vol. 24, no. 6

American

Civil Liberties

Union

Volume XXIV

San Francisco, California, June, 1959

Number 6

Lawless Enforcement of Law

-

ct

Convi

`Vag For

On Late

jurse as

jeing

Date

In consequence of being driven home from a late date,

Phyllis Kastler, a registered nurse and law student, was re-

cently convicted of violating the vagrancy statute by San

Francisco Municipal Judge Albert M. Axelrod. An appeal to

the Appellate Department of the Superior Court is pending.

Officer Bigarani Again

Miss Kastler was arrested by

none other than Officer William

G. Bigarani of the San Francisco

Police Department, who figures

in many questionable arrests un-

der the vagrancy law in the North

Beach area. He and his partner

charged Miss Kastler with being

"a lewd and dissolute person,"

and with wandering "about the

streets at late and unusual hours

of the night, without any visible

or lawful business." She was fi-

nally released on bail after tests

showed she was not infected with

a venereal disease. This is the

first time she has ever been ar-

rested.

Appearing in court with ACLU

Staff Counsel Albert M. Bendich,

Miss Kastler was informed by

Judge Axelrod that the charges

would be dismissed because the

complaining witnesses, Officers

Bigarani and his partner, had

failed to appear.

Insists On Trial

Miss Kastler thereupon pro-

tested the cavalier manner in

which the case was being handled.

She reminded the court that she

had been thrown into a dirty jail

cell, undergone quarantine, was

mugged and fingerprinted as a

common criminal and regained.

her liberty only upon posting

bail. This was now to be swept

aside without a trial in which she

would have an opportunity to

meet the charges.

to this procedure and requested

that she be given a trial.

Judge Axelrod thereupon. of-

fered to have the record ex-

punged and the fingerprints and

photographs destroyed, if Miss

Kastler would sign a waiver of

any possible damage suit against

the arresting officers. When she

refused, to sign the waiver, a trial

date was set.

At the trial Officer Bigarani

testified that he was really inter-

'. ested in making an arrest of Miss

Kastler's date whom he had dis-

covered was wanted because of

numerous traffic citations, and

that he took Miss Kastler along

merely for questioning. He also

testified that he decided to ar-

rest Miss Kastler after question-

`ing her, although the questioning

did not reveal any unlawful ac-

tion on her part. On the strength

of this "evidence" alone, Judge

Axelrod found her guilty of being

on the streets at late and unusual

-hours of the night, without any

visible or lawful business, and,

therefore, a vagrant. The "lewd

vag" charge was dismissed as be-

ing unfounded.

Miss Kastler was sentenced to

ten days in the county jail, but

the sentence was suspended. Mo-

tions in arrest of judgment and

In This Issue...

Barnhart Wins Secondary School

"Credential... . pg. 2

Brief Filed In Case of Barefoot

Wendy Murphy. ... pg. 3

High Court Dilutes Right of Pri-

VACY 2 pg. 4

Reverse Policy on Editorializing by

Stations 53270 3244. pg. 3

Right of Gov't Workers to Organ-

ize Upheld... ... pg. 2

`Security Program: Extension to

Non-Sensitive Jobs

Opposed ....... pg. 3

She objected |

for a new trial based upon the

insufficiency of the evidence and

the unconstitutionality of the va- .

grancy stature as construed and

applied were summarily denied

by Judge Axelrod. An appeal is

pending. :

Save the Date

Attorney General Stanley

Mosk will tentatively speak

on Friday evening, Septem-

ber 25, at the famous annual

ACLU potluck supper and

welcome - to - new - members in

the lovely gardens of Roger

Kent's home, 200 Woodland

Ave., Kentfield (Marvelous

Marin). The meeting is under

the auspices of the Marin

Chapter of the ACLU.

Please mark the date on

your calendar. All ACLU

members and friends are in-

vited. This is an excellent op-

portunity to get acquainted

with other ACLU members

and to meet many old friends.

Last year the potluck drew

650 persons,

While full details will be car-

ried in next month's NEWS, it

is anticipated that cocktails

and the potluck will begin at

6 p.m., while the speaking part

of the program should start at

8 p.m.

Sept. 25

Membership Record

On April 30, the ACLU's

membership stood at the record

figure of 4085 paid members and

143 separate subscribers to the

monthly NEWS, or a paid mail-

ing list of 4228. The previous

high of 4078 was attained last

October 31.

. Despite 186 May expirations,

the membership figures should

be well over the 4100 mark on

May 31. Lapsed members can

help the ACLU celebrate its

silver anniversary by renewing

their membership.

Another Victory

Scored in Army

Security Case

The Army last month handed

down a favorable decision in a

security case in which the sole

charge was membership in the

San Francisco Chinese American,

Youth Club. Involved in the case

was a 26-year-old citizen of

Chinese ancestry who was honor-

ably separated from the Army

in April 1958 after the usual two

year's of service as a draftee, The

question before the Army was

whether the man should be dis-

charged from the Army Reserve

as a security risk, Under the de-

cision, the man has been retained

~ in the Army Reserve,

The Charge

The allegation against the vet-

eran read as follows: "You have

been a member of the San Fran-

cisco Chinese-American Demo-

cratic Youth League since 1952

and have actively participated in

the activities and functions of

that organization from 1953 to

about April 1956, including your

attendance at approximately

thirty meetings of the Executive

Committee of that organization

during the years 1953-1955, The

San Francisco Chinese-American

Democratic Youth League, also

known as the `China-American

Youth' and the Chinese American

Youth Club is an organization

which supports and serves the

interests of the People's Repub-

lic of China and of the Union of

Soviet Socialist Republics in pref..

erence to the interests of the

United States."

Army Rules On Secret File

At the security board hearing

last February 9, held at the Pre-

sidio of San Francisco, the veter-

an admitted past membership , in

the club but contended that it

was not a subversive group. In

fact, it is not on the Attorney

General's list of subversive or-

ganizations, At the hearing, the

Army presented no witnesses and

made no effort to prove the group

was subversive, It relied entirely

upon a secret file.

This is the seventh Army se-

curity case handled by the ACLU

involving allegations of member-

ship in the Chinese-American

Youth Club. In each case, the

person involved has successfully

fought the security charges. In

One case, however, in which the

ACLU appeared after the in-

ductee received an Undesirable

discharge, the ACLU was in-

strumental in securing first a

General discharge and then an

Honorable discharge, but the vet-

eran was not retained in the

Army Reserve.

Jury

neck:

`Vag Case

After a four day trial, a jury for the second time failed

to agree upon a verdict as to whether Dalegor W. Suchecki, 24,

erstwhile chairman of the 24th Assembly District of Young

Republicans in San Francisco, is a vagrant.

Suchecki had been prosecuted under subsection 6 of the

Mrs. Poirier

Appointed to

ACLU Staff

Ernest Besig, ACLU executive

director, last month announced

the appointment as of May 25 of

Shirley M. Poirier as part-time

membership director to succeed

Mrs. Rosemary McQuarrie, who

resigned in order to take a full-

time job with the United Crusade. .

Mrs. Poirier will direct the reg-

ular Spring membership drive,

supervise volunteers, promote

special events, such as the

ACLU's annual membership

meeting and theatre benefits, as-

sist in the editing of the biennial

report and the monthly NEWS,

and help the Education Commit-

tee.

A resident of San Francisco

for the past year, Mrs. Poirier iis

married to a physician and has

one child.

Mrs, Poirier attended high

school in Aurora, Illinois, and

received her B.S. in journalism

from the University of Illinois

in 1951.

Mrs. Poirier's business experi-

ence includes two years employ-

ment as a courthouse reporter,

display advertising copywriter,

staff writer-public relations as-

sistant the Blue Cross Commis-

sion, editor, National Research .

Bureau, public relations assistant

University of Iilinois Professional

Colleges, Research and Educa-

tional Hospitals and editorial as-

sistant for the American Osteo-

pathic Association.

Any problems with respect to

the current membership drive

which is winding up should now

`be addressed to Mrs. Poirier.

Boyd Mem. Library

During the past,month, contri-

butions of $35 were received by

the ACLU for the Daniel L. Boyd

Memorial Library Fund, thus rais-

ing to $660 the total amount thus

far received in this fund.

Also, during the past month the

ACLU acquired all of the United

States Supreme Court decisions,

the U. S. Supreme Court Digest,

Political and Civil Rights in the

United States, 2d Edition, by Em-

erson and Haber, and a stack of

steel] shelving (now entirely

filled). Since these acquisitions

cost $587.70, there is a' balance

of $72.30 in the Boyd Memorial

, Library Fund.

ACLU Upholds Right of State

Employees to Oppose Loyaliy Tests

The American Civil Liberties

Union of Northern California

last month urged the California

Senate "to take appropriate ac-

tion to protect citizens from

bullying and intimidation when ,

they appear before committees

to express their views with res- (c)

pect to proposed legislation."

The request was contained in a

letter to Lieutenant Governor

Glenn M. Anderson, President of

the Senate, signed by Ernest

Besig, the ACLU's executive di-

rector.

Conduct Questioned

The ACLU declared its action

was prompted by the reported

conduct of Sen. John F. Thomp-

son of Santa Clara county toward

several witnesses who recently

testified against so-called loyalty

provisions of A.B. 244, a bill to

license social workers. "Sen.

Thompson demanded to

know whether they were Com-

munists, threatened public em-

ployees who oppose loyalty oaths

_with investigation and loss of

their jobs and generally com-

ported himself in an unseemly

fashion because he disagreed

with the views expressed by the

witnesses," said the letter.

' The ACLU said it did not ques-

tion Sen. Thompson's right to

disagree with the opinions of

persons who appear before com-

mittees, but "bullying and intim-

idation of citizens by legislators,

or vice versa, makes a mockery

of legislative hearings."

May Oppose Loyalty Tests |

"We are particularly dis-

turbed," said the ACLU, "by

Sen. Thompson's threat to have

public employees dismissed be-

cause they are opposed to loyalty

tests. Although required by law

to subscribe to the Levering Act

oath, public employees may

nevertheless NOT be required to

confess their faith in such laws.

And they should not be pilloried

because they take a position in

conflict with that of a senator,

even though it be on an issue

about which he feels strongly.

As Justice Jackson once pointed

out, `If there is any fixed star

in our constitutional constella-

tion, it is that no official, high

or petty, can prescribe what

shall be orthodox in politics, na-

tionalism, religion, or other mat-

ters of opinion or force citizens

to confess by word or act their

faith therein.' "

The letter reminded the Sen-

ate that in appearing before a

committee a "citizen is doing

nothing more than exercising his

constitutional right of petition,"

and that "legislators should res-

pect the citizen's right to a cour-

teous hearing."

vagrancy law, which provides

that every person who roams

about the streets at late or un-

usual hours without visible or

lawful business is a vagrant.

Statute Too Vague

Before the trial. began, ACLU

Staff Counsel Albert M. Bendich,

who represented Suchecki, pre-

sented a motion for dismissal to

Municipal Judge Byron Arnold,

the trial judge, on the ground

that the vagrancy law is so vague

and indefinite as to deprive a

person accused thereunder of any

ascertainable standard of guilt

and consequently any possibility

of conducting a reasonable de-

fense or of having a fair trial.

Although Judge Arnold agreed

that `the phrase roaming about

the streets "without lawful busi-

ness" required the breaking of

some law by Suchecki, he refus ed

to accept Bendich's contention

that, since Suchecki was not

oa charged with breaking any law

other than the vagrancy act, he

was, in effect, being charged with

being a vagrant because he broke

the vagrancy law on the night of

his arrest. In other words, Su-

checki was a vagrant because he

was a vagrant, and the only

standard by which vagrancy

could be measured was the purely

circular and tautological standard

of repeating but not defining the

charge.

Arresting Officer's Testimony

The arresting officer, George

O'Brien, testified that he had -

seen Suchecki on two occasions

prior fo his arrest. On all 3 ac-

casions that O'Brien saw him, the

latter was engaged in the dragnet

proceeding known as "Operation

S," in which selected members

of the San Francisco Police scour

certain areas for "suspicious"

persons, who are interrogated

and sometimes arrested.

The first time Officer O'Brien

saw Suchecki he was, according

to the officer, standing in front

of the Paramount Theater on ~

Market Street. When asked by

Judge Arnold whether there was

anything wrong in that, Officer

O'Brien of course, answered,

"No." The second time Officer

O'Brien saw him, Suchecki was

standing at the corner of Polk

and Jackson: Streets. O'Brien

stopped and asked Suchecki what

he was doing at the intersection

at 2:30 in the morning and Su-

checki replied that he was wait-

ing for a friend. Asked by Judge

Arnold again whether there was

anything unlawful in standing on

the corner of Polk and Jackson

Streets waiting for a friend at

2:30 in the morning, Officer

O'Brien had to admit that there

was not,

Looking for Apartments

The third time Officer O'Brien

saw Suchecki, he was walking on

Polk Street near Bush last March

12, Officer O'Brien questioned

him as to his reason for being

-Continued on Page 4

S. F. Meeting

Mrs, Arthur Bierman, co-

chairman of the San Francisco

Membership Campaign, an-

nounced last month that Er-

nest Besig, executive director

of the ACLU, will speak at a

meeting for prospective mem-

bers at the home of Dr. and

Mrs. Jacob Kahn, 3259 Clay St.

(near Presidio Ave.), San

Francisco, on June 4 at 8 p.m.

San Franciscans who want to

learn about the work of the

ACLU are invited to attend.

A folk singer will provide en-

tertainment.

"AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California -

Second Class mail privileges authorized at San Francisco, Calif.

ERNEST BESIG. . . Editor

503 Market Street, San Francisco 5, California, EXbrook 2-4692

Supse pion Rates-Two Dollars a Year

Twenty Cents Per Copy

Philip Adams

Theodore Baer

William K. Coblentz

Richard De Lancie

Joseph L. Eichler

John M. Fowle

Howard Friedman

Julian R. Friedman

Rev. Oscar F, Green

Zora Cheever Gross

Alice G. Heyneman

Mrs. Paul Holmer

J. Richard Johnston

Prof. Van D. Kennedy

Prof. Theodore J. Kreps

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. John Henry Merryman

VICE-CHAIRMEN: Dr. Alexander Meiklejohn, Helen Salz

SECRETARY-TREASURER: William M. Roth

HONORARY TREASURER: Joseph M. Thompson

HONORARY MEMBER: Sara Bard Field

EXECUTIVE DIRECTOR: Ernest Besig

Rev. F. Danford Lion

Seaton W. Manning

Rev. Robert W. Moon

Lloyd L. Morain

Rt. Rev. Edward L. Parsons

Clarence E. Rust

Mrs. Alec Skolnick

Fred H. Smith, IV

Theodosia B. Stewart

Stephen Thiermann

Franklin H. Williams

GENERAL COUNSEL

Wayne M. Collins

STAFF COUNSEL

Albert M. Bendich

A Safeguard for All of Us

. Every man,-woman and child who enjoys the freedom of

thought, speech and action for which this country stands

owes a debt to the American Civil Liberties Union. The

ACLU is an effective defender of individuals and groups

threatened by injustice growing out of inflamed public

opinion, prejudice, lack of money to hire legal help, the

arrogance or indifference of Jaw enforcement personnel, or

any other eroder of constitutional guarantees.

One day the ACLU will be protecting a racial minority

from bigotry. Another it will be fighting for the rights of a

left-wing group. Another it will be standing up for free

speech for a right-wing extremist.

For example, it fought discrimination against citizens of

Japanese ancestry during the war. It stood up for those who

wanted Soviet Premier Mikoyan to have a peaceful hearing,

and also for the right of Hungarians in Los Angeles to picket

him. It opposed the excesses of the late Senator Joseph

McCarthy-but when it felt the senate's censure of him was

illegal it offered to defend him.

As the Northern California Branch of the ACLU con-

cludes its Silver Anniversary appeal for members, these facts

are pertinent: ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_1950.MODS ACLUN_1950.batch ACLUN_1951 ACLUN_1951.MODS ACLUN_1951.batch ACLUN_1952 ACLUN_1952.MODS ACLUN_1952.batch ACLUN_1953 ACLUN_1953.MODS ACLUN_1953.batch ACLUN_1954 ACLUN_1954.MODS ACLUN_1954.batch ACLUN_1955 ACLUN_1955.MODS ACLUN_1955.batch ACLUN_1956 ACLUN_1956.MODS ACLUN_1956.batch ACLUN_1957 ACLUN_1957.MODS ACLUN_1957.batch ACLUN_1958 ACLUN_1958.MODS ACLUN_1958.batch ACLUN_1959 ACLUN_1959.MODS ACLUN_1959.batch ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1969 ACLUN_1969.MODS ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log

The ACLU exists for one purpose only-to fight viola-

tions of the rights guaranteed by the constitution.

Its intervention in a situation does not imply approval of

the cause or person involved, any more than our support of it

implies agreement with everything it does.

It is the only organization in the United States dedicated

to the defense of the constitutional rights of every American,

regardless of point of view.

It has never been on the attorney general's list of un-

American or subversive groups, and it was exonerated by the

only legislative committee that ever condemned it.

As tyranny spreads over more and more of the world,

and as governments tend to become more and more power-

ful, need for the ACLU increases.

So long as it is strong enough and fearless enough to de-

fend unpopular persons or causes, it deters those who would

`violate our rights as individual Americans and creates a cli-

mate in which our liberties can survive.

-KEditorial, Redwood City Tribune, May 19, 1959

Milo Keith Barnhart Wins

Secondary Credential

On May 16, the State Board

of Education accepted the rec-

ommendation of a hearing offi-

cer of the Division of Adminis-

trative Procedure that Milo

Keith Barnhart should be grant-

ed a General Secondary teach-

ing credential despite his con-

viction in 1951 as a draft eva-

der.

The Credentials Commission

had denied Barnhart's applica-

tion on the ground that he had

been convicted of an offense in-

volving moral turpitude. The

ACLU contended that moral tur-

pitude is not inherent in the

draft conviction of a conscien-

tious objector and rested upon

a decision to that effect by Su-

perior Court Judge Jay L. Henry

of Sacramento last December 23.

The hearing officer agreed

that Barnhart had been convict-

ed of an offense involving moral

turpitude but decided that "The

facts . . . show that respondent

ACLU NEWS

Page 2 June, 1959

has furnished reasonable evi-

dence of good moral character

at the present time and has be-

come rehabilitated. .. ."

1951, Barnhart's claims as a con-

scientious objector had been re-

jected because he did not go

along with the strict opposition

of the Church of the Brethren

(an~historic peace church) to

smoking, drinking and dancing.

He refused to accept a ruling

that he serve in the Army as a

non-combatant. -

Barnhart would have chal-

lenged the basis of the Board's

present ruling (that he

has become rehabilitated) were

it not for the fact that a legal

test of the ruling would prevent

him from accepting a teaching

contract in his home community

of' Cloverdale for the coming

school year which has already

been offered to him.

In the course of the proceed-

ings, Barnhart has been repre-

sented by Albert M. Bendich,

ACLU Staff Counsel.

ACLU anetey Statement

In

' to strike

Right of Gov' T

. _@ :

Organize Upheld

The national board of American Civil Liierties Union

declared recently in a major policy statement that govern-

ment employees should have the right to form or join labor

organizations of their own choosing, that there should be no

blanket prohibition on their right to strike and that where

governmental agencies recognize

union shop agreements no viola-

tion of civil liberties exists.

The policy statement, adopted

by the national ACLU Board of

Directors after a year's study by

the Labor Committee, emphasized

that the ACLU was commenting

only on the civil liberties ques-

tions raised by the self-organiza-

tion of public employees and was

not endorsing the rights defend-

ed in its statement. "We are not

concerned with the wisdom of

(self-organization), nor with the

political or economic aspects of

the matter except as they may be

elements of... civil liberties prob-

lems...," the statement said. In

approving the statement, the.

ACLU Board noted that cam-

paigns to organize public em-

ployees had been announced by

several unions in various cities in

the nation, and that it was giving

its view in order to assist the pub-

lic to understand the civil liber-

ties questions arising from these

drives.

Opponents Answered

In upholding the right of gov-

`ernment workers to form or join

labor organizations, the ACLU

recognized that this clashes with

the belief that freedom of asso-

ciation may be curtailed in cer-

tain circumstances. "Advocates

of this `limited right' assert that

the right of public employees. to

organize may be qualified where

a conflict of loyalties might af-

fect the performance of an em-

ployee's assigned tasks," the state-

ment noted. Rejecting this ar-

gument, the ACLU declared that

the determination of whether a

potential conflict of interests ex-

ists is largely subjective and is

`open to abuse that might result

in a bar to organizing in general.

The power to determine the con-

flict would rest with administra-

tive officials of "widely varying

competence," it said, and to allow

such an "essential civil liberty as

freedom of association to be de-

pendent on the orientation of a

single official is fraught with

danger." This is especially true

when the decision may not turn

on the actual needs of the public

service, but on the current popu-

larity or unpopularity of the

trade union or group involved.

The ACLU said that to assure

employees' loyalty in the face of |

possibly conflicting interests, ad-

ministrators could apply appro-

priate discipline and _ replace-

ment based on "objectively ob-

servable misconduct," and should

"intelligently recruit employees

and indoctrinate them in depart-

mental goals and values, and in

community responsibility."

`Limited Right to Strike

Opposing a total ban on strikes

in public employment, the ACLU

declared that work stoppages

should not be barred except

where ` `maintenance of uninter-

rupted service is essential to the

community." Even in such cases,

however, limitations of the right

"are, fully defensible

only if and when adequate ma-

chinery for handling employer-

employee relations has been es-

tablished." Precedent for such

action is set in private employ-

ment, the statement noted, as in

the Railway Labor Act and the

Taft-Hartley Act's provisions for

"national emergencies." In all of

these' situations, the ACLU em-

phasized, "the employee's prob-

lem receives attention.... Thus,

for example, if the President

forestalls a railroad strike by de-

cree, he must promptly appoint

an `emergency posrd: of impar-

tial and professionally competent

persons to investigate the under-

lying dispute and make recom-

mendations for its disposition."

Grievance Machinery

The ACLU suggested a specific

formula to handle the employee-

employer dispute where the right

to strike is limited. This would

provide: (a) Effective grievance

machinery, including arbitration

as the final step, to handle com-

plaints of alleged administrative

violations of legislative rules and

standards, or of agreements be-

tween administrators and em-

ployee groups; (b) Permission for

public employee groups to seek

revision of rules, standards, pay

scales or other terms of employ-

ment; (c) Provision for a fact-

finding board to inquire into

- problems that threaten a major

impairment of employee morale,

to assure "informed considera-

tion" of issues that, in other cir-

cumstances, might be fought out

through a strike.

Union Shop Agreements

On the controversial issue of

the union shop in government em-

ployment, the ACLU noted the

Taft-Hartley Act's allowance of

such agreements and the ACLU's

earlier non-objection to the un-

ion shop ip private employment

and concluded: "We are unable

to discern in public employment

any elements that would warrant

a different conclusion with re-

spect to government workers, so

long as the principles embodied

in the present federal law are |

scrupulously observed." The

ACLU stressed that it was not de-

ciding whether a governmental

unit should or should not enter

into union, shop agreements. "Our

question is, very simply, this:

If a public body does enter into

such an arrangement, have civil

liberties been impaired?"

Larger Issue of Freedom

The ACLU policy statement

discussed the competing free as-

sociation arguments raised by the

union shop. `"...a person who

wants a particular job may, as a

condition of employment, be re-

quired to join an organization he

might not otherwise have select-

ed. In a sense, then, his freedom

of non-association has been im-

paired. Nonetheless, a larger is-

sue of freedom to association may

be said to outweigh this impair-

ment. Many qualified observers

of labor relations in this country

feel that the workers' choice of a

bargaining representative will

often be nullified unless their un-

ion is assured of continuity in

the face of labor turnover. Hence,

the union shop may be considered

as a means of giving employees

a meaningful freedom of associa-

tion. A balancing of the freedom

-of association of the many as

against the freedom of non-asso-

ciation of the few has led the

ACLU to conclude that union

security provisions do not run

counter to civil liberties princi-

ples."

Speculative Dangers

The ACLU expressed concern

that individual instances could

create abuses that would raise

civil liberties issues. It -recog-

nized that a politically - favored

union which did not represent the

majority of affected workers

could be given a union shop con-

tract. And that an alliance be-

tween a government workers' un-

ion and a political party could

383 Members

Enrolled

By May 23

Zora Cheever Gross, Member-

ship Campaign Chairman, an-

nounced last month that the

drive was drawing to a successful

conclusion. On May 22, exactly

383 new members had been en-

rolled, many lapsed members had

been reactivated and 21 separate

subscriptions to the NEWS had

been added.

Financial Success

Financially, the campaign is

also doing very well. Receipts

thus far amount to $2914.99, in-

cluding a contribution of $150

from Mrs. Helen Salz to cover

25 gift subscriptions. Financially,

at this point, the campaign is the

third most successful of the

seven membership campaigns

which the ACLU has held, being

surpassed only by the 1952 and

1958 campaigns. The same holds

true for the membership figures.

At. this point in 1957, when

twenty fewer members had been

recorded than this year, the

membership figures ultimately

topped the 500 mark. Conse-

quently, there is every reason to

believe that the campaign will do

as well or better than that this

year. :

Berkeley Leads

The best showing thus far has

been made in Berkeley where

the campaign workers under

Mrs. Leon Lewis' leadership

have secured 81 new members.

San Francisco, under the joint

chairmanship of Sue Bierman

and Shelby Cooper, is running

second with 71 new members,

while San Mateo and Hillsbor- "

ough, under the direction of Mrs. -

Howard Friedman, is in third

place with an excellent achieve-

ment of 36 new members.

In Marin county, where the

drive is being coordinated by

Mrs. Leon Ginsburg, 22 new

members have been secured

after a late start. Excellent show-

ings have also been made in San

Cruz, where the campaign was

headed by Dr. Marvin J. Naman,

Palo Alto and Stanford, headed

by a committee, and Diablo Val-

ley, led by Dr. David G. Ed-

wards.

Butte County Participates

Special mention must also be

made of Butte county which par-

ticipated in its first membership

`campaign. Under the leadership

of Paul H. Finch 12 memberships

have been secured.

A chart showing the results in

all communities will appear in

the July issue of the NEWS. In

the meantime, the thanks of the

Board and the office go to the

hundreds of workers who have

not only strengthened the .

ACLU's financial support but

have done an excellent educa-

tional job as well.

SANFORD MEMORIAL

During the past month the

ACLU received $75 from various

persons in memory of Mrs, Don-

ald M. Sanford of Lafayette. A

total of $162 has now been re-

ceived.

threaten an employee's freedom

of political association as well as

intrude "an element of partisan-

ship in what should be, ideally,

non-partisan public services";

such an alliance might force em-

ployees to give political contribu-

tions and services contrary to

their beliefs. "These speculative

dangers justify watchfulness,"

the ACLU said, "but they are not

sufficiently urgent to warrant re-

jection of the general proposition,

that the union shop is and of it-

self a matter of civil liberties

concern. If abuses do occur, they

must be attacked as would be any

other abuse of governmental pow-

er that leads to invasion of the

interests the ACLU seeks to pro-

tect." The statement noted that

in 30 union shop agreements in

municipal government there have

been no cases of abuse reported.

Security Program

Extension to

Non-sensitive

ss Opposed

The American Civil Liberties Union put itself squarely on

record last month against any legislative effort to widen the

federal employee security program to include persons in

non-sensitiive postions..

The civil liberties group made its position known in

testimony before the House Post

Office and Civil Service Commit-

tee in Washington, D. C. The

committee is considering several

bills which would, in effect, re-

verse the U. S. Supreme Court's

1956 decision that held the secu-

rity program covered only sensi-

tive jobs. The bills would define

all government positions as in-

volving national security.

Testifying for the ACLU, Pro-

fessor Ralph S. Brown of the Yale

Law School and a member of the

ACLU Board of Directors, said

that the experience of the past

ten years had led the ACLU to

"the strong conviction that secu-

rity tests should be confined to

narrow limits, to sensitive jobs

that directly affect national secu-

rity." ,

Program Emphasizes Orthodoxy

The ACLU spokesman asserted

that the "whole atmosphere of

security tests emphasizes ortho-

doxy and conformity and discour-

ages freedom of thought and

opinion." Explaining why the

ACLU is opposed to extension of

the program, Professor Brown

said:

"A security program seeks to

detect and weed out those people

who are security risks. Security

risks are those whose beliefs, as-

sociations, habits and conduct

justify a decision that they are

not reliable. The testing of re

liability, in the context of the

Cold War and this legislation, is

most often a matter of political

reliability, of possible disloyalty.

Searching out such defects in-

volves extensive probing of pri-

vate beliefs, opinions and asso-

ciations. The methods that have

been used have been... repres-

sive and sometimes arbitrary."

Bulwarking the argument that

the program should be confined

to sensitive posts, Professor

Brown asked "how many em-

ployees of the Veterans Adminis-

tration or of the Post Office have

jobs that involve national secu-

rity? How many of the Indian

claims commission, or the Na-

tional Gallery of Art?"

Narrower Program Urged

The ACLU testimony urged the

committee to consider narrowing

rather than widening the scope

of the employee security pro-

_ gram, adding that instead of main-

taining procedures that infringe

on due process of law, "we

should be looking for a fuller

measure of due process for civil

servants. Instead of altering

piecemeal an already defective

statute, we... should take a fresh

look at the overlapping and con-

flicting laws and regulations that

' govern the appointment and re-

moval of civil servants."

Professor Brown said the gov-

ernment was not without ade-

quate laws to deal with disloyal

government employees. He noted

that general civil service laws and

the Lloyd-LaFollette and Veter-

ans Preference Acts give admin- .

istrative officials power to dis-

miss such employees under a gen-

_ eral "efficiency" clause, and that

the 1939 Hatch Act forbids gov-

ernment employment to persons

who advocate or belong to organ-

izations advocating violent over-

throw of the government.

Administrative Shortcuts

Declaring that the absence of

prosecutions under the Hatch Act

may be due to the requirement in

a criminal prosecution of full due

process, including specific proof,

Professor Brown suggested the

government sought administra-

tive shortcuts which did not de-

mand due process guarantees.

"Certain specific defects in the

proposed bills illustrate this ten-

dency to cut corners," he said.

"(The bills) conform to the pat-

tern of other security and loyalty

programs by permitting disclo-

sures of charges to be inhibited

by `security considerations'.

They do nothing to insure proper

confrontation in hearings and do

not require the findings on which

the hearing board and agency

head rely to be known to the em-

ployee," Professor Brown said.

Due Process Stressed

The ACLU spokesman, pressed

hard on the due process inade-

quacies in the present laws af-

fecting civil service employment

where such a serious charge as

disloyalty is leveled. He stressed

the ACLU's repeated urging that

attention be directed to the prob-

lems of due process rights for all

civil service employees," ... espe-

cially to establish the right of

applicants for government em-

ployment to secure a review of

denial of employment when the

denial is based on grounds unre-

lated to technical qualifications."

Hearing Denied

Ousted Adult

Ed. Teacher

Letterman Army Hospital last

month rejected an ACLU re-

quest. that they provide charges

and grant a hearing to an Adult

Education teacher who on April

10 was informed by a supervisor

that she was no longer accept-

able to the Army and that she

must leave at once. There had

been no complaint about the

teacher's services and no reason

has ever been given as to why

she was no longer acceptable.

The Hospital denied a personal

hearing to the teacher because

"such action is not provided for

by current regulations inasmuch

as she is not or was not a bona

fide employee of the Department

of the Army but an employee of

`the San Francisco Unified School

District."

In a letter to the Army, the

ACLU said it could only specu-

late as to the reason's for the lat-

ter's action. ". . . it is not unrea-

sonable to assume," said the

ACLU, "that her dismissal stems (c)

from associations with her for-

mer husband, who has had a de-

gree of notoriety, but from whom

she was divorced about four

years ago." The woman's hus-

band was one of the "Hollywood

Ten" who refused to testify some

years ago before the House Com-

mittee on Un-American Activ-

ities.

In its request for a hearing, the

ACLU pointed out that there

were no security aspects to the

teacher's job and "under like

circumstances,

ployee of the Army could not be

dismissed under the present se-

curity program" because non-sen-

_ sitive jobs are not subject to the

program.

"Even where the security pro-

gram applies," said the ACLU,

"civil service employees are en-

titled to a _ specification of

charges and a hearing before a

security board. Surely, in all

fairness, (this teacher) should

receive equal consideration."

a civilian em-.

7

Reverse Policy

On Editorializing

By Stations

The national board of the

American Civil Liberties Union

on May 3 reversed a ten-year pol-

icy and approved the principle

of radio and TV station editorial-

izing on public issues. The text

of the statement reads as follows:

Text of Statement

The American Civil Liberties

Union endorses in principle per-

mitting radio and TV stations to

editorialize in accordance with

the standard of public interest.

In upholding the right of stations

to editorialize on public issues,

the ACLU believes an editorial

should. be clearly identified as an (c)

expression of the station's opin-

ion. Such editorializing on any

subject matter should be done in

the context of a station's over-all

balanced programming, including

that subject matter. There need

not be an affirmative seeking out

of an opposing view in every in-

stance, except where the commu-

nity concerned has no other ade-

quate forum, but it should be

made clear that opportunity will

be offered for the presentation of

a responsible opposing view seek-

ing such opportunity."

Discussion and Diversity

ACLU spokesmen said it now

believed that granting - stations

the right to editorialize was an

important encouragement of dis-

cussion and diversity. They de-

clared, however, that insistence

on the "affirmative seeking out"

principle would hinder rather

than strengthen station editorial-

izing.

The ACLU spokesmen, also not-

ed that the new policy approved

editorializing only if it is present-

ed as part of the station's over-all

balanced programming, which in-

cludes the subject matter of the

editorial. For example, they said,

if a station puts on a forum dis-

cussion or dramatization of the

immigration laws and presents a

spokesman for or comment favor-

ing the current immigration sys-

tem, then the station is free to

oppose the system in an editorial

without including an opposition

spokesman. The station has of-

fered views on both sides of the

question.

Imbalance of Opinion

The concern that editorializing

can lead to an imbalance of opin-

ion in some communities is cov-

ered by the ACLU's insistence

that where such control of com-

munication media exists, opposi-

tion views should be sought out,

it was explained. It was also not-

ed that the ACLU statement called

on stations to present opposing

views when responsible spokes-

men requested time.

. public,

foot

The ACLU has filed a brief in the Appellate Division of

the San Francisco Superior Court seeking to set aside the

conviction last December 18 of barefoot Wendy Murphy. Miss

Murphy was convicted of resisting a public officer in the dis-

charge of his duties and battery. A vagrancy charge was dis-

missed by the court while the

jury acquitted her of the charge

of malicious mischief.

The Facts

Wendy Murphy. attempted to

enter the Bagel Shop last Octo-

ber 21, a restaurant in North

Beach then lawfully open to the

and orderly. She was

barefoot because after the thong

of one of her sandals had brok-

en, she had abandoned both of

them. Officer William Bigarani

stopped her and asked her to

identify herself, which she did

to his satisfaction. The officer

testified he then "told her that

if she made an attempt to enter

the Bagel Shop, I would place

her under arrest." The officer

charged her with vagrancy when

she persisted in trying to go in.

When the officer laid his hand

on Miss Murphy, she resisted and"

the two had a struggle. At the

station, Miss. Murphy waited

quietly until Officer Bigarani

came in when she "jumped up

and said, `keep him away from

Loyalty Oath for

N. Y. High School

Seniors Opposed

The New York Civil Liberties

Union has renewed its opposition

to regulations under which high

school seniors may not receive

diplomas unless school records

show their "moral character ...is

beyond reproach" and unless they

sign a pledge of loyalty to the

United States and to New York

state.

NYCLU's board of directors

argues that a student's actions

outside of school should not be

considered in the granting of a

diploma, and he should not be re-

quired to sign a loyalty pledge in

order to graduate.

John J. Theobald, superintend-

ent of the New York City public

schools, asked an associate super-

intendent to study the question

after meeting with a committee

from NYCLU. Directors of the

`civil liberties organization voted

to press the matter before the

board of education if necessary.

Segregation Charged

In S.F. Public Schools

In an anonymous letter to the

San Francisco Chronicle on May

19, a San Francisco school teach-

er charged that children of mi-

nority races are discriminated.

against in transferring to the bet-

ter junior high schools and that

school districts are gerryman-

dered.

The Chronicle explained it

does not ordinarily print anon-

ymous letters but it was doing so

in this case "because we believe

that this matter should be

brought to the attention of the

public and the authorities in-

- volved." Thus far, the school au-

thorities have remained silent.

The text of the letter, which

confirms information previously

secured by the ACLU, follows:.

Your editorial on school segre-

gation in Washington D.C.,

prompts me to write this letter.

As a native San Franciscan and

a gradeschool teacher in the

Western Addition area, I am

acutely and intimately aware of |

a very disturbing condition.

As our grammar school stu-

dents become ready to graduate

to junior high schools, my col-

leagues and I make every effort

(unofficial) to have our higher-

_ caliber, higher-potential students

enter the better junior high

schools. Because of geographic

restrictions, a transfer permit is

required to enter other schools

outside the school district. In

every case where the child is

white, a transfer permit will be

issued by the Board of Education.

However, if the child should be

Oriental or colored, the permit

is universally denied.

This denial of transfer, added

to the manifestly unfair gerry-

mandered school districts in and

about the Western Addition, con-

stitutes nothing less than school

racial segregation as an official

policy.

The One junior high school

located. in this school district is

almost exclusively colored (non-

white). Its scholarship standard

is low. Our better non-white stu-

dents in this area are not even

given an opportunity of being

chosen on the basis of scholar-

ship which, at least, the Wash-

ington, D.C., schools have at-

tempted. to provide. ;

San Francisco can and must

avoid the tradgedy of Philadel-

phia, Chicago and Detroit. Don't

say it doesn't affect your family.

If it hasn't it will. The problem

is here. It is complex. The prob-

lem, although difficult, is not

without solution, Quo vadis, San

Francisco?

A TEACHER

me.' She ran over and hid behind

Officer Gau who was on duty at

the station, crying: `Keep him

away from me, don't let him

touch me. Although several

other officers were on duty in

the station, Officer Bigarani, who

had just entered, came over and

`physically grabbed her and sat

her back in her chair'; and then

the defenant. threw a metal . .

paper punch, which she found

at her side, at Officer Bigarani,

striking him on the left elbow."

The Contentions

The brief contends that Of-

ficer Bigarani's attempted arrest

of Miss Murphy was illegal, with-

out any probable cause, and in

violation of her rights under the

Constitutions of the United

States and of the State of Cali-

fornia. It also argues that the de- |

fendant had the right to resist

the officer's illegal arrest, and

her resistance to it cannot con-

stitute the crime of interference

with an officer in the exercise

of his lawful duty.

The brief also contends that

Miss Murphy was not guilty of

battery, "since she acted only in

self-defense and in response to

Officer Bigarani's overreaching

and to his attempt to arrest her

illegally." Finally, the brief ar-

gues that the trial judge erred

"poth in the admission of evi-

dence for the People and in the

charge to the jury."

"If a police officer challenged

-Continued on Page 4

AEC to Respect

"Privacy" In

investigations

~The Atomic Energy Commis-

sion said last month that it found

"some merit" in a complaint

from the ACLU against their

security "office telephoning the

security officer of a contractor

and requesting him to instruct

an employee to report to (the

AEC) offices in Oakland for in-

terrogation." In the future, said

the AEC, "we propose to make

direct contact with the individual

either by letter or telephone."

This, it said, will be done in the

interest of "privacy."

The ACLU's complaint to the

AEC contended that "A third

person should not be used by

the Government in dealing with

an employee in security matters.

If the employee wishes to go to

your office on invitation, he can,

of course, ask his employer for

time off, but the decision is his

and the employer's authority

should have nothing to do with

the matter."

The AEC made no comment

on the ACLU's further conten-

tion "that the employee should

be informed as to the purpose

of the request and of his right

to be represented by counsel, if

he wishes." The ACLU pointed

out that employees of contrac-

tors are not at the beck and call

of the Commission. "They cer-

tainly are under no duty to sub-

mit to questioning under oath,

etc. by AEC representatives in

your. office," the ACLU declared.

"It would seem to us," the

ACLU letter went on to say,

"that the proper way to handle

such a request would be by writ-

ten invitation to the employee

in which the purpose of the in-

terview was clearly stated and in

which his rights were ex

plained."

ACLU NEWS

June, 1959 Page 3

Privacy

A citizen's home now may be entered without a search

warrant, if the search be for unsanitary health conditions, but

not if the officers are searching for criminal evidence.

This was the 5 to 4 decision of the Supreme Court on

May 3 in the case of Frank vs. Maryland, which held that

health inspectors could enter a .

private home in Baltimore, with-

out a warrant, to search for evi-

dence of infestation by rats.

Health Code

_ The court was interpreting the

Baltimore City Code which pro-

vides that "Whenever the Com-

missioner of Health shall have

cause to suspect that a nuisance

exists in any house, cellar or en-

closure, he may demand entry

therein in the day time, and if

the owner or occupier shall re-

fuse or delay to open the same

and admit a free examination, he

shall forfeit and pay for every

such refusal the sum of Twenty

Dollars."

A strong dissent written by

Associate Justice William O.

Douglas argues that the decision

whittles away the protections of

the Fourth Amendment guaran-

teeing against unreasonable

search and seizures. He quotes

the famous statement by the

elder William Pitt in support of

his interpretation of this consti-

tutional protection, carried over

from English experience:

"The poorest man may in his

cottage bid defiance to all the

force of the crown. It may be

frail; its roof may shake; the

wind may blow through it; the

storm may enter, the rain may

enter-but the King of England

cannot enter; all his forces dare

not cross the threshold of the

` ruined tenement."

Majority View

The majority opinion, written

by Associate Justice Felix Frank-

furter, obviously decided to trim

the ancient Anglo-Saxon right

on the ground that modern,

crowded, city living at times re-

quires health inspection. He did

not say why the requirement of

a search warrant would hobble

the health inspectors.

The opinion did note, however,

that the Baltimore code strictly

limited the inspection power.

The inspector must come in the

daytime and must. show valid

grounds for believing unsani-

tary conditions exist. He may

not. force entry into the house.

But if the owner does not admit

him, the owner may be fined.

Mr. Justice Douglas suggested

that one privileged inspection.

might lead to larger abuse.

"In some states the health in-

spectors are none other than the

police themselves," he wrote.

"In some states the presence of

unsanitary conditions gives rise

to criminal prosecutions. .. . If

a fine may be imposed, why not

a jail term?"

Right of Privacy Diluted

He concluded: "The decision

today greatly dilutes the right of

privacy which every homeowner

had the right to believe was part

of our American heritage."

Mr. Justice Frankfurter con-

cluded that the primary aim of

the Fourth amendment was to

protect a man's home against in-

discriminate searches "for evi-

dence to be used in criminal

prosecutions for illegal goods,

such as smuggled merchandise"

-not against sanitary inspection

which would be likely, at most,

to lead to monetary fine.

Mr. Justice Douglas held, to

the contrary, that the Fourth

Amendment was designed to

protect the privacy of the home

against any official intrusion

without a warrant. He cited early

- eases to show that English law

defended homes against searches

for "the non-conformist" of any

ACLU NEWS

June, 1959

Page 4

sort -an editor critical of the

King, for example. :

Fears of Officials

"The fear that health inspec-

tions will suffer if constitutional

safeguards are applied is

strongly held by some. Like no-

tions obtain by some law-enforce-

ment officials who take short

cuts in pursuit of criminals. The

same pattern appears over and

again whenever government

seeks to use its compulsive force

against the citizen," Mr. Justice

Douglas declared. ;

"Health inspections are im-

portant. But they are hardly

more important than the search

for narcotic peddlers, rapists,

kidnappers, and other criminal

elements."

Searches for such people re-

`quire warrants. He added that a

magistrate's warrant would have

been easy to obtain in the Balti-

more case.

The Baltimore mercctn find-

ing evidence of rat infestation

around the house, asked for per-

mission to inspect the basement

-without a warrant-and was

refused.

Demands of Modern Living

Mr. Justice Frankfurter ar-

gued centrally that modern liy-

ing required judicial modifica-

tion, saying: "The need to. main-

' tain basic minimal standards of

housing to prevent the spread of

disease and of that pervasive

breakdown in the fiber of a peo-

ple which is produced by slums

. has mounted to a major con-

cern of the American govern-

ment."

He referred to "increased

awareness of the responsibility

of the state for the living condi-

tions of the citizens," and added,

"the need for preventative ac-

tion is great, and city after city

has seen this need and granted

the power of inspection to its

health officials."

Oppose Teaching

Of Religion In

Chicago Schools

The Illinois Division of the

ACLU has asked the Church Fed-

eration of Greater Chicago, a

group comprising the leading

Protestant churches, not to inject

religious controversy into public

education. The Federation re-

cently issued a statement oppos-

ing "secularism" and calling for

the "teaching of the functional

significance of religion" in public

schools.

The ACLU charged that the

Federation's recommendations

would result either in "frankly

sectarian instruction or will be-

come the basis of a carefully neu-

tral state-engendered religion,

which would conflict with what

the child is taught at home and

in the church of his own choos-

ing."

Although the Church Federa-

tion expressly endorses the prin-

ciple of separation between

church and state and explicitly

opposes sectarian instruction in

the public schools, the ITlinois

ACLU replied that the Federa-

tion's objectives could not be

achieved without violating the

First Amendment or referring to

"forbidden sectarian doctrine."

"We sincerely hope," conclud-

ed the ACLU, "that the Church

Federation will urge its members

to concentrate on religious edu-

cation in the home and.church.

Under our form of democracy,

here-not in the public school-

is where religious oo be-

longs."

3 Witch-Hunting

Bills Before

Legislature

Three witch-hunting bills have

now been introduced in the State

Legislature. Two of the bills are

aimed at over-coming the US.

Supreme Court's decision in the

Speiser case, outlawing the re-

quirement of a loyalty oath in

order to secure property tax ex-

emptions, while the third bill

seeks to disbar subversive

lawyers.

A.B. 2052, introduced by As-

semblyman Louis Francis of San

Mateo and supported by 25 other

assemblymen, would continue

the requirement of a loyalty oath

to secure property tax exemp-

tions but the assessor would de-

termine the question only "upon

evidence received from a law

enforcement or other govern-

mental agency, and after an op-

portunity for a hearing." An ap-

peal from an adverse decision

could be carried into the courts.

S.B. 859, by Sen. Dilworth, is

similar to the Francis bill ex-

cept that it would not require a

loyalty oath for the veteran's tax

exemption.

The third witch-hunting bill is

A.B. 2716 by Bruce F. Allen of

Los Gatos and 14 other assembly-

men. It would strengthen the

law to bar subversive lawyers by

not only permitting disbarment

of attorneys who advocate the

overthrow of the Government of

the United States or of any sub-

division thereof by force or vio-

lence or by assassination of any

officer of such government, but

permit disbarment of any attor-

ney who with intent to cause

such overthrow prints, edits, is-

sues, sells or publicly displays

any matter advocating such over-

throw.

Brief Filed in

Case of Barefoot

Wendy Murphy

Continued from Page 3-

one of the Judges of this Court as

he was about to attend a perform-

ance at the San Francisco Opera

House and threatened to arrest

him if he went on into the build-

ing; and if the policeman then

made good his threat, this com-

munity would be shocked to its

roots," the brief asserts. "Yet, in

principle, this is no different

from what Officer Bigarani did

to Miss Murphy. .

Shocking Police Conduct

"This is shocking conduct on

the part of the police. It is simi-

lar in principle to such police

dictatorships as Soviet Russia or

Nazi Germany. We appreciate

that the police have substantial

problems of law enforcement in

the North Beach area, but their

concern does not relieve them

of the duty to respect the rights

of all persons, and surely it gives

them no blanket fiat to order the

public's coming and goings at

whim."

The brief also argues that

"Since the original effort to ar-

rest the defendant for attempt-

ing to enter the Bagel Shop was

totally unlawful, her resistance

to that arrest ... was lawful and

in implementation of her Feder- -

al. and State Constitutional right

not to be arrested without due _

process of law. Such resistance

on her part could not Constitu-

tionally constitute a public of-

fense."

Basic Rights and Freedoms

"Tt will be a sorry day for us

all," the brief concludes, "when

the police can highhandedly tell

the public, without cause, to stay

out of orderly public places on

pain of arrest and punishment.

The appellant quite justly re-

fused to acknowledge such police

importunities. However impru-

dent this may have turned out

for her, and however incongru-

ous the setting, she was defend-

ing the basic rights and free-

doms of us all. She committed

no offense... ."

The brief was prepared by

volunteer ACLU attorney Kurt

W. Melchior of San Francisco.

Oral arguments in the case are

expected to take place in the

near future.

Second Hung Jury in

Suchecki "Vag' Case

Continued from Page 1-

on the street again at 2:30 in the

morning. Suchecki replied that

he had been to an Executive

Board meeting of the Young Re-

publicans, had had a good deal of

coffee to drink, was not sleepy

and had therefore decided to can-

vass the general downtown area

for apartment locations as a favor

for two young ladies who were

members of the Executive Board

and at whose home the evening's

meeting had been held. Suchecki

showed Officer O'Brien a list of

apartments which he had already

been able to note the addresses

of and gave him the names of

the young ladies on whose behalf

he was gathering the information

and also asked Officer O'Brien

to call them to verify his story.

Officer O'Brien made no effort

to check Suchecki's explanation

`and instead arrested him as a

vagrant.

Beat Patrolman Also Testifies

The only other witness who

testified against Suchecki was a

police officer named William

Wilson, a beat patrolman, who

stated that he had seen Suchecki

at least on an average of 4 or 5

times a week over a 6 months

period on the streets at late and

unusual hours and that the areas

in which he had seen him were

known to the police as gathering

places for homosexuals. Wilson

also claimed to have seen Su-

checki on "at least four separate

occasions" standing on the streets

and engaging in lewd gesturing

whenever males passed by.

Officer Wilson conceded on

cross-examination that he could

not have seen Mr. Suchecki 4 or

5 times every week over a six

month period because he was on

vacation during one of the

months of the period and, more-

over, never worked more than

every other week on a night

shift. As to times and places

when he had seen the alleged

lewd behavior, Officer Wilson

was completely at sea. As he put

it, those times could have been

any week of any month of the

six month period during which

he testified having seen Mr.

Suchecki 4 or 5 times per week.

Asked whether he had ever made

an effort to make an arrest for

the lewd behavior which Suche-

cki had allegedly engaged in,

Officer Wilson conceded that he

had not.

Previous `Vag' Arrest

He did, however, arrest Mr.

Suchecki on December 26, 1958

on a charge of vagrancy including

lewd behavior because, as Officer

Wilson described it, he saw Mr.

Suchecki holding a drunken

sailor on Eddy Street and he dis-

believed Suchecki when he told

him that he had tried to assist

the intoxicated serviceman, On

cross-examination, Officer Wil-

son conceded that there was no

evidence at the time of Suchecki's

arrest of any lewd or perverse

behavior on his part. These two

charges against Suchecki were

later dismissed by the District

_ Attorney's office.

Officer's Testimony Irrelevant

All of Wilson's testimony was,

of course, strenuously objected

The first right of a citizen

Is the right

To be responsible.

to on the ground that it was ir-

relevant and prejudicial. The ar-

resting officer, O'Brien, had testi-

fied that he knew nothing what-

ever about what Officer Wilson

might testify to since Suchecki's

arrest had been based only upon

O'Brien's sighting of Suchecki on

the 3 occasions described above.

It was argued that an arrest could

not be legalized by any informa-

tion not known to the arresting

officer at the time of the arrest

and Judge Arnold asked the

prosecution whether it was their

theory that, in a vagrancy prose-

cution, anything that ever had

happened could be placed in evi-

dence to indicate the character

of the accused. The prosecution

answered in the affirmative, In

an ordinary criminal prosecution,

of course, a record of arrests

could not be introduced as evi-

dence of criminal behavior by the

People.

Although Judge Arnold agreed

that Officer O'Brien's testimony

alone was insufficient to allow

the case to go to the jury, he felt

that the testimony of Officer Wil-

son made it possible for the jury

to draw inferences of improper

reasons on Suchecki's part for

being on the streets at late and

unusual hours, Since vagrancy is

an offense of status and not

action, it is a "continuing" of-

fense which subjects the offender

to arrest at any time after he has

acquired the character of a vag-

grant and before he has reformed

therefrom.

Young Republicans Unfriendly

In attempting to defend him-

self, Suchecki subpoenaed 7

former associates of his in the

Young Republicans, none of

whom would concede to having

known him sufficiently to ex-

press an opinion regarding his

character or even of knowledge

of his reputation, notwithstand-

ing the fact that one of them, for

example, had been a co-editor

with him of the newsletter pub-

lished by the 24th Assembly Dis-

trict Young Republicans over a

six months period. Suchecki was

thus cast in the role of a mystery

man about whom nothing was

known, neither good nor bad, al-

though apparently enough was

known about him to result in his

being elected to leadership in the

organization. It appeared to be

a case "not of loving Caesar less,

but of loving Rome the more."

Other Witnesses

Other witnesses testified as a

Suchecki having a good reputa-

tion for truth, honesty and integ-

rity and to having a favorable

impression of his reputation and

character and of never having

heard anything derogatory about

him.

The jury was out 2% hours

before returning with informa-

tion that it had deadlocked at

6-6 on its first ballot, 7-5 on its

second ballot and that there was

no hope of any agreement. The

District Attroney has not yet de-

cided whether he will prosecute

Suchecki a third time,

-A.M.B.

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