vol. 34, no. 12

American

Civil Liberties

~ Union

Volume XXXIV

SAN FRANCISCO, DECEMBER, 1969

Luxury Bay Week-End

90-FOOT SCHOONER "MAKRELE"

Drawing for an idyll

Aboard Schooner 'Makrele'

Sailboaters, sunworshippers, Save-the-Bayers, artists, bird-

watchers, or just plain loafers have a unique opportunity to

try for six luxurious accommodations on a week-end cruise of

the San Francisco Bay aboard the 90-foot Diesel-powered

Baltic schooner belonging to Carol and Paul Ammen of the

Mt. Diablo Chapter who sailed

her here from Germany. To help

solve ACLUNC's financial crisis,

the Ammens have made their

generous offer as a fund-raiser.

Depending on the weather, which

can be magnificent in late Janu-

ary, by the way, the cruise will

take place over the weekends

of January 24 or January 31.

Where They Go

"Makrele" will sail from a port

as yet unspecified, after lunch

on Saturday. Winners, in consul-

tation with Captain Ammen, will

determine where on the Bay they

want to go, Angel Island?

Around Alcatraz? Shelter Cove

- on Belvedere? Outside the Gold-

en Gate? Participants will be put

ashore late Sunday afternoon.

Winners will be guests of the

Ammens who will provide every-

thing including crew, food and

drinks. Just step aboard. No high

heels, please!

Ten Dollars Per Person

Two lucky couples will be se-

lected at a drawing of tickets

costing $10 per person. Time and

place of the drawing will be an-

nounced in the January "News."

There will be two drawings.

The holder of the winning ticket

from the first drawing will: (1)

obtain two accommodations on

"Makrele" and (2) be entitled

to invite another couple. (Un-

paid social obligations, anyone?):

The holder of the winning ticket

in the second drawing will get

the two remaining accommoda-

tions. Ticket holders need not

be present at the drawing in or-

der to win.

How To Secure Tickets

Tickets are available from the

ACLUNC office

cisco. Arrangements are also un-

derweigh to make them available

through the chapters. Wouldn't

chances on this cruise make

good Christmas presents for that

person "who has everything?"

Members should take advantage

of this unusual, tax-deductible,

opportunity to sail the Bay in

safety and elegance and, of

course, to help the ACLU as

well?

In sending for tickets: PLEASE

write "Bay Cruise' on your

check and provide complete ad-

dress and telephone number.

Please print legibly because

checks are not always imprinted

with the name and address of -

the signer, Hurry, hurry and

sign up. This is not, quite ob-

viously, something that is offered

every day.

Membership

Stands at 7805

At the end of the fiscal year

on October 31, the ACLUNC's

paid-up membership stood at a

record 7805, a net gain of 176

members for the year, In addi-

tion, there were 205 separate

subscribers to the monthly

NEWS and a paid-up mailing

list of 8,010. :

in San Fran- .

Reinstate Union

Member Ousted

For Criticizing

Max Mendoza, a member of the

Sacramento Local of the Labor-

ers International Union, unsuc-

cessfully ran for office in a bit-

terly contested election, after

which he roundly criticized both

the winning slate and the process

that gave them victory. He was

accused of slandering the mem-

bers, and a hearing panel (se-

lected by the winners) found him

guilty, He was deprived of his

' "voice and vote" for three years.

Landrum-Griffin Case

Mendoza appealed to the In-

ternational and sought help from

ACLUNC, Volunteer attorney

Marcus Vanderlaan of Sacra-

mento appeared for Mendoza at

the appeal and pointed out that

the "Landrum-Griffin Bill of

Rights," passed by Congress in

1959, protected the right of every

union member to express "any

view, arguments and opinions...

upon: candidates . . or upon

any business properly before the

(union) meeting."

Stormy Hearing

In a somewhat stormy hearing

Vanderlaan argued that the

courts had interpreted this pro-

vision as prohibiting the punish-

ment of a union member by the

union for such things as libel

and slander-although the other

members could, of course, take

their case to court.

Punishment Reversed

Reluctantly, the International

Union recognized the state of the

law and reversed the punish-

ment, while charging in its deci-

sion that the court interpretation

relied on by Mendoza "have re-

sulted in undermining the au-

thority of the Local Union to op-

erate as an institution."

- an-ounce tax on

Court of Appeals Ruling

lts a Crime to

~@ Be An Alcoholic

In Public

_ The United States Court of Appeals has affirmed a fed-

era] district court decision upholding the constitutionality

of California's public drunkness statute as applied to a

chronic aleoholic.

The challenge was made on behalf of Thomas Budd, a

chronic alcoholic who has had a ~

record of 36 drunk arrests; it

was begun in the Oakland Muni-

cipal Court when former staff

counsel Marshall Krause argued

that a law against public drunk-

enness, when applied to an al-

coholic, punishes the alcoholic

not for a crime voluntarily com-

mitted but for a disease. The

trial court ruled against. Budd,

the Superior Court upheld that

determination, the appellate

courts of California refused to

pass on the question and the

United States Supreme Court,

Justices Douglas and Fortas dis-

"Controversial

Pins' Banned by

State Office

The manager of the Third

Street office of the Unemploy-

ment Insurance department of

the Department of Employment

in San Francisco was reversed

by his Sacramento superiors

last month after he sought to en-

force a regulation banning the

wearing of "controversial . pins,

signs and slogans." One woman

was told to remove a belt which

bore a peace symbol and when

she objected that her skirt would

fall down, she was sent home.

Another empioyee was told to re:

move a peace symbol from his

coat. The Assistant Personnel

Director in Sacramento suggest-

ed that their San Francisco man

had ``over-reacted."

The regulation in question was

adopted during the Brown re-

gime. It declares that "Em-

ployees shall not display where

it can be viewed by the public

controversial pins, signs and

slogans." The Sacramento inter-

pretation apparently means at

least peace is not controversial.

The ACLU suggested to the

State office that it should re-

examine its regulation. If the

regulation is applied, said the

ACLU, it will generate. more

controversy than it eliminates.

The ACLU couldn't get any of-

ficial to attempt a definition of

what is "controversial."

Marijuana

Tax Garnishee

Dropped by I.R.S.

Bob Bolich of San Francisco

was arrested for possession of

four marijuana seeds, but the

charges were later dismissed.

The Internal Revenue Service

then billed him for the $100-

unregistered

marijuana under the Marijuana

Tax Act. Upon his refusal to

pay, IRS garnished his wages,

with the cooperation of his em-

ployer.

The Supreme Court recently

ruled a Wisconsin garnishment

statute unconstitutional because

no hearing was provided before

money was taken. It has also, in

the recent past, struck down reg-

istration requirements similar to

those in the Marijuana Tax Act

as violating the privilege against

self-incrimination. Claiming that

the IRS action was an unconsti-

tutional garnishment for failure

to pay an unconstitutional tax.

ACLUNC volunteer attorney

Tom Silk filed a claim for the

money with IRS and threatened

suit. The IRS then abandoned

its claim to Bolich's money.

senting, refused to review the

case. A writ of habeas corpus

was then filed in the federal dis-

trict court.

Supreme Court Decision

While the petition for habeas

corpus was pending in the fed-

eral district court the United

States Supreme Court agreed to

review a case raising similar

issues. That case, Powell v.

Texas, was decided in 1968 by a

Court which divided 4-1-4 in af-

firming the conviction of ac-

chronic alcoholic for public

drunkenness. Four Justices de-

clared that such a conviction did

not violate the prohibition

against cruel and unusual pun-

ishment, four dissented and de-

clared that it was cruel and un-

usual punishment, and the ninth

Justice Byron White, left the

matter open to be decided on the

facts of each case. Justice White

stated the pivotal question was

whether the particular defend-

ant could resist becoming intoxi-

cated and being in public. If the

defendant's conduct was not at

all voluntary then, in White's

view, a conviction for public

drunkenness would be cruel and

unusual punishment. White. did

not find sufficient evidence in

the Powell record to disclose

that Powell had not become vol-

untarily drunk and had net vol-

untarily appeared in public.

Lower Court's Ruling

After the Powell decision the

Budd matter came on for hear-

ing before district court Judge

Oliver Carter who found Budd's

conviction constitutional under

the authority of the Powell case.

Judge Carter's decision was ap-

pealed and volunteer ACLUNC

attorney George F. Duke con-

tended before the Court of Ap-

peals that Budd's case, unlike

Powell's, contained medical tes-

timony establishing that he had

no control over his drinking and

that his pattern of conduct when

drunk was uncontrolable. Budd's

case was further distinguished

from Powell's by the fact that

the California and Texas laws

are different. The Texas law

under which Powell was con-

victed made it a crime to be

drunk in public; the California

law, however, makes it unlawful

for a person to be intoxicated in

public "in such condition that

he is unable to exercise care for

his own safety or the safety of

others." This extra condition,

Duke urged, made simple inabil-

ity to act a crime. If the in-

ability of an alcoholic to care

for himself or others can be

made a crime then the inabili-

ties to "act" created by any other

disease could equally be made

a crime. Moreover the standard

is hopelessly vague.

Appeals Court's Position

The United States Court of

Appeals was not persuaded. The

court concluded that the Powell

decision was controlling and that

Budd is not "being punished for

being a chronic alcoholic; nor is

he being punished for drinking.

He is being punished for the per-

formance of an act forbidden to

one while in a state of extreme

intoxication: that of appearing

in a public place." The court re-

jected the void-for-vagueness con-

tention on the ground, which

seems beside the point, that a

regulation of drunkenness in a

public place is "reasonable."

The United States Supreme

Court will be asked, once again,

to review the Budd case.

U.C.'s Dan Siegel Case

Disciplinary

Procedure

Challenged

Dan Siegel, a student at Boalt Hall Law School, was elect-

ed president of the Associated Students of the University of

California last spring. He was to have become president: of

the Berkeley campus this fall. Before he assumed his duties,

however, University discipline was imposed upon him whicli

prohibited him from participat-

ing in student activities includ-

ing serving as student body

president.

~ "Take the Park"

`The discipline was predicated

upon an event that occurred last

May 15, On that date, Siegel, to-

gether with a number of other

speakers, addressed a massive

student rally at the University

in protest of the University's ac-

tion in placing a fence around

University property that had

been converted into a "People's

Park" by students and Telegraph

Avenue "street. people.'" In the

course of his remarks to the ga-

thering Siegel made the follow-

ing statement: "go down there

and take the park." After the

rally there was a confrontation

between students and law en-

forcement officials with the re-

sult that the National Guard

was called into Berkeley.

- Incitement Charged

The Alameda District Attorney

charged Siegel with "inciting a

riot" and the University imposed

its discipline on the ground that

Siegel, by making the speech,

had violated certain University

rules such as the one prohibiting

"conduct which adversely affects

the students suitability as a mem-

ber of the academic community."

Siegel brough suit in the fed-

eral district court challenging

the constitutionality of the Uni-

versity action and contending,

among other things, that the reg-

ulations under which he was

disciplined were too broad and

vague to serve as standards for

punishing an alleged ``incite-

ment." It is upon that point that

`"ACLUNC is supporting Siegel.

"Verbal Act"

In October Federal District

Judge William T, Sweigert is-

sued a decision denying relief to

Siegel and finding that his

speech was not First Amendment

protected but was "a verbal act."

Siegel's attorney, Doris Walker

of Oakland, has asked Judge

Sweigert to reconsider his de-

cision and staff counsel Paul

Halvonik has filed a legal memo-

randum and appeared before

Judge Sweigert as a friend-of-

the-court in support of the mo-

tion.

Factual Issue

"The remark of plaintiff Siegel

which the University found most

offensive was his statement, `go

down there and take the park,' "

Halvonik noted in his argument

to the court. "Indisputably Sie-

gel's remark was the expression

of an idea that is protected by

the Constitution. Had the re-

mark been made in the class-

room during a discussion of the

merits of direct action this court

unquestionably would enjoin any

university action punishing Sie-

gel for the utterance. The re-

mark, however, was not made

during a theoretical discussion in

the classroom but to a student

rally and, the University con-

tends, it thus lost its constitu-

tional protection. Perhaps the

University is correct and then

again perhaps it is not. Whether

the speech lost its protection is

a factual question to be resolved

according to a proper standard

ACLU NEWS

DECEMBER, 1969

Page 2

and the problem here is the Uni-

versity has not given Siegel a

hearing where the fact finding

body was guided by the proper

constitutional standard. Under

the University's vague rule Sie-

gel was punished for speech

that, even under the circum-

stances, may have been constitu-

tionally protected."

' Immediate Danger Necessary

ACLUNC takes the position

that the court may not through .

some alchemy turn speech into

"conduct." All political speech

is constitutionally protected and

cannot be defined out of the

First Amendment. Speech can

lose its protected status when it

is uttered with the intent to in-

cite a riot under circumstances

that present a clear, present and

immediate danger of a riot. The

University's regulations, how-

ever, did not direct that discipli-

nary fact finding body's atten-

tion to that standard and did not

inform that body that Siegel's

speech was constitutionally pro-

tected unless it occurred in

clear and present danger condi-

tions. That a fact finding body

need not necessarily conclude

that Siegel's speech was not con-

stitutionally protected was dem-

onstrated two days before the

motion for rehearing was heard

before Judge Sweigert when a

Berkeley jury, guided by the

proper constitutional standard,

acquitted Siegel of the charge

of incitement to riot.

Judge Sweigert has taken the

motion for reconsideration under

submission and a decision is ex-

pected shortly.

Fair Hearing

Denied Expelied

Jr. Coll. Student

- Richard Perlman, a student at

Shasta Junior College in Red-

ding, invited two Socialist speak-

ers to the campus, This earned

him the wrath of the adminis-

tration, which claimed that he

had violated a regulation by not

getting permission from the Dean

of Students as well as the Presi-

dent and Vice-President of the

College. On an hour's notice and

after a conference with his ac-

cusers, he was suspended for

several days and placed on dis-

ciplinary probation for the rest

of the year. Later a condition

of probation was added to the

effect that he could handle no

student body funds. When he

openly did so (he was a ticket-

taker for sporting events) he was

notified of a hearing to consider

his expulsion,

Pre-Judgment

The hearing board, the Col-

lege's Board of Trustees, was ap-

parently very responsive to out-

rage in the community: two days

before the hearing, a representa-

tive of one of the board mem-

bers appeared at a Chamber of

Commerce meeting, announced

they were going to expel Perl-

man, and asked for a resolution

supporting that action. The

Chamber of Commerce, to its

credit, refused.

Perlman was, not surprisingly,

expelled. Henry Saunders a Red-

ding attorney, sought a writ of

mandate in the Superior Court

to reinstate Perlman. At the

hearing other facts were un-

earthed: for example, the Presi-

dent of the Board of Trustees

was described by a local attor-

ney as having said, before the

hearing, that the board had

unanimously decided to expel

Perlman. .

Superior Court Victory

Perlman won in the Superior

Court, and the school appealed.

ACLUNC has filed an amicus |

brief contending that a student

at a public institution of higher

education cannot be suspended

or expelled without notice and a

fair hearing, and that the board

hearing Perlman's case was so

hopelessly prejudiced that he was

denied due process of law, Argu-

ment wil] take place in the Third

District Court of Appeal next

year,

ACLU Holds Successful

Chapter Conference

Over 70 people attended the all day Chapter Conference

held at the Friends Center on October 4th. The vast majority

were members active in the eleven Chapters, with a number

from a group in San Francisco interested in forming a

Chapter, and seven members

rectors.

Workshops

The day's activities began with

reports from each of the Chap-

ters, summarizing their pro-

grams and experiences, and fol-

lowed by a talk by Ernest Besig

on the structure of ACLUNC.

Participants then broke-up into

groups to discuss matters of

Branch-Chapter relations, which

resulted both in clearer under-

standing of the situation as it

exists, and proposals for changes

which will be considered by the

Branch Board of Directors. The

workshops each concentrated on

one of the following areas: Fi-

nances, Chapter Autonomy, and

Building Membership and Par-

ticipation.

Community Resource Leaders

After a lunch during which

discussion continued, Paul Hal-

vonik spoke on the criteria for

selection of ACLUNC cases.

There were four afternoon work-

shop sessions in areas of Chapter

programming: Police Practices,

Rights of Minors, Education of

the Public, and Unequal Protec-

tion of the Law. Community re-

source people were present to

assist in the discussion, and they

deserve a special word of thanks,

for they each contributed a great

deal; Ralph Boches, esq., an au-

thority on Juvenile Law, Mrs.

of the Branch Board of Di-

Rita Semel, of the Conference

on Religion, Race, and - Social

Concerns, and Fred Cody, of

Cody's Books in Berkeley. Thanks

go too, to the Chapter people

who chaired the sessions: Bob

Greensfelder, Eugene Rosenberg,

Stan Stevens, Larry Sleizer, Irv

Cohen, John Diaz Coker, and, of

course, the very able Chairman

of the Branch Chapter Commit-

tee who chaired the entire day's

activities, Warren Saltzman. Al-

though the list of contributors

is long, I cannot omit a message

of gratitude to Barbara Rosen

and Angie King without whose

work behind the scenes the mul-

titudes would have starved.

Future Meetings

Because of the positive com-

ments on the evaluation forms,

and the feelings of the partici-

- pants from the Chapters, I am

hopeful that not only will there

be another Chapter Conference

in the Spring, but that it might

extend over an entire weekend.

In the meantime, there will be

other gatherings of Chapter

Chairmen so that the Chapters

will continue to discuss their mu-

tual interests, and the estab-

lishment of an informal news-

letter for all those on Chapter

Boards. -Carol Weintraub,

Chapter Director

immoral Pestal Clerk

Living Wit

A Women

Not His Wife

The case of Neil Mindel, a postal clerk who was fired

for "immoral" conduct because he allegedly lived with a

woman not his wife, will be heard before federal district

court Judge Robert Peckham on December 4.

The Post Office concluded that Mindel's conduct harmed

the "efficiency" of the civil serv-

ice even though the public

served by Mr. Mindel and his

associates at the Post Office

were unaware of his living ar-

rangements.

Unreasonable Action

Mindel's lawyers, staff coun-

sel Paul Halvonik and volunteer

attorney Martin D. Goodman of

San Francisco, contend that the

action of the Post Office was un-

lawful and unconstitutional. Min-

del's alleged conduct, they

maintain, was not "immoral"

under any reasonable standards

and surely would not be consid-

ered immoral] in the sophisticat-

ed and urbane city of San Fran-

cisco where he was employed.

If there was any "immoral" con-

duct it was that of the govern-

ment in prying into Mindel's

private sex life.

Irrational

ACLUNC also urges that the

discharge of Mindel for conduct

that was unrelated to his duties

as a postal clerk was irrational

and violated applicable civil

service regulations as well as

the due process clause of the

Fifth Amendment of the United |

States Constitution.

Other Objections

Three other grounds are ad-

vanced as reasons why the Post

Office action was unconstitu-

tional. One is that the regula-

tion prohibiting "immoral" con-

duct is unconstitutionally vague.

The standard gives guidance to

no one and `permits governmen-

tal officials to discharge public

employees according to whim

and caprice. And the standard

of "immoral" is not only vague

but in its application in Mindel's

case resulted in the invasion of

a constitutionally protected right,

the right to privacy in one's

sexual life. Finally, ACLUNC

_ urges that the Post Office action

be reserved because Mindel was

never given a hearing at which

he could confront his accusers

and cross-examine them.

Charges Against

Panther Paper

Vendors Dropped

Gale Nolden, Sharla Hampton,

and Harold Holmes, members of

the Black Panther Party, were

arrested in August at the East

Bay Bus Terminal under Penal

Code Section 647(e), which pro-

hibits loitering and refusing to

identify oneself to police under

suspicious circumstances, The

suspicious circumstances were

that they were distributing the

Black Panther Paper.

ACLUNC directly representing

- the three demurred to the con-

stitutionality of the statute on

grounds of vagueness, free

speech, and_ self-incrimination.

The demurrer was overruled, but

on the morning of trial the Dis-

trict Attorney offered to dis-

miss if the defendants stipulated

that there had been probable

cause for arrest (and thereby,

in theory, foregoing the right to

sue for false arrest). The offer

was refused. Later on the same

morning the charges were

simply dropped.

Alfred J. Azevedo

Albert M. Bendich

Leo Borregard

Price M. Cobbs, M.D.

`Prof. John Edwards

Jerome B. Falk, Jr.

Prof. Marc Franklin

Robert Greensfelder

Rey. Aron S. Gilmartin

Evelio Grillo

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mrs. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan Mrs,

Joseph Eichler

Dr. H. H.. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard H. Jewel

VICE-CHAIRMAN: Prof. Van D. Kennedy

Helen Salz

SEC'Y-TREAS.; Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig (c)

Francis Heisler

Neil F. Horton

Daniel N. Loeb

Ephraim Margolin

Dr. John N. Marquis

John R. May

Richard L. Mayers

Martin Mills, M.D.

Richard Patsey

Mrs. Esther Pike

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Paul N. Halvonik

ASS`T STAFF COUNSEL and LEGIS. REP.: Charles C. Marson

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Carol R. Weintraub

Committee of Sponsors

Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Prof. Ernest Hilgard Dr. Norman Reider

Eugene N. Resenberg

Mrs. Muriel Roy

John Brisbin Rutherford

Prof. John Searle

Warren H. Saltzman

Mrs. Alec Skolnick

Stanley D. Stevens

Jerry Tucker

Justin Vanderlaan

Don Vial

Joe J. Yasaki

Dr. Marvin J. Naman

Mrs. Theodosia Stewart

Rt. Rev. Sumner Walters

Richard Johnston

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps

Seaton W. Manning

Rev. Robert W. Moon

Clarence E, Rust

Prof. Hubert Phillips

Norman Lezin

RRS AE SL LS AN SD TE GA RET STR BE ANSE SO OR GN HE TS

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Sue Class Mail privileges authorized at San Francisco, California

ERNEST BESIG... Editor

503 Market Street, San Francisco, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

ego 15]

Punitive Induction

ourt of Appeals

Asked to Grant

Injunction

ACLUNC has filed a brief in the United States Court of

Appeals urging that it reverse a decision by Federal District

Court Judge Alfonso J. Zirpoli refusing to enjoin a Marin

draft board from ordering John Steinert to report for induc-

tin. Steinert's draft board had removed his:I-Y (physical

disability) deferment.and reclas-

sified him 1-A delinquent (ready

for immediate induction) _ be-

cause he turned in his draft card

to the board as protest against

the war in Vietnam. Judge Zir-

poli held that he did not have

jurisdiction to halt the induction

and that Steinert could only re-

ceive court review of the legality

of his draft board's action by

failing to submit to induction

and being indicted or submit-

ting to induction and seeking re-

lease by a writ of habeas corpus.

Deferment Case

Judge Zirpoli's ruling was pre-

dicated on section 10(b) (3) of

the Military Selective Service

Act of 1967 which prohibits

courts from granting preinduc-

tion review of selective service

reclassifications. In the case of

Oestereich v. Selective Service,

however, the United States Su-

preme Court held that the statute

was not to be applied in a case

where a draft board reclassified

and ordered to report for in-

duction a ministerial student

who had turned in his draft

ecards. But Judge Zirpoli held

that the Oestereich opinion ap-

plied only to draft exemptions (a

ministerial deferment is an ex-

emption, not a deferment) and

that section 10(b) (3) was a bar

to preinduction suits challenging

the loss of a deferment,

No Factual Issue

In 1967 Judge Zirpoli had

ruled that federal courts did

have jurisdiction to review the

denial of conscientious claims

before the date set for induction

but the United States Supreme

Court, on the same day as the

Oestereich decision, reversed

that decision. Steinert's attor-

ney, Paul Halvonik, contended,

unsuccessfully before Judge Zir-

poli, that the reason that con-

scientious objector claims could

not be heard before induction

was that the decision whether to

classify somebody as a conscien-

tious objector turns on resolu-

tion of factual questions that

are committed by law to local

board discretion. Where the

_ board, however, denies a classi-

fication that a registrant is other-

wise entitled to simply because

he turns in his draft card there

are no factual issues to be re

solved and the "lawless" action

of the local board should be en-

joined by the court in case of

deferment as well as exemption.

Argument Extended

On appeal the argument that

the deferment-exemption dis-

tinction is meaningless has been

further extended. The _ brief

points out, for example, that the

Selective service law provides

a deferment (not exemption) to

"Judge of the courts of record

of the United States." The brief

asks the question: "If the Presi-

dent should nominate -and the

Senate confirm a Judge who was

32 years of age (Justice Story

was 32 when appointed to the

U.S. Supreme Court) and who,

by virtue of having had a defer-

ment was liable for military serv-

ice, and a local board took away

his 4-B deferment under the de-

linquency power because it dis-

agreed with his judicial opinions,

would the judge have to refuse

to submit to induction and de-

fend a criminal prosecution, or

in the alternative, submit to in-

duction, don the uniform of the

army and litigate through peti-

tion for habeas corpus?"

The brief also contends that

the selective service delinquency

provisions, providing for dis-

cretionary stripping of defer-

`ments and priority induction of

those whom a local draft board

believes have failed to perform

any "duty" under the selective

service law, are invalid on their

face and as applied to one who

in peaceable opposition to war

turns in his draft cards because:

a) they constitute a system of

sanctions exercised without a

Congressional delegation of the

power to sanction; b) if author-

ized by Congress, the delegation

is void for vagueness in that it

is "so unguided as to be un-

guiding"; c) the delinquency

regulations are void for vague-

ness; d) the delinquency regu-

lations deny procedural due proc-

ess of law; e) the delinquency

regulations, as interpreted and

aithorized to be applied in a

directive from the Director of

Selective Service, visit upon

local boards a roving commis-

sion to punish registrants for

the peaceable exercise of First

Amendment rights; f) the de-

linquency regulations were im-

properly applied in this case, in

that Congress has not authorized

their use to order a registrant

for priority induction in viola-

"tion of his statutory right and

in that the petitioner did not

fail to perform a "duty" within

the meaning of the regulations.

Anti-Poster

Law to Court

Of Appeal

San Francisco has an ordi-

nance making it unlawful to af-

fix a poster to a utility pole with-

fix posters to utility poles with`

out first securing a permit from

the Department of Public Works.

ACLUNC staff counsel Paul Hal-

vonik has, fer the past two years,

been challenging the city ordi-

nance on the ground that a gov-

ernment censor cannot be given

absolute discretion to determine

which expressions of view' may

and which may not be seen on

' the utility poles. There was a

victory a little over a year ago

when Judge Janet Aitken of the

-San Francisco Municipal Court

held the ordinance unconstitu-

tional on its face because of its

lack of standards. But shortly

thereafter, Judge Joseph Ken-

nedy of the same Municipal

Court, upheld the constitution-

ality of the ordinance.

Strike Issue

Judge Kennedy's ruling came

in the case of seven San Fran-

cisco State College students ar-

rested for allegedly affixing to

utility poles posters dealing with

the student strike, Halvonik

asked the Superior Court to find

the ordinance unconstitutional

and prohibit the trial of the de-

fendants. Judge Henry Rolph of

the Superior Court, however, re-

fused to issue the requested writ

and held that the ordinance was

"a non-discriminatory restriction

on the use of private property."

Judge Rolph's decision has

been appealed to the California

Court of Appeal. In his conclu-

sion to the brief on appeal Hal-

vonik states: "Appellants do not

maintain that San _ Francisco

could not prohibit the placing of

posters upon utility poles. San

Francisco, however, has not done

so; it has opened the forum. of

utility poles as long as a gov-

ernmental censor, unguided by

standards and without judiciai

superintendence, agrees to issue

a permit. That, under our Con-

stitution, it cannot do."

Murphy Amendment

ACLU Opposes Hobbling

Of O.E.0. Leg

al Services

Essential principles of justice are at stake in the current,

misguided attempt by California Senator George Murphy to

hobble Office of Economic Opportunity legal services for

the poor with the irreversible veto-power of state governors,

the ACLU declared last month.

Of course the poor are en-

titled to legal representation on

personal everyday matters -

matrimonial problems, financial

matters and criminal defense -

but lawyers for the poor, no less

than lawyers for other Ameri-

cans, must be at liberty to press

for the best interests of their

clients, challenging all parts of

the system which disadvantage

their clients, setting new prin-

ciples to improve the lot of the

poor. -

Senator Murphy's amendment

would permit state governors to

kill federal grants to local OEO

lawyers when their cases for

the poor threaten to shake the

system.

The ACLU registers its strong

objection to the amendment. It

is wrong to shackle a lawyer

with this threat. It is wrong to

inhibit in any way the constant

test and re-test of practices and

procedures which cause or which

tolerate poverty.

The origins of Senator Mur-

phy's interest are clear, In Cali-

fornia, OEO-financed lawyers

have attacked Governor Reagan's

attempt to cut $16 million in

Medicaid, have challenged the

importation of Mexican farm

workers and have petitioned to

halt dangerous use of DDT and

other pesticides. These and other

cases may well embarrass Gov-

ernor Reagan and Senator Mur-

phy but should, in spite of any

embarrassment, be permitted

and encouraged to run their

course and establish whatever

effect they deserve.

Aid to Poor

~QOEO legal services have

placed 1,800 lawyers in 800

neighborhood offices to aid the

poor - last year alone provid-

ing legal representation to 1%

million clients. Congress should

not allow cut-backs or restric-

tions to dilute this valuable ex-

tension of legal services to im-

poverished. Americans.

Credential Won

By Columbia

Sit-in Student

Jane Smallens of Oakland ap-

plied for a credential to teach

in California schools, noting on

her application that she had been

arrested for criminal trespass

and disorderly conduct in con-

nection with a non-violent sit-in

at Columbia University during

the spring.of 1968. No trial has

yet occurred.

ACLUNC agreed to represent

Miss Smallens and, after what

is now regarded as the usual

amount of bureaucratic compli-

cation, notice has been received

that the prospective teacher will

be "admonished" but that a cre-

dential] will be granted.

Religious Purposes

Church Property

Tax Exemption

Challenged |

The American Civil Liberties Union and the New York

Civil Liberties Union recently filed an amicus brief in Walz

v. Tax Commission, the New York case before the U.S. Su-

preme Court which challenges tax exemption for church

property used exclusively for religious purposes.

The ACLU contends that gov-

ernment subsidy of religious ac-

tivities is a clear and flagrant

breach of the Establishment

Clause of the First Amendment,

that tax exemption is the equiva-

lent of a subsidy and therefore

constitutionally forbidden in

spite of widespread and long-

standing practice.

Madison Cited

The friend-of-the Court brief

cites James Madison, principal

author of the First Amendment,

who, in his capacity as President

in 1811, vetoed a bill reserving

certain lands for use and sup-

port of religious societies as vio-

lative of the First Amendment.

The ACLU notes further that

the U.S. Supreme Court in Ever-

son and at least three other cases

has firmly upheld the separation

of church and state.

son the Court said:

The "establishment of re-

ligion" clause of the First

Amendment means at least

this. Neither a state nor the

Federal Government can set

up a church. Neither can pass

laws which aid one religion,

aid all religions, or prefer one

religion over another. Neither

can force nor influence a per-

son to go to or to remain away

from church against his will

or force him to profess a be-

lief or disbelief in any re-

ligion. No person can be pun-

ished for entertaining or pro-

fessing religious beliefs or dis-

beliefs, for church attendance

or non-attendance. No tax in

any amount, large or small,

can be levied to support any

religious activities or institu-

tions, whatever they may be

called, or whatever form they

may adopt to teach or prac-

tice religion. Neither a state

nor the Federal Government

can, openly or secretly, partici-

pate in the affairs of any reli-

gious organizations or groups

and vice versa. In the words

of Jefferson, the clause against

establishment of religion by

law was intended to erect "a

wall of separation between

Church and State."

Mitford and

Kunstler

Speak Dec. 14

Jessica Mitford, author of the

recently published book, "The

Trial of Dr. Spock," and. William

Kunstler, chief defense counsel

for the "Chicago 8," will be the

featured speakers at a fund-rais-

ing dinner sponsored by the

Berkeley-Albany Chapter of the

ACLUNC on Sunday evening,

December 14th, to commemorate

Bill of Rights Day. The dinner

will be held at the newly-built

restaurant, His Lordships, on

the Berkeley Marina.

The dinner is the chapter's

major fund-raising event of the

year and proceeds will go to the

chapter's Police Conduct Com-

plaint Center which has served

a vital role in the Berkeley com-

munity.

Reservations for the dinner

are $25 a couple, or $12.50 per

person and may be made at the

Berkeley/Albany Chapter office

of ACLUNC at 1919 Berkeley

Way, Berkeley, Calif., or by

phoning 548-1322.

In Ever-

ACLU Contentions

The brief rests on the follow-

ing argument: (1) Aid to reli-

gion is unconstitutional even if

non-preferential; (2) Exemption

is a form of direct aid; (3) De-

nial of tax exemption does not

infringe on religious liberty; (4)

Tax exemption is not required

by the Free Exercise Clause; (5)

The fact that exemption of

churches is long standing and

widespread does not make it con-

stitutional.

The brief quotes an 1858 de-

cision of the Indiana Supreme

Court in Orr v. Baker:

"It is easier to admire the

motives for such exemption

than to justify it by any sound

argument. . . . Only let the

theory be carried a little fur-

ther; let a specific tax be lev-

ied to support houses of wor-

ship, and it will speedily at-

tract public attention. Yet the

one is precisely the same in

principle as the other... . To

say that such is the practice of

civilized nations, is not sound.

It is rather an apology for a

departure from principle."

Spiro Agnew in

Reckless Attack

On Dissent

~ Recent comments of Vice

President Spiro T. Agnew on

dissent and demonstration are

reckless and dangerous for a

man in his position, declared

the ACLU last month.

The Vice President's target

had been the October 15th Mora-

torium, a giant historical event,

involving millions of Americans

and distinguished beyond its size

by its peace-seeking orderliness.

To warn of repression to follow

the peaceful dissent of the Mora-

torium is particularly shocking.

"Impudent Snobs"

The Vice President's New Or-

leans speech describing some

anti-war protestors as "impu-

dent snobs" might possibly be

overlooked as crude _ political

swashbuckling,

But Mr. Agnew has extended

his remarks in a fund-raising

speech delivered in Harrisburg,

Pennsylvania reported in the

New York Times of October 31,

1969.

McCarthy Style

The Vice President inveighs

against anarchists and commu-

nists in the style of Senator Jo-

seph McCarthy and proposes that:

the country cannot afford to be

divided by the decadent think-

ing of a few but can ".. . afford

to separate them from our so-

ciety - with no more regret

than we should feel over dis-

carding rotten apples from a

barrel."

Excessive Diatribe

It should not be but is appar-

ently necessary to remind the

Vice President that "separation

from society" is accomplished

only in accordance with stringent

rules set down by the Constitu-

tion and Bill of Rights. The Vice

President's own heated, exces-

sive diatribe, though certainly

"protected speech," is dangerous-

ly similar to the "rotten apple"

of McCarthyism which the na-

tion has already rejected.

ACLU NEWS

DECEMBER, 1969

Page 3

Marijuana Conviction

Attack Revocation of

Teaching Credential

ACLUNC has filed suit against the State Board of Educa-

tion on behalf of Arthur Comings whose elementary teach-

ing credential was revoked on the ground that he had, by

reason of a conviction for possession of marijuana, committed

"an act involving moral turpitude and an act demonstrating

his unfitness for service."

Conviction Vacated

Comings was arrested for mari-

juana possession and pleaded

guilty to the charge in May of

1967. His sentence was suspend-

ed and he was granted probation

on the condition that he serve 60

days in the county jail. He com-

pleted the conditions of his pro-

bation and, pursuant to the Cali-

fornia Penal Code, the court en-

tered an order vacating his plea

of guilty and the conviction and,

in the terms of the order, re-

lieves him "forever from all

penalties and disabilities result-~

ing from the offense."

Nevertheless, the State Board

of Education, over the objection

of Paul Halvonik, Comings' attor-

ney, revoked his teaching cre-

dentials. :

No Relation to Duties

The suit in the Superior court

contends that the action of the

Board of Education was uncon-

stitutional and unlawful because

"the conviction and the events

`surrounding the conviction are

unrelated to Comings' ability to

perform his duties as a teacher"

and because the revocation of his

teaching credential was a dis-

ability and penalty imposed for

the violation in conflict with the

court order relieving Comings

of all disabilities.

Committee of

Credentials

Gives In Again

A recent applicant for a jun-

ior college teaching credential

contacted ACLUNC after learn-

ing that the Committee of Cre-

dentials planned a- hearing on

his fitness to teach in view of

his arrest record. He had been

arrested after the demonstration

against Dean Rusk at the Fair-

"mont Hotel in January 1968 on

a charge of inciting to riot. The

police report charged that he

had shouted "Kill the pigs' and

"Get the fascist cops." The

charges had been dropped in re-

turn for dismissal of the result-

ing false arrest suit.

How to Get Arrested

The version told by the ap-

plicant was quite different. After

heeding the police order to dis-

perse, he had gone around sev-

eral blocks in an attempt to re-

cover his car, parked in the

California Street garage. He had

nearly gained his objective when

he stopped at the corner of Cali-

`fornia and Mason streets to

watch demonstrators being

pushed into a paddy wagon. A

burly man in front of him de-

manded to know what he was

staring at. The following ex-

change occurred: "Well, now I'm

staring at you." "Why?" "Be-

cause you're fat." He was not

_ only fat but a plainclothesman as

well, and the applicant was ar-

rested.

Hearing Held .

The Committee, at a hearing

at which the applicant was rep-

resented by ACLUNC Assistant

Staff Counsel Charles Marson,

found the story believable and

voted to grant the credential ap-

plication.

San Fran.

Members

Organize

A group of ACLUNC members

has been meeting with the hope

of forming a Chapter for San

Francisco. Approximately 60 peo-

ple attended each of two meet-

ings, to which members in the

city who had checked the "vol-

unteer" box on their member-

ship application were invited.

When provisionary-Chapter, or

Council - status

letters will be sent to all ACLU-

NC members.in San Francisco

inviting them-to become active.

All those interested may attend

the next meeting of the group,

to be held on Sunday evening,

December 14, at the Family Serv-

ice Agency, 1010 Gough St., at

7:30.

ACLU NEWS

DECEMBER, 1969

Page 4

is granted the -

group by the Board of Directors, .

Long Sideburns

Result in Prison

Guard's Ouster

Daniel H. Kientz, a proba-

tionary employee at San Quen-

tin, was fired from his position

as a prison guard because he re-

fused to shave his sideburns,

then at the bottom of his ears,

back to the middle of his ears.

Taking the position that public

employment cannot be _ con-

ditioned on compliance with such

unconstitutional trivia, ACLUNC

represented Kientz at the State

Personnel Board hearing which

followed his discharge.

Hearing Officer Robert Hill

rejected the afterthought argu-

ments of prison officials that

Kientz was fired for other rea-

sons as well (`and his shoes

weren't shined, and .. ."), but

held that "the limited restraint

on appellant's constitutional

right to appear as he pleases is

outweighed by the benefit to be

derived from applying impar-

tial and enforceable standards

in a semi-military organization

such as the security forces at

San Quentin Prison." The case

will now be taken to Superior

Court.

Court of Appeal

Agrees toReview

Trespassing Case

The California Court of Appeal

has agreed to hear the habeas

corpus petition of Roderick Wal-

lace, John Pamperin and Made-

line Mintzer who were convicted

of "trespassing" during a May

Fair in Dixon, California. The

"trespass" occurred when the pe-

titioners refused to discontinue

their pro-farm labor picketing

and-handbilling near a harvest-

ing machine on the Fair Grounds

when asked to do so by Fair

Grounds officials.

The petitioners were convicted

in the Dixon Justice Court of vio-

lating Penal Code Section 602(j)

(entering lands for the purpose

of interfering with the lawful

business thereon), That convic-

tion was affirmed by Judge Ray-

mond J. Sherwin of the Solano

County Superior Court.

The habeas corpus petition to

the Court of Appeal, prepared

by ACLUNC volunteer attorney

Marcus Vanderlaan of (c) Sacra-

mento, contends that the leaflet-

ing occurred in an area open to

the public and that the petition-

ers were constitutionally entitled

to exercise their First Amend-

ment rights in the area as long

as they did not interfere with

the use of the Fair Grounds for

Fair purposes. The evidence at

the tria] indicated that they in

no way obstructed the public that

was Visiting the Fair.

Right to Counsel

Case Appealed

To U.S. Sup. Ct.

Paul Anderson, serving a pris-

on sentence in San Quentin for

forgery, sought a writ of habeas

corpus in the District Court,

charging unconstitutional irregu-

larities in his conviction. The

District Court refused to issue a

writ but did issue a Certificate

of Probable Cause to appeal, the

equivalent of a statement that

the appellant has very substantial

grounds to present.

Lawyer Withdraws

The Court of Appeals for the

Ninth Circuit appointed a lawyer

for Anderson, who is indigent,

to prosecute the appeal. The law-

yer studied the case and then

wrote a letter to the court saying

that he found no merit in the

appeal and wished to withdraw.

The court permitted him to with-

draw and refused to appoint an-

other lawyer for Anderson, who

was forced to prosecute his ap-

peal by himself. He lost..

ACLU Argument

ACLUNC has filed a Petition

for a Writ of Certiorari with the

United States Supreme Court,

pointing out that if a state court

had used such a procedure in

permitting court-appointed coun-

sel to withdraw, it would have

been a clear violation of Anders

v. California, a 1968 decision of the

Supreme Court which requires

the lawyer wishing to withdraw

to brief the points that he finds

without merit and present them

to the court, giving the client a

chance to respond. The Petition

argues that the federal courts

should be required to do no less,

especially where there is prob-

able cause for appeal.

Challenge

Two-Thirds Vote

Requirement

Three suits have been filed,

two in the State Supreme Court

and one in the U.S. District

Court, challenging the two-thirds

vote requirement on bond issues

and particularly Propositions A

B on the San Francisco ballot

of last November, Each of these

bond issues, one relating to

much needed schools at Hunters

Point, a ghetto area, and the oth-

er to park improvements, re-

ceived a majority vote.

The ACLU contends that the

two-thirds requirement violates

the U.S. Supreme Court's one-

man, one-vote rule. Obviously, on

bond issues it takes two affirma-

tive votes to overcome one nega-

tive vote. .

The ACLUNCE also has a test

suit in preparation which it in-

tends to file in the State Su-

preme Court. Of course, there is

no assurance that the court will

hear the matter. It may require

that the issue be sent to a lower

court. Hopefully, because of the

urgency of the matter it will take

jurisdiction.

If the ACLUNC suit is not

filed, the Union will in any case

appear as a friend of the court.

Letters

that an

Threat of

Censorship in

Agnew Speech

In a telegram sent last month

to Vice President Spiro T, Ag-

new, ACLU Executive Director

John de J. Pemberton, Jr., said:

"Your charges against net-

work commentators raise serious

implications for freedom of the

press, a central American liber-

ty. Freedom from government

restraint is especially important

for broadcast journalism because

of its major role in news dis-

semination.

Fairness Doctrine

"The First Amendment pro-

tects equally your right to rebut

TV commentators and their

right to criticize your Admini-

stration, If it is your contention

imbalance exists, re-

course is available to you, as to

any citizen, through the Fairness

Doctrine promulgated by the

FCC and sustained by the US.

Supreme Court.

"Your concern about the struc-

ture of an information industry

which concentrates vast power

in the hands of a few men prop-

erly focuses attention on the

dangers to diversity in such con-

trol, But by joining your reac-

tion to the commentators' criti-

cisms with a demand that `the

networks be made more respon-

sive to the views of the nation'

you have made a clear and chill-

ing threat of government meas-

ures to penalize those criticisms.

That threat is inherently a threat

of censorship.

"Network commentators are

not `self-appointed analysts'

They are selected by Program

Directors as newspaper column-

ists are selected by Editors, and

both must: earn their audiences.

The broadcast industry may be

distinguished from the print

media by its structure, but it

must not be differentiated by a

variable right to select com-

mentators and their right to ex-

press their views.

"We implore you to cease

criticism of journalists certain

to be taken as pressure and in-

timidation upon an independent

right of the free press."

Joes to the Editor

Legislative Program

Opposing censorship legisla-

tion is one of the major concerns

of the Intellectual Freedom Com-

mittee of the California Library

Association. We oppose such

"legislation in the belief that it

is an affront to the Library Bill

of Rights and a threat to the

principles of intellectual and

academic freedom.

In many instances we stand

alone in this effort, save for the

ACLU. I wish to express the

gratitude of our committee for

your legislative program as car-

ried out by Coleman Blease, Paul

Halvonik and Charles Marson.

An indication of the efectiveness

of these gentlemen is the re-

spect accorded them by legisla-

tors during committee hearings

in Sacramento.

Because your legislative activ-

ities have been of such inestim-

able value to the Association, the

October CLA Newsletter will

carry an appeal for support of

ACLU, If there is anything else

we might do to help maintain

your programs, please call on us.

MARJORIE BLODGETT

Chairman

Intellectual Freedom

Committee

California Library

Association

Dr. Rafferty's

Lawyers Make

Concessions

The daily press didn't report

the full story of the decision of

the Court of Appeal in the case

of the San Francisco Unified -

School District against Dr. Max

Rafferty, Superintendent of Pub-

lic Instruction. It may be re-

called that Dr. Rafferty threat-

ened: to revoke the teaching cre-

dentials of high school teachers

who make classroom use of El-

dridge Cleaver's "Soul on Ice"

and a pair of plays by LeRoi

Jones entitled "Dutchman" and

"The Slave." In a letter dated

August 15, 1969, Dr. Rafferty

alleged that the two books were

"obscene or profane" and that

individual teachers might be

placing their credentials in jeop-

ardy by permitting the books'

use in classrooms. :

Dr. Rafferty's lawyers, in their

answer to the suit, made the fol-

lowing concession: `The respond-

ents concede that as a general

proposition it is doubtful that

the State Board of Education has

authority to revoke the teaching

credential of an employee using

a book adopted by the em-

ployee's governing board." At

another point they said, "Re-

spondents further state that they

have no intention of threatening,

and will not so threaten, the re-

vocation of teaching credentials

of petitioner's employees for use

of books adopted by petitioner."

Because of the concessions

made by Dr. Rafferty's lawyers,

the District Court of Appeal in

Sacramento decided that the is-

sue was moot.

Superior Court

Refuses to Stop

Scherr Trial

Alameda Superior Court Judge

William H. Brailsford has re-

fused to issue a writ prohibiting

the Berkeley. Municipal Court

from proceeding with a trial

against former Berkeley Barb

publisher Max Scherr.

Scherr was arrested for al-

legedly publishing obscenity last

March when a photograph ap-

peared in the Berkeley Barb

that offended the Alameda Dis-

trict Attorney who was of the

opinion that the photograph de-

picted a sexual act. The District

Attorney charged the photograph

with being obscene but amended

his complaint to charge that the

entire newspaper was obscene

after Berkeley Municipal Court

Judge George Brunn sustained

staff counsel Paul Halvonik's ob-

jection that a portion of the

newspaper could not be isolated

for purposes of an obscenity

prosecution. Halvonik asked the

Superior Court to prohibit the

trial on the ground that, as a

matter of law, the entire issue

of the Berkeley Barb could not

be said to be obscene because it

was not "utterly without redeem-

ing social importance." -

ACLUNC has not yet decided

whether to appeal Judge Brails-

ford's ruling or take the case to

trial.

The first right of a citizen

Is the right

To be responsible

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