vol. 36, no. 3

American

Civil Liberties

Union

Volume XXXVI SAN FRANCISCO, MARCH, 1971 No. 3

Waiver of Rights Strike Down Ban

Free Speec

Victory For

Probationer

Vincent Mannino was found guilty of felonious assault for

- his participation in an incident which occurred during a stu-

dent demonstration at the College of San Mateo, Mannino

was not sentenced to state prison (although he did have to

spend some time incarcerated) but the conditions of probation

imposed by the trial court were

unusually harsh, They prohibited

him from belonging to any or-

ganization which "advocates any

form of protest or change in

existing conditions;" prohibited

him from contributing any "news-

paper articles or other writings

in any campus or off-campus pub-

lications;" and prohibited him

from being an advisor to any on-

campus or off-campus demonstra-

tion "for any purpose whatso-

ever."

Prosecution Position

ACLUNC challenged the con-

stitutionality of the conditions

of probation for Mannino by

bringing a petition for writ of

habeas corpus in the State Court

of Appeal, The prosecution had

justified the conditions on the

theory that Mannino, since he

could have been sentenced to

state prison, had no complaint

if there were broad limitations

on the privilege of probation. .

ACLU Contentions

The ACLUNC petition, pre-

pared by volunteer attorney Rob-

ert G. "Ted" Parker of San Fran-

cisco and staff counsel Paul Hal-

"vonik argued on the contrary

that the state may not grant the

privilege of probation on the

condition that the recipient

waive his First Amendment

rights. Numerous cases hold that

where other governmental bene-

fits are involved, such as un-

employment insurance benefits

or public employment, their re- .

`ceipt may not be conditioned on

the waiver of First Amendment

rights except in the most extra-

ordinary of situations, ACLUNC

urged that those decisions were

equally applicable where the

benefit extended by the state

is probation.

Association

The State Court of Appeal,

by a two to one decision) last

month voided most of the con-

ditions of Mannino's probation

The ACLUNC

Needs

Your Help!

ACLUNC has suffered a loss of

$5,681.84 in membership in-

come during the first four

months of the fiscal year. On

an annual basis, the loss amounts

to $9,125. But since the branch

had anticipated a $5,000 in-

crease in membership income

and figured its budget accord-

ingly, the loss for the year may

reach $14,000 unless something

is done about it. And, not only

is income down because of can-

celled pledges, dropped member-

ships, etc. but our expenses are

up!

In this predicament the ACL-

UNC naturally turns to its mem-

bers for H-E-L-P. If you can

afford to make an extra contribu-

tion, won't you please do so!

N-0-W!

Please send your contributions

to the ACLUNC, 593 Market

St., San Francisco, Ca. 94105.

as an overbroad inhibition of

First Amendment rights. In a

lengthy and scholarly opinion

Justice Sims, joined by Justice

Molinari, struck down the condi-

tion prohibiting Mannino from

joining organizations aS a vio-

lation of freedom of association.

It is, Justice Sims holds, beside

the point to contend that Man-

nino's freedom of association

may be restricted while on pro-

bation because it would be re-

stricted in prison:

"The government may not con-

dition receipt of a public bene-

fit upon any terms that it may

choose to impose , . . the pow-

er of government to withhold

benefits from its citizens does

not encompass a `lesser' power

to grant such benefits upon an

arbitrary deprivation of con-

stitutional rights."

Mannino's Writing

As to the limitations on Man-

nino's writing, the court ob-

served they were perhaps even

broader than what could be im-

posed in a prison:

"The physical restraint of a

prison sentence from which

the petitioner was relieved

would have curbed his activity,

and physica] associations with

companions of his own choos-

ing, It could not, however, im-

prison his ideas or purge his

mind of his beliefs, Should

more be required as a con-

dition of probation?

% ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS 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_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1970.batch ACLUN_1971 ACLUN_1971.MODS ACLUN_1971.batch 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_1999 ACLUN_1999.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 ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS 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_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1970.batch ACLUN_1971 ACLUN_1971.MODS ACLUN_1971.batch 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_1999 ACLUN_1999.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

"History is replete with ex-

amples that demonstrate that

imprisonment does not curb

thought or the dissemination

of ideas, `Putting the gag' on

the convicted probationer, in-

sofar as it is not directly re-

lated to a past criminal abuse

of the privilege of freedom of

speech itself, or to the pros-

pect of future criminality, does

not serve to further `the end

that justice may be done, that

amends may be made to so-

ciety for the breach of the

law,' nor does it provide `gen-

erally and specifically for the

reformation and rehabilitation

of the probationer!"

Demonstrations

Because Mannino's criminal act

occurred during a demonstration

the court decided that a narrow

condition restricting his right

to participate in demonstrations

during the period of probation

was constitutionally justified. Ac-

cordingly the court endorsed a

condition of probation which pro-

vides that Mannino "shall not

actively participate or engage

in any on-campus or off-campus

demonstration, or protest, or pas-

sive resistance for any purpose

whatsoever." The condition pro-

hibiting Mannino from being an

advisor for demonstrations was

struck down because there is no

evidence that his advice and coun-

sel to demonstrators has ever

resulted in a criminal act,

Case of First Impression

Mannino's is the first case in

which a State Court of Appeal

has struck down conditions of

probation as inconsistent with

On Homosexual

College Group

Sacramento Superior Court

Judge William Gallagher has is-

sued a peremptory writ of man-

date requiring Sacramento State

College to reconsider the peti-

tion of the Sacramento State Col-

lege Society for Homosexual

Freedom for recognition as an

on-campus organization. The Col-

lege president had denied the

organization recognition because

of his belief that he would be en-

dorsing or promoting illegal sex-

ual activity on the part of the

student body.

No Illegal Conduct

Judge Gallagher held that the

president could not exercise such

discretion because there was no

evidence of illegal conduct and

"it appears to be the current

state of the law that administra-

tors are not permitted to sup-

press free expression except in

the face of a clear and present

danger . . It is not enough

to prove that certain activities

amount to a public annoyance or

inconvenience, nor is it enough

that the college would find it em-

barrassing or unpopular in the

community."

Judge Gallagher went on to ob-

serve that recognition of anv club

on the campus in no way implies

endorsement of its objectives by

the college. : eZ

ACLU Intervenes

The suit on behalf of the homo-

sexual freedom group was

brought by the Associated Stu-

dents of Sacramento State Col-

lege. They were represented by

attorney John Poswell. Sacra-

mento Chapter Director Lawrence

K. Karlton filed an ACLU ami-

cus curiae brief in support of

the students.

State Supreme Court

Wakefield Aci =

Cannot Interfe.

f

ee =

NE

With Integrati

In the waning hours of last year's session, the

legislature made a half-hearted gesture in the direcuuu uv:

racism by adopting the Wakefield anti-busing law. As origin-

ally introduced the Wakefield act had provided:

"No governing board of a

school district shall bus any

student for the purpose of in-

tegration without the written

permission of the parent or

guardian."

_ Final Wording

The Legislature, however, was

reluctant to adopt such a blat-

antly anti-integrationist statute.

So, as finally passed, the law

read:

"No governing board of a

school district shall require

any student or pupil to be

transported for any purpose

or for any reason without the

written permission of the par-

ent or guardian."

No Forced Busing

The more ambiguous wording

of the bill as finally enacted

makes it possible to read it as

having no effect on school inte-

gration at all, Literally read it

prohibits nothing but "compul-

sory busing" and compulsory

busing does not exist, to our

knowledge, anywhere in Cali-

fornia. All that is compulsory is

education itself, no one is forced

to get on a bus, The busses are

simply: made available for the

convenience of students and

their parents; anyone who wishes

to use them may or may, if he

so desires, use alternative means

of transportation. As long as the

student arrives at the appropriate

school at the appropriate time,

the school is unconcerned. with

his-.choice of conveyance, The

Act, in short, can be interpreted

as having no effect on pupil] as- -

signment,

aa The Lawyers

The literal reading of the

Branch Board of Directors

Financial and Membership

Integration App

roved

At a special meeting held February 18, the Branch Board

of ACLU of Northern California voted (20-5) in favor of fi-

nancial and membership integration with the National ACLU.

The decision culminated two and a half years of study by a

special committee and now goes before the National ACLU

Board of Directors for considera-

tion at its April meeting.

Two-Part Proposal

In proposing to give the Na-

tional ACLU equal status among

all of its 44 nationwide affiliates,

ACLU of Northern California's

proposal is in two parts:

1. That financial and member-

ship integration proceed on a

~ three-year trial basis as proposed

by a Special Committee.

2. That all means and methods

be studied in an effort to main-

tain ACLU of Northern Califor-

nia's tax exempt status. (ACL-

UNC has been advised by a tax

attorney that with some restruc-

`turing and modification of proce-

dures this would seem to be

possible.

The Branch Board's decision (c)

in no way affects Northern Cali-

fornia's autonomy.

Nation-wide Concern

In recommending financial and

membership integration the Spec-

ial Committee (consisting of for-

mer Branch Board Chairmen

Howard Friedman and Van Dus-

en Kennedy, Neil Horton and

the First Amendment. The State

Attorney General has indicated

that he will ask the Supreme

Court to hear the case.

Executive Director Ernest Besig)

addressed itself to the single

question: ``How can we best serve

the interests of civil liberties in

Northern California, Mississippi,

Alabama, Washington, D. C.,

New York, and the rest of the

country?'' A majority of the Com-

mittee (Messrs. Friedman, Ken-

nedy and Horton) believed that

the combination of money and

membership of ACLU of North-

ern California and of National

ACLU best served those inter-

ests, In reaching this conclusion

the Committee acknowledged the

possibility that both affiliates

would suffer short-term losses of

money and efficiency,

Text of Committee Report

The text of the Committee re-

port is as follows:

(A) For the first year a mini-

mum return equal to the

ACLUNC membership in-

come for the fiscal year

1970-71, plus chapter mem-

bership income for the fis-

cal year 1970-71, plus any

costs resulting from inte-

gration.

(B) For the second year, a min-

imum return to ACLUNC

the same as for the first

year, plus an additional sum

equal to the average in-

crease in membership in-

come gained by ACLUNC

Wakefield Act is now the law.

The State Supreme Court has so

ruled by a unanimous decision.

The opinion came in the case of

the San Francisco Unified School

District v. Donald Johnson. The

Schoo] District suit was brought

last September on the very day

when Governor Reagan signed

the Wakefield Act, It was pre-

pared by San Francisco attorneys

Jerome B, Falk, Jr, (an ACLUNC

board member) and William S.

McCabe, in consultation with

ACLUNC staff attorneys Paul

Halvonik and Charles Marson.

Falk and McCabe as well as

Stanford Law Professor Anthony

G, Amsterdam (another ACLU-

NC board member). were espe-

cially appointed by the school

board to represent them in the

litigation, Halvonik and Marson

also filed a friend-of-the-court

brief for ACLUNC in which they

urged that the law either be

read literally or held unconsti-

tutional.

Test Case

The respondent in the suit

was Donald Johnson, Complex

Planning Official for the San

Francisco Unified School Dis-

trict. Johnson's duties include

formulation of plans for the im-

plementation of San Francisco's

school integration program. John-

son is responsible for requisition-

ing a computer study showing

present school assignments for

pupils for part of the integration

plan, In order to create a test

case Johnson refused to requisi-

tion the computer study because

the plan, since it included the

busing of students to achieve

racial balance of the schools,

could arguably have been a vio-

lation of the Wakefield Act.

Constitutional Issue

In addition to the unanimous

holding that the Wakefield Act

does not affect pupil assignments

for the purpose of racial integra-

tion, a majority of the court went

on to state that a contrary hold-

ing would violate Fourteenth

Amendment, Justice Tobriner,

writing for himself and Justices

Peters, Mosk and Sullivan, ob-

_ served that:

"The net result is that (the

Wakefield Act) if it creates

a parental power to refuse

consent to pupil] assignments,

would beget a parental right to

discriminate, and do so in a

context of racial strife that

would enable many to exploit

that right to inflict racial prej-

udice . , . it would empower

these private persons to inject

the venom of racial discrimina-

tion into the veins of the gov-

ernment."

Cloud Removed

The ruling in the Wakefield ~

Act case was rendered just two

months after the Wakefield Act

became effective. The expediti-

ous ruling not only removed a

cloud over the San Francisco

integration plans but the inte-

grated school systems of Berke-

ley and other communities

throughout the state.

over the past five years

(1966-1971).

(C) For the third year a mini-

mum return to ACLUNC

the same as for the second

year, plus an additional sum

equal to the average in-

crease in membership in-

come gained by ACLUNC

over the past five years

(1966-1971)." -Howard

Friedman, Treasurer.

i

;

;

Invasion of Private Domain

Obscenity Law

Upheld by High

Ct. by 4-3 Vote

The Supreme Court of California in a 4 to 3 decision has

ruled that the state may prosecute a distributor of obscenity

even though his materials are not exhibited to children or to

adults who do not wish to see them.

The decision came in the case of Milton Luros who, along

with other defendants, was in-

dicted by the Los Angeles Coun-

ty Grand Jury for conspiring to

sell 4 allegedly obscene books,

"Seed of the Beast," "Queer Dad-

dy," "The Experimenters," and

"Just for Kicks." The question

before the State Supreme Court

`was whether the trial should be

prohibited because no evidence

before the Grand Jury indicated

that the books were to be dis-

tributed to anyone other than

adults who wished to see them.

Luros' attorney, Stanley Fleish-

man of Hollywood, contended

that the First Amendment pro-

tected distribution of all books

~ among adults.

Amicus Brief

Fleishman's position was sup-

ported by ACLUNC which filed

a friend-of-the-court brief urging

Three-Judge

Court Convened

On Abortion Law

A federal three-judge court has

been convened in San Francisco

to pass on the constitutionality of

California's therapeutic abortion

law.

In 1969 in the case of People v.

Belous the State Supreme Court

held unconstitutional California's

prior abortion law which made

any abortion unlawful if not nec-

essary to "preserve the life" of

the pregnant woman. The State

Court concluded that such a law

Was unconstitutionally vague and

violated the woman's right to pri-

vacy. But at the time of the Be-

lous decision a new. anti-abortion

act had replaced the prior law

and the Court noted that it was

not passing on its constitutional-

ity.

State Court Declines Review

The State Supreme Court has,

since the Belous decision, declined

to rule on challenges to the The-

rapeutic Abortion Act. One of the

cases it declined to hear is that

of Robert A. Major, a-San Fran-

cisco physician, who is charged

with performing an abortion not

sanctioned by the new law. The

Therapeutic Abortion Act permits

termination of pregnancy after

consideration by a Hospital Com-

mittee and only in accredited hos-

pitals, where:

". . (1) There is substantial

risk that continuance of the

pregnancy would gravely im-

pair the physical or mental

health of the mother;

(2) The pregnancy resulted

from rape or incest.'

Federal Suit

When the State Supreme Court

refused to hear a challenge to the

jurisdiction of the trial court, Ma-

jor's lawyer (and wife) Patricia

Carson brought the federal suit.

ACLUNC, together with the ACLU

of Southern California, has filed

a friend-of-the-court brief support-

ing Major and urging the Court

to strike down the Therapeutic

Abortion Act as an infringement

of the fundamental right of a

woman to choose whether to bear

children. The exhaustive (45 page)

brief was prepared by Southern

California volunteer Norma G.

Zarky who also wrote the ACLU

brief in the Belous case.

ACLU NEWS

MARCH, 1971

Page 2

the prohibition of Luros' trial.

That brief, prepared by staff

counsel Paul Halvonik, coopera-

ting attorneys Jerome B. Falk,

Jr. of San Francisco, Coleman -

Blease of Sacramento and Profes-

sor Anthony G, Amsterdam of

Stanford Law School, contended

that the logic of a recent USS.

Supreme Court decision limits

the power of the state to regu-

late distribution of obscenity.

That decision was Stanley v.

Georgia where the highest court

held unconstitutional a law

which prohibited a person from

possessing obscenity. The court

held the law unconstitutional be-

cause it could find no legitimate

state interest that was served by

the statute. The only conceivable

interest was in preserving the

purity of Stanley's mind, an in-

terest that could not constitution-

ally be countenanced, If the state

has no interest in preserving the

purity of an adult's mind how

can it prohibit one from exhibit-

ing obscenity to another?.

Majority Opinon

The majority opinion in Luros

by Justice Sullivan holds that

the Stanley decision must be lim-

ited to cases of personal posses-

sion and that where public dis-

tribution is concerned "the bal-

ance of interests upholds the con-

stitutionality of state regulation,

even though that regulation im-

poses some burdens upon the ex-

ercise of constitutional rights."

Dissenting Opinion

Justice Tobriner, joined by

Justices Peters and Mosk, filed a

dissenting opinion in which he

said:

"As the Stanley court em-

phasized, the question of the

government's effective control

of a man's own library involves

the added dimension of. an in-

trusion into the individual's

private domain, In our highly

complex and increasingly in-

terdependent society the need

to preserve the individual's

freedom of thought has _be-

come crucial. The individual

has been confronted with the

rise of tremendous power in

government and in the so-call-

-ed technostructure that tends

to compel conformity and stan-

dardization. The central issue

of our time must be to pre-

serve the identity of the indi-

vidual in the face of a danger-

ous depersonalization and de-

humanization, The censorship

of the citizen's reading matter

and the destruction of his ac-

cess to reading matter, even

though that censorship takes

the form of prohibiting "por- _

nography,' inevitably _ spills

over into censorship of politi-

cal reading matter. These are

the compelling reasons why, in

today's society, the individual's

choice of the books he desires

to read in private should be

inviolate."

Other Cases

The United States Supreme.

Court has pending before it a

number of cases which challenge

the constitutionality of state reg-

ulations of obscenity distribution

among adults and may conclu-

sively decide the issue by June

of this year.

Letters to the Editor

Good Causes

Editor: Please record me as

one more former ACLUNC board

member who feels strongly that

taking humane and decent posi-

tions on a wide range of public

issues (1) Does not really help

any of these other causes (which

most of us already support with

time and money), and (2) Does

threaten to destroy ACLUNC's

unique power and effectiveness

as a guardian of civil liberties.

-Richard E. Tuttle, Mokelumne

Hill.

Supports War Stand

Editor: After a brief lapse of

time I wish to renew my mem-

bership in ACLUNC and especi-

ally so now that others seem to

be taking a negative attitude,

Now if at no other time we

need ACLUNC and we also need

to know that our. organization is

not afraid-not afraid to take a

stand on the war in Vietnam.

People complain that this is not

the proper role for ACLU to

take. I feel that I can now renew

in full faith and shall do all in

my power to bring in new mem-

bers primarily due to this stand

on the war in Vietnam.-Mrs.

Kathryn Petersen, Lafayette.

Finger in the Dike

Editor: It is astounding and

appalling to note, in your Feb-

ruary issue, that some members

continue to resign from ACLU in

apparent ignorance of the very

direct threat to civil liberties

posed by the unconstitutional war

in Vietnam and under the ap-

parent misconception that a pro-

peace stance is somehow "politi-

cal."

I have pontificated on this

before, but it is time to put my

money where my mouth is. Your

office was kind enough, a few

weeks ago, to return my check of

Jan. 21 with the notation that I

had paid my dues in November.

Very well. Please take that $10

and keep the ACLU News sub-

scriptions of members who chose

to resign going .. . or apply it to

our Mozart fund . . . or to any

peace activity in which the union

is engaging ... or to any other

purpose you deem relevant. I in-

vite others with these views to

do likewise.

Not an issue comes out that

- does not make it painfully clear

ACLU is the last organization left

with its finger in the dike; once

that finger is removed, the sea

of repression shall surely over-

whelm us all. How, for heaven's

sake, can anyone resign today?

-Fred G. Herman, Modesto.

An Extra Contribution

Editor: Enclosed is an addi-

tional $10 above my yearly dues

to try to make up in part for the

fools who think that the stand of

the Union .on a particular issue

mitigates the work we do to pro-

tect people in general against the

increasing repression of the po-

lice-minded in our society. With-

out the legal services available

through ACLU a lot of us would

already be in jail, whatever we

think about American foreign

policy. - Rich Yurman, San

Bruno

Why Drop Out?

Editor: In my opinion, the peo-

ple who are resigning from the

ACLU are completely forgetting

the 50 years of history in fighting

for social justice and civil liber-

ties. If it was a mistake for the

Board's taking a position on the

Vietnam war, why drop out of

this organization which has so

much on the plus side? I just

can't understand why people do

this. As long as a group agrees

with you, stay with them, but if

it strays one iota from its pur-

poseful path, abandon it. The

same things are happening to the

churches now... people are

dropping out because the

churches are speaking out on so--

cial issues OR people are drop.

ping out because the churches

aren't speaking out enough on so-

cial issues. I think the world is

just filled with a certain percen-

tage of persons with an inclina-

tion to "drop out". Perhaps this

is just as well and the ones who

stay may turn out to be the ones

who stick with the group through

hard times and easy ones, And

the ones ahead are going to get

harder and harder, you'd better

believe it-Mrs. James E. Mc-

Elroy, Cupertino

ACLU's Purpose

Editor: Ernest Besig opposes

ACLUNC's action in regard to

CRLA because the Federal Con-

stitution (he says) does not grant

the right to counsel in civil cases.

This is the only intimation I have

heard that the scope of the

ACLU is limited to constitution-

ally guaranteed rights. Support

for legal representation for the

poor, even in civil cases, seems

to me entirely appropriate for a

civil liberties

would appreciate further ex-

planation from Mr, Besig, with

whom I agree on many other

matters, such as ACLU's opposi-

tion to -the war. - Lawrence

Brown, Palo Alto.

NOTE: The ACLU nationally

has described itself as "The first

non-partisan organization in

American history dedicated to

the maintenance of the Bill of

Rights for everybody without ex-

ception."

Some years ago, the purposes

of the organization were ex-

pressed in the local By-Laws as

follows: "The objects of the or-

ganization shall be to help main-

tain, preserve and defend in

northern California, by lawful

means, the rights of any and all

persons and entities to the civil

liberties of speech, press, as-.

semblage and religion and the

other civil liberties guaranteed

by the "Bill of Rights," as`incor-

porated in the Constitution of the

United States of America and the

Constitution of the State of Cali-

fornia, without charge and with-

out distinction as to race, color,

creed or sex and without distinc-

tion as to political, social or

economic views, tenets or affilia-

tions."'

Today, our local literature de-

scribes ACLUNC as "the only

permanent national, non-profit,

non-partisan organization exclu-

sively devoted to defending the

Bill of Rights - freedom of

_speech, press, assembly, religion,

separation of Church and State,

fair trial, right to counsel, due

process of law, and equality be-

fore the law for everybody with-

out exception."

Under the Sixth Amendment

to the Federal Constitution, "In

all criminal prosecutions, the ac.

cused shall enjoy the right to

... have the assistance of coun-

sel for his defense." --

The ACLU is a united front of

persons who are concerned with

maintaining the freedoms guar-

anteed by the Bill of Rights.

They do not necessarily agree in

how to resolve the political,

economic and social problems in

this country, including what to

do about the poor who cannot

afford legal services in civil mat-

ters when they need them -

Editor.

organization. I-

Re Aryeh Neier

Editor: The piece in your Jan-

uary bulletin commenting on my

election was just brought to my

attention, I suggest that the com-

ments should have been signed

-unless of course the opinions

set forth are the corporate opin-

ions of the ACLU of Northern

California. If the Board has

adopted policy embodying these

opinions, I would be grateful for

a copy of the Board resolution.-

Aryeh Neier, Executive Director

ACLU.

Note: The article did not at-

tempt to reflect the branch

board's views but was simply an

accurate report of comments

made at the national board's

election meeting.-Editor.

Important Issues

Editor. I enclose my check for

the current year's minimum

membership fee. It may well be

my last, after several decades of

support, as I- find myself in-

creasingly out of sympathy with

many actions initiated or sup-

ported by the ACLU legal staff.

The length of school children's

or letter carriers' hair I do not

consider a matter of transcend-

ent civil-libertarian significance

-nor do I think the freedom of

' the country will be greatly im-

paired if Schroeder's restaurant

should remain a haven for males

during the lunch hour, Continued

harassment of officials trying to

maintain a modicum of respec-

tability in the institutions they

preside over seems to me indica-

tive of paranoia in regard to

`freedom,' of which I am afraid

we shall shortly all suffocate.

Please devote your activities to

the important issues and keep in

mind that mild regulations in the

name of public decency, order

- and neatness are salutary if not'

necessary for a society fit to live

in.-David Rynin, El Cerrito.

Another

Teaching

Credential

Thomas Williams of Oakland (c)

had the misfortune, on January

23, 1969, of being a sort of mas-

ter of ceremonies at the rally

at San Francisco State College

_ which produced what is now gen-

erally known as ``the mass bust"'.

For Williams it proved to be a

painful experience, since he was

found guilty not only of resisting

arrest, failure to disperse and

disturbing the peace, but also

of inciting a riot. He was origin-

ally sentenced to 9 months in

jail, but that sentence was re-

duced when the county felt it

necessary to find some way

around paying for the transcript

on appeal.

Williams is a teacher at San

Francisco State and has applied

for a standard secondary teach-

ing credential to the State of

California. The Committee of

Credentials tentatively denied his

application, but at a hearing last

month at which he was represent-

ed by assistant staff counsel

Charles Marson, Williams was

told that the investigation would

be closed and his credential

would be granted,

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG. . . Editor

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

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy a

Branch Board of Directors

Re-elect Jewel

As Ch'm'n: Elect

5 New Members

Attorney Howard H. Jewel of Oakland has been re-elected

as Chairman of the branch Board of Directors. Except for

about six months when he was in South America, Mr. Jewel

has served as board chairman for the past two years. Mrs.

Helen Salz, one of the founders of this branch, and Prof.

Van D, Kennedy were re-elected

as Vice-Chairmen. Ralph B, At-

kinson was elected to fil] the

vacant position of Third Vice-

Chairman.

New Board Members

Five persons were elected to

the branch board last. month and

took office on March 1. The new

board members are Richard De

Lancie, who has seen service on

the board in the past, Donald R.

Hopkins, Ken Kawaichi, Henry

Ramsey, Jr. and Fortney H.

Stark, Jr. The five vacancies

which they fill resulted from the

resignations of Mrs, Esther Pike

and Don Vial and the unavailabi-

lity for re-election of John May

and Joe Yasaki. The last vac-

ancy arose a year ago when one

of those elected proved to be

unavailable. :

Eight Re-Elected

Eight persons have been re-

elected to the branch board.

Those re-elected are Prof, Anth-

ony G. Amsterdam, Ralph B, At-

kinson, Howard A, Friedman,

Rev, Aron S. Gilmartin, Neil

Horton, Dr. Martin Mills, War-

ren H. Saltzman and Prof, How-

ward K, Schachman.

The board is made up of 30

at-large members. In addition,

eleven of the twelve chapters

have each elected a board mem-

ber, Because of distance, Fresno

finds it difficult to secure some-

one who can attend meetings. .

The San Francisco Council sends

a non-voting representative to

board meetings.

Following are_ biographical

sketches of the new board mem-

bers and photographs to the ex-

tent that they are available::

Richard De Lancie

Richard De Lancie of San Ma-

teo is President of URS Systems

Corporation in San Mateo, He

holds a B.A. degree from U.C.,

Berkeley and did graduate work

there in mathematica] statistics.

He is a member of many pro-

fessional organizations and has

special interests in race rela-

tions and international relations.

He is a former member of the

branch Board and at one time

Served as its Treasurer,

Prior to his association with

URS, Mr. De Lancie was Opera-

tions Analyst with Western Air

Defense Force, Hamilton Air

Force Base from 1952-1954, Prior

to that he was Operations Offi-

cer, Naval Photographic Inter-.

pretation Center, Washington,

D.C., 1951-52, Before that he

was associated with Pan Ameri-

can World Airways, U.S, Strate-

_gic Bombing Survey, Japan, and

Donald R. Hopkins

Donald R. Hopkins, 34, of Berk-

eley is District Representative

for Congressman Ronald V. Del-

lums of the 7th District.

Mr. Hopkins holds a B.A. de-

gree in Political Science from the

University of Kansas. He has an

M.A. from Yale, a J.D, from U.C.

Berkeley and a Master of Laws

degree from Harvard Law School.

He has received many academic

awards.

Mr, Hopkins was a staff at-

torney for NAACP Legal Defense

Educational] Fund and for one

year was Assistant to the Execu-

tive Vice-Chancellor at U. C.,

Berkeley, Prior to that he was

Assistant Dean of Students at"

U.C. for two years. He has also

taught at Laney College and U.C.

Extension, His articles have ap-

peared in various magazines and

newspapers.

_ Ken Kawaichi

Ken M. Kawaichi, 29, of Oak-

land, practices law in that com-

munity. He holds a J.D. from

the U.C, law school in Berkeley

and is associated with the law

firm of Yonemura and Yasaki,

Mr. Kawaichi has been a mem-

ber of the Berkeley Albany Chap-

ter Board and at one time headed

the Legal Committee. He is as-

sociated with many groups and

is presently on the board of In-

- ternational Institute, He is pres-

ently teaching a course in Con-

temporary Asian Studies at U.C.,

Berkeley. ;

Henry Ramsey, Jr. of Richmond

is a trial lawyer and member

of the law. firm of Ramsey and

Rosenthal] in Richmond. He holds

an A.B, from U.C., Riverside

and a J.D, degree from U.C.,

Berkeley, He is currently a lect-

urer in law at Boalt where he

teaches the seminar on criminal

law, He also has a monthly com-

enay on radio station KPFA-

Before entering the private

practice of law he was Deputy

District Attorney in Contra Cos- -

_ ta County. -

Fortney H. Stark, Jr., 39, of

Danville, is President of the Se-

curity National Bank. Mr. Stark,

a native of Wisconsin, graduated

from M. I. T. with a B. S. in gen-

eral engineering, He stayed on

as a teaching assistant and did

some graduate work in Industrial

Management.

After serving in the U.S, Air

Force he attended the Graduate

School of Business at U.C., Berke-

ley, where he received his MBA

degree in 1959, He founded Bea-

con Savings and Loan Assoc. in

. Antioch in 1961, which he di-

-Continued on Page a

with Shell Oil Co.

Richard De Lancie

Fortney H, Stark, Jr.

Anti-Picketing |

Statute Upheld

By Ct. of Appeal

A California Court of Appeal

in Sacramento, never one to be

bashful about issuing unusual de-

cisions, has upheld the validity

of a statute that seemed to most

lawyers and judges to be so

flagrantly unconstitutional that it

was struck down in the Sacra-

mento Municipal Court.

Directed At Simpson

Readers of the ACLU News

will remember when, in 1969,

then Assemblyman Don Mulford

of Piedmont succeeded in pass-

ing a statute through the Legis-

lature which prohibited, among

other things, ``picketing'' in the

capitol building. The bill was

aimed at Mr. Simpson, an elder-

ly gentleman with sandwich

board signs who frequently is in-

volved in litigation, and was

doubtless introduced because Mul-

ford had been recently graduated

to a place on Simpson's signs.

When the law went into effect,

Simpson was arrested several

times, but he was freed by the

Sacramento Municipal Court in

a ruling that the statute uncon-

stitutionally abridged free speech

by outlawing picketing in the

capitol building.

: Prohibition Denied

An appeal has been taken,

however, of an earlier ruling de-

nying a writ of prohibition

against the prosecution's. The

appeal was pursued by Kenneth

Wells, public defender of Sacra-

mento County. The Third District

Court of Appeal last month af-

firmed the denial, thereby hold-

ing the statute valid. The court

in its opinion accepts the argu-

ment that the state has "a legiti-

mate interest in protecting the

constituents of California from

the pressure of patrols in the

capitol halls," and expresses the

opinion that `"`many constituents

would find these patrols discom-

fiting, repugnant, even threaten-

ing. The court further character-

izes the exclusion of pickets as

"a legitimate attempt to protect

the level of debate rather than to

muffle public opinion.' The opin-

ion suggests that a picket sign,

because it has only a compressed

area, is a sort of lower level

communication lacking ``physical

space for reasoned expedition."'

Further Review Sought

Wells has announced that he

will petition for hearing to the

Supreme Court. ACLUNC, which

opposed the bill in the Legisla-

ture and was amicus curiae in

the Court of Appeal, will file an

amicus brief supporting the peti-

tion.

Mozart and Haydn

Bearded Manufacturer's Rep.

Pyrrhic Victory in

Unemployment

Benefit Case

The State Court of Appeal has reversed Department of

Employment and Superior Court decisions denying unem-

ployment insurance benefits to Steven Spangler. Spangler

lost his benefits because he grew a beard. The Department of

Employment reasoned that by growing a beard he had made

himself unavailable for employ-

ment. The finding that Spangler

was unavailable for work was

made in the face of the fact that

Spangler's local employment of-

fice in San Rafael had never re-

ceived any requests from em-

ployers for a manufacturer's rep-

resentative, which is Spangler's

profession.

Proof Lacking

It was on the latter point that

the Court of Appeal reversed. It

said, "there was _no adequate

showing that there was employ-

ment to be had but for the vol-

untary failure of appellant to

spruce up." But the court went

on to observe that the only rea-

son it was providing benefits for

"Spangler was the absence of an

evidentary nexus between his ap-

pearance and the availability of

jobs: "Instructions as to hygiene,

grooming and dress are not pre-

cluded, where reasonably re-

lated to standards generally or

specifically imposed by potential

employers in relation to the em-

ployment sought." Thus although

Spangler has won, the Court's

dicta devastate ACLUNC's con-

tention that the state may not

withdraw unemployment insur-

ance benefits because of a per-

son's beard or the length of his

hair.

Another Test Case

Dicta (that is to say, language

in an opinion that is not neces-

sary to the result), however, is

not supposed to be binding law

and ACLUNC is pressing for an

invalidation of employment reg-

ulations prohibiting beards and

long hair in. another case pend-

ing in the Court of Appeal. That

case involves Hugh King who

was fired by Dictaphone Corpo-

ration when he grew a beard. He

applied for unemployment insur-.

ance benefits but Dictaphone suc-

cessfully resisted the granting of

benefits in administrative hear-

ings. The Superior Court upheld

the Department of Employment's

ACLUNC Defends Good,

the True and the Beautiful

In the latter part of January Ken Cramer, flutist, and

John Bernard, oboist, were arrested for committing Mozart

in a public place. A month later three classical street musi-

cians (including, once again, the incorrigible Cramer a chronic

offender) were arrested for committing Haydn in public. All

of the musicians will be repre-

sented by ACLUNC attorneys in

defense to the crimina] charges.

Musical Prisoners

When Cramer and Bernard

first came to ACLU for help,

staff counsel Paul Halvonik

called a press conference, de-

manded that "all musica] prison-

ers" be released and announced

the formation of an ACLU "Mo-

zart Defense Fund." He also an-

nounced, that in keeping with

ACLU's impartial support for

free expression, it would defend

the works of all composers. He

mumbled something that sound-

ed like "even Tchaikovsky."

The Charges

The musicians are charged with

two violations of the penal code:

1) "accosting other persons in

a public place for the purpose

of begging or soliciting alms,"

and 2) "wilfully and maliciously

obstructing the sidewalk." In

fact musicians accosted no one.

They simply played their in-

struments and left an open vio-

lin case in which passers by

could, if they wished, monetar-

ily express their appreciation for

the music, They did not willfully

and maliciously obstruct the side-

walk either, They were simply

present on the street; people

were free to proceed unhindered

down the street by the simple

expedient of avoiding the area

occupied by the musicians, It

would be a remarkable feat if

two young men could block a

large San Francisco sidewalk

with nothing but a flute and

oboe. And no one complained

to the police that the street was

obstructed, maliciously or other-

wise.

Counsel

The Mozart case is scheduled

to go to trial as this newspaper

goes to press, It will be handled

by staff counsel Pau] Halvonik.

The Hayden case will probably

go to trial in April and wilj be

handled by volunteer attorney

Jerald Levitin of San Francisco.

determination, In the brief in

King's case, staff counsel Paul-

Halvonik, who also represented

Spangler, asks the following

question:

"Suppose the tables were

turned. Suppose an employer

should decide that all his em-

ployees must wear a beard and

shoulder length hair. Could it be -

seriously argued that a middle-

aged, clean-shaven, crew-cut man

who was fired because he refused

to comply with the request had

`voluntarily' left employment and

was thus ineligible for unem-

ployment insurance benefits?"

Decision Long Way Off

The appeal process in the King

case is in its early stages and a

decision will probably not be.

rendered for a year, In the in-

terim the Spangler decision will

unfortunately lend some legiti-

macy to the Department of Em-

ployment's systematic discrimi-

nation against persons. with

beards and long hair.

School Trespass Case

Temporary

Restraining

Order Denied

Matthew Ross is a client of

ACLUNC in a test case brought

in federal court in San Francisco

to challenge the legality of a

1969 State statute which permits

campus policemen to eject from

the campus of a state college or

university any person: whom he

"reasonably believes has _ will-

fully disrupted the orderly oper-

ation' of the school, Ifthe per-.

son-so ejected returns within

fourteen days he has committed |

a misdemeanor.

Three-Judge Court Requested

The suit has been pending in

the federal court since Novem-

ber, waiting for a decision as to

whether a statutory three-judge

court should be convened. The

case was first before Judge

Gerald Levin, but was then trans-

ferred to Judge George Harris.

Judge Harris for unknown rea-

sons, disqualified himself last

month and the case was then

transferred to Judge Robert

Peckham.

Another Election

Meanwhile, Matthew Ross: has

been thrown off the Berkeley

campus again, The first time he

was ejected he returned for the

sole purpose of giving a speech

concerning the Cambodian in-

vasion, after which he was ar-

rested. This time he seems to ~

haye been ejected for giving a

speech-at least that's one of the

reasons the University has claim-

ed the right to eject him again.

Ross is now an employee of the

University and required by his

job to be on the campus. |

Employer Is Understanding

Judge Peckham, however, re-

fused to issue a temporary re-

straining order returning Ross to

the campus, apparently because

the Department he works for is

understanding and will not fire

him whether he is there or not.

At the very least, however, the

incident will be much discussed

later on in illustrating the uncon-

stitutional uses to which the

statute can be put.

ACLU NEWS

MARCH, 1971

Page 3

ie

Legislative Report

Reapportionment

Is Main Concern

In Slow Start

The 1971 regular session of the California Legislature has

gotten off to a slow start after months of frantic maneuvering

for position and influence among most Democrats (and some

Republicans) after the Democrats regained control of both

houses of the Legislature in the November elections. The

Democrats control the Senate

by a margin of 21-19, which is

even smaller than it looks since

after the key January vote elec-

ting James Mills (D-San Diego)

as president pro tempore, Sena-

tor George Danielson (D-Monte-

rey Park) resigned to take his

seat in Congress. The actual mar-

gin, then, in the Senate is 20-19.

In the Assembly Democrats are

slightly more firmly in control,

having a margin of 43-37.

Robert Moretti of Van Nuys, a

close associate of former speaker

Jess Unruh, has been elected

speaker of the assembly. He has

surrounded himself with a group

of advisors numbering among

them many names familiar to

readers of this column. Impor-

tant in the Democratic leadership

are Walter Karabian (Monterey

Park), Henry Waxman (Holly-

wood-Los Angeles), and Willy L.

Brown, Jr, and John Burton of

San Francisco, Karabian is ma-

jority floor leader; Waxman

heads the all-important elections

and reapportionment committee;

Burton is chairman of rules com-

mittee; and Brown is chairman

of ways and means. This, of

course, is generally favorable for

civil liberties.

Senate Committees

After similar fast shuffling in

the Senate, the committees that

have been announced are also

more favorable to our interests

than last year's were. The Sen-

ate Judiciary Committee, for ex-

ample, is now chaired by Senator

Al Song (D-East Los Angeles)

and is comprised of seven Demo-

crats and six Republicans - a

change from last year's Judiciary

Committee, which was firmly in

charge of a rather conservative

group of senators.

Criminal Procedure Committee

One of the happy consequences

of this thawing in Sacramento

has been that Senators and As-

semblymen have found them-

selves somewhat deterred from

introducing aS many anti-civil

liberties proposals as heretofore

The Value of

A Draft Card

"The lengthy litigation involv-

ing Burton Marks seems to_ be

drawing to a close. Marks, con-

victed in the federal court here

of burning his draft card in the

offices of his draft board, has

finally pleaded guilty-to the pet-

ty offense of destroying govern-

ment property with a value of

less than $100.00. He was sen-

tenced to probation.

Marks, represented throughout

by ACLUNC, originally was tried

and convicted for burning his

draft card in a trial in which the

court refused to give instructions

on the issue of- insanity that

would have complied with the

modern capital model penal code

definition rather than the old

M'Naghten test. The Ninth Cir-

cuit Court of Appeal, which short-

ly after Marks' trial adopted the

newer test, reversed his case for

failure to give the correct in-

Structions. An arrangement was

reached whereby, in order for

all sides to avoid a retrial, Marks

could plead to the petty offense

of destroying government prop-

erty of a value less than $100.00.

He has done so, and should be off

probation shortly,

ACLU NEWS

MARCH, 1971

Page 4

had been popular. This is espe-~

cially true in the area of criminal

law, where the composition of

the assembly criminal procedure

committee (renamed criminal

justice) has apparently discour-

aged many bad bills. The crim-

inal justice committee, composed

of five Democrats and four Re-

publicans and therefore having

a Democratic majority for the

first time in many years, will be

chaired by Robert Beverly (R-

Los Angeles). The other Re-

publicans are Frank Murphy,

Jr. (Santa Cruz), W. Craig

Biddle (Riverside) and Carlos,

Moorhead (Glendale), Most of

the Democrats are familiar:

John J. Miller of Berkeley,

Robert Crown of Alameda, and,

after a year's absence from the

committee, Alan Sieroty of Bev-

erly Hills. Newcomers to the

committee are Henry Waxman

and Yvonne Brathwaite of Los

Angeles, This committee has con-

sidered very few bills so far, but

has already indicated its general

orientation by putting to a quick

death a bill by Assemblyman

Mike Cullen providing a state-

wide loyalty oath and related

penalties.

Negative Development

Those interested in whittling

away at civil liberties have not,

however, been entirely scared

away, This session will produce

bills to expand the death penalty

to every first degree murder of

a policeman, to cut back on the

traditional] jury system both by

reducing its numbers and by re-

quiring a less-than- unanimous

vote for a guilty verdict in crimi-

nal cases, and possibly also to at-

tempt once more to introduce

Wiretapping into California as

well as some variation of Presi-

dent Nixon's program of pre-

ventive detention.

Positive Side

On the positive side, the year

will see bills to abolish the death

penalty, reduce penalties for

marijuana, upgrade standards of -

training for police, and to try

once more to import due process

into the parole revocation pro-

cedure. At this point it also ap-

pears that wholesale assault will

be made on the prison system.

So far, however, things have

been quiet. The new procedure

of having the governor introduce -

the budget early in the year has

changed the tone of the first

month of the session and has dis-

tracted attention which would

otherwise have gone to the con-

sideration of bills. Also, since

this is reapportionment year, the

primary concern of every legis-

lator is that the map of his dis-

trict look as favorable as possi-

ble, All other considerations will

probably be placed behind that.

-Charles Marson

Hugh Johnston

Heads Santa

Cruz Chap. Bd.

Hugh Johnston, Santa Cruz

lawyer, was recently elected as

Chairman of the Santa Cruz

County Chapter Board of Direc.

tors. The chapter's other officers

are Michael Dailey, attorney,

Vice-Chairman; Eric Nordquist,

engineer, Treasurer; Nancy Ben-

jamin, Secretary; John McBain

and John Thigpin, Program;

Egon Winter, Membership Chair-

man. Stanley Stevens continues

as the chapter's member on the

Hayward State

ACLUNC Enters

Gene Poschman

Tenure Case

ACLUNC, acting as an amicus

curiae, has urged Dr. Glen S.

Dumke, Chancellor of the Califor-

nia State Colleges, to reverse the

decision of Ellis McCune, Presi-

dent at Hayward State, to deny

tenure to Gene S. Poschman, po-

litical science professor. Posch-

man was denied tenure despite

the affirmative recommendations

of the College-wide Promotion

and Tenure Committee and the

College Grievance Committee.

ALUNC contends that the denial

violated due process.

Puzzling Case

The result in the Poschman

case is a mystery to just about

everyone. All of the committees

responsible for making a judg-

ment about Poschman's ability

agreed that he should receive

tenure and President McCune

gave no reason for his refusal to

follow those recommendations. It

is known that the Chairman of

Poschman's department opposed

tenure, that his opposition was

communicated to the campus

vice-president and that the vice-

president, in turn, recommended

to the president that tenure be

Cenied. But under the school's

own rules, the vice-president was

not empowered to make a recom-

mendation nor should the presi-

dent have considered the recom-

mendation.

Own Rules Violated

In his letter in support of

Poschman, volunteer ACLUNC at-

torney Donald H. Maffly of San

Francisco sets forth a number of

procedural deficiences in Posch-

man's case. It is a basic rule of

due process that an administra-

tive agency must follow its own

rules in reaching a decision and

practically every rule relevant to

Poschman's case was violated.

As Maffly notes:

"Careful procedures are al-

most universal: in American

colleges and universities pre-

cisely because the academic

community has long recog-

nized that its members are

not always impartial in judg-

ing their colleagues and that

decisions regarding tenure,

being difficult and delicate,

can be distorted by influerices

that prevent objective judg-

' ment."

President Ignores Transcript

Perhaps the most significant

departure from the State Colleges'

own rules in Poschman's case

was the absence of any consider-

ation given to the recommenda-

tions of the grievance panel. The

President was required to give

his reasons for rejecting the

panel's recommendation, but he

did not: Indeed, he did not even

review the transcript of the griev-

ance comitee. Mafly observes:

"Grievance proceedings be-

come meaningless if a com-

mittee of five faculty members _

spends the better part of six

days hearing extensive testi-

mony from 11. witnesses on

difficult and sensitive issues

and then makes detailed

findings and recommendations

based on this evidence, only

to have its findings rejected

by a person who has neither

heard nor reviewed any of

this evidence."

Court Action Contemplated

Should Dumke sustain President

McCune's denial of tenure to

Poschman, Poschman's attorney,

Michael Traynor of San Fran-

cisco, may take the matter te

court. If so, ACLUNC will sup-

port Poschman in an amicus

curiae capacity.

branch Board of Directors.

Mr. Johnson last month an-

nounced that the Chapter's an-

nual fund-raising Bash has been

scheduled for May 1 and mem-

bers are urged to reserve the

date. The program includes a no-

host bar, a silent auction, and a

timely address by a noted civil

libertarian, Further details will

be given next month.

ee

"1

State Supreme Court

5-Year Residence

For Candidates

Challenged

On March 2 the a Court of California will hear

oral argument in the case of Zeilenga v. Nelson. Zeilenga (a

member of the Chico State faculty) who is an advocate for

the needs of the poor, wishes to run for supervisor in Butte

because he does not satisfy a

charter requirement limiting

candidates to persons who. have

resided five years in the county.

Zeilenga, represented by coop-

erating attorney Phi] Isenberg

of Sacramento brought suit chal-

lenging the constitutionality of

the durational residency require-

ment in the Butte County Su-

perior Court. He lost and took

his case to the Court of. Appeal

which ruled the five-year resi-

dency requirement unconstitu-

tional but held constitutional a

one-year requirement. Butte

County petitioned the Supreme

Court to review the case, a peti-

tion which was granted.

ACLU Argument

ACLUNC, in a friend-of-the-

court brief prepared by staff .

counsel Paul Halvonik, supports

Zeilenga and urges the Supreme

Court to hold the durational

residency requirement unconsti-

tutional, The five-year residency

requirement affects three funda-

mental liberties: 1) Zeilenga's

right to run for office; 2) Zeil-

enga's right to travel freely

throughout the state without suf-

fering any penalty; and, 3) the

voters right to choose among

competing candidates without un-

reasonable restriction, Because

fundamental rights are involved,

Halvonik contends, the county

Norvel Smith

Named To Com.

Last month, Norvel S mith,

President of Merritt College,

Oakland, was added to the Ex-

ecutive Director Committee now

composed of six persons, headed

by Marshall W. Krause, former

staff counsel,

The Committee hopes to sub-

mit its report to the April 9

branch board meeting,

Board Elections

- Continued from Page 3-

rected until] founding Security

National Bank in Walnut Creek

in mid-1963.

Mr. Stark is a trustee of Starr

King School of the Ministry and

of the Graduate Theological

Union, Berkeley, He is a director

of the Walnut Creek Civic Cen-

ter, and the Kennedy-King Mem-

orial Scholarship Fund, Inc, He

ig a member of the Executive

Board of the Council for Civic

Unity and serves on the Chair-

man's Advisory Committee of the

California Democratic State Cen-

tral Committee.

County but has been deprived of the opportunity to do so

cannot impose the durational resi-

dency restriction unless it can

show a compelling interest limit-

ing the fundamenta] liberties

that. cannot be achieved by a

means less restrictive of those

fundamental liberties.

Answer to County Argument

The county cannot meet that

test. The only interest it advances

in justification of its durational

residency requirement for can-

didates is that qualification in-

sures that the office holder will

be informed on loca] issues, But

persons who have in fact been

five year residents of the county

may not be truly informed on

the pertinent issues and it cer-

tainly does not take five years

to become familiar with the prob-

lems of a county the size of

Butte. Moreover, as the brief

notes, there is a means for pro-

moting the objective of informed

office holders that is less sub-

versive of the right to vote and

the right to run for office and

more likely to accomplish the

objective than the durational

residency requirement: the elec-

tion process itself.

"If a candidate, be he long

time resident or short, is un-

informed about local issues,

then his ignorance should be

exposed to the voters during

the campaign, That is what

campaigns are for, Who, other

than the voters, is competent

to determine the candidates

knowledge about local affairs

or politics generally? Who,

other than the voters, is com-

petent to determine which

candidate possesses the `signi-

ficant' knowledge that equips

him best to serve the voters

and reflect their interest?

If the voters, informed about

the qualifications of the can-

didates, including their period

- of residency, feel] that the short

time resident is better capable

of grappling with the county's

problems than the long term

resident, who is to say that

they are wrong? What legiti-

mate (much less compelling)

interest is promoted by de-

priving them of their liberty

to choose among the candi-

dates?"

Test Issue

The Zeilenga case is the first

California case challenging a

candidate-durational residency re-

quirement, Last fall, in an ACL-

UNC case, the State Court of

Appeal struck down the one-

year durational residency re-

quirement for voters.

The first right of a citizen

Is the right

To be responsible

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