vol. 31, no. 4

American

Civil Liberties

Union

Volume XXXI SAN FRANCISCO, MAY, 1966 Number 5

See

ACLU Announces New Policy Aeri|

at Santa Rosa

Consc

Pai

ientious

Ibiection To a

ticular

The national board of the Civil Liberties Union declared

last month that conscientious objection to a particular war

is a civil liberties-protected right of conscience which the

draft law should honor. The ACLU said that it will urge the

Selective Service System to recognize a policy under which

"no person shall be compelled to

participate in armed. conflict

when he believes it to be in vio-

lation of his conscience to do so,

and equally wrong to yield his

conscience to his government,

whether on moral, social, philo-

sophical or religious grounds."

The ACLU stated that it would

seek to establish this position in

"appropriate legal cases" and by

"campaigning for revision of the

draft law to recognize this as-

pect of conscience."

Major Policy Statement

The Union's position was con-

tained in a 3,000 word major

policy statement of its Board of

Directors on "questions of mili-

tary service and its impact on in-

dividual freedom." The policy

was adopted on January 30 by a

vote of 31-10. The board of di-

rectors of the Northern Califor-

nia branch has referred the mat-

ter to a special committee and is

expected to take action at its

April or May meetings.

Military Conscription

In its review the civil liberties

group also concluded that mili-

tary conscription `is always a

severe deprivation of civil liber-

Hon. Discharge

In Navy

Homosexual Case

A 29-year-old Navy electronics

technician who was convicted of

lewd conduct in a Berkeley pub-

lic lavatory on March 30, 1965,

and placed on probation was or-

dered discharged from the Navy

for misconduct last month, but

with an honorable discharge, The

board which heard the case voted

2 to 1 not to retain him in the

service.

The man is married and has

two small children. He has

Served in the Navy for almost

eleven years during which time

his record was unblemished. Two

letters of commendation rested

in his personnel file.

As a condition of probation for

the Berekeley offense, he re-

ceived psychiatric help from May

to November 1965 for "periodic

homosexual acting out." As a re-

sult, the Clinical Psychologist re-

cently declared, "it is my con-

sidered opinion" that the individ-

ual "can refrain from this behav-

ior in the future. It seemed,

among other things to be related

te lack of undertsanding and

lack of communication between -

he and his wife. I feel treatment

has been successful at this point

and that no further treatment is

advisable for a while,

At the hearing, the only evi-

dence introduced into the record

by the Navy was the police re-

port of the arrest and a copy of

the judgment. The man was in-

formed that he faced an unde-

_ Sirable discharge. At the hear-

ing, he was represented by Ern-

est Besig, ACLU executive direc: .

tor.

ties" which is warranted only by

the "overriding need of national

security, in time of war or the

imminent danger of war." The

Union emphasized the need for

"free citizens of a free society"

to examine each particular con-

scription in order to determine

whether its "limitation on indi-

vidual freedom is justified by

world conditions,' and to assert

an opinion. The ACLU added

that as "one group of citizens of

a free society," it "will continue

even more determinedly, to ex-

amine each occasion for required

military service on its own

merits" to make such a judgment

and declare its position. The

need to judge the conditions on

which a particular judgment is

based, the ACLU said, does not

alter its long-standing position

against making value judgments

"as to the worth and wisdom of

a particular government policy.

We neither favor nov oppose our

nation's involvement in the war

in Vietnam."

Declaration of War

In a third section of the policy

statement, the ACLU analyzed a

leading question currently asked

about the Vietnam war, whether

a civil liberties issue is raised by

the President's conducting "ever-

widening military activity with-

out obtaining from Congress a

formal declaration of war.' The

civil liberties group concluded

that the lack of a formal declara-

tion of war "does not in and of

itself involve a civil liberties _

question; but, in any case in

which a prosecution for crime

requiring a formal declaration of

war is involved, the ACLU may

appropriately intervene on the

ground of denial of due process."

Opposition To Particular War

The issue of conscientious ob-

jection to a particular war has

been hotly debated since the

United States began direct mili-

tary operations in Vietnam. As

`the pace of the conflict quicken-

ed many students asserted their

refusal on grounds of conscience

to serve in the armed forces. The

question which the Union's state-

ment answered affirmatively, is

whether such objection is equi-

valent to the pacifist's right of

conscience which the draft law

now honors by exempting him

from military service.

The Union stated the question

in this manner and then offered

its answer. "May those who con-

scientiously object to killing, in

this particular war, be forced by

conscription to participate or go

to jail? While not adopting the

strict pacifist position which the

draft law already recognizes,

these individuals are those who

find from the same depth of con-

science that they cannot engage

in killing in Vietnam-they can-

not participate in what to them

is an `unjust war."

Matter of Conscience

The central point, the ACLU

said, is whether any "such deep-

-Continued on Page 4

Area Meeting

Fri., April 29

Under the leadership of the

Rev. Geoffrey P. Selth, Uni-

tarian Fellowship of Sonoma

County Minister, ACLUNC

members in that area will

hold a public meeting in con-

nection with the local mem-

bership drive, Friday evening,

April 29 at the Santa Rosa

Junior College. The speaker

and topic are not settled at

the time of writing, but an-

nouncements will be mailed to

area residents as soon as de-

tails are firm, Local publicity.

is being arranged by the Rev.

Selth and all members in the

area are urged now to flag

their calendars for this event.

No Radicals

Need Apply

An interesting facet of the

mind of the censor was disclosed

last month when the S. F. Mime

Troupe attempted to place a

classified ad in the Chronicle and

the Examiner in San Francisco.

The advertising for these papers

is handled by the San Francisco

Newspaper Publishing Company

which was created by the semi-

merger of the publications. The

ad proposed concerned the Mime

Troupe's need for a business

manager and sought someone

with a "radical background." The

S, F. Newspaper Publishing Com-

pany refused to accept this ad,

insisting that the word "radical"

be changed to "liberal." Evi-

dently, the mere fact that a rad-

ical would be interested in a

job was too shocking a concept

for officials of the interested

publishing company, It could be

that this is progress; ten years

ago the same bureaucratic mind

might not have allowed the word

"liberal."

Freedom of Expression

By a vote of 6 to 1 the California Supreme Court has af-

firmed the decision of Sacramento Superior Court Judge

Irving Perluss that the ban on pay TV adopted by the voters

in the 1964 election is unconstitutional as violating guaran-

tees of free speech. This is the position urged upon the court

by the brief amicus curiae filed

by the American Civil Liberties

Union of Northern California

and the National ACLU, Attor-

neys on the brief were Robert M.

O'Neil, professor of law at the

University of California, Mar-

shall W. Krause and Melvin L.

Wulf, legal director of the Na-

tional ACLU,

The brief took the position

that a total prohibition of pay

TV is unconstitutional because a

narrowing of permissible meth-

ods of communication can be

equally destructive of the values

which flow from freedom of ex-

pression as can a restriction on

the content of communication.

Without a showing of clear and

present danger there can be no

justification for such a sweeping

prohibition, especially when it is

obvious that if pay. television

does raise some problems these

can be controlled by regulation

of existing state and federal

agencies.

One Dissenter

The opinion of the Supreme

Court was written by Judge

Louis Burke and was joined in

by all the justices except Stanley

Mosk who filed a lengthy dis-

sent taking the position that the

ban on pay TV. was merely eco-

nomic regulation and that the

only thing the plaintiffs had at

stake was the opportunity to

make money rather than freedom

of speech. The majority opinion

found that the right to communi-

cate by television was fully pro-

tected by the First Amendment

and "inasmuch as the rights of

free speech and press are worth-

San Jose State Profs

Lose Appeal in High Court

Late in February the State Supreme Court decided to

affirm a trial court decision that Dr. William S. Stanton and

Dr. Bud R. Hutchinson did not have a cause of action to

challenge the refusal of San Jose State College to hire them

for the fourth and tenure year of employment. Dr. Stanton,

who is now an assemblyman from

San Jose, and Dr. Hutchinson

sued the Chancellor of the State

Colleges, claiming that the re-

fusal to rehire them was not

based on academic reasons but

was rather based on their ex-

posure of a `"gentleman's agree-

ment" not to admit Negro stu-

dents expelled from southern

colleges and because of the union

activity of the two professors.

The trial court had held that

since Stanton and Hutchinson

were not permanent employees,

they could not complain of their

firings nor were they entitled to

a hearing.

Friend Of The Court

The ACLU filed an amicus

curiae brief in the Stanton case

(but not in Hutchinson's case be-

cause of procedural difficulties)

when it reached the State Su-

preme Court, taking the position

that even temporary employees

in government service cannot be

fired for engaging in constitu-

tionally-protected activities since

a government agency has not

power to restrict constitutional

rights. The ACLU brief, which

Was prepared by volunteer at-

torney Albert Bendich and staff

counsel Marshall W. Krause, also

pointed out that if temporary

employees do not have protection

for the exercise of their consti-

tutional rights this would deter

the exercise of these rights by

persons seeking tenure or seek-

ing permanent positions in the

government for fear that a su-

perior would be displeased, Last-

ly, the brief took the position

that the state college system

denied Dr. Stanton procedural

due process.

"Hearing Was Accorded"

In turning down the claims of

Stanton and Hutchinson the State

Supreme Court did not agree

with the trial court that a non-

permanent employee of the gov-

ernment could be fired for any -

opinion

plaintiffs'

The court's

"Accepting

reason.

stated:

contention that a person cannot

properly be barred or removed

from public employment in dis-

regard of his constitutional

rights, plaintiffs still failed to

make their case clear. Plaintiffs

could ask for no more than an

opportunity to present their

charges of arbitrary denial of

such rights at a fairly conducted

hearing at which the records

-Continued on Page 3

less without an effective means

of expression, the guaranty ex-

tends to both the content of the

communication and the means

employed for its dissemination."

The court pointed out that any

prior restraint on expression

comes before the courts "bearing

a heavy presumption against its

constitutional validity."

Adopted By People

The majority opinion had no

trouble with the fact that the

people adopted the ban on pay

TV by an overwhelming vote in

an initiative election. It stated,

"The very purpose of a Bill of

Rights was to withdraw certain

subjects from the vicissitudes of

political controversy, to place

them beyond the reach of ma-

jorities and officials and to es-

tablish them as legal principles

to be applied by the courts. One's

right to life liberty, and proper-

ty, to free speech, a free press,

freedom of worship and assem-

bly, and other fundamental rights

may not be submitted to vote:

they depend on the outcome of

ho election."

No Clear And Present Danger

The California Supreme Court

reaffirmed its adherence to the

"clear and present danger" test

for First Amendment expression

and found it obvious that no

clear and present danger of a

substantive evil from pay tele-

vision exists. "If . monopoly

practices appear or if the public

interest actually suffers or is

ignored it will then be time

enough to apply appropriate

regulation within constitutionally

permissible limits."

The Court rejected the argu-

ment that because pay TV was a

commercial enterprise it could

be more stringently regulated,

stating that the commercial na-

ture of the enterprise was of no

significance to its right to con-

stitutional protection,

Need For Diversity

The principal plaintiff in the

case, Sylvester `Pat' Weaver,

has not announced any immedi-

ate plans to reestablish pay tele-

vision in California, The decision

does establish that existing

media of communication may

not monopolize the right to com-

municate by shutting out new

method of communication

through laws or even initiative

constitutional amendments. `This

decision reinforces the ACLU'sg

view that the greatest diversity

of communication igs most desir-

able in our society,

Sacramento

Breakfast |

May 8

The Sacramento Valley

Chapter's Seventh Annual

Breakfast is scheduled for

Sunday morning, May 8. Full

details about this gathering

will appear in the May issue

of the NEWS. As usual,

awards will be made at the

Annual Breakfast to the win-

ners of the 1966 school essay

contest on civil liberties which

is sponsored by the chapter.

In the meantime, please save

the date!

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

Albert M. Bendich

Leo Borregard

Rey. Richard Byfield

Prof. Robert Cole

Prof. John Edwards

Rey. Aron S, Gilmartin

Evelio Grilfo

Mrs. Zora Cheever Gross _

Albert Haas, Jr.

Howard H. Jewel

: A Margolin

Honorary Treasurer:

_- - 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: Prof. Van D. Kennedy

VICE-CHAIRMEN: Rabbi Alvin I. Fine

Helen Salz

SEC'Y-TREASURER: Richard DeLancie

EXECUTIVE DIRECTOR; Ernest Besig

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Marshall W. Krause

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Mrs. Marcia D. Lang

Com mittee of Sponsors

John R. May 5

Prof. John Henry Merryman

Prof. Charles Muscatine ;

Rey. Robert J. O'Brien |

Prof. Herbert Packer

Clarence E. Rust

John Brisbin Rutherford

Mrs. Alec Skolnick

Gregory S. Stout

Stephen Thiermann

Richard E. Tuttle

Donald Vial

Richard J. Werhimer

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. Rey. Sumner Walters

151

Volunteers Urgently

Needed by the ACLU

To meet its minimum goal of 600 new members in the

1966 membership drive now under way, ACLUNC requires

a vastly increased response for voluntary assistance from

members.

To date, the response to appeals for help is alarmingly

`low. One hundred twelve letters

`requesting help have been mailed

to members in San Francisco

and only 16 have returned post-

cards stating that they would

help.. Of 67 such appeals sent to (c)

members in Oakland, only six

have responded favorably. A

similar disturbingly low rate typ-

ifies responses from other non-

chapter areas, particularly San

Mateo County, the Redwood City-

San' Carlos areas, and the Rich-

mond-El Cerrito areas.

Some Encouraging Responses

Primarily because of enthusi-

astic local leadership, members

in the following non-chapter

areas have responded encourag:-

ingly to the appeals for help in

the drive: Chico, Fresno, Hay-

ward-Livermore and Sonoma

County.

The nine chapters are respon-

`Sible for the membership drive

within their own areas, and it is

not known at this time whether

they are suffering the slump in

voluntary assistance that char-

acterizes the non-chapter areas.

Reasons for Low Response

The Branch Office has no way

of determining the reasons for

the low response. In some places

local partisan political campaigns

account for the drain. In others

for example San Francisco, non-

party political issues such as the

freeway dispute are given as the

ehief reason.

The pool of Branch Office vol-

unteers has also decreased for

some of the same reasons, plus

the fact that some volunteers

have found paid jobs, moved

away, or have had to attend to

pressing responsibilities at home.

Those who continue to help put

in an increased amount of work,

without which the Office would

be severely handicapped. We are

deeply in their debt.

`Definite Threat

The shrinkage in membership

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ACLU NEWS

MAY, 1966

Paqe 2

time when ACLUNC's programs,

activities, and

greatly increasing, poses a def-

inite threat. Plans for expansion

in program and activities may

well have forced re-evaluation in

the light of possible failure to

widen membership base. Contri-

butions by supporters and mem-

bers' dues are the sole sources

of ACLUNC's income, These

revenues are the lifeblood of the

organization.

Call for Help

All members, whether in chap-

ters or in non-chapter areas, are

urged to help. This appeal is ad-

dressed particularly to members

who have never before assisted,

and to new members who have

not as yet been asked to help.

For particulars about specific

ways of helping, please get in

touch with membership chair-

men or the Branch Office.

To help in the Branch Office,

San Francisco, write or telephone

503 Market Street, San Francisco,

telephone: EX 2-4692.

Below is the list of areas and

membership chairmen all of

whom welcome assistance:

Chico area: Dr. Frank Bia:

745 Esplande, Chico

Fresno area: Mr. Russel K.

Grove, 475 N. Blackstone, Fresno

Modesto area: Mrs. Robert

Jackson, 207 Stoddard, Modesto

Oakland/Alameda: Mrs. Carol

Hirsh, 6451 Irwin Court, Oakland

and Mrs. Dorothy Walrath, 557

Jean Street, Oakland

Richmond/El Cerrito: Mrs.

Clara Rae Genser, 2631 Mira

Vista Drive, El Cerrito

San Francisco: Pamela Ford,

ACLUNC Office, San Francisco

Sonoma County: Rev. Geoffrey

P. Selth, 2537 Tamarisk Drive,

Santa Rosa

All other non-chapter areas:

Pamela Ford, ACLUNC OLS

San: Francisco.

Chapter Areas

Berkeley/Albany Chapter: Mrs.

expenses, are-

Littering -

Conviction

Voided

Dean Plagowski was "caught"

. by two San Francisco policemen

last year distributing anti-Viet-

nam literature in doorways. He

~ was charged with a violation of

the anti-littering ordinance and

brought into the Municipal Court

of Judge Fitzgerald Ames where

he pleaded not guilty. Plagowski

was represented by the Public

Defender who argued that there

was no offense committed even

under the evidence disclosed by

the report of the arresting of-

ficers since any littering involved

was purely accidental. When

Judge Ames learned the nature

of the literature he commented

that the defendant should have

been charged under the Federal

Smith Act since, in his opinion,

the defendant's actions were

"close to treason." When Judge

Ames failed to obtain the. co-

" operation of the District Attor-

ney's office in getting Mr. Pla-

gowski charged with something

more serious, he found Plagowski

guilty and sentenced him to the

harsh penalty of 30 days in jail.

When the. defendant protested

the Court commented, "You have

no brains or intelligence. Do you

think you know more than the

President of the United States

and all of his advisors?"

Strained Construction

At this point the ACLU en-

tered the case and an appeal was

filed to the Appellate Depart-

ment of the Superior Court, Vol-

unteer attorney Ruth Harwitz

prepared the brief on appeal and

the case was argued on Febru-

ary 25, On March 9 the Appellate

Department filed its opinion.

After pointing out a glaring de-

fect in the procedures for ar-

raigning the defendant, the Court

said, "The evidence establishes

that the defendant threw. the

pamphlets into the doorways,

from which some blew into the

street, and that the arrest did

not take place until after the

arresting officers determined the

content of the pamphlets. The

trial court seemed to have some

doubts as to the violation of

section 33 (anti-littering ordi-

nance), The right of free speech

includes pamphlets and is pro-

tected from state action. It was

a strained construction to find

littering on the sidewalk or

street. Judgment reversed."

Need For Impartiality

The case against Plagowski

. Will now be dismissed. Perhaps

the Appellate Department could

have said more in commenting on

Judge Ames' outrageous con-

duct, but it would not have fazed

the Judge as private conversa-

tions with ACLU staff counsel

Marshall Krause have shown him

to be convinced that all persons

`who oppose the war in Vietnam

are committing `treason.' Even

a judge is entitled to his private

opinions, and yet his essential

duty of impartiality demands that

he be able to set them aside in

judging a cause before him.

Sue Somerville, 1311 Bonita St.,

Berkeley

Marin Chapter: Robert Greens-

elder, 343 Montford, Mill Valley

'Mid-Peninsula -~Chapter: Ger-

`"shon Berman, 942 Van Anken

- Circle, Palo Alto

Mt. Diablo Chapter: Don San-

ford, 1658 Foothill Road Circle,

Lafayette

Monterey Chapter: Howard

Seay, 108 Tide Street, Monterey

"Sacramento Chapter: Mrs. M.

Crown, 2121 Landon Lane, Sacra-

mento

Santa: Clara Chapter: Prof.

Theodore Balgooyen, 19271 Valle

Vista Drive, Saratoga

Santa Cruz Chapter: Dr. Mar-

vin. Naman, 230 Isbel Drive,

Santa Cruz:

Stockton Chapter: Mrs. J. W.

Phillips, 441 N, Central Ave.,

Stockton. e

hours,

Reasonable Fee

For Appointed

Counsel

A unanimous decision of the

District Court of Appeal in Sacra-

mento on March 11 upheld the

payment of reasonable fees to

attorneys who are appointed to

represent indigents in criminal

cases. At the March meeting the

ACLU board voted to intervene

in the case, on the ground that

unless appointed counsel re-

ceived reasonable fees for their

work, indigent defendants might

be denied the right to effective -

counsel, : |

: In the particular case attorneys

Jack Halpin and Thomas Mc-

Glynn successfully represented

a defendant in a murder case in

Shasta County, The trial con-

sumed six trial days while one

attorney spent 40 hours in prep-

aration and the other seven

The court allowed one

attorney $200 and the other $150.

The attorneys claimed $6,539.66

as reasonable compensation and

expenses. In fixing compensation

the court had relied upon a fee

schedule adopted by the Board

-of Supervisors in 1951,

The court held that the lawyers

"were entitled to receive a rea-

sonable sum for compensation

and for necessary expenses, the

amount, of which to be deter-

mined by the court and to be

paid out of the general fund of

Shasta County. Payment of com-_

pensation was not dependent up-

On any ordinance of the county.

... Lhus, petitioners herein were

denied `the independent judg-

ment of the court as to what

constituted a reasonable sum for

compensation due them.' The

court also noted that "If the

trial `Court's action in this case-

represented an independent exer-

cise of the court's discretion, the

result demonstrates an abuse - of

discretion; .-. ."

If Shasta county appeals the

case to the State Supreme Court,

ACLU will undertake to appear -

as a friend of the court.

Mid-Peninsula

Elects Officers,

Holds Seminars

Dr. John Marquis, Veteran's

Hospital psychologist, was re-

elected chairman of the Mid-Pen-

insula Chapter of ACLUNC last

month, Dr. Gershon Berman, Lar-

ry Sleizer, John Rutherford and

David Levin were elected vice

chairmen and head various activi-

ties. Judith Burgess continues

as secretary and Dr. Arthur

Frank is the treasurer, The Rev.

Gregory Sims is Newsletter Edi-

tor and attorney Harold Gross is

Legal Panel Chairman.

New members of the board

elected at the annual meeting are

Steve Elrick, David Levin and

Charles' Wyle. Standing commit-

tees will be set up at the April

meeting. of the board and a pro-

gram for the year will be con-

sidered.

Bi-weekly seminars on civil

liberties have been conducted by

the Chapter since January 31 at

All Saints Episcopal Church,

Room 11, 555 Waverly St., Palo

Alto. No charge is made for

these seminars, while text and

materials are provided at a cost

of 15 cents. The series, under

the direction of Harold Gross,

will continue until June 6, In

September, seminars will begin

again as a part of the Adult Edu-

cation program of the Palo Alto

High School.

The seminar held on March 28

dealt with non-political speech,

pornography, ete. Seminars

scheduled for April 11 and April

25 will deal with Free Press vs.

Fair Trial and Assembly and

Petition respectively.

Habeas Corpus"

-For Rebert Pate |

Suffers Setback .

The ACLU will ~continue. its

efforts to obtain some relief for

prisoner Robert Pate despite a

series of setbacks which finds

Pate still in prison under a life

setback-

sentence. The latest

comes in the district court for

the State of Nevada in the Coun-

ty of Ormsby where Judge Mer-

wyn H. Brown has. dismissed

Pate's petition on the basis that.

it does not state a cause for re-

lief. Volunteer attorney Arthur

Brunwasser and staff counsel

Marshall W. Krause plan an-ap-

peal to the Nevada Supreme

Court where it is believed that

the district court decision will be

overturned.

Right To Counsel |

The basis for ACLU's action

on behalf of Pate is a transcript

which clearly shows that he was

denied his right to have counsel

appointed at a preliminary hear-

ing where the key witness of-

fered testimony against him. This

transcript was later used against

him after he plead guilty to the

charge of kidnapping when `he

was represented by. eppenter

counsel.

Found Insane

The second basis "for the

ACLU's intervention is the fact

that just a few days before the

alleged offense was committed

Pate was found insane and com-

mitted to a state hospital. The

alleged crime was committed

after his escape from this: insti-

tution. Yet when Pate was

brought to face this serious. crim-

inal charge which might have

resulted in. a death sentence

there was no inquiry made into

his sanity at the time of the

alleged offense nor did his ap-

pointed "attorney ask for... a

`psychiatric evaluation. In the

circumstances the ACLU believes

that .his plea of guilty..was not

effective nor was he represented

by effective counsel.

: Gross Injustices

The case of Mr, Pate has been

written upon at length in. pre-

vious issues of the ACLU

NEWS and a listing. of the gross

injustices he has suffered will

not be attempted here, However,

it is disheartening that in one

of the clearest and most obvious

cases of a civil liberties violation

the matter has dragged on for

several years. It is hoped that

the Nevada Supreme Court will

see its way clear to bring the

benefits of the Constitution. to -

Mr. Pate.

John Menz, New

Valley Chairman

John A. Menz, Chief Economist

of the State Office of Planning,

Department of Finance, has been

elected Chairman of the Sacra-

mento Valley Chapter of ACLU-

NC. He succeeds Mrs. Rita

Brandeis, an attorney for -U.S.

Department of Interior.

Other officers are Steve Sos-

hick, Assistant Prof. of Agricul-

tural Economics at UC in Davis,

Vice Chairman; Arlene B. Car-

stensen, Encina "High School

teacher, Secretary and Hans

Poppe, also a high school teach-

er, Treasurer.

Newly elected directors are

attorney Jack Clevenger, Clyde

E. Jacobs, UC Davis professor

of. political science, Robert. E.

Lambertson, teacher. at Mira

Loma High `School, the Rey. Rob-

ert. Senghas, Davis Unitarian

minister and a former lawyer,

and Frank Stipak of the Bureau

of Reclamation. .

Other members of the board

are George Bramson, Julian Col-

by, Wilson Dokken, Lawrence K.

Karlton,: Paul F. C: Mueller,

David Olmstead and Lee H, Wat-

kins.

%

aD et (c)

l-

RO CU) Cel G2 ie reat Co

Jo

wet eth Y) OD 8D

Pom WD em YH wD

CD met er

- interested (c) in

"Monuments of Protest"

High Court Debates Sit-Ins

On Public Property

In a 5 to 4 decision, the U.S. Supreme Court on February

23 (in Brown v. Louisiana) set aside the disturbance of the

peace conviction of five Negroes who for ten or fifteen min-

utes quietly demonstrated in a small Louisiana public library

and then refused to leave after being requested to do so by

librarians and the sheriff. In an

opinion written by Justice Fortas

and concurred in by Warren and

Douglas, it was stated that,

"They sat and stood in the room,

quietly, as monuments. of protest

against the segregation of the

library." The. opinion said they

had "the right in a peaceable

and orderly manner to protest by.

silent and reproachful presence,

in a place where the protestant

has every right to be, the uncon-

stitutional segregation of public

facilities." The opinion noted that

"Here, there was no disturbance

of. others, no disruption of. li-

brary activities, and no violation

of any library. regulations."

Two Concurring Opinions

.. Justice -_Brennan in a concur- |

ring opinion declared it was not

necessary to go as far as the

Fortas opinion and rested his

opinion on the vagueness of the.

statute, Justice White, concur-

ring in the result, said he would

"not" deem the First Amend-_

ment to forbid a municipal regu-

lation limiting loafing in library

rooms," but he reached the con-

clusion that the defendants had

been denied equal protection of

the laws because "On this record,

it is difficult to avoid the con-

clusion that petitioners were

asked to leave the library be-

cause they were Negroes."

Justice Black's Dissent

`In a dissent written by Justice

Black and. joined .by Clark, Har-

Jan and Stewart, it was asserted

that "there simply was no racial

discrimination practiced in this

ease." The opinion also declares

"It is high time to challenge the

assumption in which too many

`people have long acquiesced, that

groups that think they have been

mistreated or that have actually

been mistreated have a constitu-

`tidnal right to use the -public's

streets, buildings, and property

`to protest whatever, wherever,

`whenever they want, without re-

`gard to whom it may disturb."

At another point, the opinion

`says "it should be remembered

`that if one group can take over

libraries for one cause, other

groups will assert the right to do

it for causes which, while wholly

Noted New

York Lawyer to

Speak in S.F.

On Friday, April 15th, at a place

still to be selected Mrs. Harriet

F. Pilpel, a New York lawyer

who has long been active in the

work of the National ACLU, will

speak to a luncheon gathering.

`Mrs. Pilpel's topic will be, "The

Constitutional Right of Privacy-

How Far Does It Go?" Mrs. Pil-

pel has frequently prepared

memoranda for the ACLU on

various aspects of privacy and is

currently writing on the. subject

for a volume on civil liberties to

be published by W. W. Norton and

Co. She is the author of four

books and a frequent contrib-

-utor of. articles to magazines

and newspapers.

The constitutional right of pri-

_vacy has received increasing at-

tention since the Connecticut

`birth control cases where the

Supreme Court found an unde-

lineated right of privacy created

by the more specific: guarantees

of the Bill of Rights. Whether

' the right of privacy. will be ex-

tended to protect other areas of

- Intimate personal coneern now

regulated by the law is a question

of. great significance. Persons

attending the

luncheon may call the ACLU

office before' April 15 and. ob-

tain the exact time and place of

the meeting. 21)

legal, may not be so appealing to

this Court."

The Stage to Express Dissent

Justice Black declared that

"The First Amendment, I think,

protects speech, writings, and ex-

pression of views in any manner

in which they can be legitimately

and validly communicated. But

I have never believed that it

gives any person or group of per-

sons the constitutional right to

go wherever they want, when-

ever they please, without regard

to the rights of private or public

property or to state law... .

Though the First Amendment

guarantees the right of assembly -

and the right of petition along -

with the right of speech, press,

and religion, it does not guaran-

tee to any person the right. to

use someone else's_ property,

even that owned by the govern-

ment and dedicated to other pur-

poses, as a stage to express dis-

sident ideas."

e e

Seek Political

Asylum for

6 e @

Chai-Ming Liu

Chai-ming Liu is a 16-year-old

Chinese boy who entered the

United States as a stowaway

aboard the S. S. President Wil-

son on March 21 of this year.

The immigration authorities or-

dered that the boy be returned

to the place where he boarded

the ship (Hong Kong) .and held -

at the Youth Guidance Center

until the next possible, shipping

date. The boy was interviewed by

representatives of the: Chinese

Information Service and repre-

sentatives of the' Family Associa-

tion to which his family, belongs.

These interviews revealed that

he had escaped to Hong Kong

from mainland China for fear of

physical persecution because of

his political opposition to the

mainland Chinese government.

Habeas Corpus Sought

When these facts were re-

vealed to the ACLU, staff counsel

Marshall Krause filed a petition

for a writ of habeas corpus in the

federal District Court on March

23 stating that Chai-ming Liu ap-

peared eligible for entry into this

country as a political refugee but

that unless the court intervened

he would be removed from this

country the next day. Federal

Judge Alfonso Zirpoli issued an

order to show cause requiring

the District Director to appear in

court on March 25 (the day after

the ship was scheduled .to sail)

and ordered that Chai-ming Liu

be kept within the court's juris-

diction until the matter was

determined. - :

: Politica] Refugee

Judge Zirpoli issued his order

to show cause to allow Chai-ming

Liu to file an application to re-

main in the country as a political

refugee and to be paroled into

this country until his application

could be acted upon. The Attor-

ney General of the United States

has authority to allow such entry

and has frequently done so for

political refugees, as in the cases

of the persons who leave Cuba

and enter the United States in

Florida. On March 25 Judge Zir-

poli continued his order in force

for an additional ten days to al-

lew the necessary applications to

be filed on behalf of Chai-ming

Liu and it is hoped that the ap-

plications will be granted so that

the policy of the United States

of providing a haven for political

- refugees: may be continued. His

family asociation has guaranteed

that he will be taken care of and

given employment if he is al-

lowed to remain. i

gible for re-election.

year term.

- consent of the nominee."

Your Board Nominaii

With respect to the annual election of the Board of Directors of the ACLUNC, the

By-Laws provide that, "Every year, the April issue of the ACLU NEWS shail carry an

invitation to the Union's membership to suggest names to the nominating committee, -

and such names must reach the Union's office not later than April 30 in order to re-

ceive consideration. The nominating committee shall consider such suggestions but

shall not make any nominations until after April 30." The Board has a maximum

membership of 30 members who are eligible to serve two consecutive full three-year

terms, after which they become ineligible for one year. The terms of the 30 board

members are staggered so that ten terms expire each year.

There are presently two vacancies on the Board, one in the Class of 1966 arising

from the resignation of the Rev. Richard Byfield of Palo Alto, and the other in the

Class of 1967 arising from the resignation of Prof. Herbert Packer of Stanford Law

School. A third vacaney will arise because attorney Gregory S. Stout of San Francisco

_ is now completing his second consecutive three-year term and consequently is ineli-

of each month except August, besides

be members of the ACLUNC.

The nominating committee, to be appointed by Chairman Van Dusen Kennedy on

April 14, will be composed of two Board and three non-Board members.

Since last November 1, Prof. Van D. Kennedy of U.C. and Prof. John Henry Mer-

ryman of Stanford Law School have been Serving unexpired terms. Both men are now

eligible for election to full three-year terms.

Also eligible for re-election are Ralph Atkinson of Monterey, Leo Borregard, of San

Francisco, Richard DeLancie of San Mateo, Prof. Charles Muscatine of Berkeley, John

B. Rutherford of Los Altos Hills and Stephen Thiermann of Palo Alto. All six have

served one complete term and consequently are eligible for election to another three-.

The By-Laws also provide that. "In addition to the foregoing method of proposing

names to the Nominating Committee, members may make nominations directly to the

Board of Directors in the following manner: Not later than August 1 of each year,

nominations may be submitted by the membership directly to the Board of Directors,

provided each nomination be supported by the signatures of 15 or more members in

good standing to be accompanied by a summary of qualifications and the written

_ Please send your suggestions for Board members to the ACLU, 503 Market Street,

San Francisco, Calif. 94105, giving as much biographical information about your can-

didate as possible. In making your suggestions, please bear in mind that Board mem-

bers must be ready to defend the civil liberties of ALL persons without distinction;

that they are expected to attend noon meetings in San Francisco the second Thursday

serving on committees, and, of course, they must

ons, Please!

San Jose

State Profs |

Continued from Page 1-

support the decision of the em-

ploying authority. Since that

hearing was accorded `to plain-

tiffs here, and the record sup-

ports the decision, we need not

further explore, or adjudicate,

the claim to constitutional issue."

Some Comfort In Decision

The hearing which the court

mentions was the one which the

ACLU claimed was constitution-

ally defective for reasons not

dealt with by the Supreme Court

in its decision. The above quota-

tion does give some comfort to

civil libertarians, however, be-

cause it makes it clear even a

temporary employee has a right

to a hearing when he claims that

he was fired for unconstitutional

or arbitrary reasons. This is

strengthened by some further

language in the opinion of the

court which indicates that no

cause of action would be stated

in this type of a case only where

there had been a hearing and the

record of the hearing "demon-

strates" that the charges of im-

propriety are "illusory."

Two Other Cases

~The ACLUNC currently has

two other cases involving tempo-

rary employees fired for what

appears to be unconstitutional

reasons, Neither of these cases

would seem to be affected by the

Stanton decision since in one

`there was no hearing whatsoever

and in the other all the evidence

supports the conclusion that the

basis for the firing was indeed

an attempt to restrain the exer-

cise of constitutionally-protected

liberties. .

Carlton H. S. Ban

On Peace Buttons

Rescinded -

A ban on students wearing

peace buttons by Carlmont High

School in Belmont was rescinded

last month after protests by fac-

ulty members. The principal had

acted on the basis of a regulation

`that applied to "the wearing of

class numerals and school em-

blems on sweaters. 3

New Obscenity -

Initiative

Circulated

Initiative petitions are being

circulated throughout the state -

to amend California's obscenity

statutes. The campaign is being

conducted by CLEAN Inc. (Cali-

fornia League Enlisting Action

Now), which hopes to place the

measure on the November bal-

lot.

The initiative is supported by

such persons as State Sen. Jack

Schrade, R-El Cajon; Assembly-

man E, Richard Barnes, R-San

Diego; Lloyd Wright Sr., past

president of the California Bar

Association; former Dist. Att.

James Clancey of Los Angeles;

and Secretary of State Frank M.

Jordan, Barnes is first vice-presi-

dent of CLEAN, which has head-

quarters in Los Angeles,

Definition Narrowed

The initiative redefines the

statutory definition of obscenity

merely as appealing to prurient

interest. It would no longer be

necessary, as required by the

U.S. Supreme Court, that the

material be either patently of-

fensive or utterly without re-

deeming social value,

The proposal would severely

increase the penalties for viola-

tion of the obscenity laws. In

some instances, the offense would

be punishable as a felony.

No Experts

The jury would be made `the

exclusive judge of what the com-

mon conscience of the com-

munity is." Apparently, this

means that documentary evi-

dence and expert witnesses

would no longer be allowed, Re-

strictions are also placed on the

authority of judges to dismiss

prosecutions.

Pressure on Prosecutor

Police would be given broad

authority to seize obscene matter

and prosecuting attorneys are re-

quired to enforce the law vigor-

ously. In fact, any person may

file suit against a district attor-

ney to require him to enforce

- the law if he fails to act ten days

after a written demand. If the

suit is successful, the District At-

torney is subject to removal from

office. :

The proposal has not received -

much notice in northern Califor-

nia, Apparently, it is being

pushed in southern California.

" MAY, 1966

Army Retreats |

On Vietnam

Sticker Issue .

Col. John P. Connor, Command-

`ing Officer of the Presidio of

San Francisco, recently advised

the ACLUNC that the display. of

a "Get Out of Vietnam" sticker

on a single vehicle proceeding

through the Presidio of San

Francisco "is not in violation of

current post directives and Mili-

tary Police personnel have been

So informed." -

`Last December 12 a Palo Alto

motorist proceeding through the

Presidio was cited for driving 35

miles an hour in a 25 mile an

hour zone and with "cutting two

feet across yellow line on curve."

The M.P. told -her, "I'll let you

go if you'll take that sticker off

your car." The driver refused to.

do so and repeated her refusal

to a sergeant who was consulted

by the arresting M.P. The ser-

geant explained that though he

could not force her to take off,

the sticker, it was not right to

drive through the Presidio with

such a sticker and that if she

continued to do so she might be

arrested. She was finally allowed

to go on her way after signing

the ticket.

The driver did not contest the

traffic ticket, but she objected to

the action of the M.P, in asking

her "to waive her constitutional

rights in exchange for dismissal

of a traffic ticket."

While declaring that the dis-

play: of such a sticker on a single

vehicle proceeding through the

Presidio did not violate post di-

rectives, Col. Connor stated that

such a display "on a number of

vehicles traveling together in a

convoy on this reservation, with-

out prior approval, might well be-

in violation of a regulation which

he cited. That regulation pro-

vides for expulsion of persons

who enter the Presidio "to en-

gage in any demonstration or

other act of public persuasion

- which, in the opinion of the Com-

manding Officer, will interfere

with the performance of the

command mission..."

ACLU NEWS

Page 3

Conscientious Objection

To

Continued from Page 1-

ly-held objection, when confined

to a particular war, may properly

be treated as a matter of con-

science and not merely as politi-

cal protest against the govern-

ment policy, And more impor.

tantly, ... whether conscientious

objection to a particular war de-

serves the same treatment as the

pacifist's objection to participa-

tion in `war in any form.'" The

Union continued: "We here deal

not merely with political protest,

or with dissent from the policies

of government. Government un-

der law means that the conduct

of those who disagree will yield

to the command of government

when democratic processses have

resolved the subject of debate.

The individuals who should

qualify as conscientious objectors

to a particular war are rather

those who find such participa-

tion in such a war to be so great

a wrong that even government's

command will not relieve them of

responsibility for committing

that wrong, For civil libertarians

conscience so central to a man's

belief becomes an aspect of re-

ligious liberty protected by the

First Amendment-whether or

not the objector calls his con-

Science `religious.' "

What is Conscience

Noting the broadening defini-

tion of conscience which the

eourts are laying down, most

notably the Supreme Court's 1965

Seeger decision which extended

the conscientious objector ex-

emption to persons who do not

express their conscience in tra-

ditional, theistic religious terms,

the Union said that "neither

fairness nor constitutional prin-

ciple will permit legal defini-

tion of conscience to those who

base it on religious doctrine."

The ACLU statement disagreed

with the view that support of

conscientious objection to a par-

ticular war condones civil diso-

bedience, declaring that "this is

ho more so than has been the

traditional exemption of the ab-

solute pacifist. Both kinds of ob-

jectors ... would face the alter-

native of violating either the law

or their consciences in the ab-

sence of exemption. But a govern-

ment which so respects con-

science as-to relieve objectors of

their cruel dilemma in no way

encourages others to civil dis-

obedience." The exemption of

absolute pacifists under the

Selective Service law has shown

this, the civil liberties group

said. :

Compulsory Military Service

In its review of the impact on

civil liberties by military con-

scription, the ACLU declared

that such a review is necessary

because conscription, first adopt-

ed by Congress 25 years ago, is

becoming institutionalized. "It

is an accepted part of life; many

citizens have grown to maturity

without knowing a time when it

-did not exist.

"Thus it is necessary once

again to assert that compulsory

military service, whether in time

of war or peace, is always. a

severe deprivation of civil liber-

ties. Under it the State not only

removes young men from their

homes, occupations and family

for long periods of time, but

even more seriously it deprives

them of the intrinsic condition of .

freedom: the direction and con-

trol of their own lives. Military

conscription permits the state .

to exercise virtually complete

dominion over the individual and

eompels him to engage in activi-

ties which he may find repugnant

and contrary to his beliefs, This

is why civil libertarians approach

conscription as a program that

inherently deprives men of free-

ACLU NEWS

Page 4

MAY, 1966

Particular War

dom and that therefore should

normally be opposed. This is why

civil libertarians -will insist the

proponents of conscription al-

ways carry the burden for justi-

fying the need for government

to force an individual to yield te

compulsory military service."

National Security

The determination of when an

"overriding need" of national se-

curity exists to justify military

conscription is "unquestionably

a terribly difficult decision for

the citizen to make, especially

when emotions surrounding the

subject of `national security' are

stirred and modern warfare as-

sumes So many different forms,"

the statement said. "The ordinary

citizen is not a military or poli-

tical expert, nor is he privy to

all the information that govern-

ment has at its command to help

shape its policies.

"But these difficulties," the

ACLU continued, "still do not

relieve the free citizen of a free

society of his responsibility to

make choices. There is no escape

from the need to evaluate

whether personal liberty must in

any given instance be sacrificed

...-, Unless We cease being a free

society and forfeit the right and

duty of the governed to judge

whether conditions warrant the

conscription their government

proposes." -

Applying this policy "realisti-

cally" in the context of the pres-

ent draft system, the ACLU

stated that presently "we see no

constitutional legal challenge that

can be brought against conscrip-

tion per se or the monthly draft

calls, but it is possible that an

individual case may arise which

might bring a civil liberties issue

into focus."

Legislative Forum

`The civil liberties organization

stressed, therefore, that the "ma-

jor thrust must come in the leg-

islative forum." Since the pres-

ent draft law will not expire un-

til mid-1967, the opportunity for

a legislative reappraisal of mili-

tary conscription may have to

await the next renewal of the law,

the ACLU said, adding: "an

earlier opportunity may arise if

a Presidentially-directed review

of the draft which the Defense

Department concluded over six

months ago is made public and

Congress takes up the issue be-

fore 1967. We earnestly urge

that this report be speedily re-

leased in order that the full-

scale national debate which this

issue deserves can follow."

Sen, Gruening's Proposal

In the meanwhile, the ACLU

said, there may be special legis-

lative proposals which will allow

for evaluation of the need for

military conseription and it

pledged to look at all such meas-

ures. One example cited was the

recent proposal of Senator Ern-

est Gruening of Alaska to pro-

vide that persons drafted into the

armed services should not be

sent to Southeast Asia involun-

tarily without separate Congres-

sional approval,

In addition to challenging con-

scription based on insufficient

justification in national defense,

the ACLU said it will continue

to press its attack against dis-

eriminatory forms of compulsory

military training, whether based

on race, creed, economic status

or other non-meritorious factors.

"We will want particularly to

question the patterns of exemp-

tions to determine whether it

favors the wealthy more educa-

ted groups, and disadvantages

poorer segments of our society-in-

cluding minority ethnic groups."

Failure To Declare War

Commenting on the controver-

sial debate over the conduct of

the Vietnam war without formal

declaration of war by Congress

the ACLU said these questions

were "grist for the mill of con-

stitutional scholars: (1) whether

a constitutional problem is pres-

Loyalty eh

Oath Case to

Be Argued

On April 6 at 2:00 p.m. Su-

perior Court Judge Joseph Ka-

resh will hear arguments in San

Francisco City Hall on the ques-

tion of whether or not Rita Mack

and William Mack were wrong-

fully deprived of their creden-

tials by the State Board of Edu-

eation. The case is highly signifi-

cant because among the issues

raised is the question of whether

the Levering Act oath required

of all government employees is

constitutional. The Macks are

accused of having falsified their

oaths by not indicating that they

had been members of the Com-

munist Party at one time even

though the oath does not mention

the Communist Party by name

and at the time they took the

oath they were not members of

the Communist Party. The ACLU

has challenged not only the con-

tention that the Macks filed a

false oath but has raised the

very validity of the oath in the

proceeding,

Amicus Briefs

Several amicus briefs have

been filed supporting ACLU's

position. Among these are briefs

filed for the. California Federa-

tion of Teachers by attorney Vic-

tor Van Bourg, the American

Jewish Congress by attorney

Eugene Rosenberg, and a brief

Strongly attacking the Levering

Act loyalty oath filed by a group

of prominent attorneys including

Roger Kent, Dean Frank C. New-

man, Professor Leo O'Brien,

Gregory Stout, Ephraim Margo-

lin, and an additional group of

professors from Bay Area law

schools. The briefs take the posi-

tion that decisions of the United

States Supreme Court voiding

loyalty oaths in other states re-

quire that the validity of Cali-

fornia's loyalty oath be re-

examined in the light of the new

principles developed since the

California Supreme Court passed

on the Levering Act oath in the

ease of Pockman V. Leonard in

1952, The United States Supreme

Court has never directly passed

on the validity of California's

loyalty oath.

ent because of the separation

of powers between the executive

and legislative branches of gov-

ernment; (2) whether the con-

duct of the war without a formal

_ declaration of war has not de.

prived citizens of the fullest de-

bate-both within and outside the

Congress-which would reflect

the First Amendment's commit-

ment to full discussion; and (3)

whether civil liberties would be

more endangered by a formal de-

claration of war under which

various federal laws repressive

of freedom could be invoked,

such as the Smith Act, the 1950 -

Subversive Activties Control Act,

and wartime sedition statutes."

No Civil Liberties Issue

All these issues raise weighty

constitutional questions, but

hardly meet the realities of the

present situation, the ACLU said.

The adoption of a formal declara-

tion would have no real effect on

the conflict in Vietnam, and if

the President actually wanted

such a declaration he could ob-

tain it from the Congress. On the

other hand, the civil liberties

' group commented, "there would

be civil liberties significance in

the absence of a declaration of

war if any person were prosecu-

ted for a crime, such as treason,

conditioned on a state of war.

The failure to have placed citi-

zens on notice, through a formal

declaration of war, that certain

acts they might contemplate are

punishable would vitiate a crimi-

nal prosecution for denial of due

process."

For these reasons, after weigh-

ing all the factors, the Union

concluded that the absence of a

formal declaration "in and of

itself" does not raise a civil liber-

_ ties issue,

Detention of

Juvenile

Set Aside

One of the "get tough" policies

of San Francisco Juvenile Court

Judge Raymond J. O'Connor was

examined by the State District

Court of Appeal last month in

the case of In re Macidon and

found wanting, The question was

whether a child may be held in

custody pending a hearing for

an alleged offense,

Grounds for Detention

Under the juvenile law, a child

may be ordered detained not to

exceed 15 days pending a hearing

on the charges against him if

"it is a matter of immediate and

urgent necessity for the protec-

tion of such minor or the person

Or property of another that he

be detained or that such minor

is likely to flee the jurisdiction

of the court." In the cases of

adults, the only non-bailable of-

fense is murder.

Recently, Judge

issued a blanket order that de-

tention proceedings should be

started for every child charged

with a felony. Under the law,

however, the probation officer is

first required to make a judg:

ment on detention, but under

Judge O'Connor's order, he was

prohibited from doing so. Judge

O'Connor is opposed to the psy-

chiatric approach in dealing with

delinquents and he insists on

"firmness" in working with them.

Purse Snatching

In the particular case, a 12-

year-old boy was charged with

being one of five boys who

snatched a girl's purse containing

35 cents and a bus ticket. The

boy denied that he had been di-

rectly involved. After being at

liberty for more than a month, a

detention hearing was suddenly

scheduled by the probation of-

ficer and, without taking evi-

dence to determine whether

there were grounds for placing

the child in custody, Judge 0'

Connor, ordered him detained.

In a unanimous opinion, the

District Court of Appeals held

that "the detention order is in-

valid for total lack of any evi-

dentiary support." There was "no

evidence to show that he (the

child) falls within any of the

eategories of Sec. 636" of the

Welfare and Institutions Code

which sets forth the grounds for

detention,

Abuse of Discretion

"In any event," said the court,

"where, as here, the minor has

been relinquished to the custody

of his parent and remained there

for a period of five weeks there

should be some evidence to show

new or previously undiscovered

facts relating to one of the

grounds for detention in order

to justify such an order, .. . It is

an abuse of discretion to take

judicial action in the absence of

the existence of facts upon which

such action must be predicated."

The Macidon case was handled

by private counsel, Ralph Boches

of San Francisco. The ACLU did

not get into the case but it was

O'Connor

Student

Convicted of

Trespassing

- Ronald Cuddy, a 25-year-old

student at San Francisco City

College, was convicted in a jury

trial of trespassing on his own

campus last May as the result

of a dispute concerning free

speech rules at the campus. The

jury also convicted Mr. Cuddy of

a Violation of Penal Code section

416 in failing to disperse an uh-

lawful assembly. The latter con-

viction, however, was set aside

by Judge Lawrence S. Mana who

ordered a new trial which caused

the District Attorney to dismiss

the charge in its entirety.

Background Of Case

The trespassing charge grew

out of Cuddy's invitation to four

non-students to address a noon-

time rally at City College in vio-

lation of the then-existing rules

which prohibited such meetings

except 11:00 on Thursdays and

with the specific approval of

the administration of the speak-

ers to be invited. There has been

a history of refusal of permission

to speakers who might raise

"acrimonious discussion."

Suspended For 10 Days

The four guests invited by Ron

Cuddy attempted to speak but

were arrested and themselves

charged with three crimes each.

In a Municipal Court trial all

were acquitted of the charges as

reported in an earlier issue of

the ACLU NEWS, As the result

of inviting these four persons

Cuddy was suspended for 10 days

and ordered excluded from the ~

campus, When he appeared on

the campus on the following

Monday to go to his job (which

he thought he still had), he was

arrested as a trespasser and be-

cause another person was with

him was also charged with en-

gaging in an unlawful assembly.

ACLU Position

The trespass charge was up-

held in the jury trial after ACLU

- Staff counsel Marshall Krause

unsuccessfully argued to Judge

Mana that the suspension was it-

self illegal since Mr, Cuddy was

not given a hearing nor an op-

portunity to rebut the charges

against him and since the re-

strictive rules on free speech at

City College (since liberalized)

were unconstitutional. When

Judge Mana turned down. this

argument the defense did not. -

have too much more at its. dis-

posal since it was undisputed

that Cuddy entered the campus.

Appeal To Be Taken

An appeal will be taken on

the question of the legality of

the suspension and also whether.

Cuddy actually violated the tres-

pass law, Judge Mana placed

Cuddy on a year's probation as

the punishment for the trespass.

prepared to do so because it is

concerned with the denial of due

process in juvenile court cases.

Indeed, the ACLU has twice writ-.

ten to Judge O'Connor about his'

detention policies but the letters

have gone unanswered, a

The first right of a citizen

Is the right.

To be responsible

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