holmes epigram or the Minton restatement in Adler was dispelled by Keyishian v. Board of Regents, 385 U.S. 589, 605, 17 L. Ed. 2d 629, 642, in which the Court declared unconstitutional the very statute upheld in Adler. Mr. Justice Brennan said for the Court:

"But constitutional doctrine which has emerged since [the Adler] decision has rejected its major premise. That premise was that public employment * * * may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action."

Finally, in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, the Supreme Court put together all that had gone before. See Note, The First Amendment and Public Employees: Times Marches On, 57 Georgetown L.J. 134. There the Court invalidated the dismissal of a public school teacher who had written a letter to a newspaper criticizing acts and omissions of the Board of Education and the Superintendent. The Supreme Court of Illinois,^[4] in considering the claim that freedom of speech had been shackled, opined that New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, which held that untrue accusations against public officials are actionable only if actual malice is shown, had no application. It saw the controlling issue to be "whether [the school board] must continue to employ one who publishes misleading statements which are reasonably believed to be detrimental to the schools." It said:

"By choosing to teach in the public schools, plaintiff undertook the obligation to refrain from conduct which in the absence of such position he would have an undoubted right to engage in. While tenure provisions of the School Code protect teachers in their positions from political or arbitrary interference, they are not intended to preclude dismissal where the conduct is detrimental to the efficient operation and administration of the schools of the district."

Mr. Justice Marshall for the Supreme Court said (391 U.S. at 568, 20 L. Ed. 2d at 817):

"To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court."

The opinion went on to note that the School Board urged that (Id.):

"``the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience,'"

and that the teacher argued for application to teachers of the New York Times rule that statements to be actionable must be made "``with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'" The Court said (391 U.S. at 569, 20 L. Ed. 2d at 817-818):

"Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run."

The general lines of analysis of the statements in Pickering's letter were that the statements were not directed to any person with whom he would be in daily contact in his work as a teacher so that there was created no problem of maintaining discipline by immediate superiors or of disharmony among co-workers; a teacher's employment relationships with a school board and a superintendent "are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning" (391 U.S. at 570, 20 L. Ed. 2d at 818). The Court then said (Id.):

"Accordingly, to the extent that the Board's position here can be taken to suggest that even comments on matters of public concern that are substantially correct, * * * may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it."

The Court then took up the statements of Pickering that were false or inaccurate, saying (391 U.S. at 572-573, 20 L. Ed. 2d at 819-820):

"What we have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." (Emphasis added.)

In discussing the impact of the New York Times rule on the matter before the Court, Mr. Justice Marshall noted that the public interest in having free and unhindered debate on matters of public importance is so great that in New York Times the Court had held that statements directed at a public official are actionable only if made with knowledge of their falsity or with reckless disregard for their truth or falsity. The Court said that therefore it was clear that had Pickering been a member of the general public the State's power to afford the Board any legal right to sue him would be limited by the Times rule. Also, said Mr. Justice Marshall (391 U.S. at 574-575, 20 L. Ed. 2d 820-821):

"This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964); Wood v. Georgia, 370 U.S. 375, 8 L. Ed. 2d 569, 82 S. Ct. 1364 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared.

"* * * We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.

"In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant's letter, * * * his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed * * *."

There can be no doubt that a policeman has full First Amendment rights. In Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 567, the Supreme Court said: "We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights" — adding that those rights may not be conditioned by the State by the exaction of a price. "Assertion of a First Amendment right is still another [of those rights]." Id. See also Wood v. Georgia, 370 U.S. 375, 8 L. Ed. 2d 569; In re Gioglio (Middlesex County Ct. N.J.), 248 A.2d 570; and Note, The First Amendment and Public Employees — An Emerging Constitutional Right to be a Policeman?, 37 George Washington L. Rev. 409.

If the Supreme Court's opinion in Pickering is read with the word "policeman" substituted for teacher, and with full consideration being given to the differences between the operation of schools and the operations of a police department and the State's interest in a disciplined and efficient police department, we cannot escape the conclusion that the Supreme Court, were the case before us before it, would hold that Brukiewa did not go beyond the bounds of permissible free speech and that the State cannot discipline him for what he said. Accordingly, we so hold.

Nothing that Brukiewa said has been charged, shown or found to be false or even inaccurate, nor may it be presumed to be. His personal fitness to perform his daily police duties obviously was not impaired by what he said for the Commissioner kept him on his regular active duty. His statements were not directed towards a superior with whom he would come into daily or frequent contact. His statements were not charged, shown or found to have affected discipline or harmony or the general efficiency or effectiveness of the police department. There is no basis in the record and no basis in permissible judicial notice for Judge Sodaro's statements that the utterances were in fact corrosive of confidence in the police department and tended to widen the breach between the police and the public, and that "the morale and discipline of the Department had to obviously suffer from the divisive effect of the statements." The burden is on the State to establish that public utterances make the utterer unfit for public service or adversely affect public services to a degree that justifies their restriction. As Pickering said, effects or conditions that permissibly inhibit or hamper the exercise of free speech are not to be presumed. Here, neither the police disciplinary board nor the Commissioner made any findings which would support the State's right to inhibit or hamper Brukiewa's right to speak freely on matters of public importance, particularly matters as to which he had experienced expertise. On what was before him Judge Sodaro could not belatedly purport to find what he thought the board and the Commissioner must or should have found.

The Courts have applied the Pickering tests and requirements in various areas and circumstances of public employment. In Tinker v. Des Moines Community School District, 393 U.S. 503, 509, 21 L. Ed. 2d 731, 739, the Court held that the problem presented by public school children, during school hours, on school property and in violation of a school regulation, wearing black armbands as a symbolic act to publicize their objections to the hostilities in Vietnam does not concern aggressive, disruptive action or even group demonstration, but involves direct, primary First Amendment rights akin to "pure speech." It said that:

"In order for the State * * * to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ``materially and substantially interfere with the requirements of appropriate discipline in the operation of the school' the prohibition cannot be sustained."

Wood v. Georgia, 370 U.S. 375, 8 L. Ed. 2d 569, referred to earlier, involved the statements in the press of an elected sheriff accusing judges who had formulated instructions to a grand jury regarding the investigation of alleged sales of Negro votes, of race agitation and an attempt at judicial intimidation of Negro voters and leaders, and comparing the calling of the grand jury to the activities of the Ku Klux Klan. The State courts convicted the sheriff of contempt. The Supreme Court reversed, holding that the convictions violated the rights of free speech since the record did not show that the statements constituted a clear and present danger to the administration of justice.^[5] In Swaaley v. United States (Ct. Cl.), 376 F.2d 857, Swaaley, a naval shipyard worker, wrote the Secretary of the Navy a petition for redress of grievances which included charges that some of his superior officials were guilty of favoritism in the matter of promotions. He was discharged. The Court held that the defamatory statements were not shown to have been wilfully false or made with reckless disregard for truth or falsity and that Swaaley's discharge was improper. A similar ruling was made by the same Court in Burkett v. United States, 402 F.2d 1002. See, too, Murray v. Vaughn (U.S.D.Ct. D.R.I.), 300 F. Supp. 688, 703-705, which involved a Peace Corps volunteer, and Puentes v. Board of Education (N.Y.), 250 N.E.2d 232, in which a teacher (a union official) wrote letters to teachers and administrators within the school district that criticized the failure of the school administration to renew the employment of a probationary teacher and was suspended without pay. The Court of Appeals of New York cited Pickering and said:

"There is no suggestion in the record that petitioner's indiscretions led to any deleterious effects within the school system and it is unlikely that they should have. Indiscreet bombast in an argumentative letter, to the limited extent present here, is insufficient to sanction disciplinary action * * *.

"* * * Concededly, petitioner's direct teaching and in-class performance were correct and not affected by the writing or sending of the letter."

See also the prior case of Tepedino v. Dumpson (N.Y., Fuld, C.J.), 249 N.E.2d 751, involving social workers.

In the case of In re Gioglio (Middlesex County Ct., N.J.), 248 A.2d 570, 575, cited above, a policeman gave an interview critical of the operation of the department to a newspaper reporter in violation of a regulation. It was held that he could not be punished as the department had sought to do. Said the Court:

"The privilege of public employment and the right of free speech are not incompatible, nor are they mutually exclusive. * * * The public employee may speak freely so long as he does not impair the administration of the public service in which he is employed."

The Court then reiterated the rule that the burden is on the State to show that there is a compelling public interest which warrants the restriction of First Amendment rights and that in the absence of such a showing these rights are not subject to impairment or destruction. There are similar rulings in Donovan v. Mobley (U.S.D.Ct. C.D.Cal.), 291 F. Supp. 930, 933, which dealt with the disciplining of a lifeguard by a police department because of public statements.

In Los Angeles Teachers U. v. Los Angeles City Bd. of Ed. (Cal. In Bank), 455 P.2d 827, teachers while on school property (although during duty free lunch hours) circulated for signatures petitions relating to public education financing and addressed to various concerned public officials, all contrary to regulations. Free speech prevailed. The Court said (p. 830):

"When, as here, the impairment of First Amendment rights appears, and when, as here, the facts constituting such impairment are not contradicted, the question as to whether such impairment is permissible is one of law and not of fact * * *,"

and held (p. 835) that the State had

"failed to demonstrate the existence of ``facts which might reasonably have led [it] to forecast substantial disruption of or material interference with school activities' (Tinker v. Des Moines * * *) as a result of [the teachers] proposed activity. Rather [the State has] shown only that they reasonably apprehend the sort of unrest which inevitably results from the expression of controversial views but which must be tolerated in the schools as well as in society generally. * * *

"Similarly [the State has] failed to demonstrate that a significant threat to the ``efficiency and integrity of the public service' * * * is posed by [the teachers] proposed activity."

A late case is Pred v. Board of Public Instruction of Dade County, Fla. (5th Cir.), 415 F.2d 851, 857-860. Cf. Watts v. Seward School Bd. (Alaska), 454 P.2d 732, petition for cert. filed, 38 U.S.L.W. 3096 (No. 573); Goldwasser v. Brown (D.C. Cir.), 417 F.2d 1169, 1176-77; Ruderer v. United States (Ct. Cl.), 412 F.2d 1285, 1290-1292.

Meehan v. Macy (D.C. Cir.), 392 F.2d 822, which Judge Sodaro found controlling and in which the Commissioner finds great solace, does not control, in our view, for various reasons. First, there the Court's sustaining of the dismissal of a police officer of the Canal Zone was based on the seemingly permissible finding that a letter and a poem printed and distributed by the policeman harmed the police department. The publications were found to be "intemperate and sarcastic," "invective," and "a contemptuous and defamatory lampoon" of the Governor of the Zone. Assuming the case to have been rightly decided, what the policeman there said was far worse than Brukiewa's statements which in effect were that the Commissioner's honest judgment was unsound in certain matters and that various of his policies were not, in the belief of Brukiewa, good for the policemen, the Department or the public. Second, the Court's reasoning and philosophy are not in accord with the reasoning and philosophy of New York Times and Pickering. Third, the case was decided by a division of three judges and after Pickering was decided, the Court ordered a rehearing before all ten judges sitting en banc, which, the Court held, had the effect of vacating the opinion and order of the division of three judges. After the rehearing a majority of all ten judges, over the vigorous dissent of three, ordered on May 12, 1969, that the charge which the division of three judges had said justified Meehan's discharge be reexamined below in the light of Pickering.^[6]

Brukiewa challenged the Rules and Regulations of the Police Department as vague and overbroad. In deciding the case as we have, we have assumed that on their face the Rules and Regulations are valid except to the extent that they inhibit or hamper the right of free speech guaranteed by the First Amendment.

Our holding in the case is no more than a determination that the State did not show that Brukiewa's statements hurt or imperiled the discipline or operation of the Police Department and therefore were within his right to make, under the First Amendment, and the decisions of the Supreme Court.

Order reversed, with costs, and case remanded for passage of an order reversing the disciplinary actions of the police commissioner against appellant, Brukiewa.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

----------

No. 20,812

RICHARD D. MEEHAN, Appellant v. JOHN W. MACY, JR., Chairman, et al., Civil Service Commission, et al., Appellees

----------

On Rehearing En Banc

----------

Decided May 12, 1969.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, DANAHER,^[*] BURGER, WRIGHT, McGOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

PER CURIAM: On April 18, 1968, a division of this court concluded that the agency which held the hearing on appellant's proposed discharge was warranted in finding that Charge 1 (conduct unbecoming a police officer) was sustained, but that the record did not contain adequate support for discharge on Charge 2 (failure to obey instructions) or Charge 3 (failure to obtain clearance for publication).^[1a] The division remanded to the District Court so as to permit agency reconsideration, in view of this court's ruling, of the sanction to be imposed on appellant.

On August 23, 1968, after the Supreme Court decided Pickering v. Board of Education, 391 U.S. 563 (1968), the same division of this court altered its order of remand so as to provide for reconsideration of appellant's case, on the merits, in light of the Pickering decision, and provision was specifically made for opportunity on remand for the introduction of further evidence.

Appellant had filed a petition for rehearing en banc to request reconsideration of the division's opinion in the light of Pickering. This court's granting rehearing en banc, and its order, had the effect of vacating the opinions and orders of the division. After hearing argument en banc, this court is of the view that the result reached in the division's orders was an appropriate disposition; it accordingly reinstates those orders to the extent that: (1) Charges 2 and 3 are dismissed; (2) Charge 1 is to be reconsidered in light of Pickering; and (3) if Charge 1, so reconsidered, is still found to be validly charged and proved, the penalty assessed is to be reconsidered in view of Charges 2 and 3 being dismissed.

Since proceedings on remand may result in additional evidence of record, and a different order entered by the executive authority, we see no occasion for a decision on the present record as to the implications of Pickering for Meehan.

The Commission may consider this an appropriate time to reconsider its precedents in view of Pickering and to establish general guidelines insofar as that may be feasible.

So ordered.

BARNES, J., dissenting:

I dissent because in my opinion (1) the Disciplinary Board of the Police Department had sufficient evidence before it to support its finding that Officer Brukiewa (and Officer Woodcock) had violated Section 12 of the Rules and Regulations of the Police Department of Baltimore City, and (2) no decision of the Supreme Court of the United States or of this Court requires us to reverse the decision of the Baltimore City Court sustaining the decision of the Board.^[1]

(1)

Rule 1 of the Rules and Regulations of the Police Department provides:

"``Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the Department, either within or without the City of Baltimore, which tends to undermine the good order, efficiency, or discipline of the Department, or which reflects discredit upon the Department or any member thereof, or which is prejudicial to the efficiency and discipline of the Department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Police Department of Baltimore City, and subject to disciplinary action by the Police Commissioner.'"

(Emphasis supplied.)

Section 12 of Rule 1 of the Police Department provides:

"No member of the department shall publicly criticize or ridicule the official action of any member of the department, public official, judge or magistrate." (Emphasis supplied.)

In my opinion there was ample evidence before the Disciplinary Board to support its finding that the two officers violated Section 12 of Rule 1, which did "tend to undermine the good order, efficiency, or discipline of the Department" and did "reflect discredit upon the Department" and a member thereof, and was "prejudicial to the efficiency and discipline of the Department." A violation of Section 12 is conduct which has been administratively determined by the Rule, itself, to tend to undermine the good order, efficiency, or discipline of the Department and is detrimental to that efficiency and discipline. It is "specifically enumerated" in Rule 1 and proof of public criticism or of ridicule of the official action of any member of the Department is sufficient to justify disciplinary action, including dismissal from the Force, against the officer found guilty of such a violation.

The excerpts from the newscast on Station WJZ-TV, Channel 13, June 19, 1968, stated in the majority opinion clearly indicate to me that both Officer Brukiewa and Officer Woodcock violated Section 12. They both "publicly criticized" the Police Department. Officer Brukiewa states emphatically that this is what they are doing. Officer Woodcock also "publicly criticized" the Police Commissioner himself indicating that Commissioner Pomerleau was not "a competent, effective Administrator." The 14 page "position paper" of the Police Union of which Officer Brukiewa was president and Officer Woodcock, a member of the Union's Executive Board, was referred to by Interviewer Gaul as follows: "Officer Brukiewa, your position paper is a harsh indictment of the City Police Administration" (Emphasis supplied.). Officer Woodcock "helped to prepare the position paper." This position paper "attacks everything from the changes in uniforms to the way Commissioner Pomerleau handled Baltimore's April riot."

Previously the commentator, George Baumann, had stated that the International Association of Chiefs of Police (I.A.C.P.) had studied the Baltimore Police Department some two and one-half years previously and as a result of that study "* * * the department was revamped from top to bottom. Almost every phase of police work and policy was altered to meet contemporary needs." It was stated that Police Commissioner Pomerleau was a "consultant for the I.A.C.P. and since taking over the department has energetically tried to effect the I.A.C.P.'s recommendations" but that "restructuring of the department had caused concern in the ranks of the City Police * * *." Mr. Gaul then stated that this concern "is being aggressively voiced by the Police Union, which is estimated 1700 members, represent about half of the total force." The 14 page position paper is then mentioned and it "charges" that the I.A.C.P.'s recommendations "are a criminal waste of money and that those recommendations endanger the lives of police officers." When this is considered together with Officer Brukiewa's public statements that we feel definitely that this [the I.A.C.P. report] is "nothing to this City," that the morale of the Department has "hit its lowest ebb, right now" and that "the bottom is going to fall out of this City," it is difficult indeed to say that this broadcast was not a public criticism of the "official action of any member of the Department...."

Counsel for the Appellants urge upon us that it was error for the Disciplinary Board to strike out the testimony of Ernest B. Crofoot, Council Director for the American Federal, State, County and Municipal Employees, A.F.L.-C.I.O. in Maryland. I rather agree that this was error on the part of the Disciplinary Board, but it was harmless error because as I read Mr. Crofoot's testimony, it is far more helpful in supporting the action of the Disciplinary Board than it was in supporting the position of the appellants.

Without considering Mr. Crofoot's testimony in detail, it indicated that the broadcast was deliberately and intentionally given by the two officers as representatives of the Union to overcome, in part, General Order 66-6 promulgated on July 21, 1966, by General George M. Gelston, Acting Police Commissioner, which stated in part that: "No organization, union or order has been recognized by the Baltimore City Police Department, and no such recognition is contemplated at this time." It further indicated that the dissatisfaction of certain segments of the public with the conduct of the Police Department during the April riots would make the broadcast timely and effective.

In my opinion, the mere fact that Officer Woodcock, shortly before the hearing on this appeal, dismissed his appeal does not prevent this Court from considering his part and his public statements in the broadcast of June 19, 1968. The dismissal of his appeal by him does prevent us from reversing or modifying the action of the Disciplinary Board so far as he is concerned, but it does not in any way change the facts considered by the Disciplinary Board and by the trial court in regard to the nature, intent and scope of the broadcast. See Rice v. City of St. Paul, 208 Minn. 509, 295 N.W. 529 (1940); Marvel v. Craft, 166 Neb. 802, 219 N.W. 242 (1928). As Judge Sodaro aptly stated in his written opinion in the lower court:

"Appellant Woodcock, who admittedly declared the Police Commissioner not to be a competent, effective administrator, a statement susceptible of no interpretation other than a reflection upon the ability and performance of Commissioner Pomerleau as police commissioner, was interviewed with Brukiewa and supported him. This was a joint interview, the participants standing side by side in support of each other and mutually asserting sharp censure of the Department and its administration."

(Emphasis supplied.)

This finding by the lower court is amply supported by the record and, in my opinion, should be accepted in this Court.

It is also my opinion that the trial court could take judicial notice of the unusual climate and temper of the people in Baltimore City at the time of the broadcast, resulting from the April, 1968, riots. See Fox v. Grando, 194 Md. 62, 69 A.2d 795 (1950) — (judicial notice that in Baltimore City in 1937 and 1938 the real estate market was in a depressed condition in marked contrast with conditions during the war years). See also Huntt v. Govt. of the Virgin Islands, 339 F.2d 309 (1964, C.A. 3) — (judicial notice of the importance of tourism in the economy of Virgin Islands); Navios Corp. v. The Ulysses II, 161 F. Supp. 932 (D.C. Md., 1958), aff'd C.A. 4, 260 F.2d 959, per curiam, upon Chief Judge Thomsen's opinion in the District Court — (judicial notice that a state of war may exist without a declaration of war); King v. Celebrezze, 223 F. Supp. 774 (E.D. Ky., 1963), aff'd C.A. 6, per curiam, 341 F.2d 108 (1965) — (judicial notice that the period between 1945 and 1947 was a period of full employment); Superior Trucking Co., Inc. v. United States, 274 F. Supp. 196 (N.D. Ga., 1967) — (judicial notice of the growth of the City of Albany, Georgia over the years); Young v. Lake Dearborn Corp., 7 Ill. App. 2d 440, 129 N.E.2d 578 (1955), cert. denied, 352 U.S. 830, 77 S. Ct. 44, 1 L. Ed. 2d 51 — (judicial notice of the Chicago Fire and its destructiveness); 31-A C.J.S. "Evidence," §§ 60, 62, and 63, pages 34, 36-53.

The lower court properly considered these unusual circumstances in evaluating the effect of the utterances by the appellants upon the morale and discipline of the Police Department. The lower court, in my opinion, properly stated the following in its opinion:

"While no testimony was offered concerning the temper of the City a relatively short time prior to the televising of the statements in question (and such evidence would have been difficult to introduce) the Court can and should take judicial notice of the unusual and unprecedented climate and explosive situation existing at the time of the utterances. It would be unrealistic to consider them in a vacuum. The Police department, as others in every metropolitan area in the country, was both praised and severely criticized, depending on the viewpoint of the observer. In short, the department was on trial.

"In April, the City suffered from unprecedented rioting, looting, fire bombing and destruction of property. A number of persons were killed, more than 700 injured, 1,000 businesses destroyed or damaged, and upwards of 5,000 were arrested. The community was still in a state of shock. In this unwholesome atmosphere, the people required more than ever a bolstering of confidence that their police department could function effectively in an emergency. Although the Police Department had given a good account of itself in the opinion of most informed observers, it had been the target of vitriolic attacks by angry people who had suffered losses in the April riots and those who would have used greater force in dealing with the trouble. As never before, the Department urgently needed cohesion in its ranks and a rebirth of respect and confidence within the community.

"It was in this explosive situation that the Appellants injected public statements that were given the widest circulation. Their utterances were corrosive of confidence in the Police Department and tended to widen the breach between the police and the public. The morale and discipline of the Department had to obviously suffer from the divisive effect of the statements. The Appellants then had a duty of loyalty to the Police Department, their employer, and a duty of temperate speech in consideration of the prevailing tense situation, as well as the obligation to comply with stated rules and regulations of the Department.

"The evidence is clear that these Appellants were highly critical of and heaped censure upon the Police Commissioner and the Police Department in their interview on television.

"The Appellants' contention of a failure of proof that their statements amounted to conduct that tended to undermine the good order, efficiency or discipline of the Department or reflected discredit upon the Department is without merit. The Disciplinary Board that heard the evidence were superior officers of long tenure with substantial experience in the Police Department. The five members included the Chief of the Criminal Investigation Department with the rank of Lieutenant Colonel, an Assistant Chief of Patrol with the rank of Major, a Captain, a Lieutenant, and a Sergeant. They were eminently qualified by unique and special knowledge gleaned from many years in the Department to pass judgment upon the effects of the Appellants' statements on the morale and discipline of the Department. Certainly, they were in a better position to do so than the Court and counsel. Their expertise is entitled to great weight. It would be presumptuous for this Court to substitute its judgment and to hold that their findings and that of the Police Commissioner were not supported by substantial evidence." (Emphasis supplied.)

The trial court's conclusion that the Disciplinary Board's "expertise is entitled to great weight" is amply supported by the decisions of this Court. See Bernstein v. Real Estate Commission of Maryland, 221 Md. 221, 230, 156 A.2d 657, 661-2 (1959), appeal dismissed, 363 U.S. 419, 80 S. Ct. 1257, 4 L. Ed. 2d 1515, reh. den. 364 U.S. 855, 81 S. Ct. 35, 5 L. Ed. 2d 79, and prior cases cited in the opinion in that case.

Inasmuch as the majority opinion assumes that the Rules and Regulations are valid on their face and I am of the opinion that they clearly are valid on their face, it is apparent to me that Section 12 of Rule 1 is a specification of conduct which "tends to undermine the good order, efficiency, or discipline of the department, or which is prejudicial to the efficiency and discipline of the department" and that such conduct "shall be considered conduct unbecoming a member of the Police Department of Baltimore City, and subject to disciplinary action by the Police Commissioner." This having been validly determined administratively by Rule 1, evidence establishing that a member of the department did publicly criticize or ridicule the official action of any member of the Police Department was all the evidence that was necessary to sustain the action of the Disciplinary Board in finding the officers guilty as charged. As I have already observed, there was, in my opinion ample and compelling evidence that the officers did publicly criticize the official action of a member of the department. In short, the circumstances of which Judge Sodaro took judicial notice (properly in my opinion) buttress and confirm what Rule 1 had already established (administratively) would be the effect of such public criticism.

In my opinion, the findings of the Disciplinary Board and by the Police Commissioner were amply supported by the evidence and their affirmance by the trial court should be affirmed by us.

(2)

The remaining question to be considered is whether or not there is any decision of the Supreme Court of the United States or of this Court that requires us to reverse the decision of the lower court sustaining the Disciplinary Board. In my opinion, there is no such decision requiring us to reverse.

The majority has not cited any prior decision of this Court which, upon the principle of stare decisis, would require us to reverse the decision of the lower court sustaining the action of the Disciplinary Board, and I have found no such decision. On the contrary, the decisions of our predecessors rather indicate to me that we should affirm the decision of the lower court. See Rogan v. Cook, 188 Md. 345, 352, 52 A.2d 625, 629 (1947), sustaining the dismissal of an assessor of Anne Arundel County for violation of a policy of the State Tax Commission against assessors running for political office, in which Judge (later Chief Judge) Markell stated for the Court:

"No constitutional question is involved. Plaintiff had an unquestioned right to run for public office. But, as Mr. Justice Holmes said many years ago, a man ``may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' McAuliffe v. City of New Bedford, 1892, 155 Mass. 216, 220, 29 N.E. 517. If the tenure of assessors is to be made independent of political vicissitudes, the incongruity of soliciting one's neighbors' votes and assessing their property is too clear for elaboration."

See also Hammond v. Lancaster, 194 Md. 462, 483, 71 A.2d 474, 485 (1950) involving the Subversive Activities Act of 1949, in which Chief Judge Marbury in his concurring opinion in that case, in which he was joined by Judge Collins, stated:

"Since Article 15, Section 11 of the Constitution applies not only to elective but also to appointive offices, the Legislature also considered it advisable to require a written statement, subject to the penalties of perjury, from each appointed employee. Sec. 13. This statement was to be to the effect that he or she was not a subversive person as defined in the statute. Among the complainants in the Lancaster case is Irene Diggs, who is a state employee, as a teacher in Morgan College. Although she does not say she will not or cannot make the statement required, the mere fact of her joining in the bill of complaint indicates that she does not think she ought to be required to make it, or possibly that she will lose her position by not making it. Under these circumstances, and in spite of the Supreme Court decision in the Hatch Act case, referred to in the majority opinion, it would seem that she has enough interest to justify us in answering her question. We think she, and other people similarly situated, can be lawfully required to make such a statement. It is an arrogant assumption that a government cannot protect itself against the infiltration of those who desire to destroy it by force.

"It is also provided by the statute, (Sec. 11) that the appointing or employing officials of the State are permitted to decline to appoint or employ prospective employees if it is found under procedures to be established that there are reasonable grounds to believe such prospective employees are subversive persons. No one has a right to be a public employee. McAuliffe v. Mayor, 155 Mass. 516, 29 N.E. 517, (Justice Holmes). No fundamental rights are destroyed by not employing or by not keeping in public employment those who cannot or will not satisfy the appointing authority that they are not subversive persons. The citizens and taxpayers of the State, through their representatives, are entitled to decide who shall work for them and who shall teach in those schools and colleges which are State institutions supported by State funds."

Both Hammond and Rogan are mentioned in Note 3 of the majority opinion.

The inquiry is narrowed to a consideration of whether or not there are any decisions of the Supreme Court of the United States which require us to reverse the decisions of the lower court. I am of the opinion that there is no such decision.

The cases in the Supreme Court of the United States of Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (Jan. 16, 1967) and Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (June 3, 1968), considered in the majority opinion, do not, in my opinion, require a reversal in the present case.

Considering Garrity first, it is clear to me that there was no holding by the Supreme Court in that case (a five to four decision) which requires a reversal in the instant case. Mr. Justice Douglas, speaking for a majority of the Supreme Court (himself, Warren, C.J., Black, Brennan, Fortas and Marshall, JJ.), states the holding to be: "We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office and that it extends to all, whether they are policemen or other members of our body politic." I assume that the last clause "or other members of our body politic" is dictum as such "other members" were not involved in the Garrity case. In any event, Garrity involved criminal proceedings and the use of what the majority of the Supreme Court considered "coerced statements" (in fact or in law?) as evidence in those criminal proceedings. It is apparent that the Garrity case is quite different from the case at Bar.

Even the famous statement of Mr. Justice Holmes when Chief Justice of the Supreme Judicial Court of Massachusetts in regard to policemen receives rather cavalier treatment in the majority opinion in Garrity. Mr. Justice Douglas stated:

"Mr. Justice Holmes in McAuliffe v. New Bedford, 155 Mass. 216, 29 N.E. 517, stated a dictum on which New Jersey heavily relies:

"``The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.' Id., at 220, 29 N.E., at 517-518.

The question in this case, however, is not cognizable in those terms." (385 U.S. at 499, 87 S. Ct. at 619-20, 17 L.Ed.2d at 566-67). Et tu Brute!

There is, however, one dictum in the majority opinion — more reminiscent of the hustings than the bench — which, as the majority indicates, may have some possible relevance to the instant case. Mr. Justice Douglas stated:

"We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights."

(385 U.S. at 500, 87 S. Ct. at 620, 17 L.Ed.2d at 567).

This may mean that as and when supposed rights of State and municipal policemen of free speech under the First Amendment to the Federal Constitution, as purportedly applied to the States through the Fourteenth Amendment to that Constitution, come before the Supreme Court of the United States, the First Amendment right of free speech with its federal gloss will be applied to such policemen. But the fact is that such a case has not yet come before the Supreme Court. In my opinion, this Court should not speculate in regard to what might be a possible result reached by a majority of the Supreme Court when such a case does arise, as the majority of this Court has done in the present case. Inasmuch as Mr. Justice Douglas in Note 5 of the majority opinion in Garrity cited at some length from a religious source in regard to arbitrary and forced confessions, it may not be inappropriate to quote from Holy Writ: "Sufficient unto the day is the evil thereof." Matt. 6:34.

I have grave doubts, in view of the rather devastating dissenting opinion of Mr. Justice Harlan (concurred in by Clark and Stewart, JJ.) and the separate dissenting opinion of Mr. Justice White in the Garrity case, that the Supreme Court will extend in any way the holding in Garrity or give effect to any of the dicta in the majority opinion in subsequent cases. Mr. Justice Harlan put it well, I think, when he stated in his dissenting opinion:

"The majority is apparently engaged in the delicate task of riding two unruly horses at once: it is presumably arguing simultaneously that the statements were involuntary as a matter of fact, in the same fashion that the statements in Chambers v. Florida, 309 U.S. 227, and Haynes v. Washington, 373 U.S. 503, were thought to be involuntary, and that the statements were inadmissible as a matter of law, on the premise that they were products of an impermissible condition imposed on the constitutional privilege. These are very different contentions and require separate replies, but in my opinion both contentions are plainly mistaken, for reasons that follow."

(385 U.S. at 501, 87 S. Ct. at 621, 17 L.Ed.2d at 568).

He then "makes a more comprehensive examination of the pertinent circumstances than the majority has undertaken" and shows, rather conclusively to my mind, that the statements by the New Jersey policemen were indeed voluntarily given and were not coerced in fact, as the trial court and the Supreme Court of New Jersey had found was the case.

When considering the blended theory that the statements were "involuntary as a matter of law," Mr. Justice Harlan stated:

"What is really involved on this score, however, is not in truth a question of ``voluntariness' at all, but rather whether the condition imposed by the State on the exercise of the privilege against self-incrimination, namely dismissal from office, in this instance serves in itself to render the statements inadmissible. Absent evidence of involuntariness in fact, the admissibility of these statements thus hinges on the validity of the consequence which the State acknowledged might have resulted if the statements had not been given. If the consequence is constitutionally permissible, there can surely be no objection if the State cautions the witness that it may follow if he remains silent. If both the consequence and the warning are constitutionally permissible, a witness is obliged, in order to prevent the use of his statements against him in a criminal prosecution, to prove under the standards established since Brown v. Mississippi, 297 U.S. 278, that as a matter of fact the statements were involuntarily made. The central issues here are therefore identical to those presented in Spevack v. Klein, supra: whether consequences may properly be permitted to result to a claimant after his invocation of the constitutional privilege, and if so, whether the consequence in question is permissible. For reasons which I have stated in Spevack v. Klein, in my view nothing in the logic or purposes of the privilege demands that all consequences which may result from a witness' silence be forbidden merely because that silence is privileged. The validity of a consequence depends both upon the hazards, if any, it presents to the integrity of the privilege and upon the urgency of the public interests it is designed to protect.

"It can hardly be denied that New Jersey is permitted by the Constitution to establish reasonable qualifications and standards of conduct for its public employees. Nor can it be said that it is arbitrary or unreasonable for New Jersey to insist that its employees furnish the appropriate authorities with information pertinent to their employment. Cf. Beilan v. Board of Education, 357 U.S. 399; Slochower v. Board of Education, 350 U.S. 551. Finally, it is surely plain that New Jersey may in particular require its employees to assist in the prevention and detection of unlawful activities by officers of the state government. The urgency of these requirements is the more obvious here, where the conduct in question is that of officials directly entrusted with the administration of justice. The importance for our systems of justice of the integrity of local police forces can scarcely be exaggerated."

(385 U.S. at 506-508, 87 S. Ct. at 623-24, 17 L.Ed.2d at 571-72).

In my view, there is no logical answer to the position expounded by Mr. Justice Harlan and, I reiterate, that I find it most doubtful that the holding or any dicta in Garrity will be extended by the Supreme Court.

Considering Pickering, it need only be pointed out that a majority of the Supreme Court imposed upon the States the First Amendment free speech guarantee, with the federal gloss, in regard to the statements of a school teacher of a High School District in Illinois, and held that absent a showing that the statement made by the teacher contained false statements knowingly or recklessly made by him, he could not be discharged as a teacher by the Board of Education. In my opinion, there is quite a difference between the nature and character of the employment of a teacher and the nature and character of the employment of a policeman so far as First Amendment rights of free speech are concerned. A teacher in the public school system, by virtue of the position itself, is expected to stimulate and encourage thought and discussion by his students of conflicting ideas in regard to public issues. He is expected to keep himself abreast of such issues, have opinions in regard to them and to express them fully and vigorously. He has no responsibility, as a general matter, for the enforcement of the criminal laws of the State or municipality. He is not part of a semi-military organization directly concerned with the preservation of the public safety and security. In the State employment spectrum, a teacher by the nature and character of his employment has the right to exercise the maximum of the right of free speech. On the other hand, a policeman is directly charged with the preservation of the public safety and security in a daily struggle with crime — organized and otherwise — upon which his life and limb, as well as the lives, bodies and properties of the citizens within the jurisdiction, depend. To accomplish this primary public duty, discipline and obedience to the orders of superiors are of the essence. This, of course, is the reason for the semi-military arrangement of Police Departments which like the Armed Forces must be prepared instantly to combat the forces of crime or the enemies of the Republic. Not only is discipline a vital and necessary element in a successful effort by the policeman in this regard, but the orders and business of the Police Department must be kept confidential in order that the criminal elements will not be apprised of the intended procedures of the Police Department for the suppression of crime and thus more easily circumvent them. In short, the policeman by the nature and character of his public employment has the most qualified and limited freedom of speech. Mr. Justice Marshall, in his opinion for the majority of the Supreme Court in Pickering, suggests this distinction when he stated:

"* * * The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here." (Emphasis supplied.) (391 U.S. 569-570, 88 S.Ct. at 1735, 20 L. Ed. 2d at 818).

Moreover, in Note 3 to the majority opinion, Mr. Justice Marshall states:

"3. It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases." (391 U.S. at 570, 88 S.Ct. at 1735, 20 L. Ed. 2d at 818).

It is, in my opinion, clearly indicated that as and when the First Amendment rights of a policeman come squarely before the Supreme Court in a factual setting similar to that in the instant case, the State's power to remove or otherwise discipline the offending policeman will be vindicated.

The majority indicates that "If the Supreme Court's opinion in Pickering is read with the word ``policeman' substituted for teacher, and with full consideration being given to the differences between the operation of schools and the operations of a police department and the State's interest in a disciplined and efficient police department, we cannot escape the conclusion that the Supreme Court, were the case before us before it, would hold that Brukiewa did not go beyond the bounds of permissible free speech and that the State cannot discipline him for what he said." As I have already stated, it is clear to me that the word "policeman" cannot be substituted for the word "teacher" in Pickering. As I see it, this would be tantamount to substituting "apples" for "grapefruit," all "fruit" to be sure, but quite different fruit indeed. I am quite convinced, for the reasons stated, that the Supreme Court will not make the "substitution," as and when the case of the policeman comes before it. I, therefore, am of the opinion that the decision in Pickering does not require us to reverse the trial court in the present case.

For the same reasons, I., am of the opinion that the decision of the United States Court of Appeals for the District of Columbia in Meehan v. Macy, (C.A.D.C. 1968) 392 F.2d 822, fully sustains the decision of the lower court in the instant case, and that any reconsideration of the opinion in the Meehan case by the District Court in the light of Pickering will most certainly not result in any modification of the Meehan opinion. My opinion is fortified in this regard by the strong dissenting opinion of Circuit Judge Danaher (concurred in by then Circuit Judge, now Chief Justice, Burger and Circuit Judge Tamm) and the equally strong dissenting opinion of Circuit Judge Tamm (concurred in by then Circuit Judge, now Chief Justice, Burger and Circuit Judge Danaher) to the per curiam order of the United States Court of Appeals for the District of Columbia, sitting En Banc, in Meehan, referred to in the majority opinion in the present case. These forceful dissents clearly indicate to me that the decision of the Supreme Court in Pickering can have no effect upon the decision in Meehan and that the District Court upon the remand will most likely so hold.

The majority correctly observes that the criticism by the police officer in Meehan of the Governor of the Panama Canal Zone was more offensive and provocative than was the criticism of the police officers involved in the present case. As I see it, however, these considerations go to the question of punishment and not to the question of guilt, vel non, and it is clear that the police officer in Meehan received the highest punishment, i.e., that of discharge from the service, whereas, in the instant case, the officers received very mild punishments indeed, already stated in the majority opinion. Guilt was determined by a finding of public criticism; punishment was applied by a consideration of the surrounding circumstances of such criticism.

Another reason why, in my opinion, we should not extend the holdings or give effect to any dicta in either Pickering or Garrity is the fundamental and unfortunate error by the Supreme Court of the United States in extending various provisions of the first eight amendments to the Federal Constitution as constitutional limitations upon the States, with federal interpretations, allegedly through the provisions of the Fourteenth Amendment. I have expressed my opinion in regard to this grievous error in prior dissenting and concurring opinions. Miller v. State, 251 Md. 362, 383, 247 A.2d 530, 541 (1968); State v. Giles, 245 Md. 342, 660-669, 229 A.2d 97-102 (1967); Truitt v. Board of Public Works, 243 Md. 375, 411, 221 A.2d 370, 392 (1966); State v. Barger, 242 Md. 616, 628, 639-644, 220 A.2d 304, 311, 317-319 (1966); Montgomery County Council v. Garrott, 243 Md. 634, 650, 653, 222 A.2d 164, 172, 176 (1966); and Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 491-513, 217 A.2d 273, 285-298 (1966). I merely refer to these opinions for what, in my opinion, is indicative of the error into which the Supreme Court has fallen and the urgent necessity for the correction of that error either by the Supreme Court itself or by congressional action under Section 5 of the Fourteenth Amendment or under Article III of the Federal Constitution.

Finally, we should decline to extend the new federal First Amendment concepts as imposed upon the States because of the substantial departure by the Supreme Court from the doctrine of stare decisis in the last two decades. As pointed out in the majority opinion, the Supreme Court, itself, only 22 years ago sustained the Holmes observation in McAuliffe, in Adler v. Board of Education, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952), in sustaining the Feinburg Law in the State of New York in regard to the denial of employment in the public schools of that State of persons advocating the overthrow of the government by force or violence. This fully argued case, in which Vinson, C.J. and Reed, Jackson, Burton, and Clark, JJ., joined in the majority opinion of Mr. Justice Minton, (Frankfurter, Black and Douglas, JJ., dissenting) was in effect overruled, as the majority opinion in the instant case points out, by the Supreme Court in Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), and the statute sustained in Adler was held unconstitutional some 15 years later in Keyishian, in a five to four decision with a majority opinion by Mr. Justice Brennan, joined by Warren, C.J., and Black, Douglas and Fortas, JJ., and a dissenting opinion by Mr. Justice Clark, joined by Harlan, Stewart and White, JJ. This astounding departure from the doctrine of stare decisis, which, in my opinion, is the basic doctrine of responsible judicial process, should most certainly not be encouraged by us by an extension of decisions which depart from the prior holdings of the Supreme Court, itself. In so doing, as I see it, the majority is in error.

I would affirm.

NOTES

[1] McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517.

[2] Hyde v. United States, 225 U.S. 347, 391, 56 L. Ed. 1114, 1135, Holmes, J., dissenting.

[3] This Court has itself, in situations other than that presented by the instant case, quoted the Holmes epigram. See Hammond v. Lancaster, 194 Md. 462, 483 (concurring opinion of Marbury, C.J.); Rogan v. Cook, 188 Md. 345, 352.

[4] Pickering v. Board of Education, 225 N.E.2d 1, 6. Justice Schaeffer and Chief Justice Solfisburg dissented.

[5] Cf. Baltimore Radio Show, Inc. v. State, 193 Md. 300, 323-331, cert. den., 338 U.S. 912, 94 L. Ed. 562.

[6] Since the Court's opinion of May 12 has not been published, we have set it out in an Appendix to this opinion.

[*] Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969.

[1a] Meehan v. Macy, ___ U.S.App.D.C. ___, 392 F.2d 822 (1968).

[1] In addition to the two stated reasons for my dissent from the majority opinion, it should be noted that I am also dissatisfied with the majority's mere assumption of the validity of the Police Department's Rules and Regulations. I find that Rule 1 (including Sections 12 and 16) of the Police Department of Baltimore City is valid and constitutional. However, since the majority opinion has not passed on this issue, it is unnecessary for the purposes of the case that I detail the law and reasoning which lead me to this conclusion.