vol. 30, no. 8

Primary tabs

American

Civil Liberties

Union

Volume XXX

SAN FRANCISCO, AUGUST, 1965

Legislative Apportionment

The Board of Directors of the ACLUNC last month

adopted a resolution opposing the proposed Dirksen Amend-

ment to the Federal Constitution as it now stands. At the

same time, the board said it "opposes any attempt te amend

the Constitution of the United States te permit legislative

apportionment in the states on

other than a population basis if:

"A, Such proposed amend-

ment, while permitting . appor-

tionment on bases other than

population, expressly or implied-

ly permits discrimination among

individuals according to race,

color, creed, or any other im-

permissible basis, or if

Periodic Votes

"B. Such amendment does not

guarantee to the citizens of each

state adequate periodic opper-

tunities to initiate and te adopt

by popular vote alternative plans

of legislative apportionment, or if

"C. Such amendment. dees not

guarantee the right to judicial

review of both the procedure for

adoption and the content of any

plan of legislative apportionment

in any state."

Growing Opposition

Since it was originally pro-

posed, the Dirksen Amendment

has undergone numerous changes

aud mounting opposition, Ap-

proved by a 6-3-vote 6f a sub-

committee of the Senate Judici-

ary Committee, the full commit-

tee was reported as being split

8 to 8 at a meeting on July 20

and, consequently, Sen Dirksen

did mot press for a vote since a

tie defeats a measure, The House

Judiciary Committee has sched-

uled no hearings on the measure.

Growing opposition has been

explained as springing from civil

rights forces which see in the

amendment "a threat to the Ne-

gro's efforts to secure the right

to vote in the South and to better

exercise their political influence

in the Northern cities." Indeed,

William F, Buckley, Jr. declares

senators "have been intimidated

by the civil rights lobby, which

claims that the Dirksen amend-

ment would release to the south-

ern states a means by which to

nullify the effect of the voting

rights bill."

Present. Language

The present language of the

operative portion of the Dirksen

Amendment is as follows:

Section 1. The people of a

State may apportion one house

of a bicameral legislature using

population, geography or politi-

cal subdivisions as factors, giving

each factor such weight as they

deem appropriate, or giving simi-

lar weight to the same factors in

apportioning a unicameral legis-

lature, if, in either case, such

plan of appertionment has been

submitted to a vote of the people

in accordance with the law and

with the provisions of this Con-

stitution and has been approved

- by a majority of those voting on

that issue.

Section 2. Any plan of appor-

tionment which has been ap-

proved under this Article shall

be resubmitted to a vote of the

people, or, another plan may be

submitted under the provisions

of Section 1, at the general elec-

tion next. following each year in

which there is commenced any

enumeration provided for in Sec-

tien 2 of Article 1, and upon ap-

proval by a majority of those

voting thereon, such plan of ap-

portionment shall continue in ef-

fect until changed in accordance

with law and with the provisions

of this Constitution."

Court

Of Sifence

A provision of the California

Constitution allowing comment

en a defendant's failure to testify

was held unconstitutional by the

U.S. Supreme Court on April 28,

as violating the Fifth Amend-

ment guarantee of the privilege

against self-inerimination. Article

I, Sec. 13, of the California Con-

stitution, the law in question, pro-

vides as follows:

" , " in-any criminal case,

`whether the defendant testifies

er net, his failure to explain or

to deny by his testimony any evi-

dence or facts in the case against

him may be commented upon by

the court and by counsel, and

may be considered by the court

or the jury."

The prevailing opinion by

Justice William O, Douglas de-

elared: ". .. comment on the re-

fusal to testify is a remnant of

the `inquisitorial system of crimi-

nal justice, which the Fifth

Amendment outlaws. It is a pen-

alty imposed by courts for ex-

-ercising a constitutional privi-

lege, It euts down on the privi-

lege by making its assertion

costly. It is said, however, that

the inference of guilt for failure

to testify as to facts peculiarly.

within the accused's knowledge

is in any event natural and ir-

resistible, and that comment on

the failure does not magnify that

inference into a penalty for as-

-serting a constitutional privilege.

What the jury may infer given

no help from the court is one

thing. What they may infer when

the court solemnizes the silence

of the accused into evidence

against him is quite another. ...

We... hold that the Fifth

Amendment, in its direct applica-

tion to the federal government

and in its bearing on the States

by reason of the Fourteenth

Amendment, forbids either com-

ment by the prosecution on the

accused's silence or instructions

by the court that such silence is

evidence of guilt."

The decision was handed down

last April 28, in the case of Grif-

fin v. California. Griffin had

been convicted of murder in the

first degree. He had been seen

with the deceased the evening of

her death, the evidence placing

him with her in the alley where

her body was found. Both the

court and the district attorney

commented on his failure to

testify,

Number 8

isan 4 in

FSM Trial

The long trials of more than

six-hundred University of Cal-

ifornia students in Berkeley-Al-

bany Municipal Court are now

completed. The ACLU in an ami-

cus brief took the position that

the charge of unlawful assembly

could not be sustained because

the statute upon which it was

based, Penal Code Section 416,

was. unconstitutionally vague and

further because the evidence

would not sustain such a charge.

Judge Crittenden found all de-

fendants not guilty on this charge

but did not state the reasons for

his finding. He did find the de-

fendants guilty of trespass and

resisting arrest and the team of

defense counsel has announced

that the verdicts will be ap-

pealed.

Membership at

Record 6675

While membership growth

slowed up somewhat last month,

it reached a figure of 6675 paid-

up members and 188 separate

subscribers to the NEWS as this

issue of the NEWS went to press.

This is a gain of more than 800

members. aS compared with the

same time a year ago and, of

course, a record high. The office

still hopes to end the fiscal year

on October 31 with a paid-up

membership of 6800.

About 600 members are pres-

ently on the Union's "dormant"

list. In other words, their mem-

bership expired sometime during

the past six months. H you are on

the dormant list, your prompt

renewal would be appreciated.

Levering Act Issue

Benny Parrish Dismissal

On Sunday morning, January 13, 1963, at 6:30 a.m. the

welfare workers of Alameda County commenced "operation

bedcheck" to search for the presence of unauthorized males

in the homes of families receiying Aid to Needy Children.

One-half of the homes selected for the check were "suspect"

cases and one-half were "non-

suspect" cases. The worker was.

to knock on the door of the wel-

fare recipient's home and enter

unless request for such entry

- was denied and was to search

all the rooms of the home and

closets to make sure that no un-

authorized male was present. An-

other welfare worker was sta-

tioned in the back of the home to

make sure that there would be

ho unobserved hasty. departures.

One Alameda County secial

worker did not participate in the

raid because on January 11,

1963 he had been dismissed from

his permanent position for in-

subordination because he refused

to participate in the bedcheck.

Parrish's Statement

The name of this social worker

is Benny Parrish and nis case

challenging his dismissal is now

pending in the District Court of

Appeal after having been denied

reinstatement by the Civil Serv-

ice Commission ef Alameda

County and the Superior Court

of Alameda County. On January

10 Parrish had submitted a writ-

ten statement to his superiors

reading: "I will not agree -to

make early morning home calls

on recipients in my caseloads on

Sunday, January 13, 1963 or on

subsequent weekends for the

following reasons: 1. Such calls

are an indication of presumptive

guilt of all recipients and tend to

degrade them. 2. Such calls are

an invasion of the privacy of the

Denial of Credentials to

Macks Will Be Appealed

Last month's State Board of

Education meeting in San Fran-

cisco decided to accept the rec-

ommendation of its hearing of-

ficer and revoke the credentials

of former teachers Rita Mack and

William Mack. The hearing of-

ficer had held that the Macks

lied when in filling out Levering

Aet loyalty oaths they stated that

they had never been members of

an organization advocating the

violent overthrow of the govern-

ment of the United States. The

hearing officer held that they

should have disclosed that they

had been members of the Com-

munist Party at one time and

even though the Levering Act

oath does not ask this question

and even though the courts have

held time and again that mere

membership in a group is not

evidence of the acceptance of

any particular doctrine ascribed

to that group.

Pending Since 1960

The American Civil Liberties

Union of Northern California has

represented the Macks from the

outset of this procedure in 1960

on the basis that the Levering

Act oath is unconstitutional and

on the further basis that it was

illegal to ascribe knowledge of

the alleged illegal aims of the

Communist Party to the Macks

without some proof that they

actually knew that such aims

were a part of the program of

the Party. The Macks. have stead-

fastly testified that they never

heard. any illegal advocacy dur-

ing their Party membership nor

did they ever read anything nor

were they ever told anything

which would lead them to be-

lieve that the Party had such an

aim. :

State Board's Position

Despite this. lack of evidence,

the State Board of Education

evidently believes that every

member of the Communist Party

must accept the judgment that

the Party did advocate violent

overthrow of the government re-

gardless of whether they be-

lieved it to be the case or not.

The ACLU has pointed out that

the Levering Act oath does not

ask about what other persons be-

lieve but asks a personal ques-

tion as to whether the persons

who sign it believe that they

were members of an organization

which advocated the violent over-

throw of the government.

New Court Action

The new action of the State

Board of Education will necessi-

tate another court proceeding

challenging the revocation. In

this proceeding the ACLU will

strongly emphasize the vagueness

of the Levering Act oath as a

trap for the unwary and also its.

vagueness in not defining what

kind of advocacy it means, A

previous court review resulted

in a victory in the District Court

of Appeal when that Court threw

out as unreliable the testimony

of counterspy Karl Prussion who

testified that every member of

the Communist Party knows that

it advocates violent overthrow of

. the government,

recipients. 3. Such calls are in-

congruous to the rehabilitative

goals of the ANC program. 4.

Such calls are at odds with the

indoctrination pregram of this

agency. 5. My job ciassification

does not indicate that I must put

in mandatory overtime in this

manner."

Illegal Activity

Now the American Civil Lib-

erties Union of Northern Cali-

fornia has come to the support of

Benny Parrish with the filing of

an amicus curiae brief in the

District Court of Appeal urging

that Parrish's dismissal be re-

versed and he be restored to his

position on the ground that he

was asked to participate in an il-

legal activity and therefore could

not be fired for insubordination.

Bedchecks Unauthorized

The ACLU brief was prepared

by volunteer attorneys Ralph H.

Laws, Jr., and B. V. Yturbide

with the assistance of Staff Coun-

sel Marshall W. Krause and ar-

gues that the mass bedcheck

violated the Fourth and Feur-

teenth Amendments of the Fed-

eral Constitution and was illegal

under regulations of the State

Social Welfare Department be-

cause not Ss by those

regulations.

Right to Privacy

The amicus brief points out

that for reasons deepiy reoted in

our history and our form of gov-

ernment a person's right to priv-

acy and security in his own home

ig so important that a search of

the home may not be made with-

out a warrant issued by a magis=

trate unless made incident to a

lawful arrest, because of a grave

emergency precluding the aquisi-

tion of a warrant, or pursuant to

waiver by valid consent. For "op-

eration bedcheck" no warrants

were sought nor could any have

been issued since there was no

`evidence of probable cause ot a

law violation. Of course, there

was neither an arrest contem-

plated nor any grave emergency

which would make the acquisi-

tion of a warrant unfeasible. The

brief points out that decisions of

the California Supreme Court

and of the United States Su-

preme Court are emphatic that a

search may not be justified on

the theory that if enough people -

are watched long enough some

illegal acts will eventually be

discovered. Nor can a search be

justified as an effort to obtain

evidence of some illegal activity.

No Waiver of Rights

The only possible theory on

which these searches could have

been sustained is that of waiver

of the right to be protected

against unreasonable searches by

government officials. The theory

that by accepting welfare bene-

fits the recipients waive their

right to object to unreasonable

searches may be quickly brushed

aside since the government can-

not require the surrender of a

constitutional right as the cen-

dition fer the receipt of a bene-

fit nor may a special group of

second-class citizens be created

merely because of their eco-

nomic poverty. The crux of the

case seems to be the excuse of

the Alameda County Welfare De-

partment that they would not

enter a home where permission

was refused and thus homes that

-Continued on Page 4

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

__ ERNEST BESIG .. . Editor |

503 Market Street, San Francisco, California 94105, EXbrook 2-4692

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy.

Ralph B. Atkinson

Dr. Alfred Azevedo

Leo Borregard

Rey. Richard Byfield

Richard DeLancie

Rabbi Alvin |. Fine

Mrs. Zora Cheever Gross

Albert Haas, Jr. :

Howard H. Jewel

Rey. F. Danford Lion

Prof. Seaton W. Manning

John R. May .

Honorary Treasurers -_

-: Joseph S, Thompson

Honorary Board Member: .

Sara, Bard Field -

Mrs. Gladys Brown

' Mrs. Paul Couture

John J, Eagan

Joseph Eichler

Morse Erskine -

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Prof. Ernest Hilgard

Mrs. Paul Holmer .

Mrs. Mary Hutchinson

Richard Johnston

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard A. Friedman

VICE-CHAIRMEN: Helen Salz

Rey. Harry B. Scholefield

SECRETARY-TREASURER: John M. Fowle

EXECUTIVE DIRECTOR: Ernest Besig

Committee of Sponsors

Prof. John Henry Merryman

Prof. Charles Muscatine

`Prof. Herbert Packer

Clarence E. Rust

John Brisbin Rutherford

Mrs. Martin Steiner

Gregory S. Stout -

Stephen. Thiermann

Richard E. Tuttle

- Donald Vial

Richard J. Werthimer

GENERAL COUNSEL

`Wayne M. Collins

Roger Kent

Mrs. Ruth Kingman

Prof. Theodore Kreps

Prof. Carlo Lastrucci

Norman Lezin

Rey. Robert W. Moon

Dr. Marvin J. Naman

Prof Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Rt. Rev. Sumner Walters

; tate

Prop. 14

All seven P ee cases raising the question of validity of

ligh Court

feady to Hear

Cases

Proposition 14 (now Section 26 of Article I of the Constitu-

tion) are fully briefed and ready to be argued hefere the ~

Supreme Court of the State of California. The last brief was

filed in late July by attorneys for the California Real Estate

Association which is bearing the

_main brunt of the defense of the

measure which took California

back to the pattern of unregulat-

ed. discrimination on the basis of

`yace in non-public housing. The

American Civil Liberties Union

of Northern California filed its

brief in the case of Grogan v.

Meyer in mid- June. The ACLU

filed its brief in consolidation

with another case, Thomas v.

Goulias and the joint brief was

written by Staff Counsel Mar-

shall W. Krause and attorney

Ephraim Margolin.

Sanctioning Discrimination

Recognizing that many of the

issues were already covered by

existing briefs, in its arguments,

the brief's introduction stated:

"Seldom do eases arise m a

court of law so significant to the

welfare of the state as the seven

entries on this Court's docket

which will seal the fate of Sec-

tion 26. This shrewdly conceived

counter-revolution in civil rights

only waits confirmation before

it sweeps the rest of the nation.

' It comes to this Court disguised

in semantics of `neutrality' and

`majority rights.' It proceeds not

on the merits of good deeds but

on the protestation that it gives

no aid to the harms which in-

evitably form in its wake."

The brief points out that Sec-

tion 26 is so drafted as to sanc-

tion and re-enforce discrimina-

tion in residential property with-

out appearing to do so. The brief

suggests that the Equal Protec-

tion clause of the Fourteenth

Amendment "does not merely

spin formal restatements of es-

tablished protection but evolves

ACLU NEWS

AUGUST, 1965

Page 2

remedies to meet ever new reali-

ties."

Abdication of Police Power

The brief argues that no state -

may constitutionally abdicate all

police power in a major area of

the state's traditional concern

`such as housing. It points out

that residential ghettos in Cali-

fornia are the result of the cus-

tom of housing discrimination

which has existed over a period

-of many years. It is government

activity which has nurtured the

custom _and supported the badge

of racial inferiority inherited

from the days of slavery. Once

the state recognizes its responsi- |

bility to cure the social prob-

lems created by this condition,

the brief argues that it can no

longer disclaim all responsibility

to act in the area. Section 26

does more than repeal certain

laws, it repeals the process of

action. It creates a vacuum of

police power on a_ state-wide

level. It delegates the right to

zone on racial lines to owners,

brokers and developers. The

brief states: "When it zomes to

basic rights, abdication of gov-

ernmental responsibility to pro-

tect the minority against the ma-

jority is abdication of state re-

sponsibility forbidden by the

Fourteenth Amendment."

Novel Argument

A completely novel argument

is raised in another section of

the brief whereby it is stated

that Section 26 should be in-

terpreted, as would be allowed

by its somewhat unclear lan-

guage, to leave in effect existing

statutes regulating discrimina-

- tion in housing but prevent ex-

pansion of. these statutes or the

-Continued on Page 3

"The American Civil Liberties Union of Northern California is now sponsoring the

following cases which are in litigation under the supervision of staff counsel Marshall W.

Krause with the assistance of volunteer attorneys where noted.

Free Speech and Association

Belshaw v. City of Berkeley.

Berkeley fireman Claude Beishaw

was suspended for 30 days be-

cause he wrote a letter published

in the Berkeley Gazette critical of

the pay policy adopted by the

Berkeley City Council. Belshaw's -

suit in Alameda County Superior

Court was successful with a rul-

ing that his right to publish the

letter was fully protected by the

First Amendment and, in addi-

tion, the rules of the City of

`Berkeley under which Belshaw

was suspended were unconstitu-

tionally vague and over-broad.

The City of Berkeley has ap-

pealed to the District Court of

Appeal from the decision rein-

stating. Belshaw and ordering

him to receive back pay plus in-

- terest. Volunteer attorney: Al- -

bert Bendich.

Mack v. State Board of Educa-

tion. Mr. and Mrs. Mack have

been without. teaching credentials

`since 1961 when they were re-

voked because the Macks were ac-

cused of falsifying their Levering

Act loyalty oaths. The Macks are

admitted past members of the

Communist. Party, but the State

Board of Education takes the po-

sition that the Macks should have

volunteered this information

- when they were asked the ques-

- tion, .

"Have you ever been a

member of an organization which

advocated violent overthrow of

the government?" The ACLU

. takes the position that answering

the Oath did not require dis-

closure of past Communist Party

membership and,,in any event,

the Levering Act is unconstitu-

tionally vague and void. The

Macks. won a portion of their

eases in the District Court of

Appeal but now, as_ described

elsewhere in this `issue, the State.

Board. of Education has again de-

cided against them and their

cases will be filed again in the

courts.

Morgan and Pursley v. Berke-

ley Realty Board. The Berkeley

Realty Board `claims the right to

keep Ida Morgan out of member-

ship because it believes her poli-

tics are or were too radical. Mrs.

Morgan's employer, Mrs. Pursley,

was ordered by the Board to fire

`Mrs. Morgan or herself resign

from the Board. The Alameda

`Superior Court has enjoined the

Berkeley Board from disciplin-

ing Mrs. Pursley or holding any

hearing in her case. A suit to

force the Board to accept Mrs.

Morgan and to award Mrs. Purs-

ley and Mrs. Morgan damages is

`pending in Alameda County Su-

perior Court, Volunteer attorney:

Joseph Rogers.

Landau v. Fording. The dis-

tributor of the film "Un Chant

a'Amour" brought suit to have it

declared that the film is not ob-

scene after Berkeley police

threatened to arrest anyone who

showed the film in Berkeley. Af-

ter an extensive trial the Ala-

meda County. Superior Court

ruled that the film was obscene.

The case is now on appeal to the

District Court of Appeal. Uncon-

troverted testimony from many

experts was to the effect that the

Genet film was a work of great

social importance. Volunteer at-

torney: Neil Horton.

Weaver v. Jordan. This case

challenges the validity of an ini-

tiative constitutional amendment

outlawing the use of pay-TV in

California. Judge Irving Perluss

in Sacramento has ruled the ini-

tiative unconstitutional as vio-

lating free speech and press and

the ACLUNC, supported by the

national ACLU, will file an ami-

cus curiae brief supporting Judge

Perluss' position in the California

Supreme Court where the case

is now pending. Volunteer at-

torney: Robert O'Neil.

Rosenfield v. Malcolm. A doc-

tor alleged that he was fired

`from his temporary employment

by Alameda County on the basis

of his membership in a certain

group. The Alameda Superior

Court ruled that since he was a

temporary employee he could be

fired for any reason including

this one. The case is now on ap-

peal to the District Court of Ap-

peal. Volunteer autOrney James

McCall.

Hollan v. Pierce. A bus driver

for a school district in: Northern

California was fired from his job

after the school trustees became

aware of his religious views as

published in a fundamentalist

tract. The school board felt that

his religious views showed that

he was an unstable person and

not fit to be a bus driver and

therefore terminated his employ-

ment. The ACLU filed suit to

protect Hollan's freedom of re-

ligion .and his job in the ab-

"sence of evidence that he could

not competently perform it. Vol-

unteer attorney: Henry Saunders.

People y. Pontius and Kastama.

The defendants were arrested in

San Francisco for failing to` dis-

perse on order of a police officer.

Both defendants were: `partici-

- pants in a street meeting and the

order to disperse was itself un-

lawful and therefore the defend-

ants were deprived of their right

of freedom of speech and associa-

tion. The cases were tried in the

San Francisco Municipal Court

late last month.

People v, Chane e. Cr "iminal

prosecution against the owner of

a .Redwood City bookstore ac-

cused of offering for sale "ob-

scene" - magazines and. pictures.

`This case is `Scheduled for a jury

trial in November in Redwood (c)

`City Municipal Court. See else- ~

where in this issue for further

details,

Stanton v. Dumke. This ease is

now pending in the Supreme

Court of California where the

ACLU has filed a brief amicus

curiae in support of Professor

Stanton's challenge to the failure

of the administration at San Jose

State College to re-hire him for

his fourth and tenure year in the

Department of Economics. Stan-

ton claims that the only reason

he was not re-hired was for First

Amendment - protected activities,

namely, participation in a Teach-

-ers' Union and exposure of the

"sentleman's agreement" to ex-

clude expelled southern students.

See elsewhere in this issue for

further details. Volunteer attor-

ney Albert Bendich. ~

People v. Cuddy, Friel, Kutch-

insky, Namais, and Peters. These

five persons were arrested at San

Francisco City College for partici-

pating in an allegedly illegal

meeting, or, in the case of Cuddy,

for trespassing on the City Col-

lege campus. The arrests grew

out of a dispute as to free speech

activities on the campus of the

City College. Jury trials are

scheduled in San Francisco Mu-

nicipal Court with Cuddy's case

to begin August 13. and the case

of the other four defendants to

begin August 24, All five de-

fendants have filed false arrest

- actions against the administrators

who had them arrested on the

City College Campus. These cases

have not yet been scheduled for

trial.

: Criminal Law

People vy. Budd. Thomas Fran-

cis Budd is charged with the

crime of being drunk in a public

place and unable to take care of

himself or others. At the trial in

Oakland Municipal Court it was

shown by competent medical

testimony that Budd is an al--

coholic and the act of getting

drunk is merely a symptom of.

his illness. ACLU contends that

eriminal punishment for a sick-

ness is a violation of due process.

of law and cruel and unusual

punishment. After conviction, the

case is on appeal. Volunteer at-

torneys: Richard Radar, James

Schnacke and George Duke.

Pate v. Wilson. Robert Pate is

a prisoner in San Quentin who

alleges that he was deprived of

effective assistance of counsel

when a Nevada court refused to

appoint counsel for him at a pre-

liminary hearing in a_ capital

ease. District Court held that

remedies: in: Nevada must first

be exhausted xeven though Pate

is now a California prisoner. Case .

is on appeal to the Ninth Circuit.

Volunteer aroEney Arthur aon

wasser.: is 64

Camara v. Municipal Court, Ro- |

land Camara is charged with a -

crime under San Francisco Pub-

lic Health Ordinances for failing

to allow a health inspector to in-

spect his apartment. The inspec-

tion was admittedly a routine

inspection and there was no prob-

_ able cause that Camara or his (c)

- apartment needed inspection for

any particular reason, `The . Su-.

`perior Court in San Francisco

denied a writ of prohibition and

the case is now pending in. the

District Court of Appeal with the

ACLU contending that the ordi-

nance is invalid as coercing an

unreasonable search in violation

of the 4th Amendment of the

United States Constitution. Vol-

unteer. attorney: TOs Bern-

hardt.

cra. V. Wilson. `This, is. a wine . oj

oe corpus action. raising the = +"

question of whether an attorney

. Gin this case. the public defender

of, Los Angeles County) has the.

_authority to. waive. confrontation. oe

-examination of wit

- nesses in a eYiminal case and.sub-

and Cross.

mit the case on the transcript of

the preliminary examina-

tion (and without trial) all with-

out the consent or understanding

of the client, the defendant in the

eriminal case, Federal District

Judge Alfonso Zirpoli held. the

attorney had no such authority,

but he was reversed by a decision .

of the United States Court of

Appeals for the Ninth Circuit. -

This Court also held that Judge

Zirpoli. had. no jurisdiction be- -

cause of a concurrent sentence

problem, Gray is out on bail

_ while a petition for certiorari is :

prepared to the United "States...

Supreme Court in the: hope that~~ =

they will accept the case and. re-

examine the Ninth Circuit hold-

ing. e

Other Cases

Grogan v, Meyer. Now pending

in the' California Supreme Court

as a challenge to the validity of:

Section 26 of Article 1 of the

California Constitution nullify-

ing present and future laws deal-

ing with the problem of racial

discrimination in housing. The

ACLU contends that this section

of the California Constitution

(passed as Proposition 14 in 1964)

is unconstitutional under the 14th

Amendment of the United States

Constitution.

Sokol v. Pacific Telephone. This

case is awaiting decision by the

California Public Utilities Com-

mission on whether Edgar Sokol

should be. allowed to bring suit

for damages against the tele-

phone company or whether the

telephone company is immune

from such suit for damages. So-

'kol's telephones were removed

without notice or hearing and his

business was destroyed all be-

cause of a mistaken notion on the

part of the telephone company

that he was engaged in illegal

operations. This was proved false

but the telephone company still

claims immunity. from damages |

because of a previous Public Util-

-Continued on Page .4 .

Two More ACLU Victories

In U.S. Supreme Court -

On June 7, 1965, the last day of the U. S. Supreme

Court's 1964 term, three eases were decided in which the

American Civil Liberties Union had intervened amicus

curiae. One of these was United States v. Archie Brown,

discussed in last month's

ACLU position was also sus-

tained and both of these cases

will have far-reaching implica-

tions for future civil liberties

battles. -

Connecticut Statute

In a joint brief filed by the

Connecticut and National ACLU

the Court was urged to hold un-

constitutional a Connecticut stat-

ute which made it a violation of

law to use any drug or instru-

ment to prevent conception. It

was also against the law in Con-

necticut to counsel another per-

son to break the law. In defiance

of this law, the executive direc-

tor of the Planned Parenthood

League. of Connecticut and a

doctor at the Yale Medical

School opened a birth control

clinic and started giving advice

to married persons concerning

contraception. They were ar-

rested, convicted, and fined $100

each. The convictions were af-

firmed by a unanimous decision

of the Supreme Court of the

State of Connecticut.

Six Separate Opinions

The nine members of the U. S.

Supreme Court submitted six

separate opinions on the ques-

tion, but the end result was that

the statute was held unconstitu-

tional as an invasion of the con-

Stitutionally protected "right of

privacy and repose." This right

may be new to some of you who

thought you were familiar with

the provisions of the Bill of

Rights, and this is how Justice

Douglas found it to exist: He

first pointed out that ".

State may not, consistently with

the spirit of the First Amend-

ment, contract the spectrum of.

available Knowledge. The right

to freedom of speech and `press

includes not only the right to

utter or to print, but the right

to distribute, the right to receive,

the right. to-read, and the free-

dom of inquiry, freedom of

thought, and freedom to teach -

indeed the freedom of the entire

university community. Without

these peripheral rights, the spe-

cific rights would be less secure."

Douglas' Penumbra Concept

This led Justice Douglas to

point out that each of the spe-

cific -guarantees of the Bill of

Rights has penumbras to help

give them life and substance. In-

cluded in the penumbra created

by the First, Third, Fourth, and

Fifth. Amendments is the right

"to privacy an" repose." Justice

Douglas then went on to hold

that the Connecticut law neces-

sarily invades this penumbra of

privacy because it forbids the

use of contraceptive devices and

the enforcement of this law

would necessarily invade the pri-

vacy of the marital relation.

Other Opinions

Justice Harlan in a concurring

opinion rejected the penumbra

theory and directly decided that

the Connecticut law deprives

persons of liberty without due

process of law under the Four-

teenth Amendment. Justice

White wrote a separate opinion

along the same lines. Justices

Goldberg, Warren and Brennan

joined in the Douglas opinion

but had some reservations. con-

cerning how much of the original

guarantees under the Bill of

Rights is "incorporated" by the

Fourteenth Amendment and also

preferred to use the Ninth

Amendment's statement that

"The enumeration in the Con-

stitution of certain rights shall

not be construed to deny or dis-

parage others retained by the .

people" as support for their po-

sition.

- Two Dissenters:

Justices Black and: Stewart

each wrote separate dissenting

opinions and then joined in the

. The:

"News." In two other eases the

other's dissenting opinion. They

could find no specific guaranty

of the Bill of Rights violated nor

could they find any specific pro-

vision of the Fourteenth Amend-

ment violated and therefore they

held that the enactment of the

law, wise or unwise, was within

the legislative power of the

State of Connecticut and would

have affirmed the convictions.

Catholic Intervention

The ACLU was not the only

organization urging the court to

reverse the convictions. They

were bravely joined by a rela--

tively new organization called .

The Catholic Council on Civil

Liberties.

Estes Case

The other case where the

ACLU position was accepted by

the court was that of Estes v.

Texas, where the court divided -

5 to 4 in holding that. televising

the trial of a defendant in a.

criminal case resulted in a de-

nial of due process of law and

necessitated a new trial. Justice

. Clark carefully detailed the ob-

trusive nature of the television

coverage of this very newsworthy

trial. He held that this coverage

"inherently prevented a sober

search for the truth." In his

opinion, the presence of the tele-

vision cameras was an outside

influence on the functioning of

the trial which might well have

had an effect on its outcome.

Concurring Opinions

Justices Warren, Goldberg and

Douglas added some further

thoughts in concurring opinions

in which they stated that allow-

ing the televising of any trial

should be a denial of due proc-

ess of law since it turns into a

show and by its very nature in-

terferes with the administration

of justice. Justice Harlan in a

separate concurring opinion

agreed with the end result but

rested his decision not on gen-

eral principles but on his assess-

ment of the individual factors of

the case which deprived this par-

ticular defendant of a fair trial.

He did not indicate that all tele-

vised trials would be unconstitu-

tional.

Four Dissenters

Four justices dissented find-

ing that the televised trial was

unwise but not unconstitutional.

They pointed out that because of

Justice Harlan's concurring opin- .

ion. there was no holding that

all televised trials would be un-

constitutional, `but each case

would rest on its own facts.

State High Court

Ready to Hear

Prop. 14 Cases

Continued from Page 2-

enactment of new statutes. This

interpretation seems possible be-

cause Section 26 speaks of "the

right" of an owner to decline to

sell his property to such person

or persons as he chooses. How-

ever, it does not state at what

point in time "the right" is to be

measured. Therefore, so goes the

argument, "the right" must be

measured as of the time of the .

enactment of Section 26 when

property owners were required

to conform to the Rumford and

Unruh Acts forbidding discrimi-

nation in certain types of hous-

ing.

It is hoped that the Proposi-

tion 14 cases will be argued in

September or October before

the end of 1965.

FOUND

`At the BIG Picnic of the Berke-

ley-Albany. Chapter ACLUNC, on

July 4, one BSely watch. . Call

526-334 9,

LEIF HEILBERG

The above picture of Leif Heil-

berg, student of Esperanto and

resident of San Francisco, should

have been carried in the July is-

sue of the NEWS together with

the stories about the U.S. Su-

preme Court's action upholding

his right to receive alleged Com-

munist political propaganda writ-

ten in Esperanto without being

seized by the Post Office Depart-

ment and released only upon his

written request. Unfortunately,

his picture was not received un-

til the last issue of the "NEWS"

had been made up. As a non-citi-

zen, Heilberg took certain risks

in asserting his rights, but the

rights of all persons in the United

States are now more secure be-

cause of Heilberg's courageous

action.

Sausalito Cops

_Arrest Leaflet

Distributor

The ACLU last- month urged

the Sausalito City Council to end

"recent intereference with the

right of citizens to distribute leaf-

`lets setting forth their views on

controversial issues." The letter

was prompted by the action of

the police in-.arresting one

Michael Kinnaird for: distributing

a leaflet defending use of mari-

juana.

Bookstores Listed

Becuuee the leaflet listed the

names and addresses of book:

stores where books on the sub- .

ject could be procured, he was

charged with distributing adver-.

tising matter without a permit... .

The arresting officer was quoted

as saying that' the ordinance was

invoked only in aggravated situa-

tions.

The Chief of Police denied that

the arresting officer was speaking

for the department and City At-

torney Leland H. Jordan support-

ed use of the particular ordi-

nance in this case.

ACLU Challenge

Ernest Besig, the ACLU's exe-

cutive director, who signed the

_ letter to the City Council said that

the ACLU would challenge the

police interpretation of the ordi-

nance in the courts. "In fact," said

the letter, "I will myself under-

take to distribute literature urg-

ing the citizens to support free-

dom of the press and make refer-

ence in such literature to book-

stores where relevant material

may be purchased." The City.

Council will consider the ACLU's

letter at its meeting of August 4.

Prop. 14 Case

During the last election, Sausa-

lito police objected to the dis-

tribution of leaflets against Prop-

osition 14 and threatened arrests.

They withdrew. their objections

after intervention by the ACLU.

Incidentally, Kinnaird, a 19-

year-old San Francisco shipping

clerk, after his arrest was re-

leased on $56 bail. At this writ-

ing, the case is still pending in

the Municipal Court in San Ra-

fael. Kinnaird is represented by

`private counsel,

. agreement,

Teacher Dismissal.

Professor William F. Stanton who is now an Assembly-

man from San Jose taught for three years in the Depart-

ment of Economics at San Jose State College. However, he

was not offered a contract for the fourth and tenure year

and was told he would not be re-hired. Stanton alleged in a

suit filed in the Superior Court

for Santa Clara County that the

reasons he was not-re-hired were

that he was very active in the

teachers' union at San Jose State

College and that he had em-

barrassed the administration of

the college by publicly exposing

a-"gentleman's agreement".

among the State College presi-

dents that no persons who had

been expelled from any other

school, including persons ex-

pelled from southern schools for

sit-in activities, would be admit-

ted to any California State Col-.

lege. The college presidents first

denied the existence of such an

but, on pressure

from Attorney General Stanley

Mosk, finally admitted it existed

and agreed to rescind it: The ad-

ministration at San Jose State

College denies that these were

the reasons that Stanton was not

rehired and claims the reasons

were academic.

Superior Court Dismissal

In the Superior Court. the

judge held that since Stanton did

not have tenure the administra-

tion did not have to have any

good reason for failing to re- .

hire him and therefore Stanton's -

complaint stated no cause of ac-

tion and sustained a demurrer

without leave to amend. The Su--

perior Court judge also rejected

Stanton's contention that.a hear-

_ing he was accorded at San Jose

State College deprived him of

due process because of its de-

fects. The Court felt that since

no hearing was required by

statute it was immaterial how

defective and extra- statutory the

hearing was.

Reversal Without Onenion :

On appeal to the District Court

of Appeal that Court reversed

the trial court's sustaining of

the demurrer without. leave to

amend but without any explicit

reasoning. The Attorney General

of California asked the Supreme

Court of California to grant a

hearing to decide under what

circumstances a temporary em-

ployee may challenge his dismis-

sal and the Supreme Court did

so.

Many Affected

Since it is believed that the

decision in the Stanton case will

be important not only for aca-

demic freedom of state college

professors and other teachers

but for all government employees

who have no permanent status,

the American Civil Liberties Un-

ion of Northern California has

Michael Tigar

Serves as ACLU

Legal Intern

The position of legal intern for

the summer of 1965 has been

filled by University of California

(Berkeley) law school student

Michael E. Tigar who is a resi-

dent of Albany, California. Mr.

Tigar will work half-time during

the months of July and August

for ACLU Staff Counsel Mar-

shall W. Krause doing a variety

of legal research tasks. He is a

graduate of the University of

California where he was active in

student politics and also worked

for radio station KPFA. Recently,

he was elected editor-in- chief of

: the California EN Review.

`such employment,

. that a person cannot properly

filed a brief amicus curiae in sup-

port of Stanton with the Supreme.

Court. The brief was prepared by

volunteer attorney Albert M. Ben-

dich and Staff Counsel Marshall

W. Krause. The brief takes the

position that if the trial court

were affirmed it would mean

that government agencies could |

exercise their power to deny a

benefit or a privilege on any

grounds whatsoever with come .

plete fredom from review. "Ami-

cus believes that in `each case

where the government denies

the benefit, the party to whom

the benefit was denied has a

-eause of action to. plead and

`prove that the government action

was for reasons beyond its lawful

authority. This principle is a

vital segment of our theory of

limited governmental powers and

government of law, not men."

Inhibiting Effect

The ACLU brief aiso pointed

- out to the Court that should the |

holding of the court below stand

and a non-permanent government

employee could be dismissed

solely because of his participa-

tion in legal trade union activi-

ties or because of his First

Amendment - protected. publiciz -

ing of a secret agreement, then

other non-permanent government

employees would be forced into .

a--pattern-of- timidity -having -a =

serious inhibiting effect.on First

Amendment rights. The brief

asks that Stanton be allowed to

proceed with the trial of his case -

and prove his allegations if he is

able to do so. :

Constitutional Rights

Quoting from the vecent Cali-

`fornia Supreme Court case of

Fort v. Civil Service Commission, |

the brief points out that: "Ak

though it has been held that one

employed in public service does

not have a constitutional right to

it is settled

be barred or removed from pub-

lie employment arbitrarily or in

disregard of his constitutional

rights." If the law were other-

wise then as a condition of ob-

taining a benefit from the gov-

ernment, the government could

require the surrender of consti- -

tutional. rights. Other cases re-

lied upon in the brief hold that

government employment may not

be conditioned on supscribing to

an unconstitutionally vague .

loyalty oath, that government

employment may not be condi-

tioned on surrender of the right

not to incriminate oneself, that

receipt of unemploymert insur-

ance may not be conditioned on

surrender of one's religious prin-

ciple of worship on Saturday, and

that the government may not

condition employment. on the

giving up of the right to partici-

pate in political life of the com-

munity.

Procedural Defect Material

The brief also argues that the

trial court was wrong in holding

that procedural. defects in the

hearing given Stanton were im-

material. The law is settled that

once an agency decides co accord

a hearing that it may not make

up for defects in its own pro-

cedures by stating that it never

had the obligation to give the

hearing in the first piace.

ACLU NEWS

AUGUST, 1965 (c)

Page 3

Yi ership

Campaign

port-- 1965

Final figures on the 1965 mem-

bership campaign appear nearby.

With 806 new memberships (in-

cluding individual and family) of

which 207 are students, the an-

nual drive was a great success,

particularly since it was of

shorter duration than in preced-

ing years,

Noteworthy Items

Particularly noteworthy this

year was the marked increase in

the number of students who

joined (207). Also of interest was

the sizable jump in new member-

ships in such difficult areas as

*Hayward-Livermore and envi-

rons, and those parts of San Ma-

teo County not embraced by

ACLUNC chapters. San Francis-

co Made an outstanding gain and

fell only three memberships

short of the Berkeley - Albany

chapter which led the field. How-

ever, San Francisco led all areas

and chapters in terms of total in-

come from new memberships,

non-membership donations and

from new subscriptions to the

ACLU NEWS.

Volunteers

The gratifying result of the

drive is due to the enormous and

dedicated labor of the chairmen

and co-chairmen who directed it

locally, and to the many volun-

teers who assisted them or who

worked atone,

Names Lacking

Letters oi thanks have been

sent to ail of those whose names

have been sent in by tne tocal

chaiumen, Uniortunately, of the

Chapters, only Berkeley-Alvany,

Mig-reninsuia, Santa Cruz and

tue Davis area of the Sacramenio

chapter, have suppiied the ofiice

Witn names, Simuarly, of the non-

chapter areas the following still

need to supply the office with

names: Fresno, Hayward - Liver-

more, Modesto, Napa, and Rich-

ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_1950.MODS ACLUN_1950.batch ACLUN_1951 ACLUN_1951.MODS ACLUN_1951.batch ACLUN_1952 ACLUN_1952.MODS ACLUN_1952.batch ACLUN_1953 ACLUN_1953.MODS ACLUN_1953.batch ACLUN_1954 ACLUN_1954.MODS ACLUN_1954.batch ACLUN_1955 ACLUN_1955.MODS ACLUN_1955.batch ACLUN_1956 ACLUN_1956.MODS ACLUN_1956.batch ACLUN_1957 ACLUN_1957.MODS ACLUN_1957.batch ACLUN_1958 ACLUN_1958.MODS ACLUN_1958.batch ACLUN_1959 ACLUN_1959.MODS ACLUN_1959.batch ACLUN_1960 ACLUN_1960.MODS ACLUN_1960.batch ACLUN_1961 ACLUN_1961.MODS ACLUN_1961.batch ACLUN_1962 ACLUN_1962.MODS ACLUN_1962.batch ACLUN_1963 ACLUN_1963.MODS ACLUN_1963.batch ACLUN_1964 ACLUN_1964.MODS ACLUN_1964.batch ACLUN_1965 ACLUN_1965.MODS ACLUN_1965.batch ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1969 ACLUN_1969.MODS ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log mond-E] Cerrito.

The Office again takes the op-

portunity te express its deep ap-

preciation to the many members

who worked to make this cam-

paign successful,

New Speech

Rules in Effect

At City College

Agitation by members of the

student body at San Francisco

City College for free speech ac-

tivities on that campus has led

to positive results with the ac-

ceptance by President Louis G.

Conlon of the recommendations

of a joint advisory committee of

students, faculty and administra-

tive representatives on the ques-

tion. The recommendations are

for a free speech area on the

campus for the use of students

in conducting outdoor speaking

and entertainment activities.

There are detailed regulations on

the use of this area which cannot

be set forth here and which wiil

probably have to be given a

chance to operate before an as-

sessment of their restrictiveness

can be made.

Other new regulations allow

off-campus speakers te appear in

the free speech area which is

another innovation since, prior to

these regulations, an off-campus

speaker could only appear at an

inside meeting aproved by the

administration.

It is also recommended that a

permanent advisory committe be

established to deal with other

problems raised by free speech

on the campus. It is hoped that

this advisory committee will be

able te arbitrate and settle any

In collections

ACLU-NC News: 1965

Details

Title: vol. 30, no. 8 (August, 1965)
Creator: American Civil Liberties Union of Northern California
Date: 1965 August
Identifier: ACLUN_0350
Genre: newspapers
Physical description: 40.5 x 28 cm
Publisher: San Francisco (Calif.): American Civil Liberties Union of Northern California
Preferred citation: ACLU of Northern California News vol. 30, no. 8, 1965 August; PER ACLUN; California Historical Society.
Rights statement: In Copyright
Publication rights: Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.
Topical subject(s): Privacy, Right of
Voting rights
Freedom of expression
Discrimination in housing
Criminal justice
Conscientious objectors
Church and state
Reproductive rights
Academic freedom
Named subject(s): Bendich, Albert M.
Besig, Ernest
Brown, Archie
Margolin, Ephraim
Mosk, Stanley
Phillips, Hubert
Rumford, William
Rust, Clarence E.
Stegner, Wallace
California. State Board of Education
Geographical subject(s): Sacramento (Calif.)
Monterey (Calif.)
San Quentin (Calif.)
Modesto (Calif.)
Fresno (Calif.)
Oakland (Calif.)
Berkeley (Calif.)
Collection identifier: PER ACLUN