vol. 39, no. 7

aclu

news

Volume XXXIX

September 1974, San Francisco

Police project asks court to

force CHP to disclose rules

Sacramento County Superior Court Judge Lloyd

Phillips ordered last month that officials of the California

Highway Patrol appear in his court on October 9 and

explain why they have refused to make public the

agency's procedures for investigating citizen complaints

of officer misconduct.

Judge Phillips responded to a petition for a writ of

mandate filed by the Northern California Police Practices

Project (NCPPP) and three individual taxpayers who

wishe to lodge complaints against CHP officers. The

NCPPP is jointly sponsored by the ACLU Foundation of

Northern: California, the Mexican-American Legal

Defense and Education Fund and the NAACP Legal

Defense Fund. CHP Commissioner Walter Pudinski and

the Supervising Inspector of the Office of Internal. Affairs,

E.E. Elmore, are named respondents in the case.

The suit is the first major acti6n taken by the NCPPP

in pursuance of its chief objective, the furtherance of

public accountability of California police agencies. The

Project assists citizens who seek legal and administrative

remedies for police misconduct and serves as a source of

- public information regarding police practices and con-

duct.

In the suit against the CHP, NCPPP Legal Director

Amitai Schwartz charges that the agency has illegally

refused to disclose their complaint procedures and has

Help Wanted

ACLU has alwasy been dependent on the services of the

many volunteer: attorneys who contribute however, we

[desperately at various times.

Some volunteers are needed regularly and some - only

for special projects. Either way, things run a lot more

smoothly if we have the names and numbers on file of the

people willing to help in an emergency or when we have

unusual needs. If you could help out with one of the ef-

forts below, call Deborah Spatafore at the ACLU, 433-

2750.

ARCHITECT, INTERIOR DESIGNER, GRAPHIC

DESIGNER - ACLU-NC is currently seeking

newoffice space. When the space is found, it will almost

that know how to make a dismal building into a joy-to-

work-in office.

help on mailings, or do copying, etc. are always

desperately needed. Anyone who can work with en-

now, such work is severely backed up.

EVENT ORGANIZER - Fundraisers, educational

meetings, benefits, etc. all require people to make them

`work and we have to rely on volunteers to help us with

| the thousands of details involved.

extent other departments at ACLU often need people to

and make pick-ups and deliveries.

PROPOSAL WRITER-RESEARCHER - Persons

experienced in developing proposals for foundation

projects and in pulling together the back-up information

to support the proposals are desperately needed to help us

put some of our ideas into action.

IF YOU CAN HELP, PLEASE CALL TODAY.

forget that the services of other people are needed just as_

certainly need renovation and decorating and some people

CLERK-TYPIST - Serle willing to do typing, or to |

velopes or pieces of paper can always find work here. Just.

MESSENGER - the legal Aone and to a lesser

deliver papers to the various courts, run general errands |

therefore denied citizens their rights to redress of

grievances. He argues that the California Public Records

Act and the due process clauses of the U.S. and California

Constitutions prohibit the CHP from disposing of citizen

complaints in secret.

Schwartz explained the CHP's attitude thus:

`*Fssentially the CHP is saying, ``Sure you can file a

complaint about the conduct of one of our officers, but we

= *t have to tell you what we will do with it after you file

' Public trust in law enforcement in a democratic

ey is much too important for the CHP to be playing

hide-and-seek with the public."'

On behalf of the three plaintiffs in the suit, Schwartz

has repeatedly requested information on the CHP

complaint procedures. He has received only one response

from CHP headquarters in Sacramento: *`Our Personnel

and Complaint Investigations Manual is for Departmental

use only and, therefore, will not be forwarded to you as -

requeSted."'

All three of the plaintiffs claim they must know the

complaint procedure in order to make an effective

complaint and to be assured that the procedure works.

They also must determine whether the CHP internal

complaint procedure is more or less advantageous than

other administrative or judicial remedies.

Karen Cook of Richmond, had a sister who is now

deceased and who was involved in a traffic accident on

Interstate 80. The sister's car was searched by CHP

officers and she was s kicked, pushed and verbally insulted

No. 7

NCPPP Legal Director, Amitai Schwartz, explains

importance of open policy making by the CHP.

by the officers. Cook is now trying to assess the remedies

available to her and went to Schwartz for advice.

Early this year, John Palmer, an Emeryville fireman,

was involved in a dispute with a CHP officer relating to a

near collision between his car and a CHP vehicle. After -

the incident, Palmer went to the CHP office in Oakland

and lodged a complaint against the patrolman 0x00A7who was

involved. He gave the officer receiving his complaint his

home phone number and address and | specifically

requested that he be contacted there and not at work.

The next he heard of the matter was when his employer

called him on the carpet. to explain why he is having a

dispute with the CHP. Palmer believes that the handling

of his complaint was discriminatory and irregular but he

has no way of knowing. Also, Schwartz is unable to

advise him whether it mule be wise to lodge another

complaint. :

Finally, Paul Weber was stopped by CHP pincers on.

continued on page 8

Sex law challenged i in high court

Penal Code Section 647 (a) provides that every person

`*who solicits anyone to engage in or who engages in lewd

or dissolute conduct in any public place or in any place

open to the public or exposed to public view'' is guilty of a.

misdemeanor. As applied in California, this statute is

almost exclusively invoked against male homosexuals. -

ACLU Victimless Crimes Project Director Deborah |

Hinkel filed a petition for hearing in the California

Supreme Court last month in a criminal case challenging

the constitutionality of 647(a). The case, Silva v.

Municipal Court for the Oakland-Piedmont Judicial

District, began when Edward Silva was charged with

soliciting a police officer to engage in such lewd or

dissolute conduct.

Silva demurred to the complaint arguing that 647 (a) is

unconstitutional but the Municipal Court as well as the -

Superior Court of Alameda County upheld the statute. _

Last July, the California Court of Appeal sustained the

lower court's order overruling the demurrer, in other

words, it upheld the constitutionality of 647 (a) and the -

charges against Silva.

In the appellate court, Silva had coupled that ao

statute violates the First Amendment and it is vague. In

its written opinion, however, the Court of Appeals cured

both constitutional infirmities by holding that the term |

``lewd'' means the same as the term ``obscene''; that

the term ``obscene'' is not unconstitutionally vauge; and

that obscenity is not protected by the First Amendment.

The court did not address itself to Silva's challenge that

the statute violates the right of privacy.

In her petition for hearing, Hinkel stresses to the

Supreme Court Justices that this lower court opinion

departs dramatically from long established principles of

constitutional law; that it could provide an alarming

_ present danger"

precedent; and that important questions of law remain'

unresolved.

She notes that this is the first appellate decision which

extends to non-entertainment cases the rule that lewd

conduct is identical to obscene conduct. Secondly, it is the

only decision which has held that ``appeal to prurient

interest'' and ` `redeeming social value'' are irrelevant to

a definition of obscenity in this state. Instead, the court

substituted a new definition ``in order that citizens, law

enforcement, ene or ult: can determine what is

_ lawful.''

Hinkel goes on to argue that 647 (a).is income hevtonel

on a variety of grounds not withstainding the appellate

court's opinion. Chief among those grounds is the charge

that the statute attempts to prohibit speech simply

because the solicitation is uttered in a public place. Silva

has not been charged with engaging in a lewd act but

rather with speech uttered in a a public place which may be

offensive to some.

Furthermore, Hinkel argues that the speech prohibited

by Section 647 (a) fails to meet the Frirst Amendment

standards for regulating the punishment of speech on

"grounds of its tendency to lead to a breach of the peace.

She notes that the state's power to restrict speech is

strictly limited to situations where there is a ``clear and

of imminent, substantial violence. The .

solicitation at issue here, she concludes, hardly si seems to

_ present that danger.

Hinkel also charges that the Court of Apel did

nothing to overcome the vagueness from which 647 (a)

suffers. The court tried to rely on the substitution of the

term ``obscene'' but then it went even further by writing

a new definition of obscentiy : ""It is that sort of sexual

continued on page and

Sept. 1974

aclu news

LEGAL

ACLU's volunteer attorneys and cases

By Joseph Remcho, Staff Counsel

and Nancy Russell, Legal Assistant

ACLU-NC must rely heavily upon

volunteer attorneys if we are to have a

significant impact on civil liberties in this

state. Of primary importance to the af-

filiate's legal efforts are experienced at-.

torneys with a particular skill in a specific

area of civil liberties law. Although ACLU

members occasionally read

volunteer attorney's work in local

newspapers or the ACLU NEWS, the

work of many volunteers goes unnoticed. -

Countless. other volunteers - both

attorneys and non-attorneys - negotiate

with public and private groups to vindicate

civil liberties and lobby before school

`boards and local governmental bodies.

This column, which we hope will become

a regular doaaice of the ACLU NEWS,

will discuss significant cases handled by

volunteer attorneys and will keep readers

up to date on the work they are doing for

the affiliate.

The following is a list of volunteer

attorneys working on current or recently

completed cases and a brief discussion of

the issues involved:

The procedures implemented by the San

Francisco Police Department during the

_"*Zebra manhunt'' last April (stop-and-

frisk, field interrogation cards, warran-

tless searches, etc. against approximately

600 black males who met a vague ``Zebra

profile'') touched off a frenzy of staff-

volunteer attorney activity that continued

literally around the clock for almost a

week and involved some of the West

Coast's. most astute constitutional

lawyers. ACLU-NC volunteer attorneys

"PAUL HALVONIK (affiliate General

Counsel), STANLEY FRIEDMAN

(ACLU-NC Board member), and

JEROME FALK (Chairman of the affiliate

Legal Committee) worked with staff at-

torneys Remcho, Schwartz, and Hinkel to

prepare the complaint and related papers

for the lawsuit; AANTHONY AM-

STERDAM (Stanford law professor and

recipient of ACLU-NC's first Earl Warren

Civil Liberties Award) and CECIL POOLE

(former U.S. Attorney in San Francisco)

argued the case before Judge Alfonso

Zirpoli who, after a two-day evidentiary

hearing, granted a preliminary injunction

against. the police procedures.

ALAN BERKOWITZ, from ACLU-

NC's Employment Rights Committee, is

handling a suit against the Auburn Police

Department on behalf of Shelley Riley,

who was fired from the Department for

testifying for two members of the force

_ who were terminated for union activity,

and for filing a complaint against the

Department with the FEPC alleging sex

discrimination. Suit for declaratory relief

and damages was filed in the U. S. District

Court in Sacramento early in August.

about a

JOHN BOWMAN, from Fair Oaks,

wrote an amicus brief on behalf of Mark

Keithley, the real party in interest in

People v..

County, challenging the continued police

interrogation of Keithley after he had

refused to waive his Miranda rights and a

subsequent police search of his home. The

_ Marin County Superior Court suppressed

the evidence secured in the search but was

overturned by the California Court of

Appeal. The case is on appeal to the

- California Supreme Court, where ACLU-

NC's brief was filed in mid-August.

TERRY CALVANI, who, un-

fortunately for ACLU-NC, has left the

Bay Area to teach at Vanderbilt

University in Tennessee, wrote our

amicus brief in Berkelman v. San Fran-

cisco Unified School District, the

recently-decided case alleging

discrimination in entrance requirements (c)

at Lowell High School. Calvani's brief

addressed only the issue of sex

discrimination - Lowell required a higher

grade point average for entering female -

_ students than for males. In July the U. S.

Court of Appeals for the 9th Circuit held

that Lowell's entrance requirements

discriminated on the basis of sex and were

therefore constitutionally impermissible.

DAVID COBIN, a Berkeley attorney,

took charge of Allen v. Monger (and its

_ companion case, Ferner v. Guest), a class:

action asserting that servicemen have First

Amendment rights to free speech and to

petition members of ~Congress. The

plaintiffs are Navy personnel aboard the

USS Hancock who were threatened with

penalities for distributing anti-war

petitions which were eventually to be sent

to members of Congress. Judge Robert

Peckham (U. S. District Court) has

granted a preliminary injunction, subject

to a further hearing on the method by

which the petition is to be circulated.

TOM CRAWFORD, a San Francisco

lawyer, prepared ACLU-NC's amicus

brief in Gayer v. California Department of

Motor Vehicles. DMV refused to issue

Mr. Gayer a personalized license plate

bearing the letters' ``GAYLIB'';

Crawford asserts that Gayer has First and

Fourteenth Amendment rights to such a

plate. The brief was filed in February; the

issue is under submission in the California

Court of Appeal.

ALICE DANIEL, a professor at

Hastings College of the Law, challenged

the power of a judge to charge a woman

with abandonment and put her children up

for adoption because she was confined to

jail on a marijuana charge. ACLU-NC's

amicus brief in Ramirez v. Hoff was filed

in November 1973; the case is under

submission in the California on of

Appeal.

VIRGINIA FABIAN, ACLU-NC

Board member from San Francisco,

participated with staff in Zamora v. Riles,

_an Eighth Amendment and due process

Superior Court of Marin

9 issues a year, monthly except bi-monthly in March-April, July-August,

and November -December

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

Richard DeLancie, Chairman ofthe Board Jay Miller , Executive Director

Mike Callahan, Editor and Public Information Director

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

Membership $15 and up of which $2.50 is the annual subscription fee for aclu News.

attack on the use of corporal punishment

in California schools. Zamora is a 13-year

old who was strapped in the testicles by

the vice principal of his junior high school

in San Benito County. The school has

_ settled the damage action and trial is now

set for late September on the claim for .

injunctive relief.

JEROME B. FALK, JR., a San

Francisco attorney who has worked as a

volunteer for the ACLU for over five

years, wrote our amicus brief in Wong v.

Younger, arguing that although Attorney

General Evelle Younger has a Frist

. Amendment right to free speech, he is an

officer of the state and racial slurs in

documents promulgated by his office are

_ not protected by the First Amendment.

The issue came to public attention when

the Attorney General issued a bulletin to

California law enforcement agencies

entitled ``Triad: Mafia of the Far East,''

"`Chinese heroin .

directed at alleged

traffic'? and containing . broad

generalizations about criminal activity in -

the Asian community. The amicus brief

was filed in late August in the U. S.Court

of Appeals for the Ninth Circuit.

MARTIN FASSLER, from Berkeley,

combined the expertise of ACLU-NC and

the National Lawyers Guild Electronic

Surveillance Project in an amicus brief in

Vielguth v. U. S., asserting that a witness

before a grand jury (or a criminal

defendant) need only make a ``bare

claim'' - without supporting evidence -

of electronic surveillance in order to

require the government to affirm or deny

the occurrence of such surveillance. The

brief was filed in the 9th Circuit Court of

Appeals in early July and, later that

month, the Court reversed the lower court

ruling that supporting evidence is needed,

agreeing with the contentions of amici.

MARSHALL GOLDBERG,

practices in San Francisco, protested as

amicus for ACLU-NC the denial of

naturalization to Salomon Liebermann.

Herbert A. Philbrick (`I wasa com-

munist for the FBI'') alleges that Mr.

Liebermann attended communist party

meetings in Massachusetts in the 40s.

The matter is pending in the U. S. District

Court in San Francisco.

PAUL HALVONIK, former ACLU-

NC staff counsel who is presently con-

ducting a prison-jail project for Public

Advocates, Inc., continues to be a

generous contributor to the affiliate's

efforts. in court. He argued Storer v.

Brown in the U. S. Supreme Court and is

continuing to work on its companion case,

Hall v. Brown, after its remand from the

Supreme Court to the U. S. District Court.

Storer and Hall challenged California

Elections Code provisions which make it

virtually impossible for independent party

candidates to get on the ballot. Early in

Halvonik prepared an amicus (c)

August,

brief in Widener v. PGGE, contending

that the utility company's attempt to seal

from the public all records generated by

Widener 's defamation suit against them is

an unconstitutional infringement of

freedom of the press and the public's right

to know.

JOHN HANSEN, a member of the -

-affiliate's San Francisco Chapter Board,

was initiated into ACLU-NC by taking up

the cause of Patrick Chenoweth, who was

charged with sabotage in time of war for

allegedly dropping a paint scraper into the

reduction gear of an aircraft carrier en

route to Vietnam. Volunteer MICHAEL

WEISS and Hansen succeeded in

preventing the Navy from moving

Chenoweth's trial to the Philippines;

Chenoweth was tried in San Francisco and

acquitted of all charges. More recently.

Hansen prepared a memorandum of law

for submission to the San Francisco Board .

of Supervisors and the City Attorney.

urging that a proposed ordinance to

prohibit any depiction of nudity in

newspaper racks on the city streets was

constitutionally defective.

FRED HURVICH, legal coordinator of

the Marin County Chapter of ACLU-NC,

is the attorney who eseablished that girls

must be allowed to participate in Little

League activity in California. The Marin

County Superior Court ruled that the Mill

Valley Little League's exclusion of Jenny

Fulle constituted illegal sex discrim-

ination.

MICHAEL KELLEY, from Berkeley,

and ROD BUSHNELL, of San Francisco,

wrote the amicus brief in wee v. Felix for

| quantity are available upon request. The

who |

Foundation Reports

The 1973 Annual Report of the ACLU

Foundation of Northern California has

recently been published and a limited

report briefly describes some of the

highlights of last year's legal program as

well as the goals and accomplishments of

the four special projects which deal with

victimless crimes, prisoner rights, police

practices and women's rights. In addition,

the report contains the full 1973 legal

docket, the same listing of cases which

appears in this issue of the ACLU News.

If you wish to know more about the

Foundation, the tax-deductible arm of

ACLU which specializes in litigation and

special projects, write or call Judy San-

stadt at ACLU, 593 Market St., San

Francisco, CA 94105 or phone: 781-

2597.

ACLU-NC, the Central Committee for

Conscientious Objectors, and Congress-

man Ron Dellums. The brief

argues on First Amendment religious

freedom and equal protection grounds -

that conscientious objectors issued orders

to alternative service should be treated in

the same fashion as persons issued orders _

for induction. The brief was filed in April

and the case is pending in the U. `S.

District Court.

STEVE KOSLOW is the attorney of

record in Hansen v. Yellow Cab, an

ACLU-NC Employment Rights Com- |

mittee case challenging the taxi com-

pany's right to impose a ``no beards or

long hair'? requirement on male cab

drivers. The suit alleges sex -

discrimination; it was filed in U.S.

District Court in 1973 and will shortly go

to trial.

NORMAN KULLA, from Sacramento,

is working on Gleason v. Department of

Health, disputing the right of state

hospitals to transfer mental patients to

distant hospitals in violation of a state

statute requiring individualized `deter-

mination of the therapeutic benefit of such

transfers. The suit was filed in Sacramento

Superior Court in October 1973; trial

date i is pending.

ELLEN LAKE, an attorney from

Berkeley who has been spending most of

her time lately in the central valley doing

_ continued on page 6

FIRST AMENDMENT

In re Petition of Salomon Liebermann for Naturalization

U.S. District Court, Northern District of California

Naturalization denied pending second deposition of Herbert A. Philbrick

who alleges petitioner was present at Communist party meetings in Massa-

chusetts in 1946. ACLU-NC amicus brief attacks on First Amendment grounds

the constitutionality of the U.S. Code section used to justify denial of natural-

ization petition. Amicus brief filed April, 1974. Attorney-Marshall Goldberg.

Fontes v. Pierucci |.

U.S. District Court, Eastern District of California

Challenge to refusal of school district to pay salary to employee who worked

two to three weeks but refused to sign invalid loyalty oath. Defense is state

statute forbidding payment to non-signers. Suit for injunctive and declaratory

relief and damages filed May, 1973; presently in discovery process. Attorney-

Robert Leidigh.

Kientz v. California Department of Corrections

California Supreme Court :

First Amendment and due process challenge to firing of San Quentin Prison

guard for refusing to'shorten sideburns, in absence of written rule. In July,

1973 the California Court of Appeals ruled that Keintz' refusal to shave his

sideburns was constitutionally protected. The government appealed to the

California Supreme Court; the Supreme Court denied hearing in September,

1973. The case is presently in the administrative process of determining back

pay and benefits for Kientz. Attorney-Charles Marson.

Mohr v. Hayward Unified School District

California Court of Appeal

Amicus support on First Amendment grounds challenging firing a teacher for

using the word "`bullshit'' and discussing the wisdom of current oral copula-

tion laws while voluntarily participating in a student conference. Amicus brief

filed December, 1973. Attorney-Joseph Remcho.

Gayer v. California Department of Motor Vehicles

California Court of Appeal

Amicus support in First and Fourteenth Amendment challenge to Depart-

ment's refusal to. issue a personalized license plate bearing letters `"GAYLIB"'.

Amicus brief filed February, 1974. Attorney-Thomas Crawford.

Franklin v. Stanford University

Superior Court of Santa Clara County

First Amendment action for reinstatement: and back pay for tenured professor

fired from Stanford for pure speech characterized by Stanford as inciting to

violence. Presently .in pre-trial stage. Stanford's motions for summary judg-

ment and judgment on the pleadings denied May, 1973. Discovery proceed-

ing. Attorney--Charles Marson. :

Retail Liquor Dealers Association v. United Farm Workers

Superior Court, Monterey County

Amicus support on First Amendment grounds to block proposed statewide

preliminary injunction "prohibiting more `than one United Farm: Workers:

picket at any retail liquor store in California. Amicus brief filed February,

1974. Attorney-Toby Sherwood. |

McKeon Construction v. Kennedy, et. al.

Superior Court, Sacramento. County

Amicus brief on First: Amendment grounds for defendants in harassment suit

by land developer whose subdivision .was. successfully opposed by defendant

conservationists at permit hearings. Plaintiffs'. theory -is. `conspiracy. to de-

prive'' of lawful use of land. September, 1974, Court sustained defendants

demurer to First Amended Complaint, issuing a protective order delaying fur-

ther discovery until McKeon Construction shows it is "able to plead facts

upon which damages constitutionally can be predicated". Proceedings pend-

ing. Attorney-Coleman Blease.

- Langford v. Cotati - Rohnert Park School District

Sonoma County Superior Court 2

Petition to enjoin use of religious song of grace in public kindergarten, al-

leging violation of First Amendment. Petition for writ of mandate filed Febru-

ary, 1974. Hearing set for March; decision pending. Attorney-Martin Spiegal.

King v. Unemployment Insurance Appeals Board

San Francisco Superior Court =

Challenges denial of. unemployment. compensation benefits to. longhair al-

leged to have himself voluntary unavailable for work. Petition for .writ of

f 3 .

mandate filed February, 1974. Attorney-Charles Marson.

Anthony Platt

Administrative Proceedings

" First and Fifth Amendment challenge to denial by U.C. Berkeley of tenure

for criminology professor assertedly for deficiencies in scholarship, actually

for political expression. May, 1974, Academic Senate recommended tenure

for Platt; administrative decision pending. Attorney-Peter Sheehan. -

Mark Greenberg Se

Before California. State Board of Education

Administrative proceedings seeking teaching credential for applicant arrested

for possession of marijuana and LSD. Evidence suppressed in criminal court

.due to bad search. Issues are relevance to profession and applicability of ex-

clusionary rule. Administrative decision pending. Attorney-Charles Marson. .

RIGHT TO PRIVACY

Rock v. Secretary, Department of Defense.

_ U.S, District Court, Northern District of California -

Suit for injunctive and declaratory relief and review of administrative `action.

_ on behalf of admitted homosexual whose Top Secret security clearance was

lifted because of his sexual activity. Suit filed May, 1974. Preliminary injunc-

tion granted June 24. Attorney-Joseph Remcho. i ee

-- Hepburn v. Alioto

U.S. District Court, Northern District of California

Due process, equal protection, and privacy challenge to firing of police

_ cadet for refusal to complete polygraph tests not required of all cadets, not

_ related to reasons for requiring tests, and including questions concerning sex

life, beastiality, etc. Government motions to dismiss and for summary judg-.

ment denied; case set for trial in August, 1974. Attorney-Charles Marson.

Allan Rock. | at ee

Before the Industrial Security Clearance Review Board

Due process defense to attempt to revoke security clearance of electronics

engineer who admits homosexuality. Hearing Examiner-ruled adversely Aug-

ust 23, 1973; appeal filed November 30, 1973; argument January 17, 1973;

Defense Department ordered rehearing because public and press improperly .

excluded, returned to appellate docket February 1974; Appeal Board ruled -

On May 16, 1974, that it is inconsistent with the national interest to allow

Rock access to classified information. See also Rock v. Secretary, Department

of Defense, supra and Rock v. California, Victimless Crimes Project, infra.

Attorney-Joseph Remcho.

t

torneys-Michael Kelley and Joseph Remcho.

_ was processed for discharge because of admitted homosexual activity. ACLU-

_ In're Janice Christensen Banks

2 Suit for declaratory and injunctive relief, mandate, and prohibition against

City of Mill Valley and the Little League, alleging unlawful sex discrimination | -

_ April, 1974. Temporary restraining order granted; preliminary injunction

oS People v. Amor

~ California Supreme Court

_ appointed counsel. Brief submitted March, 1974. Attorneys-Toby Sherwood

_ California Supreme Court

MILITARY JUSTICE

Hernandez v. Veterans Administration

U.S. Court of Appeals for the Ninth Circuit

Equal protection and First Amendment challenge to the failure of the Vet-

erans Administration to grant benefits to veterans who served in a non-com-

batant status. United States Supreme Court granted review of the case in May,

1973; in March, 1974, that court reversed an earlier decision of the. Ninth

Circuit asserting lack of jurisdiction and remanded back to the Ninth Circuit

for decision on the merits. Attorney-Jack Petranker.

Allen v. Monger .

U.S. District Court, Northern District of California

Class action on behalf of persons aboard U.S.S. Hancock desiring to dis-

tribute anti-war petition *to U.S. Congressman Fortney Stark requesting a

congressional investigation. A seaman who previously distributed the peti-

tion was arrested and sent to Captain's Mast without right to counsel. He

was demoted one grade, fined $150.00, given twenty days restriction, and

then discharged (on a pending C.O. claim) within 24 hours. Suit charges that

the Navy has chilled the rights of seamen to petition members of Congress

and asserts free speech rights of servicemen and right of servicemen to

petition Congress. Suit filed May 1973; June, 1974, under submission on re-

quest for preliminary injunction. Attorneys-David Cobin and Joseph Remcho.

Ferner v. Guest

U.S. District Court, Northern District of California

Companion case to Allen v. Monger (above).

Kaku v. Felix

U.S. District Court, Northern District of California

ACLU-NC joins with CCCO-Western Region and Congressman Ron Dellums,

amici, arguing on First Amendment, religious freedom, and equal protection

grounds that conscientious objectors issued orders to alternative service in_

December, 1972, should be treated in the same fashion as the persons issued

orders for induction in December, 1972. Amicus brief filed April, 1974. At-

U.S. v. Harris

Before Navy Administrative Discharge Board

Ms. Harris (an air controller with an outstanding six-year record of service)

NC argued the right of homosexuals to remain in the military and to obtain

honorable discharges if and when discharged. In January, 1974, the Navy

granted her a general discharge ``under honorable conditions'. Administra-.

tive proceedings in process for change to honorable discharge. Attorney-

Joseph Remcho. : a

WOMEN'S RIGHTS

Berkelman v. San Francisco Unified School District

U.S. Court of Appeals for the Ninth Circuit

Amicus `support in challenge to discriminatory admissions standard applied

against girls at Lowell High School (San Francisco's only academic high

school). Amicus brief filed June, 1973; case briefed and under submission.

Attorneys-Terry Calvani and Charles Marson.

In. re Guardianship of Holly K..

California Court of Appeal er ee Meee

Appeal from. decision of Probate Court to sterilize allegedly. mentally re-

tarded woman on basis of testimony of her father and one doctor that she

may have had intercourse on one occasion. Case in briefing stage. Attorney-

Joe Remcho.

Ramirez v. Hoff

California Court of Appeal

Amicus support on equal protection and due process grounds. challenging

power of the court to charge a mother with abandonment and put her chil-

dren up for adoption because the mother was confined to jail on a marijuana

charge. Amicus brief filed November 1973; under submission. Attorney-

Alice Daniel (ACLU-NC Prison Project).

California Court of Appeal

Amicus support. to challenge of trial court's refusal to grant appellant's re-

quest for restoration of her maiden name upon dissolution of her marriage,

on ground that to do. so would cause harm to her minor children.. Amicus

brief filed February, 1974. Attorney-Ellen Lake.

Jenny Fulle v. Little League Baseball, Inc.

Marin County. Superior Court -

-by preventing girls from playing baseball on Little League. teams. Suit filed

issued May. 24, 1974; hearing on permanent injunction pending. Attorney-

Fred A. Hurvich. - : :

CRIMINAL PROCEDURE

Amicus support on Sixth Amendment (right to counsel) and Fourteenth

Amendent (due process and equal protection) grounds challenging California

statute providing for payment by defendant after trial for services of court-

and Charles Marson.

In re Christopher Welsh

Habeas corpus petition challenging petitioner's convictions and probation

for violation of California Penal Code Sections 626.2 and 626.6 on due pro-

`cess grounds, alleging error by"trial court and that tWo code sections must be

interpreted consistent with California Supreme Court's 1973 interpretation of

Section 626.4 (see Braxton v: Municipal - recently completed cases). Cali-

fornia Court of Appeal denied habeas corpus April, 1974; petition filed in

Supreme Court May, 1974. Attorneys-Katlyn Thomas and Charles Marson.

People v. Feagley

California Supreme Court =

Amicus due process challenge to indefinite commitment of not-yet-convicted

misdemeanor defendant (who allegedly has habit of clipping locks of wom-

en's hair) as mentally disordered sex offender. Briefed and under submission.

Attorney-Jerome B. Falk, Jr. :

continued on page 4

it systematically excluded

minority members and working people.

The issue is before the California Court of

Appeal and is scheduled for oral argument

in September.

`AasjeA uyor - - Aausoye ABILUNJOA `OYDWdY sor - AdUIOL IY

`V/6L "GL Aine jeaddy 30 yunod ejus0j1}e 04 passajsuery /y761 `94 AINE UO

JOEL ZELDIN, who practices in San.

Francisco, prepared the ACLU-NC Prison

Project amicus brief in Gee v. Brown, for

JOHN VAISEY, a volunteer who

practices in San Francisco, filed a petition

Quentin Six'' was improperly constituted

for writ of prohibition in July for four of

San Francisco's beleaguered street

musicians. The California Court of Appeal

stayed trial court proceedings against the

four pending its determination on the

constitutional points raised by Vaisey.

ACLU-NC brief was filed in April but no

decision has yet been rendered

ACLU Foundation Legal Docket 1973-74

which could result in the loss of a

afforded counsel at an in-prison hearing

previously granted parole

the California Supreme Court. The case

`deals with the right of a prisoner to be

and

and asserts that the district has an af-

0x00B0

3

Marin

County Superior Court ruling that the

a Hastings

grand jury which indicted the ``San

supporting a

professor (for ACLU-NC) joined with

`uOosIeW SaseuD

MARTIN SPIEGEL, legal coordinator

for the Sonoma County Chapter, worked

use of a religious song of grace in a local -

pensatory education for the schooling she

missed. The petition was filed in April

with Sorgen on the Mathews case, but

kindergarten. The Court ordered the

stirred up a whirlwind of his own in the

that it was an unconstitutional establish-

final decision has been made on the merits

Sonoma County schools when he filed a

petition in Superior Court to enjoin the

school to stop using the song, agreeing

ment of religion in public schools.

Richard Sims (for the Barristers Club of

San Francisco) in an amicus brief in People

firmative obligation to provide com-

- LEGISLATIVE

ACLU has major concerns

despite Nixon resignation

Editor's Note: Two days after Richard -

Nixon resigned as President of the United

States, Edward Ennis, the Chairman of

the Board of National ACLU, issued the

following statement.

.. Actually, the portion of the statement

arguing for the impeachment process to

proceed is seemingly moot. The House

Judiciary Committee completed its final

report and forwarded it to the full House

with a recommendation that no action be

taken in light of the resignation. That

report and the recommendation were

accepted by the House by a vote of 431 to

While this vote ends impeachment, it is

Significant nevertheless. The. Judiciary |

Committee unanimously found that

Richard Nixon had been guilty of ob-

struction of justice and abuse of power

while it split on whether he was guilty of

withholding evidence from Congress. This

report is now in the public record and will

be an important precedent for any future

impeachments.

..Also, the Committee established -

grounds for impeachment which resemble

remarkably those drafted and endorsed by

the ACLU. Their report makes it clear

that a President can be impeached for

other than indictable crimes and chief

among these are the civil liberty violations

which caused ACLU to call for Nixon's

impeachment in the first place.

..The issue of whether or not Nixon

should be crminally prosecuted is still in

question. The National ACLU board will

attempt to take a position on that matter at

tts meeting this month. Primarily, they

will be considering whether or not to ask

the membership to support a letter-writing

effort to Special Prosecutor Leon Jaworski.

IMPEACHMENT STATEMENT

By Edward Ennis, Chairman of the Board

On September 30, 1973 the ACLU

announced that it would launch a cam-

paign to impeach President Richard M.

Nixon and bring him to trial before the

Senate for his provocative abuse of power,

_ which in our judgement constituted high

crimes and misdemeanors. From the

beginning of our campaign, we have not

believed that the purpose of impeachment

was to `"get'' Richard Nixon. For us, he

was never the issue. The issue was, and

remains, the constitution and the Bill of -

Rights.

I. IMPEACHMENT

We were, and remain, in favor of

impeachment because it is the sole

constitutional remedy for the abuse of

official power , and because we believe that

Mr. Nixon's abuse of power had become

So excessive as to threaten fundamentally

the rule of law, the existence of con-

stitutional government and the ef-

fectiveness of the Bill of Rights. Im-

| peachment is the only constitutional way

to resolve those issues.

Mr. Nixon's resignation from the

Presidency leaves unresolved grave

constitutional and civil liberties questions.

The solemn constitutional procedure of

impeachment of an officer of the U.S.

should never be automatically and

abruptly mooted by resignation of the

individual under investigation, par-

_ ticularly when it appears clear, as here,

that the house will impeach and the Senate

convict and remove the individual from

office.

We therefore, believe it is important for

the Congress to continue the procedure

_ begun by the House Judiciary Committee

in order to restore the integrity of the

Constitution and the Bill of Rights.

There is legal precedent for the im-

peachment process to continue even after

resignation. Although the Senate

acquitted William W. Belknap, former

Secretary of War, in 1876, it rejected his

argument that impeachment lay only

against present office holders and ruled

his resignation did not bar further im-

peachment proceedings. This precedent

has strong roots in English and Colonial

impeachment theory. Impeachment of

past officials served the end of barring

them from future office. John Adams

thought himself impeachable for past

misbehavior in public office ``so long as I

have a breath of life in my body."'

Accordingly, the ACLU urges the

Sept. 1974

aclu news

Recently signed laws

Many bills of interest to the ACLU have

become law during this year. They in-

clude:

S.B. 397 (Senator Nicholas Petris, D-

Oakland) allows .a married person to

purchase securities without obtaining

spousal consent. |

S.B. 1466 (Senator George Moscone,

D-San Francisco) prohibits sex

discrimination in courses and counseling

in elementary and secondary schools and

community colleges.

S.B. 1533 (Senator Robert Stevens, R-

Los Angeles) deletes limitation on

inheritance rights of non resident aliens.

S.B. 1859 (Senator Lawrence Walsh,

D-Los Angeles) requires a study of the

feasibility of hiring women as members of

the California Highway Patrol and allows

the establishment of a special classification

of traffic officer for the employment of

women during the study.

S.B. 1875 (Senator John Holmdahl, D-

Oakland) eliminates the requirement of

filing a confidential questionnaire in

dissolution proceedings.

A.B. 765 (Assemblyman Lawrence

Kapiloff, D-San Diego) allows women

voters to register as "`Ms.''

A.B. 1305 (Assemblyman Robert -

Crown, D-Alameda, now deceased)

requires each sheriff's department and city

police department to establish procedures

for the investigation of citizens' com-

plaints.

A.B. 2364 (Assemblyman John

Vasconcellos, D-Santa Clara) requires

certain findings before own recognizance

release can be revoked.

A.B. 2644 (Assemblyman Leroy

Greene, D-Carmichael) prohibits em-

ployer from requiring information about

arrests on an initial application form.

Information about convictions may be

sought.

A.B. 3384 (Assemblyman Leroy

Greene, D-Carmichael) changes the law of

residence for purposes relating to public

institutions of higher education. It

provides that a woman's residence shall

"not be derived from that of her husband

and that a minor's residence shall be that

of the parent with whom he or she last

resided, not the father's residence.

A.B. 3475 (Assemblyman Frank

Lanterman, R-Pasadena) eliminates one-

year residence requirement for admission

of mentally retarded persons to state

hospitals.

This list does not include many bills

passed by the legislature during the final

days of the session, which ended at

midnight August 31, as required by law.

Most of the recently passed bills await the

Governor's signature. In general, bills

passed this year become effective January

eS. a

House of Representatives to consider and

vote approval of the recommended

_ grounds of impeachment so that there will

remain no question whatever that Mr.

Nixon's departure from the Presidency is -

constitutionally justified.

fl. EQUAL JUSTICE

Although the ACLU has no position on

immunity in general, it views with great

concern suggestions that the Congress

should express the view that Mr. Nixon

should be granted immunity from

prosecution for criminal offences. The

Constitition provides that an individual

convicted in any important proceeding

"*Shall nevertheless be liable and subject

to Indictment, Trial, Judgement and -

- Punishment according to the Law.'' This -

expressly contemplates that impeachment

should not interfere with the fair ad-

ministration of criminal law in respect to

all persons equally, including those who

have held high public office and been

removed or resigned under impeachment

proceedings. The ordinary citizen cannot.

be expected to respect the law if it is not

administered with scrupulous equality for

the powerful and the powerless alike.

Il. FULL DISCLOSURE

The American public needs to know the

truth about the government abuse of

power in recent years, including the

evidence underlining the Articles of

Impeachment voted by the House

Judiciary Committee. Accordingly, full

disclosure of that evidence must be made.

The impeachment process in the House

of Representatives is the appropriate

constitutional way to do it.

`|

_ President ponders amnesty alternatives

With his statement to the V.F.W. Convention last

month, President Gerald Ford rekindled in many the

hope that his administration may offer ``leniency'' for the

war resisters.

Henry Schwarzchild, Director of National ACLU's

Project on Amnesty, called President Ford's statement

"*a welcome break with the vengeful posture of his

predecessor. But it is only a first step.'' He went on to

outline ACLU's position on amnesty: __

`"`The limited and conditional amnesty of which

President Ford speaks is inadequate and unacceptable.

The war resisters did not `make a mistake' for which they

need to do penance. The war itself and the human and

physical destruction it caused are the tragedy that

America cannot overcome by punishing those who

refused to participate.

"Amnesty involves not only draft resisters and

deserters. The veterans must have redress for their wasted

years. The men with derogatory discharge codes and less-

__ than-honorable discharges must have their disabilities

removed, civilian resisters and protestors must have

`ctiminal records cleared.

``A universal and unconditional amnesty for all those

who have suffered or still face punishment because of

their conflict with the draft, the military and the war

during the Vietnam era is essential to the healing process

of America. Such an amnesty will have the support and

acceptance of Americans who expect that the new

President will once more introduce reconciliation and

decency into our troubled and divided nation.''

_ There is reason to hope that the President can be

_ persuaded to imterpret his own commitment to

"`leniency'' broadly rather than narrowly, both with

respect to the kinds of war resisters with whom his action

will deal and to the manner in which the limited amnesty

will be administered. : aoe

Essential to any broadening of his views on the issue

will be public support in the form of messages to the

White House and to the Departments of Justice and

Defense, with whom he is consulting.

Since the President has asked for recommendations for

action from the Attorney General and Secretary of

Defense by the first week of September, prompt action is

extremely important.

_ Itis critical that as many people as possible send letters

or mailgrams applauding the President's move in the

direction of amnesty but during that the amnesty be

unconditional and extend to ail the war resisters of the

Vietnam era. Address your letters to:

President Gerald R. Ford

The White House

Washington, D.C.

Realistically, President Ford's final formulation of

"`leniency'' will fall considerably short of ACLU's views

on amnesty. His decision, however, does not dispose of

the matter. Both Houses of Congress will be considering

amnesty bills when they resume their deliberations in

January.

In the House, the issue will go before the House

Judiciary Committee. No assignment has been made in

the Senate yet. Letters to members of the Judiciary

. Committee and to the two California Senators calling for

prompt action on an unconditional amnesty bill, now and

through the Fall, will indicate a concerned and committed

constituency. Write your Congressman and Senator now.

wwe - |

Sept. 1974

aclu news

CHAPTERS

San Francisco

ANNOUNCING ...

THE SAN FRANCISCO CHAPTER'S

ANNUAL MEETING SUNDAY

NOVEMBER 17, 4-6 P.M. FIREMAN'S -

FUND AUDITORIUM, 3333

CALIFORNIA STREET. There's ample

parking in their lot.

Speakers will include Coyote's Margo

St. James and Deborah Hinkel, ACLU

Victimless Crimes Project Director. Their

joint presentation will deal with victimless

crimes. PLAN TO ATTEND! Let your

opinions be heard on what you think are

the specific issues and goals the S.F.

Chapter should pursue this coming year.

Send your suggestions to the office, or you

may write them down at the meeting.

Elections of several members of the

- Board of Directors will also be held.

Submit your nominations no later than

Friday, October 25th, please. It would be

helpful if you called the chapter office and

[2 =. el

i = l

I

} SPEAKER'S BUREAU WORKSHOP |

| SATURDAY |

} OCTOBER 19, from 10-2, 593 Market !

! Street. (Bring your lunch, we'll provide

coffee and . . .) This training session is for

" the newly emerging Speaker's Bureau. All }

} members who have offered to join this |

| department are urged to attend. Don't be |}

I left out . . . Reserve a spot. Space is very

I limited. ,

Please complete the tear off and send it ,

y back tothe chapter office or call 433-

0x00A7 2750.

} San Francisco Chapter / ACLU

-V Speaker's Bureau Workshop

!

|

I

}

593 Market Street

San Francisco, California 94105 t

I I`plan to attend the Speaker's Bureau !

i Workshop on Saturday, October 19, from

10 a.m. to 2 p.m. j

j

i

i

i

i

|

j Name

i

Phone

Chapter | 7

i

told us you were coming. (433-2750)

Also, the Chapter will present the full-

scale theatrical production of Jon Hen-

drick's Evolution of the Blues at 8:30 on

October 16 at the Broadway Theatre. Call

the Chapter office now. to reserve your

tickets or send a check made payable to SF-

ACLUNG, along with a stamped self-

addressed envelope to the Chapter office.

The benefit performance will be preceeded

at 7:30 by a dessert and coffee reception.

Tickets for the event will be $7.50. Plan to

attend and spend an enjoyable evening

with other ACLUer's.

One fund raising event, to benefit the

chapter , a dinner and concert, is currently

being developed.

e The Feminist Party Media Workshop

presented Chapter President Ruth Jacobs

an award for her defense of the Bill of

Rights. Presentation was made at a

memorial for Mrs.-Martin Luther King,

Sr.

e The essay contest gets off the ground! (c)

High schools were visited. Students,

faculty , administration were briefed on the

contest and the response was enthusiastic.

HAVE YOU ENROLLED A MEMBER

LATELY?

e@ Members of the Board of Directors have

assumed the responsibility of a one-to-one

campaign with the Board of Supervisors.

It's part of the "`watchdogging'' program

we began some months ago. Remarkable

how responsive the Supervisors are when

they hear from us.

e Our administrative assistant, Carl

Taber, who has been an on-the-job trainee

has left us to return to school. His splendid

work warrants a BIG THANKS. We miss

him already.

WANT TO WORK FOR ACLU?

NEIGHBORHOOD MEETINGS are

on the way. Some are planned for October.

Want to get involved? Please call the

chapter office.

Sonoma

About 300 persons attended the ACLU

picnic this summer at the Warnick Apple

Orchard in Sebastopol.

There were a recrod number of art

objects for the auction, thanks to the hard

work of June Swan and art committee

members, Chairman Mel Hildreth put

together another fine picnic with help of

lots of volunteers including, for the first

time, our own cooks.

Some serious matters face the ACLU

Board at its September meeting which will

be held at the Bank of Sonoma County in

downtown Santa Rosa at 8 p.m., Thurs-

day, Sept. 19. These include discussion of

the budget for the upcoming year , possible

programs for the public, various responses

to criminal justice problems in the county, |

and preparation for the annual dinner,

probably in November. -

A major feature of the September

meeting will be a preview showing of the

film on a Stanford jail experiment done by

Professor Philip Zimbardo. The film

showed the intense tensions developed

both for "`inmates'' and ``guards'' in a

mock jail `situation.

ACLU members interested in the slide

show are invited to attend the Sept. 19

meeting. There is a possibility the county

chapter will buy the slides for use around

the county. Those interested may contact

Lee Torliatt, 2535 Tachevah Dr., Santa

Rosa, 545-7507.

Several issues with civil liberties

overtones will likely be dealt with at the

September meeting, including the mass

drug arrests in August by the sheriff's

office and city police and the continuing

debate on creation of religious' clubs at a

Santa Rosa high school. Both matters are

being watched closely by ACLU.

Berkeley-Albany

The Chapter is asking its members to

submit names of candidates for the Board

to the Nominating Committee by Sep-.

tember 10.

The Nominating Committee will report

at the next regular Board meeting on ~

Monday, September 16, at the Unitarian

Fellowship, Cedar and Bonita, at 8 p.m.

All members are welcome.

The annual meeting and the election of

Board Members will be held in October -

date and place to be announced.

Dangerous law

pending

in Senate

Recently, the Senate Manpower Bill

was amended in the Senate Committee on

Labor and Public Welfare. The amend-

ment, S. 3713, which was sponsored by

Senator Edward Kennedy, received little

notice at the time but it would be

disastrous for civil liberties if it became

law. :

The measure adds a sweeping ``con-

science clause'" to the bill which would

allow medical facilities and institutions to

refuse medical care to any individual on

moral or religous grounds. The amend-

ment is especially incredible in that it

would apply to all public, as well as

private, hospitals. ACLU is convinced

that such a law would be blatantly un-

constitutional and exceedingly dangerous. -

If passed, the law would severely un-

dermine the Supreme Court's deter-

mination that women have a con-

stitutional right to control their own

bodies and obtain abortions if they wish. In.

addition, the potential hardships will fall

largely on the poor who are unable to go

from hospital to hospital seeking special

seryices. If public hospitals are allowed to

deny treatment to individuals on religious

grounds, the First Amendment and the

equal protection clause are meaningless.

Only three members of the Labor and

Public Welfare Committee voted against

the amendment, Senators Javits,

Hathaway and Stafford. Seven others,

including Senator Alan Cranston of

California, did not vote. Senator Javits is

trying to organize opposition and he needs

as many of those Senators who did not

vote as possible to sign the minority

report.

Please write Senator Cranston and urge

him to sign the minority report and help

defeat the Kennedy amendment. The

Senate will be voting shortly so write as

soon as you can to The Honorable Alan

Cranston, Senate Office Building,

Washington D.C. :

Police project sues CHP to obtain procedures

continued from page I

Highway 101 in Novato for a faulty muffler and during

the stop, his car was searched. He believes the search was

improper and wished to file a complaint but he has no way

of knowing if such action would be prejudicial to his

interests or if he can expect any remedy from the CHP

complaint procedure. And again, Schwartz doesn't know

anymore than Palmer does.

In addition to disclosure of the complaint procedure,

Schwartz is asking the court to force the CHP to.comply

with the California Administrative Procedure Act which

requires public notice and participation in the

promulgation of all CHP policies and regulations, in-

cluding the complaint procedures. He points out that

police have a great deal of discretion in their actions as it -

is, but the public must be allowed to at least take part in

the policy decisions which will guide the individual of-

ficer.

State law authorizes the CHP commissioner to make

and enforce the rules and regulations necessaryto carry

out of the duties of the Department. Vehicle Code Section

2402 specifically states that these ``rules and regulations

shall be adopted, amended, or repealed in accordance

with the Administrative Procedure Act ...'' and yet this

is not done.

According to the Act, Pudinski must, in promulgating

rules and regulations, hold public hearings, give 30 days

notice before taking any action, consider all relevant

matters presented to him, and file the rules and

regulations with the Secretary of State and each house of

the Legislature. Regulations so filed are compiled and

published in the California Administrative Code which is

available to the public. All state agencies are required to

comply with this procedure but the CHP does not.

Schwartz concluded that ``in a democratic society,

public accountability of government agencies is crucial,

and the public must be allowed to participate in and know

of the policy decisions of its major statewide law en-

forcement agency. State law already provides for such

participation and we are simply asking the court to force

the CHP to conply with the law and to lift the secrecy

under which it operates.' :

Sex law challenged in high court _

continued from page 1

conduct which is "`grossly repugnant' and `patently

offensive' to `generally accepted notions of what is ap- .

propriate' and decent according to statewide con-

temporary community standards. It will ordinarily in-

include conduct found `disgusting, repulsive, filthy, foul,

abominable' or loathsome under these standards.'' This

hardly seems to help, especially since Silva never did

engage in any sexual conduct. Also, since this definition

supposedly is not vague, everyone should immediately be

able to recognize what conduct it refers to.

Finally, Hinkel asserts that 647 (a) violates the fun-

damental fights of privacy and freedom of association. She

argues that both the California and U.S. Constitutions

guarantee that the individual is ``to be free from govern-

mental intrusions into activity which occurs in private

and from governmental interference in making certain

choices which are highly personal.''

She concludes her argument by charging that the lower -

court ``missed the fundamental free speech issue which

must be addressed before any solicitation statute can be

upheld. Instead, it engaged in a remarkable exercise in

judicial drafting in an attempt to render the statute

constitutional. And even its strained interpretation fails

_ to save the statute.''

Even if 647(a) applied only to solicitation for the

commission in public of an act which is both a major

crime and a substantial harm to society, Hinkel adds, it

would not be secure from First Amendment attack.

`*This statute should be struck down as the pernicious

infringement on the rights of free speech, association and

privacy that it is.''

The Supreme Court has until the end of September to

decide whether to review the appellate court's opinion.