vol. 8, no. 1

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. VIII SAN FRANCISCO, CALIFORNIA, JANUARY, 1943 No. 1

GOV'T STALLS IN TEST CASES

Technical Objections Raised In Korematsu and Endo Cases

The United States Attorney for Northern California, pursuant to instructions received from the Attorney General, has filed a motion to dismiss the appeal in the Fred T. Ko- rematsu Japanese-American evacuation test case now pending before the United States Circuit Court of Appeals. The Government contends there is no final judgment to appeal from, because the trial court placed Korematsu on probation for five years and thereby suspended any right of appeal. The motion will be argued before the Circuit Court on January 19.

Travesty On Justice

The American Civil Liberties Union, which represents Korematsu, has replied that it would be a travesty on justice if after being found guilty of committing an offense a defendant were not given an opportunity of clearing his record by appeal. “This is particularly true in the Korematsu case,’’ asserted the Union, ‘“‘because the de- fendant did not apply for the probation that was given to him, but, instead, in order to insure the right of appeal, his counsel unsuccessfully urged the fixing of a fine or the imposition of a jail sentence.”

Stalling Tactics

“It occurs to the Union that perhaps the Government is afraid to allow the Military’s evacuation of civilians, who are citizens of the United States, to be tested on its merits; otherwise why should the U. 8. Attorney resort to a technicality in an effort to defeat the appeal.” The Union said it was inclined to the view that the Government is stalling for time in the hope of preventing a final determination of the case until after the war, in order that there may be no present interference with what the Union contends is an unconstitutional exercise of power. The court, however, declined to be a party to the stalling tactics when Presiding Judge Curtis Wilbur refused to sign an order presented by the U. S. Attorney extending the time to answer the brief filed in Korematsu’s behalf. It will, therefore, be necessary for the Government to file its brief on the merits by January 8, while Korematsu’s final brief will be filed by January 18, the day before the motion to dismiss is argued.

Gov’t Also Stalls In Endo Case

As further evidence of the Government’s “stalling tactics’? the Union pointed to the Mitsuye Endo case pending before U. S. District Judge Michael J. Roche, testing the right of the Government to detain citizens of Japanese extraction once they are removed from military areas. In that case, the U. S. Attorney is likewise seeking to have the case dismissed on a technicality.

There, an affidavit has been handed to Judge Roche, without being filed with the clerk of the court, alleging that Miss Endo’s petition should be dismissed because she has not exhausted her administrative remedy before coming into court. They allege that Miss Endo can secure her release by applying for a furlough, but fail to point out that such regulations were not in effect when the petition was filed, or that the furlough regulations restrict her freedom (Continued on Page 2, Col. 2)

HALF WAY

Exactly 310 members have contributed in the Union’s: annual financial drive, and many, we are happy to say, have added an extra dollar or more in order that we may hire needed secretarial help.

Now that the Xmas rush is over, we hope we'll hear from many whose memberships expired during November and December.

And, if you haven’t made your annual contribution to the Union, won’t you please send in a pledge now in order that we may have some idea what income to expect during the current fiscal year.

Urge Loyal Germans Freed of EnemyAlien Restrictions

An appeal to Attorney General Francis Biddle for extension to other ‘friendly enemy alien groups’ of the policy which exempted Italian nationals from war-time restrictions, was made last month by eighteen prominent Americans, through the American Civil Liberties Union.

In a letter to Mr. Biddle, the signers said that “it is obvious that the several hundredthousand refugees from Germany are loyal to the democratic cause’? and suggested that war-time restrictions be lifted on four classes of them, those: (1) who are expatriated by Germany; (2) who are employed in war work under approval by the military authorities; (3) who have been examined by Alien Enemy Boards and released; and (4) who have immediate relatives in U. S. armed forces. For those not covered by these categories, individual examinations were suggested.

Christmas Pardons For Six C. S. Victims

Governor Culbert L. Olson granted full and unconditional Christmas pardons to six more victims of the California Criminal Syndicalism Act, thereby raising to 22 the number pardoned during his term in office.

All six filed their applications with the assistance of the local branch of the A.C.L.U. In all but one case, the Governor acted on a favorable recommendation of the Advisory Pardon Board.

Five of the six pardoned were members of the ILW.W. They are Charles Andrews, William Baker, Peter Beazley, Richard Bendig and Thomas Connors. These men were all convicted in the early ’20s, and have long since served their prison terms. Beazley never did go to prison. Says the Governor’s pardon: ‘Information submitted in support of his application states that he did present himself to the Sacramento County sheriff’s office subsequent to his release on bail but that he was not detained nor requested to again report to that office.”

Most noteworthy of the five “Wobbly” pardons, however, is that granted to Thomas Connors, who was convicted of attempting to influence a juror sitting in an I.W.W. criminal syndicalism trial. Connors was then. Secretary of the California Branch of the I.W.W. General Defense Committee.

“At the time,’ says Connors, in a letter to the Governor, “I had prepared many leaflets and circulars with a dual purpose in mind. First: To aid in raising funds with which to carry on our work. Second: To ‘ereate a public opinion that would assist us in our enedavors.

“Much of the distribution of these circulars was accomplished with the aid of local labor union committees in several California cities. Some of these committees used mailing lists derived from phone books, voting lists or other easily acquired address records. I had no control over this phase of circulation.

‘However, one potential juror in Sacramento, where cases under the Criminal Syndicalism Act were pending, did receive a leaflet via mail. It mentioned a case on trial in Sacramento. That leaflet may have been mailed from any of a score of sources, I have never been able to ascertain where. I did serve two years in San Quentin because it was received by the juror.” Also pardoned was Oscar Adolph Erickson, a Communist, convicted on syndicalism charges in the Imperial Valley in 1930. ‘The Advisory Pardon Board turned down Erickson’s application in January, 1940. Now, after three more years, the Governor has acted without the Board’s approval.

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Facing the Army's Inquisition

Suppose you, a citizen of the United States, received a notice from the Army re- questing your presence at a hearing before a Star Chamber session of the Army’s Indi- vidual Exclusion Hearing Board, to determine whether or not in the interest of “military security” you should be excluded from the Pacific Coast, and many other states in the Union, as one who is “dangerous or potentially dangerous.” What sort of questions should you be prepared to answer?

If because of your connections with the trade union movement you have ever done any picketing, be prepared to answer for it to the Board. “Don’t you know,” they’ll ask, ‘‘that you were rabble-rousing?” Of course, you didn’t know. But you can’t get away with it that easily. ‘Don’t you realize your picketing infringed the employer’s property rights?” they insist. Your answer is still a vehement “No” as you realize that trade union activities make a person dangerous to the Army brass hats. But they haven’t done with their laborbaiting. The final question is “Did you ever say you wouldn’t work on Saturdays if it meant the:loss of a day’s pay?” It so happens you didn’t say it, but what if you did? Maybe you have discussed public issues, like any good voter, denounced the administration and advocated that the rascals be turned out. Apparently that is suspicious conduct to the Military Board, for mark this question, “Have you been critical of our Federal Government?”’ We venture to suggest that you ought to be roundly denounced if you have not criticized your government. Los

Then the Board becomes more specific. “Have you at any time criticized the Selective Service Act?’’, they want to know. If the answer is “Yes,” we suppose that makes the person “‘potentially dangerous,” otherwise why would they ask the question.

Of course, if the Inquisitors could show you hold pro-Axis sympathies, you would readily agree that that would form some basis for charging you with being ‘‘poten- tially dangerous.” Still, when you have vehemently denied such sympathies and expressed your hatred for Adolph, Benito, Tojo and their understudies, the Board will blandly ask, “Are other members of your family pro-German?” The next question should be, ““When did you last beat your wife?’”, but they never quite get to it.

Instead, the Board asks you whether you have ever heard your wife say divers and sundry unpatriotic and scurrilous things. | To all of which you answer an exasperated “No,” and wonder what relation that has to your own possible exclusion as a potentially dangerous citizen. Then, to top it off, they ask another one of those “When did you last beat your wife” questions, towit, ‘“Has your wife been outspoken in her pro-German attitudes?”

After such questioning and a wait of. three or four weeks, or more, you'll discover whether you are a “dangerous or potentially dangerous” citizen, forced to pull up stakes, with all that means, and move to the hinterlands.

PROSECUTION AGAINST EICHEL, CONSCIENTIOUS OBJECTOR DROPPED

The proceedings against Julius Eichel, 46-year-old conscientious objector, first in the 45 to 64 age group to be indicted for refusal to register for military service, was dropped in the Brooklyn, N. Y., Federal Court last month on the recommendation of Lewis B. Hershey, selective service director. Eichel like others in his age group refusing to register, was registered by prison authorities after he persisted in refusing to register voluntarily. He had been held on bail of $25,000, unprecedented in draft cases, imposed by Judge Matthew T. Abruzzo, who had expressed his hostility to conscientious objectors.

WAR DEPARTMENT UPHOLDS EXCLUSION OF SAM FUSCO

The War Department has upheld General J. L. DeWitt’s exclusion of Sam Fusco, California native son, from the Pacific Coast and other military areas in the United States. Admitting that “the decision was not easily arrived at,” John J. McCloy, As- sistant Secretary of War, in a letter to the Union, declared, “I think it is fair to say that his exclusion was based more on the evil he might do if evilly intentioned rather than on any definite conviction that he had displayed disloyal tendencies.”’

The Test Is Indefinite

“However,” added Secretary McCloy, “the success of subversive activity depends to a large extent upon the individual’s remaining free from suspicion until the time comes to strike. The gauge of potential dangerousness is consequently indefinite, which increases the possibility of occasional mistakes. However, in Mr. Fusco’s case I am unable to say that I would not have reached the same conclusion.”

Fusco directed a Japanese Episcopalian choir in San Francisco, led a Japanese Boy Scout Drum and Bugle Corps that received numerous honors, stimulated the registration of American-born Japanese as voters, arranged political meetings for the Japanese voters addressed by conservative candidates, studied Japanese calligraphy, which resulted in a prize for one of his exhibits shown in Japan, visited his friends at the Tanforan Assembly Center, and maintained a personal friendship with a Japanese lady. In the words of the military, he was ‘‘too friendly with the Japanese.”’

The War Department’s declaration places no limit on the exercise of the extraordinary and unprecedented power of the military in excluding from extensive areas United States citizens whom it regards as dangerous or potentially dangerous. We had supposed that citizens would not be driven from their homes, families separated and businesses destroyed without some reasonable showing of disloyal acts and statements. Instead, if for good reasons or bad the military wants to exclude someone, that is sufficient, and that, too, is the sort of stuff that dictatorships are made of.

Civilian Review Board Proposed

The Union had suggested to the War Department that some safeguards ought to be established against an arbitrary exercise of power by the military, and a civilian review board was proposed, to function before or after exclusion. That proposal was “‘discussed at length’’ but rejected.

“There would certainly be some advantages to such a procedure,” said Mr. McCloy. “On the other hand, the decision whether to exclude or not is a military decision based on military considerations, and it seems inappropriate, somehow, to have civilians pass upon the advisability of a military decision. The time involved in review would be a factor which would tend to defeat the purpose of exclusion.”

It seems clear, therefore, that the only remedy against an arbitrary exercise of the military’s power of excluding citizens, is court action. Whether such action will be taken in the Fusco case remains to be determined by Mr. Fusco himself. The national office of the A.C.L.U. has already approved appropriate court action in this case.

Gov't Stalls In Japanese Evacuation Test Cases (Continued from Page 1, Col. 2)

of movement by not allowing her to return to her former home in Sacramento.

Wayne Collins Files Brief

Wayne M. Collins filed his brief in the Korematsu case on December 9. The argument. covers more than 113 printed pages. The brief contends that legislative power was usurped and executive power abused in ordering the exclusion of any and all persons from military areas in the United States. It is pointed out that martial law does not prevail on the Pacific Coast, and that in its absence the Military has no power over civilians. “For the Army to intern any citizen is an usurpation of judicial power and an interference with judicial administration.”” The exclusion program was also attacked as a denial of the equal protection of the laws forbidden by the Fifth Amendment, as well as a violation of ‘unreasonable search and seizure” clause of the Fourth Amendment. It was argued that there was also a taking of private property without just compensation, a deprival of a judicial trial, the infliction of a ‘‘cruel and unusual punishment” and the imposition of involuntary servitude forbidden by the provisions of the Thirteenth Amendment.

WISCONSIN SUPREME COURT REINSTATES UNIONIST SCHOOL BOARD MEMBERS

Edward Weston and Edward Rice, dismissed after a jury trial from their elective posts on the Kenosha, Wisconsin, school board because they had pledged to support the principles of the Union Voters’ League, a trade union body, were’ordered reinstated last month by the state Supreme Court. The charge leading to their dismissal was that by pledging to uphold, while in office, the principles of the organization which helped elect them, they had foresworn exercise of independent judgment and were therefore unfit to serve as public officers.

COLONEL McCLAIN TRANSFERRED TO OTHER DUTIES

Col. C. C. McClain, member of the Army’s Individual Exclusion Hearing Board, has been transferred to other duties, but charges of anti-semitism, redbaiting, etc., have been whitewashed. John J. McCloy, Assistant Secretary of War, notified the Union “that in accordance with a policy providing for rotation of pera sonnel, Colonel McClain has recently been assigned to other duties. There is, however, no connection between his relief and the charges which you make, which I have been unable to substantiate.”

The Union, in a letter signed by Ernest Besig, local director, had requested Col. Mc- Clain’s removal, calling attention particularly to his conduct at a hearing in which Mr. Besig represented Lorenz C. Carlsen. At that hearing Col. McClain assumed Mr. Besig was a Communist “sent by Bridges,” and declared that “in my part of the country you’d be skinned alive.” He also compared the Bund and certain Jews, and, on other occasions, according to reports, indulged in anti-Semitic tirades, expressed the hope that the Germans and Russians would annihilate each other, and also showed himself to be against Negroes.

The San Francisco Chapter of the National Lawyers Guild appointed a special Committee to investigate the Union’s charges against Col. McClain. Over the telephone the Colonel refused to meet with this Committee and referred them to General J. L. DeWitt, his commanding officer.

The General informed the Committee that “the duties devolving upon exclusion board members are onerous and trying. In justice ‘to those assigned to such duties, concurrently with the establishment of the procedure I adopted a policy providing for the rotation of personnel. In the normal application of this policy, Lieutenant Colonel McClain and another member of the board have both been recently assigned to other duties which require their services.” The General therefore felt that the Committee would agree that the subject for investigation was closed.

UNION TO AID MICHIGAN | SENATOR FIGHT FEDERAL CHARGE

State Senator Stanley Nowak of Detroit last month accepted the A.C.L.U.’s offer of legal assistance to contest a recent federal indictment charging him with falsely swearing at the time of his naturalization in 1937 that he did not belong to any or- ganization “opposed to organized government.” He is alleged by the government to have been a Communist Party member when naturalized.

In a statement deploring the proceeding Arthur Garfield Hays, general counsel said, “It is amazing that the federal government should proceed against Senator Nowak on such a ground when the United States Supreme Court has before it the same question for decision in the case of William Schneiderman, secretary of the Communist Party of California, recently argued in his behalf by Wendell Willkie. In that case the Supreme Court is called upon to determine for the first time whether membership in the Communist Party constitutes advocacy of the overthrow of government by force and violence or opposition to organized government. Those beliefs disqualify an alien for citizenship. It is our contention that Communist party doctrine has for years repudiated any advocacy by force and violence; and obviously as a political party it could not oppose organized government.

“Such extraordinary proceedings would appear to be due to local political contro- versy and personal animus rather than an attempt fairly to enforce the law.”

Offering to assist Nowak, the statement said that “it is hardly necessary to add that the Union has no connection, direct or indirect, with the Communist Party, and is interested solely in protecting the application of the Bill of Rights to everybody without distinction.”

GOVERNMENT DROPS CASE AGAINST OKOMOTO, EVACUEE

The case against Tito U. Okomoto, American-born Japanese evacuee, charged with leaving Phillips County, Montana, against the orders of General J. L. DeWitt, Western Defense Commander, was dismissed last month on request of the U. S. Attorney. No explanation for the government’s move was given. It is reported that the prosecutor was impressed by the arguments presented by Defense Attorney John Dwyer as to the unconstitutionality of the General’s order.

RESOLUTION OF OCTOBER 19

“Recognizing that our military enemies are now using techniques of propaganda which may involve an attempt to pervert the Bill of Rights to serve the enemy rather than the people of the United States, the American Civil Liberties Union will not participate,—ex‘cept where the fundamentals of due process are denied,—in cases where, after investigation, there are grounds for a belief that the defendant is cooperating | with or acting on behalf of the enemy, even though the particular charge] against the defendant might otherwise be appropriate for intervention by the Union.

“To reach a conclusion on the question whether a particular defendant is cooperating with or acting on behalf of the enemy, the Union will consider such matters as past activities and associations, sources of financial support, relations with enemy agents, the particular words and conduct involved, and all other relevant factors for informed judgment. The Union will continue to defend the rights of all others protected by the Bill of Rights.”

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DR. MEIKLEJOHN PROTESTS ADOPTION OF “RESOLUTION OF OCTOBER 19TH”

Recently, Dr. Alexander Meiklejohn, vice-chairman of the local branch of the Union and member of the national committee, addressed the following letter to the Board of Directors of the A.C.L.U. in New York City protesting against the adoption of the “Resolution of October 19,”’ which appears in an adjoining column. We would appreciate hearing from our members on this issue as soon as possible. The matter will be discussed at the next meeting of the local Executive Committee.

In the face of the unanimity of your action, I hesitate to criticize the resolution of October 19. Since, however, you ask for comment I must put on record my disagree— ment with the adoption of that resolution. On two grounds your action seems to me unwise.

First, the Board has, I think, exceeded its authority. A decision to refrain from defending certain rights which are,as you say, ‘“‘protected by the Bill of Rights,” is so radical a departure from the established policy of the Union that it should not have been taken without consultation with the affiliated local groups and with the National Committee.

Reasons for Decision Inadequate

Second, the reasons which you give for your decision seem to me inadequate. You offer two of these. In the resolution itself ‘you ground your action in the fear that freedom may be used ‘‘to pervert the Bill of Rights to serve the enemy rather than the people of the United States.” That ancient argument has been hurled at the Union throughout its career. But always, up to the time of the passing of your resolution, the Union has rejected it. To speak of “‘perverting the Bill of Rights” is, we have said, nonsense. Freedom of speech and of the press are essential to the welfare of ‘“‘the people of the United States.” They are our way of dealing both with enemies and with ourselves. That belief the Board has now apparently in part reeee I deeply regret that change of attitude.

Your second reason is given in the covering letter to the National Committee. You describe your action as ‘‘a matter of policy.”” What the phrase means is unexplained. As it stands, it certainly adds ‘nothing to the persuasiveness of your case.

Familiar Issue

The general issue with which the resolution deals is a familiar one. You are at- tempting to define the policy of the Union with respect to the freedom of minority groups and individuals in time of war. When a democracy goes to war it does so, normally, by a majority vote. But that means that a minority disapproves, at some point, the policy which is followed. Such a minority is, obviously, placed in a difficult and dangerous position. Under the Bill of Rights, we do not ask the members of a minority to change their minds, nor even to cease from expressing their minds, when the decision goes against them. What we do require is that, so far as action is concerned, they conform to the general decision. They must obey a law in which they do not believe. That is always the duty of a minority in a free community. But the freedom of the community is seen in the fact that, so long as they are not charged and convicted of criminal breaking of the law, the members of a minority are free to criticize, to challenge, to question, the prevailing policy. The Bill of Rights is an expression of the belief that such criticism “serves the people of the United States.”

Involves Union In “Witch-Hunting”’

Now, in this situation, your resolution would be defensible if its cases were defined as those in which “the defendant” has been tried and convicted of active cooperation with the enemy. But, instead of that, you speak of cases in which “after in- vestigation, there are grounds for a belief that the defendant is co-operating with or acting on behalf of the enemy.” In other words, the Union which is, as you say, “a private organization,” assumes responsibility for criminal investigation and condem- nation. That the Union is not equipped for the making of such investigations or judg- ments is obvious. It is equally true that the government has urged that “private’’ or- ganizations and individuals shall refrain from such investigating. But, in spite of the clear impropriety of such action, you now announce that the Union will ‘“consider such matters as past activities and associations, sources of financial support, relations with enemy agents, the particular words and conduct involved, and all other relevant factors for informed judgment.” And, further, you say that if, in your judgment, there are grounds for belief that any given person is co-operating with the enemy you will not object to his being deprived of a protection under law which the Bill of Rights has guaranteed to all of us. It would be hard to imagine any decision by a private organization more directly hostile to the basic principles of the Union.

Union Not Fitted For Task

That the Union is not fitted for the new task which the resolution assigns it was clearly shown in the recent conference, which I attended, between Roger Baldwin and officials of the Department of Justice and, Post Office, at which the limitation of the mailing privileges of Lawrence Dennis was discussed. It was at once apparent that the Union—as contrasted with the government—did not know the facts. Our information was both scanty and inaccurate. Clearly our part in that meeting was not to supply information but to make sure that the information which the government had collected was properly used. And we did not do so. Acting under your instructions we sat passively by while the officials told us that they were dealing with a citizen as if he were guilty of criminal acts against the government, even though no such charge had been made or tried against him. Without trial he was denied. a privilege which is granted to Adolph Hitler. But, worse than that, we submitted, without protest from Roger Baldwin as your representative, to a clear and unequivocal abridgement of the freedom of public discussion of the public policy of our government. On that side of the issue, it was not the rights of Dennis which were denied but the rights of all Americans who are concerned to consider and to decide upon the wisdom of our policy as a nation.

This statement is, of course, very inadequate. It only touches upon the edges of a problem with which your resolution seems to me to deal in too hasty and summary a fashion. In view of your unanimity it is, I presume, useless to argue the matter further. I do wish, however, that you would reconsider your action. In making that suggestion I do not challenge your intention. But I am convinced that, as in- terpreters of the function of the Union, you have made a serious mistake.

COURT REINSTATES DISMISSED : CIVIL SERVICE EMPLOYEE

Zera H. LaPrade, dismissed employee of the Los Angeles Water and Power Department, was ordered reinstated with fuli back pay last month by Superior Court Judge Henry M. Willis in a mandamus proceeding. LaPrade was discharged last summer because statements critical of the department’s wage policy were published in the Civil Service Sentry, organ of the independent Municipal Civil Service Employees’ Association of which he is president.

The contention of the A.C.L.U.’s Southern California Committee in a brief and oral argument that this employee’s dismissal abridged his constitutional rights were supported by the opinion of the judge.

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American Civil Liberties Union-News | Publ

ished monthly at 216 Pine Street, San Francisco, Calif., by the Northern California Branch of The American Civil Liberties Union. Phone: EXbrook 1816 ERNEST BESIG Editor Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California, under the Act of March 8, 1879.

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A.C.L.U. SUPPORTS PARDON APPLICATIONS FOR MODESTO “FRAME-UP” VICTIMS

FLASH!

Sacramento, Dec. 28.—Gov. Culbert L. Olson today granted full and unconditional pardons to five victims of the “Modesto frame-up.” Robert J. Fitzgerald returned from a sea voyage just in time to sign the necessary application form and consequently was included among the frame-up victims who were pardoned.

The local branch of the A.C.L.U. is supporting the pardon applications filed with Governor Culbert L. Olson in behalf of John Burrows, Victor Johnson, John Souza and Reuel Stanfield, convicted in Modesto in July, 1935, on charges of reckless and malicious possession of dynamite on a public highway. The men have all served their prison sentences.

In December, 1936, statements were secured from James Scrudder, recorded on eighteen dictaphone records, showing he had perjured himself at the trial, and that he and James Marchant, the prosecution’s chief witnesses, were nothing less than labor spies ,;who engineered the arrests and convictions, and thereby broke the tanker strike called by the Seamen’s Union in March, 1935.

At the 1937 session of the State Legislature a resolution, drafted by the A.C.L.U.’s representative, was adopted calling for an Assembly Committee to investigate the charges. Following extensive hearings, a majority of the Committee recommended the granting of pardons.

In its letter to Governor Olson, the Union declared that clouded with the suspicion of a ‘frame-up,’ that coupled with the fact that the men have served their terms and conducted themselves as law-abiding citizens, since their release from prison, the case. is properly one for the exercise of executive clemency.”

FEDERAL FLAG SALUTE LAW BRINGS RESULTS

The salutary effects are already evident of a memorandum issued recently by the Justice Department calling attention to a national flag-salute law passed by Congress last June, providing that civilians may show full respect to the flag by merely standing at attention when the pledge of allegiance is given.

Judge J. Flannery of Pennsylvania, sitting in the Court of Quarter Sessions of Luzerne County, last month reversed the conviction in a lower court of Mrs. Mary Nemchick, Jehovah’s Witness, charged with violating the state school code because her five children were absent from. school after being expelled for refusal to salute the flag.

In explaining his decision, Judge Flannery referred to the Congressional law, stating that “the Department of Justice through its Civil Rights Section calls attention to this provision in questions such as the one before us and indeed there is doubt whether any local regulation, ordinance or statute prescribing a different salute as a measure of respect for the flag ean be enforced.”

At Avondale, Arizona, the children of Millard Holly, expelled from school several months ago, were reinstated last month by the town school board on condition that they “stand at attention and face the flag when the pledge is given.”

“the convictions are so,

MORE GAINS FOR "WITNESSES" ATTACKER INDICTED: An indictment

against a police sergeant for assaulting a —

Jehovah’s Witness “with a deadly weapon and with intent to do great bodily harm’”’ was handed down last month by the Los Angeles County Grand Jury on evidence submitted through A. L. Wirin, A.C.L.U. counsel in Southern California. The prosecution is the first in Los Angeles for an attack on members of the sect and one of the few in the entire country.

COMPLAINT DISMISSED: Faced with threatened injunction proceedings in the federal courts, the Riverside, California, city attorney last month dismissed criminal complaints against ten members of Jehovah’s Witnesses charged with violation of the city’s newly adopted ordinance prohibiting distribution of literature without pay- ment of a license tax.

A.C.L.U. attorneys A. L. Wirin and Fred Okrand defending the Witnesses, contended that the ordinance is unconstitutional because it violates freedom of religion, press, and speech, and deprives the defendants of equal protection of the law since it was directed and enforced only against members of the sect. An investigation by the A.C.L.U. had disclosed that many charitable and religious organizations conducted sales on the streets without licenses and without arrests.

SCHOOL CHILD REINSTATED: The school board of Branford, Connecticut, voted last month to reinstate Betty Stark, expelled from school. several months ago for refusal to salute the flag. A condition of her return was that she stand at attention when the salute is given by other children.

At Wahoo, Nebraska, the school board adopted a resolution last month “that those children who by reason of religious beliefs are unable to comply with this requirement (salute), may be deemed to show full respect to the flag when the pledge of allegiance is being recited by facing the flag and standing respectfully at attention.”

Both boards acted after receiving communications from the A.C.L.U. calling at- tention to the law passed by Congress last June providing that standing at attention is a full measure of respect for the flag.

BAIL REDUCED: Federal Judge Harry A. Hollzer of Los Angeles ordered a reduction of bail from the sum of $3500, originally set by Commissioner David B. Head, to the sum of $1,000, in the case of Horace Hurd, prosecuted for failing to report for induction in the Army. A.C.L.U. Attorney A. L. Wirin had pointed out to the court that “no Jehovah’s Witness, either in Los Angeles, or anywhere in the United States, had ever failed to appear for trial or hearing in any court, no matter what the charge.”

U.S. Circuit Court Upholds Texas “White Primaries ”’

Texas ‘“‘white primaries’? were upheld last month by the U. S. Circuit Court of Appeals at Houston in a ruling on the appeal of Lonnie Smith from the decision of a federal district court approving the exclusion of Negroes from Democratic primaries.

The court upheld the contention that the case was governed by the decision of the U. S. Supreme Court several years ago in Grovey v. Townsend that the Texas Democratic primary is a private affair of the party and that exclusion of Negroes is not in violation of their constitutional right to vote.

The court denied the contention of the appellant that the Supreme Court in the recently decided Classic case superseded the Grovey decision when it held that the right to cast a vote in the Louisiana primary is one bestowed by the constitution. Interference with this right was considered an “interference with the effective choice of the voters at the only stage of the elec

MARTIAL LAWIN | HAWAII UPHELD IN 2 TO 1 DECISION

Last month, practically unnoticed by the press, the United States Circuit Court of Appeals in San Francisco handed down one of the most momentous decisions in its his- tory. The Court held, 2 to 1, that the privilege of the writ of habeas corpus had been legally suspended in the Territory of Hawaii, and that the continued detention of Hans Zimmerman, a naturalized citizen, by the Military was proper.

Zimmerman was picked up by the Army weeks after the Japanese attack upon Pearl Harbor. Martial law had been proclaimed on December 7, 1941, and has operated ever since with most of the civil functions even now being operated by the Military.

Circuit Judges Francis Garrecht and William Healy held that the declaration of martial law was valid, and that the imminent threat of a resumption of the invasion persisted at the time Zimmerman applied for a writ of habeas corpus. “The averments of the petition plus facts of which the court has judicial knowledge’? were sufficient to warrant the denial of the writ, said the court, without a return by the Military explaining the reason for the detention.

Circuit Court Judge Bert Emery Haney — filed a strong dissent. Said he, “. . . mili- tary government is not established by merely proclaiming it. It comes into being and exists solely by reason of the fact. that strife prevents operation of the civil gov- ernment. ‘As necessity creates the rule, so — it limits its duration.’ In other words, whether military government prevails is a question of fact depending on the existence of facts in the territory where it is supposed to be controlling, and a proclamation of the military that it exists is superfluous — and ineffective.”

Judge Haney insisted that the Army should have been required to explain the reasons for the detention of Zimmerman. Moreover, if the court found that military rule was not reasonably necessary “‘to execute the Laws of the Union, suppress Insurrection and repel Invasions” and to protect each of the states against invasion, then Zimmerman should have been ordered released.

It is interesting to note that the people of Hawaii have grown increasingly restless against the continued operation of martial law in Hawaii. In recent weeks, Gov. Ingram M. Stainback has been in Washington urging the restoration of civil government. Secretary of the Interior Ickes has supported Gov. Stainback. The press has reported that according to ‘‘an authoritative official,’ Ickes, Stimson and Biddle are about to confer on the proposed restoration of civil government. Possibly the Army is fearful that the United States Supreme Court will adopt the reasoning of Judge Haney and would prefer not to have its ex| traordinary exercise of power examined by the high court.

tion process where their choice is of any significance.”

In refusing to follow the Classic decision, the court held that it was handed down in a criminal case differing on many points from the present case and did not overrule the Grovey decision. The N.A.A.C.P., which argued the appeal, is seeking a re— hearing before the circuit court. If refused, a petition for review will be filed with the U. S. Supreme Court. A brief as friend of the court will be filed by the A.C.L.U. as in the court of appeals.

CONSCIENTIOUS OBJECTORS A total of 4493 men are in C.O. camps at the present time. More than a third of the objectors are Mennonites. Two hundred and fifty-nine have no affiliation with a religious group.